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Friday, February 28, 2003
Available online at law.com: Tony Mauro has an article entitled "Law and Politics in a High Court Selection." You can access insightful and informative profiles of six leading contenders for a U.S. Supreme Court vacancy via this link. Jason Hoppin reports here that "9th Circuit Won't Reconsider Pledge Ruling." In news from New York, "Judicial Speech Decision Leaves Confusion in Its Wake." And finally for now, Jonathan Ringel reports here that "11th Circuit May Stop Suspicious Spouses' Secret Phone Recordings."
Posted at 22:54 by Howard Bashman
I'm quoted in tomorrow's edition of The New York Times: You can access Adam Liptak's article, "Full Appeals Court Lets Stand the Ban On 'God' in Pledge," at this link. Posted at 22:46 by Howard Bashman 20 questions and 20 answers: Responses have just arrived, so I'm pleased to announce that on the morning of Monday, March 3, 2003, the newest installment of "20 questions for the appellate judge" will appear online at this Web log. I hope and trust that you'll find it to be very interesting and informative. And I thank the Ninth Circuit judge whose answers just arrived for all the time, effort, and thoughtfulness that obviously went into these answers. Posted at 19:34 by Howard Bashman Charts and graphs: A reader has kindly emailed to alert me to a very useful resource available via the Web site of the U.S. Senate Republican Policy Committee. You can access here a chart listing State by State, and newspaper by newspaper, the position the editorial boards of this Nation's newspapers have taken on the Miguel A. Estrada filibuster and associated matters. While I'm intrigued by those newspapers whose position on the matter is listed on the chart as "ambiguous," let me hasten to note that not one newspaper has yet been classified as "Anti-Filibuster/Anti-Estrada" or "Pro-Filibuster/Pro-Estrada." So, to those readers of "How Appealing" who help shape a newspaper's editorial policy, your newspaper could be the first to take either one (or both!) of these rather absurd yet so-far unclaimed positions. And be sure to let me know if that happens. Posted at 19:01 by Howard Bashman "Appeals Court Reinstates Ban on 'Under God' in Pledge": Adam Liptak of The New York Times has this report. I had the pleasure of answering some of Liptak's questions in two telephone conversations this afternoon about today's Ninth Circuit action. You can access my take on today's developments in this blog post from earlier this afternoon. I would have to imagine that the Ninth Circuit will agree to stay its mandate pending the filing of petitions for certiorari in the U.S. Supreme Court. If not, next week might be the last time children who attend public schools within the Ninth Circuit will be able to say the Pledge of Allegiance until the U.S. Supreme Court decides what to do with this case. Liptak's article references a U.S. Department of Justice press release. The press release says: You can access the press release at this link. At least both the U.S. House and the U.S. Senate were not in session today, so we didn't have to endure countless legislative denunciations of today's Ninth Circuit action. Perhaps we can look forward to seeing that occur next week. Posted at 18:23 by Howard Bashman "Turn the tables"? The City Journal today posted an article online entitled "Let Estrada Turn the Tables on Schumer; If this talented Republican doesn't win confirmation, let him run against his tormentor for the Senate." Thanks to Eugene Volokh for the pointer. Posted at 17:51 by Howard Bashman U.S. Department of Defense issues "Draft Military Commission Instruction": Today The Pentagon issued a press release that begins: The General Counsel of the Department of Defense (DoD) today released a draft military commission instruction entitled "Crimes and Elements for Trials by Military Commission." This instruction lists and defines certain violations of the laws of war and other offenses triable by military commission.You can access the complete press release here and the "Military Commission Instruction" at this link. Additionally, The Associated Press reports here that "U.S. Finishing Crimes List for Tribunals." Posted at 17:32 by Howard Bashman From today's White House press briefing: Today's White House press briefing by Press Secretary Ari Fleischer contained a couple of questions about the U.S. Senate filibuster of Miguel A. Estrada's nomination to serve on the D.C. Circuit: Q Ari, there is a new 30-second radio spot which was reported in its entirety by the Washington Times, which notes -- to summarize it -- in 1998, Pat Leahy said he opposed any filibuster against any judge, even somebody he opposed, and he said the Senate has a duty to give every judicial nominee a vote, and allowing a minority of senators to block a vote on a judicial nominee shamed all senators.And later in the question and answer session: Q Ari, some experts in the Senate are now saying the Miguel Estrada nomination is dead, that there is no way there will be sufficient votes for cloture. How long does the President intend to leave the nomination on the floor? And would he consider a recess appointment?You can access the complete transcript of today's press briefing at this link. Posted at 17:02 by Howard Bashman The "short list": Monday's edition of The Legal Times takes a look at who may be on the White House's "short list" if a U.S. Supreme Court vacancy arises. More specifically, the publication looks at six possible nominees: Samuel A. Alito, Jr., Janice Rogers Brown, Emilio M. Garza, White House Counsel Alberto R. Gonzales, J. Michael Luttig, and J. Harvie Wilkinson III. In other news, William W. Wilkins Jr. is the Fourth Circuit's new chief judge. Posted at 16:31 by Howard Bashman "Ky. Bible College Gets 666 Prefix Removed": The Associated Press has this report. And should architect Frank Gehry stick to designing buildings located in warmer climes? The AP examines that question here, in an article about this structure. Posted at 16:15 by Howard Bashman The Associated Press is only two hours behind me: Not bad, I guess. You can access here a newsbrief entitled "Court Won't Reconsider Pledge Decision." You can access The UPI's prior coverage of the case at this link. Update: And Reuters now has this report. Posted at 14:34 by Howard Bashman D.C. Circuit rules that Congress hasn't denied equal protection of the laws to grocery baggers at military commissaries: The U.S. Court of Appeals for the D.C. Circuit today issued this ruling. Further proof that the D.C. Circuit truly is the second most important court in the land. Posted at 14:19 by Howard Bashman "Simpson pushes for new federal court of appeals": While I regret that this post appears in immediate proximity to the post below, today's edition of The Idaho Statesman contains this report. Thanks to a reader for sending along a link to this article. Posted at 12:56 by Howard Bashman BREAKING NEWS -- Ninth Circuit denies rehearing en banc in Pledge of Allegiance case: You can access the Ninth Circuit's order at this link. Nine circuit judges dissented from the denial of rehearing en banc. The votes of thirteen judges were needed to grant rehearing. And so it's on to the U.S. Supreme Court, given the existence of a square conflict in the circuits between the Ninth Circuit's ruling in this case and the Seventh Circuit's earlier, contrary ruling in a case raising the same issue. The Seventh Circuit's contrary ruling, by the way, was written by Circuit Judge Frank H. Easterbrook. You can access my report on the Ninth Circuit's original Pledge of Allegiance ruling at this link. Circuit Judge Diarmuid F. O'Scannlain wrote the lead dissent from today's order denying rehearing en banc, and his dissenting opinion (which begins on page 8 of this PDF file) explains: Newdow I, the subject of our en banc vote, no longer exists; it was withdrawn after the en banc call failed. The panel majority has evolved to this extent: in Newdow I the Pledge was unconstitutional for everybody; in Newdow II the Pledge is only unconstitutional for public school children and teachers. The remainder of this dissent is directed entirely to Newdow II, which, as shall be demonstrated, differs little from Newdow I in its central holding. With grim insistence, the majority in Newdow II continues to stand by its original error--that voluntary recitation of the Pledge of Allegiance in public school violates the Establishment Clause because, according to the two-judge panel majority, it is "a religious act." Newdow II, ___ F.3d at ___. Common sense would seem to dictate otherwise, as the public and political reaction should by now have made clear. If reciting the Pledge is truly "a religious act" in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto, or the singing of the National Anthem. Such an assertion would make hypocrites out of the Founders, and would have the effect of driving any and all references to our religious heritage out of our schools, and eventually out of our public life.(footnotes omitted). Update: Although this case certainly satisfies the criteria for rehearing en banc -- it involves an exceptionally important issue, and it creates a circuit split that could have been avoided if the en banc court reached the opposite result from the original three-judge panel -- a reasonable Ninth Circuit judge could have refrained from voting in favor of rehearing en banc even if he or she had serious questions about the correctness of the panel's ruling. Why do I say that? Because the overall body of First Amendment establishment clause law cries out for clarification from, and perhaps reconsideration by, the U.S. Supreme Court, whose existing precedent could support pretty much any outcome in this case. Denial of rehearing en banc gives the U.S. Supreme Court the opportunity to review this case all that much sooner. Posted at 12:22 by Howard Bashman View the full text of yesterday's letter from Counsel to the President Alberto R. Gonzales to the U.S. Senate on the Miguel A. Estrada nomination: It's available online here, via "How Appealing Extra." Posted at 12:10 by Howard Bashman "A New Move on Estrada: The White House challenges Democrats to put up or shut up." Byron York offers this report, just posted to National Review Online. Posted at 11:22 by Howard Bashman Crazier than ever: The Supreme Court of the United States has just entered the following order: 02-5664 Sell v. USAThis case, which will be argued on Monday, March 3, 2003, presents the question "Whether the court of appeals erred in rejecting petitioner's argument that allowing the government to administer antipsychotic medication against his will solely to render him competent to stand trial for non-violent offenses would violate his rights under the First, Fifth, and Sixth Amendments." The federal government's brief on the merits flags the jurisdictional issue in a footnote on page 10 (which is page 19 of this PDF document). Posted at 10:53 by Howard Bashman Today's first item of breaking news: A highly informed source advises: "The Fox story is false in re: the cloture vote scheduled. None is or will be scheduled for next Tuesday or anytime next week, and perhaps never. We're working to get it corrected with FoxNews." My earlier report on this matter is accessible here. FOXNews -- it reports, you decide. Posted at 10:19 by Howard Bashman "An Ivy League E-Mail Error": Ooops! Today's edition of The New York Times provides this report. Posted at 08:57 by Howard Bashman "Atheist discusses challenge to Pledge of Allegiance": Yesterday's edition of The Duke University Chronicle contained this report. Posted at 08:53 by Howard Bashman On today's agenda: The U.S. Senate is not in session today. But while I'm sitting here on the edge of my seat awaiting other very interesting developments that could occur today, let me make an announcement. Because I'm due to publish here in the imminent future the second installment of this Web log's newest monthly feature, "20 questions for the appellate judge," I have gone ahead and set up a separate page that will only contain the text of these monthly interviews. The page -- entitled "How Appealing's 20 questions site" -- is accessible here. (The questions and answers are set forth there in the quite lovely Book Antiqua font, for those who may be curious.) As before, each new installment of the "20 questions" feature will originally appear here at the "How Appealing" main page. But, given the volume of posts that appear here, readers who are interested in accessing the 20 questions feature directly should find the new page to be useful. And the new page already contains the first installment of the 20 questions feature, which originally appeared here late last month. Posted at 08:35 by Howard Bashman Elsewhere in Friday's newspapers: In The Boston Globe, columnist Derrick Z. Jackson has an op-ed entitled "Thomas's cruel view of prisoners." The New York Times reports here that "California Ending Searches During Minor Traffic Stops." And you can access here an article entitled "Young Brides Stir New Outcry on Utah Polygamy." The Los Angeles Times reports here that "CHP Settles Lawsuit Over Claims of Racial Profiling; The agency promises reforms. Officers will no longer pull over drivers based only on hunches." An article you can access here is entitled "Race-Based Policies Challenged; About 20 universities are said to discriminate against whites or Asian Americans." Here the newspaper reports on "The Day DNA Met Its Match: The revolutionary discovery 50 years ago was the final act of a soap opera loaded with intrigue, subterfuge, rivalry and disbelief." In news from California, "Jerry Brown Calls Sentence Law a Failure; The former governor, who signed the measure creating fixed terms in 1977, now regrets it, saying it has saddled the state with recidivism." A column for sailors reports that "Court ruling could muddy motor standards." And a book review is entitled "'Brown vs. Board's' grim history." The Washington Times contains an op-ed entitled "Taking the D.C. gun ban to court." And in USA Today, Al Neuharth has an op-ed addressing "Why your news is sometimes slanted." Posted at 06:45 by Howard Bashman This morning's federal judicial nomination and confirmation news and commentary from here and there: The Denver Post reports here that "Panel delays Tymkovich vote; Senate Judiciary Committee postponement draws complaint from Allard's office." Newsday contains an article entitled "Bush Administration: Ask Estrada in Writing." The Ithaca Journal reports here that "Path clear for N.Y. judge to U.S. Court of Appeals." And The New York Post runs letters to the editor under the heading, "Estrada's Obviously Qualified, So What's The Problem?" Posted at 06:17 by Howard Bashman True or false? We'll know by the end of today whether this prediction turns out to be true. Posted at 06:12 by Howard Bashman In Friday's newspapers: The Washington Post reports here that "DNA Test Still Urged for Executed Inmate; Charity Hopes to Win Converts to Cause of Opposing Death Penalty." And you can access here an article entitled "Anti-Death Penalty Group Gives Condemned a Voice." Posted at 00:11 by Howard Bashman Thursday, February 27, 2003
Available online at law.com: You can access here a law professor's commentary that asks whether Marbury v. Madison is "Celebrated Maybe a Bit Too Much?" A Pennsylvania state appellate court has ruled that "Attorney Must Testify About Talks With Experts," according to this article. A sharply divided Supreme Court of California today ruled that "Whistleblowers Entitled to Basic Arbitration Protection," this article reports. Finally for now, in news from New York, "Defense Team Shifts Strategy on Death Law."
Posted at 23:51 by Howard Bashman
I figured this might happen: A blog that I admire greatly wants me to answer 20 questions that it will pose. Too funny. In response, I've said "yes," so stay tuned for more details. Among the questions I'm expecting -- "How can you be a fan of both 50 Cent and SYSTEm Of A DOWn?" Posted at 23:39 by Howard Bashman U.S. Senate schedules Miguel A. Estrada cloture vote for Tuesday, March 4, 2003: FOXNews has this report on today's historic development. The Republican Senators quoted in the article don't sound very optimistic at all. Moreover, the article states that "The Justice Department also turned over internal memos Estrada wrote as a deputy solicitor general in the Clinton Justice Department." Is this now true, or has the author of this article committed a whopper of an error? Update: A reader who requests anonymity points out that the quoted sentence contains a whopper of an error in any event, as Estrada never served as "deputy solicitor general." Posted at 23:08 by Howard Bashman I have been accepted at Harvard: News aggregators are cool. See for yourself at this link. Posted at 22:49 by Howard Bashman News reports from throughout the Nation concerning yesterday's U.S. Supreme Court abortion protestor ruling: The Chicago Tribune reports here that "Top court protects abortion protesters; Justices: Racketeer law was misapplied." The Chicago Sun-Times contans an article entitled "Top court backs abortion foes." The Pensacola News Journal reports here that "Local clinic part of original lawsuit." Bob Egelko of The San Francisco Chronicle reports here that "Abortion-protest ruling reversed; Racketeering law wrongly applied, top court says." The Kansas City Star contains an article entitled "Justices say abortion protesters aren't subject to racketeering laws." The Milwaukee Journal Sentinel reports here that "Racketeering laws can't be used against abortion foes, Supreme Court says." Finally for now, The Pittsburgh Post-Gazette reports here that "Court says abortion protests not extortion; Anti-racketeering law can't be used on demonstrators." Posted at 22:40 by Howard Bashman "Free rein" versus "free reign": One is correct, and the other is featured in this article entitled "Texas Amendment May Open Door for Caps in Civil Actions" from law.com's Texas affiliate. Posted at 22:33 by Howard Bashman "Graham makes his presidential race official": The Miami Herald contains this report, which notes: Graham began returning to his Senate duties this week and faces a difficult decision over President Bush's nomination of Miguel Estrada to a federal judgeship.You can access the Web site of Senator Bob Graham (D-FL) at this link. Posted at 22:06 by Howard Bashman "Bush to nominate three judges to federal bench in New York": The Associated Press has this report. Among the three is a nominee to the U.S. Court of Appeals for the Second Circuit. These judicial nominations, and reportedly some others too, are expected to become official tomorrow. Posted at 21:00 by Howard Bashman "Miguel, Ma Belle: The racial ugliness under the Miguel Estrada nomination." Dahlia Lithwick has this essay online at Slate. Posted at 20:03 by Howard Bashman Supreme Court of California says "no thank you" in response to Ninth Circuit's sex.com certified questions: Bob Egelko offers this report in today's edition of The San Francisco Chronicle. You can access the Ninth Circuit's decision certifying questions to the Supreme Court of California at this link. The Supreme Court of California's order refusing the certified questions is contained on page one of this order list. Circuit Judge Alex Kozinski wrote an especially feisty dissent from the Ninth Circuit's certification order, and you can access my coverage of that dissent here, here, and here. Posted at 16:10 by Howard Bashman "Senate GOP Forces Approval of 3 Nominees": The Associated Press provides this must-read report on today's Senate Judiciary Committee business meeting. The article notes, among other things, that "The committee also sent the appellate court nomination of Justice Department lawyer Jay Bybee of Nevada to the Senate for confirmation by a 12-6, with Leahy again voting 'present.'" Posted at 16:09 by Howard Bashman Another six to ten inches of snow overnight? That's what the National Weather Service is predicting for where I live. Enough already! Update: Some good news -- the snow prediction has been decreased to two to four inches. Posted at 15:08 by Howard Bashman Three-quarters of a million: Is it worth mentioning that this Web log's Bravenet hit counter today recorded the 750,000th visit to "How Appealing" since May 7, 2002? Probably not. Posted at 14:45 by Howard Bashman COA FYI: An email that I posted last night from a recent Fourth Circuit law clerk regarding Certificate of Appealability procedure has elicited several emails in response. Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit emails to say: Your correspondent from the Fourth Circuit is in error.Someone who works behind the scenes at a federal appellate court based on the east coast writes: I believe your Fourth Circuit correspondent gave you some bum information when s/he wrote that "NONE of the circuits" allow a single judge to decide certificates of appealability (CAPPs, not--hmph--COAs). I have not done any exhaustive research on the issue lately, but I believe that at least three circuits--the Fifth, Sixth, and Eleventh--routinely have a single judge review CAPP requests. See, e.g., Case Management Procedures in the Federal Courts of Appeals (a 2000 FJC publication); In re Certificates of Appealability, 106 F.3d 1306 (6th Cir. 1997). In fact, as the FJC publication reveals, the different appellate courts handle CAPP requests in a number of ways. (For instance, I think it would be a mistake to assume that detailed briefing has preceded a CAPP determination.)A law clerk on a midwestern federal appellate court writes: As a current appellate law clerk and former federal appellate court staff attorney, I think I disagree with the former 4th Circuit clerk's comments about the irrelevance of the Miller-El v. Cockrell decision and the certificate of appealability process generally.Thanks to all who have written to address this interesting issue. Posted at 14:16 by Howard Bashman Fascinating Roll Call article on the Estrada nomination: Unfortunately, Roll Call no longer makes freely available online the complete text of its articles. The article in question begins: Senate Republicans remain divided over the timing of calling a cloture vote on the stalled judicial nomination of Miguel Estrada, as they seek a course that will create the maximum political pressure on Democrats.The article concludes: If no more Democrats defect, Frist will be faced with a decision within the next week so that the floor can be cleared of the matter by mid-March, one GOP Senator said, guessing that an Iraq conflict could erupt by March 15.Thanks to Law Professor Rick Hasen of the "Election Law" blog for forwarding the text of this article to me. Posted at 13:32 by Howard Bashman News from today's Senate Judiciary Committee business meeting: The Senate Judiciary Committee, at its business meeting today, voted 14-3 to recommend the nomination of John G. Roberts, Jr. to serve on the D.C. Circuit and voted 12-2 to recommend the nomination of Deborah L. Cook to serve on the U.S. Court of Appeals for the Sixth Circuit. Roberts received "yes" votes from the following Democratic Senators -- Biden, Edwards, Feinstein, and Kohl. More details to follow as they become available. Posted at 12:58 by Howard Bashman "Case Management Procedures in the Federal Courts of Appeals": This Federal Judicial Center document, which someone brought to my attention via email this morning, looks to be quite interesting. In related news, I have received several emails this morning noting that the manner in which federal appellate courts handle Certificates of Appealability differs by circuit. I hope to post those emails online soon. Posted at 12:54 by Howard Bashman The Miguel A. Estrada debate in the U.S. Senate resumes: The U.S. Senate's debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the District of Columbia Circuit is resuming at this hour. You can watch the debate online at this link, courtesy of C-SPAN2. Yesterday's debate wrapped-up at 2 a.m. this morning. You can access a transcript of most of yesterday's debate via the Congressional Record Web site. To access yesterday's partial transcript, simply follow these instructions. Click here to bring up a page listing yesterday's available Senate transcripts. Select item number 6, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 6, on the resulting page click on the link that reads "Printer Friendly Display." Posted at 12:00 by Howard Bashman This morning's federal judicial nomination and confirmation news and commentary from here and there: The New York Times reports here that "Strategists See Victory in Stalemate Over Nominee." Republicans see themselves as being in a "win-win" situation, the article suggests. Elsewhere, The Associated Press reports here that "Senators Fight Over Judicial Nominees." The San Antonio Express-News reports here that "Bush presses for vote on judge pick." The American News of Aberdeen, South Dakota reports here that "Senators seek answers on nominee; Johnson not willing to back judge yet." In commentary, George F. Will argues here that "Blocking vote on Estrada is akin to amending the Constitution." And Robert Novak has an essay entitled "Ted Kennedy's grand design." Posted at 09:54 by Howard Bashman Today's FindLaw commentators: Law Professor Anthony J. Sebok has an essay entitled "Can an HMO Be Sued For Medical Malpractice Based on Its Coverage Decisions? A Recent Federal Appeals Case Says Yes." And Law Professor Kevin R. Johnson has a guest commentary entitled "A Defense of the Estrada Filibuster: A Judicial Nominee That the Senate Cannot Judge." Posted at 09:43 by Howard Bashman This morning's Senate Judiciary Committee business meeting: The Senate Judiciary Committee is scheduled to hold a business meeting this morning at 9:30 a.m. You can access the agenda at this link. The agenda shows that committee votes on four federal appellate court nominees are scheduled to occur. Posted at 07:51 by Howard Bashman Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Justices Side With Antiabortion Groups; Supreme Court voids use of anti-racketeering law in quelling militant protests at clinics." Savage also reports here that "Lockyer Seeks to Avoid High Court Battle; He urges the state medical board to back out of a discrimination case that could affect the Americans With Disabilities Act." You can access here an article entitled "New Law Hurts Chicago Case in Gun Industry Suit." An article reports that "Estrada Fight Shifts to Latino Groups; Democrats, Republicans vie for the community's support as the Senate battle over the Bush appellate court nominee intensifies." Frank J. Murray of The Washington Times reports here that "High court rules pro-life protests a lawful right." An article reports that "Bush assails delay of vote on Estrada." And Terry Eastland has an op-ed entitled "Filibuster benchmarks." In The Boston Globe, Lyle Denniston reports here that "Court ends a curb on abortion protesters." And an article is entitled "Senate battle over judicial nomination a test for Bush; Democrats pressing for Latino nominee's opinions on issues." Finally for now, in USA Today Joan Biskupic reports that "Extortion law ruled invalid in protest case." Posted at 07:05 by Howard Bashman The U.S. Senate will adjourn shortly and resume debate on the Estrada nomination at noon Thursday: An all-night filibuster won't be happening right now, Majority Leader Bill Frist (R-TN) just announced. Posted at 00:31 by Howard Bashman In Thursday's newspapers: In The New York Times, Linda Greenhouse reports here that "Supreme Court Voids Racketeering Conviction of Anti-Abortion Groups." In The Washington Post, Charles Lane reports here that "High Court Decision Supports Protesters; Groups Can't Be Sued Under U.S. Racketeering Law" and here that "Justices Return Gun Records Suit To Lower Court." Finally for now, in The Christian Science Monitor, Warren Richey and Linda Feldmann report here that "Abortion protesters grab a victory in court; The Supreme Court says a racketeering law can't be used to punish protesters. It may spur more rallies." Posted at 00:15 by Howard Bashman Wednesday, February 26, 2003
Available online at law.com: Tony Mauro reports here that "Supreme Court Hands Victory to Abortion Protesters." And he has gotten to the bottom of today's High Court footnote foul-up.
Posted at 23:57 by Howard Bashman
Some reader feedback on my U.S. Supreme Court round-up from Tuesday night: I'm no expert on the Antiterrorism and Effective Death Penalty Act of 1996 or Certificates of Appealability, so I was pleased to receive the following positive reader feed-back concerning my write-up last night of the U.S. Supreme Court's ruling yesterday in Miller-El v. Cockrell. A reader who handles federal court habeas corpus litigation on behalf of the Attorney General's Office of a large western State wrote: Your synopsis and commentary on this case were concise, expert, and very welcome. The revelations of the peremptory-challenge practices of the Dallas DA were an embarrassment to prosecutors throughout the country, and many of us are relieved at the outcome. Your comments are always discreet and apt. We can certainly live with the COA ruling, as well.A reader who recently clerked for a judge on the U.S. Court of Appeals for the Fourth Circuit emailed to say: You ask the right question, which I have not heard asked anywhere else in the media, of what difference it will make that prisoners will get more COAs -- or what difference it will make for Miller-El that he got a COA. You suggest that the answer is that it should not make a difference "in the vast majority of cases."Thanks for these very kind and informative emails. Posted at 23:39 by Howard Bashman U.S. Supreme Court round-up for Wednesday, February 26, 2003: Today the Supreme Court of the United States issued a single ruling, but the case decided was one of the most interesting and newsworthy cases pending this Term. The Hobbs Act, 18 U.S.C. sec. 1951, defines "extortion" to mean "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." At issue in today's case was whether protestors at abortion clinics, whose conduct prohibited the clinics from operating, thereby "obtained" the "property" of the clinics so as to make the protestors criminally liable for having committed extortion. If the protestors thereby did commit extortion, then the jury verdicts against them for having violated the Racketeer Influenced and Corrupt Organizations Act (RICO) could have been upheld, but if the protestors did not thereby commit extortion, then the RICO judgment would have to be overturned. Today the Supreme Court ruled in Scheidler v. National Organization for Women, Inc., No. 01-1118 (U.S. Feb. 26, 2003), by a margin of 8-1, that because the abortion protestors' actions did not cause the protestors to "obtain" anything resembling "property," no extortion occurred. While the protestors' conduct may have caused the clinics' owners to have lost the property right to operate the clinics free from protestor interference, the owners' loss did not equate to the protestors' gain of that "property." Rather, that lost property essentially evaporated into the atmosphere. Consider this analogy. Many readers of "How Appealing" visit this Web log during the day while at work. These readers' employers would no doubt prefer that the employees were doing actual, productive work instead of reading this blog. Thus, my provision of this blog and all of its barely interesting content deprives numerous employers of valuable employee time that should be spent working instead of blog reading. Nevertheless, I haven't in any conceivable sense "obtained" the property that these lost productive hours would otherwise have produced, because your reading of this blog doesn't confer any benefit on me whatsoever. Today's ruling was a huge victory for my friend Roy T. Englert, Jr., who argued the case on behalf of the winning parties. As I have previously explained, Roy is one of the best oral advocates I have ever seen deliver an appellate argument. In this case, Roy not only had to argue against the lead attorney for the National Organization for Women, but he also was opposed on the meaning of "obtained" by the Solicitor General of the United States, and Theodore B. Olson argued the case himself. You can access the oral argument transcript here. Today's victory firmly cements Roy Englert's place among the small number of premier U.S. Supreme Court advocates in private practice today. You can read more about Roy's experience in this very case here, via a profile by Tony Mauro. Justice John Paul Stevens was the lone dissenter from today's ruling, and while he calls the majority's opinion -- written by Chief Justice William H. Rehnquist -- "murky," I must beg to differ. Unless, that is, "murky" is simply meant to note that the majority opinion is sixteen pages long but isn't broken down into any sections or subsections. (I personally prefer when opinions aren't festooned with roman numerals or letters and numbers separating section from section and subsection from subsection, so that the author has to use language to indicate when the decision moves from one subject to another.) The embarrassing printing error contained in the earliest released version of Justice Ruth Bader Ginsburg's concurring opinion (which I previously described in detail here) raises the question whether any sentient beings look at bench opinions before they issue. I'd hazard a guess that none of Justice Ginsburg's law clerks saw it. Unless, that is, she's on the market looking for a new law clerk next week. Posted at 22:57 by Howard Bashman First Circuit grapples with First Amendment: Today the U.S. Court of Appeals for the First Circuit posted to its Web site two interesting First Amendment free press rulings. The first opinion, dated yesterday, begins: John J. Connolly, Jr., the defendant in a highly publicized criminal trial, applied under the Criminal Justice Act (CJA), 18 U.S.C. sec. 3006A (2000), for government funding for a portion of his attorneys' fees and legal expenses. Connolly had informed the court that he was already in debt to the counsel he had previously retained, and could no longer afford to pay his legal bills. He submitted financial affidavits and an additional document summarizing his total legal debt. The court granted him CJA assistance and, in response to his motions, placed the documents he had submitted under seal. After Connolly's conviction, the Boston Herald, one of Boston's two major daily newspapers, sought to intervene in the case and to unseal these financial documents, arguing that it had a right of access to them under both the First Amendment and the common law. Connolly opposed. A magistrate judge allowed the intervention but denied the motion to unseal, and the district court affirmed. The Herald then filed both an interlocutory appeal and a petition for a writ of mandamus with this court.You can access the complete ruling at this link. The second opinion, issued today, was a more traditional free press case. The opinion concludes: In short, while Chief May's statements regarding Yohe's arrest may have contained inaccuracies, and while the subsequent republication of those statements in local newspapers may have perpetuated those inaccuracies and caused Yohe some distress, we cannot see how the challenged statements and articles constitute anything other than the legitimate and nondefamatory flow of information from a government official to an interested public.You can access the second opinion at this link. Posted at 22:47 by Howard Bashman Onan he arbarian: Today the U.S. Court of Appeals for the Seventh Circuit issued an opinion that contained the following passage: In Baskerville, we held that the plaintiff could not establish an objectively severe environment even though, over a seven-month period, the plaintiff's supervisor had: called her a "pretty girl"; grunted "um um um" when the plaintiff wore a leather skirt to the office; told the plaintiff that her presence made the office "hot"; suggested that all "pretty girls," a category that presumably included the plaintiff, "run around naked"; told the plaintiff that he left the company Christmas party early because he "didn't want to lose control" at the sight of "so many pretty girls"; and suggested to the plaintiff that the solitary vice was his chief consolation in his wife's absence.The court's use of the phrase "the solitary vice" to refer to masturbation is amusing, to say the least. Of course, while some religions condemn that practice (see here, for example), not all do (see this page from the Web site of the Summum religion). Posted at 22:32 by Howard Bashman Taking the Miguel A. Estrada debate to PBS's NewsHour: It's nearly 10:30 p.m. eastern time, and the U.S. Senate even at this moment continues to debate the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. You can watch live online now at this link, via C-SPAN2. Earlier this evening, Senators Orrin G. Hatch (R-UT) and Charles E. Schumer (D-NY) debated the Estrada nomination on the PBS NewsHour program. You can access a transcript of that NewsHour debate at this link. Posted at 22:27 by Howard Bashman Today's FindLaw columnist: Sherry F. Colb today has an essay entitled "Medicating Prisoners So They Can Be Killed: A Federal Court Approves Forcible Antipsychotic Treatment for Mentally Incompetent Convicts." Posted at 22:21 by Howard Bashman "Black judges talk politics at panel": Today's edition of The Stanford Daily contains this report. Third Circuit Judge Theodore A. McKee was among the participants in the discussion. Posted at 22:19 by Howard Bashman Supreme Court of Arizona rules that Ring v. Arizona doesn't apply retroactively to cases that became final on direct appeal before Ring issued: Today the Supreme Court of Arizona issued a ruling of great consequence to inmates on death row in that State. Arizona's highest court ruled, in a unanimous opinion that you can access here, that the U.S. Supreme Court's ruling last term in Ring v. Arizona -- which held that the decision whether to impose the death penalty must be made by a jury based on proof beyond a reasonable doubt where the defendant has invoked his or her right to a jury trial -- does not apply to cases that became final on direct appeal before the U.S. Supreme Court announced its ruling in Ring on June 24, 2002. You can access my summary of the Ring decision, written on the day that ruling issued, at this link. The U.S. Court of Appeals for the Ninth Circuit currently has this very same issue pending for decision before an eleven-judge en banc panel consisting of Chief Judge Mary M. Schroeder and Circuit Judges Harry Pregerson, Stephen R. Reinhardt, Diarmuid F. O'Scannlain, Michael D. Hawkins, Sidney R. Thomas, M.M. McKeown, Kim M. Wardlaw, Raymond C. Fisher, Richard C. Tallman, and Johnnie B. Rawlinson. The name of the pending Ninth Circuit en banc case is Summerlin v. Stewart (panel opinion available here), and the Ninth Circuit heard en banc oral argument in that case on December 10, 2002. You can access my lengthy and detailed report on the unusually interesting Summerlin case, written on the day that case went en banc, at this link. Thanks to an Arizona-based loyal reader of "How Appealing" for bringing the Arizona Supreme Court's ruling promptly to my attention. Posted at 19:39 by Howard Bashman "Judge Rejects Challenge to FBI Spy Power": The Associated Press offers this report. Posted at 18:09 by Howard Bashman "Supreme Court Throws Out Gun Records Case": The Associated Press has this report on a case that was to be argued next week. The order in question, which is not yet available over the U.S. Supreme Court's Web site, states: 02-322 DEPT OF JUSTICE, ETC. V. CHICAGO, ILLINOISThanks to the reader who forwarded along the text of this order. Update: The order is now available online here. Posted at 16:38 by Howard Bashman U.S. Court of Appeals for the Third Circuit adopts temporary local rule allowing for electronic filing of petitions for rehearing: This is an impressive development! The new rule goes into effect on Monday, March 3, 2003. As someone who regularly handles appeals in the Third Circuit, I was interested to learn when the court would consider an electronically-submitted petition for rehearing to be filed. The only answer to that question is the following regrettably ambiguous (and ungrammatical) sentence contained in the order adopting the local rule: "Petitions for rehearing submitted electronically which are in compliance with the applicable rules will be filed as of the date of the electronic transmission is received by the Clerk." What I was wondering was if my deadline for filing a petition for rehearing is March 3, 2003, and I email a petition in compliance with the rules to the Third Circuit's designated email address at 7 p.m. that evening, two hours after the Clerk's Office closes for business, will the petition be deemed to be timely or untimely? These are the types of questions that lawyers get paid the big bucks to obsess over. Posted at 14:18 by Howard Bashman "The Democrats' judicial stall": Today's edition of The Chicago Tribune contains this editorial. Elsewhere, Reuters reports here that "Bush Presses Democrats on Confirmation of Judge," and UPI reports here that "Bush makes plea for Estrada." Posted at 14:06 by Howard Bashman The corrected version of Scheidler v. National Organization for Women, Inc. is now available online: You can access the opinion here. At page 21 of the PDF file, you will find the corrected version of fn.* of Justice Ruth Bader Ginsburg's concurring opinion. (More details available here about the error in the original version.) Posted at 13:49 by Howard Bashman "Lincoln on Judicial Despotism": Robert P. George has this essay in the February 2003 edition of First Things. Posted at 13:42 by Howard Bashman "Supreme Court Debates Agent Orange Case": Gina Holland of The Associated Press has this report. And here she has a more detailed article, entitled "Court Rules for Abortion Protesters," concerning today's ruling. Posted at 13:23 by Howard Bashman "Democrats for Estrada": Today's edition of The Wall Street Journal contains an editorial that begins, "Is Miguel Estrada a right-wing nut?" Posted at 12:32 by Howard Bashman "Bush Pleads for Estrada Confirmation": The Associated Press has this report. You can access a transcript of President Bush's remarks at this link. Posted at 12:17 by Howard Bashman The awesome power of concurring fn.*: Justice Antonin Scalia's concurring opinion yesterday in Miller-El v. Cockrell (see page 30 of this PDF file) contained fn.*. Today, Justice Ruth Bader Ginsburg issued a concurring opinion in the Court's ruling in Scheidler v. National Organization for Women, Inc. Not only does Justice Ginsburg's concurring opinion also contain fn.*, but her fn.* consists of precisely the same text as Justice Scalia's fn.* from yesterday. Oops! (Thanks to my colleague from down the hall for bringing this to my attention.) Posted at 11:26 by Howard Bashman The White House responds to request from Democrats on Senate Judiciary Committee for additional hearing for John G. Roberts and Deborah L. Cook: Roberts is a nominee to serve on the D.C. Circuit, and Cook is a nominee to serve on the Sixth Circuit. You can access The White House's response letter, signed by Counsel to the President Alberto R. Gonzales, at this link via "How Appealing Extra." Posted at 10:55 by Howard Bashman This morning's U.S. Supreme Court opinion is now available online: You can access today's ruling in Scheidler v. National Organization for Women, Inc. via this link. Posted at 10:27 by Howard Bashman "Court Rules for Abortion Protesters": Gina Holland of The Associated Press has this early report on today's U.S. Supreme Court ruling. Posted at 10:19 by Howard Bashman Today's U.S. Supreme Court opinion: Today the Supreme Court of the United States issued its decision in Scheidler v. National Organization for Women, Inc. Chief Justice William H. Rehnquist wrote the Court's decision, and the judgment is reversed. You can access the oral argument transcript at this link. Posted at 10:07 by Howard Bashman Picture this: I previously advised that the ABA Journal's article on law bloggers didn't contain photos but that the print version of the article would. Well, since then, some photos have been added to the online version. More photos are expected with the print version of the article. (Thanks to the cutest one of the group for bringing the online addition of photos to my attention.) Posted at 09:36 by Howard Bashman Haunted house indeed: Some "Halloween fun gone bad" gives rise to this opinion issued today by the U.S. Court of Appeals for the Sixth Circuit. Posted at 09:33 by Howard Bashman On the agenda: The U.S. Supreme Court will issue one or more opinions this morning at 10 a.m. eastern time. As always, I will provide a complete summary of the rulings tonight. The U.S. Senate resumes debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit at 9:30 a.m. today. You can watch the debate online at this link via C-SPAN2. The transcripts of yesterday's debate in the U.S. Senate on the Estrada nomination is now available online via the Congressional Record Web site. To access yesterday's transcripts, simply follow these instructions. To access the first transcript, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 6, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 6, on the resulting page click on the link that reads "Printer Friendly Display." To access the second transcript, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 8, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 8, on the resulting page click on the link that reads "Printer Friendly Display." Posted at 09:12 by Howard Bashman Elsewhere in Wednesday's newspapers: The Washington Times reports here that "Filibuster support ebbs on Estrada." Frank J. Murray reports here that "Court toughens jury selection." In news from Virginia, "Filing says Malvo is remorseless." In The Los Angeles Times, David G. Savage reports here that "Justices Show Intolerance for Racial Bias in Jury Selection; High court criticizes federal, state judges in Texas for ignoring evidence in a capital case that blacks were willfully excluded." A letter to the editor from Bill Lockyer, California's Attorney General, states in full: Re "On Jurist's Case Over His Ties to a Killer," Feb. 16: I believe it is extremely important for judges, prosecutors and other officials to visit our prisons. Since taking office in 1999, I have visited 31 of California's 33 prisons. Our concern over U.S. 9th Circuit Court of Appeals Judge Alex Kozinski's visit to San Quentin has nothing to do with whether judges should visit prisons. It has everything to do with judicial integrity.You can access here an article entitled "Former local judge to U.S. bench; Burbank High grad tapped for federal post by President George W. Bush." An article reports that "Claims on Roger Rabbit Yield Split Court Decision." And an op-ed by Michael King, news editor of the Austin Chronicle, is entitled "Texas Justice Is Blind -- to Fairness; The Lone Star State's death penalty system is fatally flawed. But its politicians benefit from the status quo." In USA Today, Joan Biskupic reports here that "Supreme Court revives inmate's racial bias claim; Prisoner on death row in Texas says prosecutors stacked jury against him." In The Boston Globe, Lyle Denniston reports here that "Lawyers hope Tulsa case can lay foundation for more claims." A related article is entitled "Quest for vindication; Survivors of 1921 Tulsa race riots hail suit for reparations." And you can access here an article entitled "Archdiocese turns to Appeals Court; Seeks higher jurisdiction in abuse crisis." Finally for now, The Seattle Times reports here that "Court rejects foster-care challenge," and The Seattle Post-Intelligencer reports here that "State wins right to manage foster kids' benefits; U.S. justices reject challenge on Social Security payments." Posted at 08:13 by Howard Bashman "Supreme Court Considers Agent Orange Case": Gina Holland of The Associated Press has this report. Posted at 06:22 by Howard Bashman "Mixing Apples and Oranges": Blogger Pejman Yousefzadeh has this essay online at Tech Central Station contrasting legacy admissions and racial preferences in university student admissions. Posted at 00:29 by Howard Bashman In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices Stress Inmate's Right to Press Appeal." And an editorial is entitled "Politicians in Judges' Robes." In The Washington Post, Charles Lane reports here that "Inmate's Bid for Hearing on Bias Claim Is Upheld." And a front page article reports that "Malvo Called 'Boastful'; Prosecution Files Brief in Sniper Case." In The Christian Science Monitor, Warren Richey has an article entitled "Agent Orange back in court; Is a 1984 settlement for vets final? The answer may impact other class-action suits." And you can |