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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 access here an article entitled "New standard for race on death-row juries; A court ruling Tuesday will force judges to look more closely at bias in jury selection." Posted at 00:13 by Howard Bashman Tonight's Miguel A. Estrada news and commentary update: Reuters reports here that "Fourth Democratic Senator Backs Estrada." FOXNews reports here that "GOP Goes on Estrada Offensive." United Press International has a commentary by Horace Cooper entitled "Landrieu -- Sugar and spice." And The Associated Press reports here that "Democrats Ask GOP to Move Past Estrada." Posted at 00:06 by Howard Bashman Tuesday, February 25, 2003
Available online from law.com: Tony Mauro reports here that "High Court Supports Inmate on Jury Bias Issue." The New Jersey Law Journal reports here that "Scope of Students' Privacy Rights Examined in N.J. Drug-Testing Case." And from Texas comes word that "Appeals Court Says Trial Judge Had Discretion to Reduce Fees."
Posted at 23:45 by Howard Bashman
U.S. Supreme Court round-up for Tuesday, February 25, 2003: The Supreme Court of the United States issued two opinions today and is also expected to issue one or more opinions tomorrow. One of today's two rulings will likely be of great consequence in federal court habeas corpus appellate litigation, while the other ruling will serve to ensure that children in state-run foster care in Washington State won't leave the program with a huge chunk of change socked away in the bank. And now, on to the nitty-gritty details. 1. Miller-El v. Cockrell, No. 01-7662 (U.S. Feb. 25, 2003). Thomas Joe Miller-El murdered an employee of a Holiday Inn in Dallas, Texas during the course of a robbery. Miller-El, however, then had the perverse good fortune to be prosecuted in Dallas County, Texas, where the District Attorney's office, according to today's opinion, had the practice of racially discriminatory jury selection down to a science. Of course, in the aftermath of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), more than a merely unconstitutional state court conviction is required to obtain federal habeas corpus relief. Today's ruling resolved a simple procedural issue, but it is a procedural issue of great consequence: What must a state court habeas corpus petitioner establish to receive a certificate of appealability (COA) necessary to allow a federal appellate court to review a federal district court's denial of the petitioner's habeas claim. Today's holding, in a nutshell, is: In resolving this case we decide again that when a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. Slack v. McDaniel, 529 U. S. 473, 481 (2000). Consistent with our prior precedent and the text of the habeas corpus statute, we reiterate that a prisoner seeking a COA need only demonstrate "a substantial showing of the denial of a constitutional right." 28 U. S. C. sec. 2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.The Court's ruling today reversed a decision of the U.S. Court of Appeals for the Fifth Circuit that essentially determined that Miller-El's appeal would fail to succeed on the merits before deciding to deny the issuance of a COA. In the aftermath of today's ruling, COAs will be much easier to obtain in cases where the prospect of reversal on appeal is not all that strong. For the record, seven Justices seem to believe that Miller-El has a pretty good claim that the jury that sentenced him to death was selected in an unconstitutional, racially discriminatory manner. Justice Anthony M. Kennedy wrote the majority opinion, in which the Chief Justice and Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer joined. Justice Antonin ("my sore, surgically-repaired shoulder didn't stop me from issuing a concurring opinion") Scalia wrote that he found the case to present a close question as to whether a constitutional violation occurred. Justice Clarence Thomas dissented, and he would have ruled that the Fifth Circuit acted properly in looking to the merits of Miller-El's claim in deciding whether to issue a COA. Thomas examined the record in great detail and concluded that Miller-El had failed to establish any prosecutorial misconduct that would merit granting federal habeas corpus relief. The extremely fact-bound nature of all three of today's opinions in this case explains why this turned out to be the final opinion issued from the Court's October argument session. And now it's time to ask the truly difficult question -- what difference will today's ruling make in the future? True, more COAs will be granted. But will federal appellate courts reach different outcomes on the merits of these habeas cases if the granting of a COA precedes a thorough examination of the merits? I truly doubt it in the vast majority of cases. Whether Miller-El's case will fall outside that vast majority remains to be seen, but the Fifth Circuit (notwithstanding a death penalty stay issued on a 2-1 vote earlier today) probably isn't the preferred forum in which to be litigating for habeas corpus petitioners facing a death penalty. 2. Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, No. 01-1420 (U.S. Feb. 25, 2003). Today's other case appears to have been initiated on the principle that a State that takes for itself the social security benefits of foster children under the State's care, without the children's permission, isn't behaving very nicely. Be that as it may, today a unanimous Court, in an opinion by Justice David H. Souter, ruled that the State of Washington does not violate applicable federal social security law and regulations when it uses the social security benefits of children in State foster care to cover some of the costs of providing that care. Not behaving nicely, you see, does not always equate with behaving unlawfully. For all of the talk of Justice Souter's being a throwback to another century, today's opinion failed to conjure up images of Dickens's Oliver Twist except in the minds of the most imaginative Court-watchers. I'd love to speak at length about this ruling, but the hour is late and no one is interested. What opinion or opinions will the Court issue tomorrow? News of tomorrow's ruling(s) should appear on "How Appealing" a little after 10 a.m. eastern time tomorrow. Posted at 22:18 by Howard Bashman The price of public service: During today's U.S. Senate debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit, U.S. Senator and Assistant Democratic Leader Harry Reid (D-NV), who has been leading the floor effort on the Democrats' behalf, repeatedly mentioned the amount of money that Estrada earned last year while serving as a partner at the law firm of Gibson, Dunn and Crutcher. I think that Senator Reid's point was, in essence, that the Senate should move off the Estrada nomination and instead begin debating measures to help the economy and those who are out of work due to the economy's recent poor performance. In that context, Senator Reid seemed to be saying, we shouldn't feel sorry for Estrada because he not only already has a job but a very high paying one at that. I, however, was taken aback by the Democrats' decision to use Estrada's financial success as a lawyer in private practice as a reason to oppose his nomination. If my ears heard correctly, Estrada would be taking a substantial pay cut to become a U.S. Circuit Judge. At his current rate of pay, if I heard correctly, every three years as a federal appellate judge he would be forgoing more than $1 million in additional wages that he would earn if he remained in the private practice of law. And while being a federal appellate judge certainly has own its own very valuable rewards -- life tenure, more control over one's own work schedule, and a guaranteed pension upon retirement -- it also requires the judge to work into his sixties to be able to earn that pension, whereas Estrada if he remained in private practice conceivably could afford to retire earlier if he so desired. To me, the fact that a brilliant and successful lawyer in private practice entering his peak earning years is willing to serve his country by becoming a federal judge is a testament to that individual's dedication to public service. It is not a reason to ridicule or belittle his candidacy. As Chief Justice William H. Rehnquist explained in his 2002 Year-End Report on the Federal Judiciary: Diminishing judicial salaries affects not only those who have become judges, but also the pool of those willing to be considered for a position on the federal bench. I am not suggesting that there is a shortage of lawyers lined up to apply for vacant judgeships. But many of the very best lawyers, those with a great deal of experience, are not willing to accept a position knowing that their salary will not even keep pace with inflation. Our judges will not continue to represent the diverse face of America if only the well-to-do or the mediocre are willing to become judges.If extremely well qualified candidates for federal judgeships now working as successful attorneys in the private sector are going to be forced to endure not only the delay of the confirmation process but also risk having their otherwise private financial details shared with the public as though that information somehow were relevant to the question of confirmation, the number of such candidates who are interested in pursuing federal judgeships will regrettably decline. I, for one, didn't care to learn the details of Estrada's earnings. But now that I have been forced to learn that information, I have more respect, not less, for his desire to reenter the public service. Update: A reader kindly emailed on March 7, 2003 to draw to my attention that the official Congressional Record states that Senator Patrick J. Leahy (D-VT) mentioned Estrada's precise salary, not Senator Reid. I based my comments above on an audio feed of the debate, and if I erred by identifying the wrong Senator, I regret the mistake. The reader also noted that Senator Leahy's precise comment was "While in private practice, his clients included major investment banks and health care providers. Mr. Estrada's financial statement, which Senator Hatch had printed in the Congressional Record, says he earned more than $ 1/2 million a year 2 years ago." Thus, it appears that a Republican Senator was responsible for making Estrada's financial statement a part of the public record, but that it was a Democratic Senator who was the first to mention out loud the particulars of Estrada's earnings on the floor of the Senate. Posted at 19:59 by Howard Bashman "'Natural-Born' Killer": Jefferson Morley, in an essay just posted online at Slate, says "Abolish the idiotic constitutional clause barring immigrants from the presidency." Posted at 16:20 by Howard Bashman "The Filibuster Formula": The online version of Time magazine offers this report. Posted at 15:49 by Howard Bashman Law Professor Larry Solum responds to today's Editorial Observer column by Adam Cohen: You can access Solum's response here to Cohen's column published in today's edition of The New York Times. Could a response to Cohen's Editorial Observer column published November 24, 2002 be next on Solum's agenda? Update: Law Professor Rick Hasen disagrees, in part, with Solum's post. Posted at 14:59 by Howard Bashman D.C. Circuit decides appeal concerning whether former employee of the Los Alamos National Laboratory may publish book about China's nuclear weapons program: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link. You can access earlier press coverage of this dispute here and here. Posted at 14:25 by Howard Bashman Who's filibustering whom? In yesterday's debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit, some Democratic Senators finally admitted that they were filibustering the nomination. Today, by contrast, various Democratic leaders in the U.S. Senate took the floor late this morning and requested unanimous consent that the Senate move on to other business. The Republicans objected, forcing the Estrada matter to remain the item under consideration. At that point, the Democrats began accusing the Republicans of filibustering -- refusing to move on to more important matters, such as the economy, the impending war with Iraq, etc. The Democrats also noted, accurately, that the Republicans during the extended Estrada debate have allowed various other items to come before the Senate for action. Elsewhere, "Philippe de Croy" has a post at "The Volokh Conspiracy" entitled "The Estrada Debate: What's Really Going On?" And "Juan Non-Volokh" responds here. Posted at 14:13 by Howard Bashman Ninth Circuit upholds California prison housing policy that uses race as a factor in assigning a new inmate's initial cell mate: Today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit begins: We must decide whether a prison reception center housing policy, which uses race as one factor in assigning a new inmate's initial cell mate for 60 days, violates the Equal Protection Clause.And the decision concludes: Although there may be many ways in which to achieve the state's objective in reducing racial violence in the CDC, the path chosen by the State of California is reasonably related to the administrators' concern for racial violence and thus must be upheld. If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional. The prison system, however, is inherently different and we must defer our judgment to that of the prison administrators until presented evidence demonstrating the unreasonableness of the administrators' policy. The Supreme Court has instructed us that inmates bear a "heavy burden" to show that prison officials acted unconstitutionally, and in this case, Johnson failed to carry his burden. He presented little to no evidence and could not rebut the presumption of constitutionality that the administrators are afforded.You can access the complete ruling at this link. Posted at 13:50 by Howard Bashman Ninth Circuit strikes down Arizona election reform provision that governed timing of political ads: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision that the court summarized as follows: We consider here the extent to which a state may regulate political speech in the final days before an election. To limit negative advertising and to afford candidates an opportunity to respond to "negative hit pieces," the Arizona legislature passed a statute requiring advance notice before distribution of certain political literature and advertising. Specifically, within ten days before an election, a political action committee advocating the election or defeat of any candidate must mail a copy of the communication to the candidate at least twenty-four hours in advance. We conclude that this regulatory scheme, which imposes a severe burden on political speech, violates the First Amendment because it is not "narrowly tailored to serve a compelling state interest." Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 192 n.12 (1999) (internal quotation marks and citations omitted). Consequently, we reverse the district court's denial of Arizona Right to Life Political Action Committee's claims for injunctive and declaratory relief.You can access the complete ruling, which also happens to contain a very interesting opening paragraph, at this link. Posted at 13:26 by Howard Bashman The Associated Press is reporting: Anne Gearan reports here that "High Court Backs Texas Death Row Inmate." And an unsigned article is entitled "Court Rules for States on Orphan Benefits." Posted at 12:01 by Howard Bashman "Scary-looking" reindeer give rise to a federal case: And to an Eighth Circuit appeal, decided today. Posted at 11:40 by Howard Bashman "White House to Schumer: You’re Wrong." Byron York at National Review Online has just posted this report. Posted at 11:33 by Howard Bashman Does law matter, or just outcomes? Robert Alt of the "No Left Turns" blog comments here. Posted at 11:18 by Howard Bashman Some big news from Florida: Today's edition of The Miami Herald reports here that "Sen. Nelson won't back filibuster." The Senator Nelson in question is U.S. Senator Bill Nelson (D-FL), who -- according to the article -- has yet to decide how he will vote on the nomination but is willing to vote in favor of cloture to end the filibuster. Posted at 10:34 by Howard Bashman Two U.S. Supreme Court opinions issued today: Opinions issued today in Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler (oral argument transcript available here) and Miller-El v. Cockrell, which had been the last case that remained undecided from the October argument session (oral argument transcript available here). Posted at 10:09 by Howard Bashman Legal realism: From this morning's edition of Mark T. Stancil's consistently fine "Supreme Court Reports": In Barnhart v. Thomas (02-763), the Third Circuit held that the Social Security Act's definition of "disability" does not disqualify respondent where she remains able to perform previous work (elevator operator) but such work no longer exists in the national economy. Terrified by the prospect of thousands of former dot com millionaires going on the dole, the SG sought cert. Coincidentally, and of great interest to hard-core legal realists and aspiring assistant law professors, the Court's staff still includes a handful of elevator operators, not to mention the billow pumpers, coopers, and stable hands necessary to keep the Souter chambers up and running.Although this morning's edition isn't yet available online, you can access prior editions here. The originator of "Supreme Court Reports" -- John P. Elwood (here's a classic Elwood effort) -- now serves as an Assistant to the Solicitor General and has a U.S. Supreme Court oral argument scheduled for next Tuesday, March 4, 2003. Chances are that John won't be able to display the full extent of his cleverness at the podium, but we can always hope. Posted at 09:41 by Howard Bashman Other featured "blawgers": As I first noted here last night, The ABA Journal's March 2003 article about law blogs is now available online at this link. (Those in search of photos will have to await the print edition, it seems.) The other three law bloggers featured in the article are Denise Howell of "Bag and Baggage"; Tom Goldstsein and the crew at "SCOTUSblog"; and Martin Schwimmer of "The Trademark Blog." Posted at 09:00 by Howard Bashman Elsewhere in Tuesday's newspapers: In The Boston Globe, Lyle Denniston reports here that "Appeal in wiretap case denied; Pilot says executives monitored his website" and here that "Reparations claim filed in Okla. riots case; Compensation sought over 'Black Holocaust.'" You can access here an article entitled "Judge rejects lawsuit to block war against Iraq." And here's an article entitled "English-only lawsuit provision debated; Romney pledge focus of debate." David G. Savage of The Los Angeles Times reports here that "Justices to Test Refusal to Hire Over Drug Use; High court must decide whether those who did narcotics in the past are in category of 'disabled.'" And in news from Orange County, this article reports that "Court Orders Removal of Baby's Life Support; But the father -- who could end up with a murder charge -- has time to appeal." The Washington Times reports here that "Court to study forced-entry time." And Terry Eastland has an op-ed entitled "Religious rights in school." Finally for now, Joan Biskupic of USA Today reports here that "Court takes case on disabilities act, drug rehab; Companies' 'no-rehire' policies could be affected." Posted at 08:31 by Howard Bashman Democracy in action: A transcript of yesterday's debate in the U.S. Senate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit is now available online via the Congressional Record Web site. To access yesterday's transcript, simply follow these instructions. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 7, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 7, on the resulting page click on the link that reads "Printer Friendly Display." Here are two transcript excerpts from yesterday's Senate session: And thereafter, Majority Leader Bill Frist (R-TN) said: Mr. FRIST. Mr. President, for the information of all Senators, tomorrow the Senate will begin its 9th day of consideration of the Estrada nomination. I believe that both sides of the debate have had adequate time and the Senate should now be able to work its will.Welcome to day nine, everyone. Posted at 08:24 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. Posted at 08:12 by Howard Bashman "Filibustering Miguel: Democrats, who once abhorred the idea of a judicial appointment filibuster, are out to get Miguel Estrada." Terry Eastland has this essay online at The Weekly Standard. And Beth Henary has an essay online there entitled "Cognitive Dissonance at DoJ: The Department of Justice makes a fetish of 'diversity' while criticizing the University of Michigan for the same thing." Posted at 06:20 by Howard Bashman "Terror Case Tests 'Patriot Act' Limits": The Associated Press has this report. Posted at 06:11 by Howard Bashman In Tuesday's newspapers: In The Washington Post, Charles Lane reports here that "High Court Fills In Docket for Next Term; Clean Air, Drug, ADA Cases Added." An article reports that "Malvo Prosecutor Lays Out Strategy." You can access here an article entitled "A Chilling Triumph Of 'Science' Over Sanity." Walter Dellinger has an op-ed entitled "Broaden the Slate." And Benjamin Wittes has an op-ed entitled "Silence Is Honorable." In The New York Times, Linda Greenhouse reports here that "Supreme Court Is to Review Rehiring of Drug Abusers." And Adam Cohen has an editorial observer column entitled "Deborah Cook Is the Typical Bush Judicial Nominee -- So Watch Out." Finally for now, The Christian Science Monitor offers an article entitled "'It's medicinal' vies against 'It's illegal'; California has become the epicenter of a states vs. feds battle over marijuana use." Posted at 00:41 by Howard Bashman Monday, February 24, 2003
Available online at law.com: Jonathan Ringel has a must-read article entitled "Ginsburg Lifts High Court Curtain." Jonathan also reports here that "Augusta Law Could Be Headed for the Rough; Masters protesters would be required to indemnify city." You can access here an article that begins, "After months of research and preparation, Texas Deputy Solicitor General Lisa Eskow will stand before the U.S. Supreme Court on Wednesday * * * ." And in very sad news from California, this article reports that "Court Clears Way for Death of Comatose Baby; Accused tried to keep son on life support."
Posted at 23:15 by Howard Bashman
"Senate still stalling Estrada nomination": United Press International provides this report. Posted at 23:11 by Howard Bashman "Lawyers Who 'Blawg': Attorneys Are Finding Fans (and Some Fame) Posting Legal Commentary on the Net": Jason Krause has this most excellent article in the March 2003 issue of The ABA Journal. (Plus, the magazine is expected to contain photographs of the featured bloggers.) Did I really say "World domination is not the goal"? Read the article and find out. The article says that "Bashman estimates he gets 3,000-5,000 hits a day from all over the globe. Those are strong numbers considering the site is narrowly focused on appellate law." Those numbers were correct at the time I spoke with Krause, but lately "How Appealing" has been receiving between 7,000 and 10,000 hits per day. Still not world domination, but oh so much closer. Posted at 23:00 by Howard Bashman The Associated Press is reporting: You can access here an article entitled "Justices Clear Way for Abortion Rules"; here an article entitled "Senate Dems Hold Back Estrada Nomination"; here an article entitled "Senate OKs Tougher Child Pornography Law"; and here an article entitled "Panel Upholds Baby Life Support Order." Posted at 22:43 by Howard Bashman Michael Newdow attends Harvard Law School: In a manner of speaking. "Ex Parte" provides the details here. Only time will tell whether Newdow will find Harvard Law to be sufficiently God-less. Posted at 22:31 by Howard Bashman Good news!: A sixth appellate judge has volunteered to participate in this Web log's monthly feature, "20 questions for the appellate judge." Today's volunteer is a Senior Circuit Judge who formerly served as Chief Judge of a U.S. Court of Appeals located on the east coast of the United States. My 20 questions interview with today's volunteer will appear at "How Appealing" in early July 2003. Only five more interview slots remain for calendar year 2003. The next federal or state appellate judge to volunteer will have his or her interview appear here in August 2003. If you're a federal or state court appellate judge and would like to participate in the "20 questions for the appellate judge" feature, simply send me an email expressing your interest. You will be assigned the next available month, and I will right away let you know exactly when I will be sending your questions to you. More details are available here. Even more good news -- the second installment of the "20 questions" feature is due to appear here at "How Appealing" on or before Monday, March 3, 2003. This next interviewee serves on the U.S. Court of Appeals for the Ninth Circuit. And the first installment remains available at this link. Posted at 22:27 by Howard Bashman Tenth Circuit issues lengthy opinion affirming denial of preliminary injunction in fight over ownership and control of The Salt Lake Tribune: Today a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued a lengthy opinion affirming the denial of a preliminary injunction sought by the Salt Lake Tribune Publishing Co. in the continuing battle over ownership and control of The Salt Lake Tribune newspaper. Today's ruling is odd in one respect. While the panel affirms the denial of a preliminary injunction based on the absence of irreparable injury, two of the three judges proceeded to state that the district court incorrectly ruled that Salt Lake Tribune Publishing Company is unlikely to prevail on the merits. Instead, those two appellate judges expressed the view that the Salt Lake Tribune Publishing Company is likely to prevail on the merits. Circuit Judge Terrence L. O'Brien refused to join in that part of the decision, explaining: In Part IIIB we conclude the district court did not abuse its discretion in denying preliminary injunctive relief because irreparable injury was not shown. It is therefore unnecessary to address, let alone reverse, the trial court’s tentative conclusion that Salt Lake Tribune Publishing Company is unlikely to prevail on the merits. Accordingly, I do not join in part IIIA1 of the opinion or in the result announced.You can access the Tenth Circuit's opinion at this link. Former Solicitor General Seth P. Waxman is representing the Salt Lake Tribune Publishing Company on appeal. In press coverage relating to today's ruling, The Associated Press reports here that "Court Rejects McCartheys' Effort To Buy Back Tribune." And you can access a report on the Tenth Circuit's oral argument here, via The Deseret News. Posted at 21:34 by Howard Bashman Attention John Doe I! Today's ruling of the U.S. District Court for the District of Massachusetts in John Doe I v. Bush is now available online. The opinion begins: The plaintiffs seek to enjoin the President from launching a military invasion of Iraq, asserting that Congress has neither declared war nor taken any action that would give the President the power to wage such a war. The defendants oppose such an injunction for several reasons, including that plaintiffs' complaint does not set forth a justiciable issue and, therefore, this court has no jurisdiction to act. The threshold issue before the court, therefore, is whether the plaintiffs' complaint presents a nonjusticiable political question and, therefore, must be dismissed. For the reasons set forth below, this court concludes that the issues raised by the plaintiffs involve political questions, in the legal sense of that term, which are beyond the authority of a federal court to resolve.You can access the entire opinion at this link. Posted at 21:30 by Howard Bashman Filling the Antonin Scalia void at oral argument in the U.S. Supreme Court: If Dahlia Lithwick were to report on today's oral arguments at the U.S. Supreme Court, chances are that the headline wouldn't be "Scalia Hogs the Ball." That's because Justice Antonin Scalia is absent from this week's oral arguments while he recovers from rotator cuff surgery that he had last Thursday. Did Justice Scalia's absence create a huge void in the questioning? "No" is the answer I received from a friend in attendance at today's oral arguments. Justice Stephen G. Breyer was apparently more than happy today to assume the mantle of the Court's most active questioner. Update: Another observer writes, "Breyer and Ginsburg were pretty active for the first argument, but there clearly were lulls." Posted at 21:11 by Howard Bashman Now there's an anti-Miguel A. Estrada television commercial: Proving once again that candidates to fill federal judicial vacancies are not as easily marketed as a box of laundry detergent, The Alliance for Justice's Coalition for a Fair and Independent Judiciary has today launched a television commercial opposing the nomination of Miguel A. Estrada to serve on the D.C. Circuit. I can't get the video to play in its entirety on my computer, but I'll find a way to muddle through nevertheless. If it's a pro-Estrada television commercial that you desire, you can access one here via the Web site of The Committee for Justice. Posted at 20:53 by Howard Bashman "Federal judge dismisses missile-defense lawsuit after government intervention": Phil Carter has this report on today's development at his blog, "INTEL DUMP." Posted at 17:21 by Howard Bashman D.C. federal district court enjoins U.S. Attorney General from enforcing policy that "imprisonment" no longer includes time spent at "halfway house": As a result of the policy, the plaintiff who had been serving a criminal sentence in a federal halfway house was ordered to serve the remainder of his sentence at a federal prison camp. Today District Judge Gladys Kessler of the U.S. District Court for the District of Columbia granted a preliminary injunction allowing the plaintiff to remain at a halfway house. Judge Kessler's opinion concludes that, "In sum, there is a substantial likelihood that the retroactive application of the new BOP policy violates the Ex Post Facto Clause of the Constitution." Posted at 16:14 by Howard Bashman "High Court to Review Disabilities Cases": Gina Holland of The Associated Press has this report. Posted at 15:54 by Howard Bashman Coming to the defense of the Ninth Circuit: My friends at SCOTUSblog list all four cert. grants today as coming from the U.S. Court of Appeals for the Ninth Circuit. But, as I've already noted below, one of those four cases in fact originates from the U.S. Court of Appeals for the Third Circuit. Posted at 14:16 by Howard Bashman "Bingaman Should Lead Dems' Filibuster Retreat": Today's edition of The Santa Fe New Mexican contains this editorial. Posted at 13:47 by Howard Bashman Boston federal district court dismisses lawsuit to block war on Iraq: The Associated Press reports here, and Reuters reports here. Posted at 13:34 by Howard Bashman The U.S. Senate's debate on Miguel A. Estrada's nomination to serve on the D.C. Circuit is underway again: You can watch the debate live online at this link, courtesy of C-SPAN2. Posted at 13:05 by Howard Bashman "Colo. High Court Spares Two on Death Row": The Associated Press provides this report. Posted at 13:01 by Howard Bashman A recent former U.S. Supreme Court law clerk speaks out on today's Anthony Lewis column, "Marbury v. Madison v. Ashcroft": The following email arrived this morning from someone who not too long ago served as law clerk to a U.S. Supreme Court Justice: Please point out that Anthony Lewis' Op-Ed in Today's NY Times ("Marbury v. Madison v. Ashcroft") is blatantly misleading.Thanks for writing! The Fourth Circuit's opinion quoted in the email above can be accessed here. Posted at 12:34 by Howard Bashman "Supreme Court Rejects Ex-La. Gov. Appeal": Gina Holland offers this news. Posted at 12:27 by Howard Bashman "How Civil-Libertarian Hysteria May Endanger Us All": Stuart Taylor Jr. offers these thoughts in this week's edition of National Journal. Posted at 11:32 by Howard Bashman More news of certs. denied: Gina Holland of The Associated Press reports here that "Supreme Court Denies Jury Gag Order Case" and here that "Supreme Court Passes Up Kosher Food Fight." A Kosher food fight sounds like fun, although the combatants must be sure not to mix dairy with meat, and of course pork products and shellfish are prohibited. Posted at 11:04 by Howard Bashman Today at National Review Online: Eugene Volokh (pictured on the right) defends his former boss. And Byron York explains "How Estrada Can Win." Posted at 10:57 by Howard Bashman "Supreme Court Denies Abortion Law Appeal": Anne Gearan of The AP has this report. Posted at 10:44 by Howard Bashman "High Court to Review Limits on Searches": Gina Holland of The Associated Press provides this report. Posted at 10:30 by Howard Bashman This morning's official U.S. Supreme Court order list is now available online: The Court has granted review in four cases, all of which will be heard in the October 2003 Term. You can access the order list here. One of the cases in which the Court granted certiorari is Barnhart v. Thomas, No. 02-763, a very interesting social security disability case that was decided on rehearing en banc by the U.S. Court of Appeals for the Third Circuit. You can access my coverage of the en banc oral argument in that case at this link. You can access the Solicitor General's cert. petition in the case here and his reply in support of the petition here. Posted at 10:14 by Howard Bashman "Marbury v. Madison v. Ashcroft": Anthony Lewis has an op-ed by this title in today's edition of The New York Times. Posted at 10:07 by Howard Bashman This morning's federal judicial nomination and confirmation news from here and there: Today's edition of The Columbia Spectator contains an article entitled "Sen. Hatch Talks About Ideology, U.S. Courts; Students come despite rain to hear Hatch discuss Estrada nomination." Newsday reports here this morning that "Estrada Endorser Had Partisan Role; Apparent conflict with ABA rules." The Atlanta Journal-Constitution today contains an article entitled "Hispanics deeply split over Estrada." The Baltimore Sun this morning reports here that "Stalemate over Bush nominee previews 'coming attractions'; Debate over conservative escalating into battle over future of federal courts." The New York Post reports here that "Dems Face Backlash." An op-ed by Dolores C. Huerta in today's edition of The Oregonian is entitled "Estrada would destroy hard-fought victories." Jay Bookman has an op-ed entitled "Estrada fight's true victor? Democracy" in today's Atlanta Journal-Constitution. Maria Elena Salinas writes of "Ethnicity vs. ideology" in The Record of Stockton, California. Finally for now, The Intelligencer of Wheeling, West Virginia contains an editorial entitled "Require Senators To Talk the Talk." Posted at 08:45 by Howard Bashman Elsewhere in Monday's newspapers: The Washington Times reports here that "Debate continues on judicial nominee." The Estrada matter is also mentioned in today's "Inside the Beltway" column. And Donald Lambro has a related op-ed entitled "A price to pay for tactics." You can access here an article entitled "Court, states consider same-sex unions." Frank J. Murray reports here that "Posthumous Medal of Honor 'unclaimed.'" An op-ed by Nat Hentoff is entitled "Deliver us from Ashcroft." And Jacob Sullum has an op-ed entitled "Perils of legislating in the dark." Today's edition of The Los Angeles Times contains an op-ed by Law Professor Jonathan Turley entitled "Raze the Church/State Wall? Heaven Help Us!" The Boston Globe today contains a book review entitled "Whitewater defendant has her way." And in USA Today, Tony Mauro has an op-ed entitled "FCC muffles artist's message." Posted at 08:23 by Howard Bashman On the agenda: The Supreme Court of the United States is back in session today. Orders will issue at 10:00 a.m. today, and opinions will issue tomorrow and Wednesday at 10:00 a.m. The U.S. Senate is also back in session today. At noon, U.S. Senator Saxby Chambliss (R-GA) will perform the annual reading of President George Washington's 1796 Farewell Address. Thereafter, the Senate's debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit resumes. Posted at 08:10 by Howard Bashman In Monday's newspapers: The Washington Post commemorates here "The Birth of Judicial Review." A front page article is entitled "Md. Man's Exoneration Didn't End Nightmare; First Death Row Inmate Cleared by DNA Pours Emotions Into Activism." Counsel to the President Alberto R. Gonzales has a letter to the editor in response to Michael Kinsley's recent essay about President Bush's judicial nominees. And you can access here an article entitled "Looking to Precedent Ahead of Potential Space Shuttle Disaster Lawsuits." In The New York Times, Adam Liptak has an article entitled "Prosecutors See Limits to Doubt in Capital Cases." He also has a related article entitled "Experts Question Verdict, but the State Is Unmoved." You can access here an article entitled "Sales of Cigarettes Online Hit." Rick Bragg reports on beads at Mardi Gras. And columnist Bob Herbert has an op-ed entitled "Looking Back at an Ugly Time." The Christian Science Monitor reports here that "US death penalty creates international snarl; In battle over whose law prevails, Texas bucks World Court order staying executions." And you can access here an article entitled "Visa draws a hard line on child porn." Posted at 00:11 by Howard Bashman Happy 200th birthday, Marbury v. Madison: You can access the landmark ruling at this link, and some background about the case is available here. Posted at 00:00 by Howard Bashman Sunday, February 23, 2003
"There are things worse than being an associate at a law firm" -- you could be suspended from the practice of law or deceased: Law Professor Tung Yin of the University of Iowa College of Law shares his thoughts here at his new blog.
Posted at 23:17 by Howard Bashman
Is funny: Greg Beato is funny. Christopher Scheer is funny. And Lonewacko is funny too. Posted at 22:47 by Howard Bashman "U.S. Supreme Court Judge Ginsburg speaks about women pioneers at Rialto": The GSU Signal last week offered this report. Posted at 22:12 by Howard Bashman "Gay groups oppose Bush judicial picks; White House nominees cited for anti-gay past": The February 21, 2003 issue of Southern Voice contained this article. Posted at 22:10 by Howard Bashman "Review of Pickering's record blunts some charges against him": The Knight Ridder News Service today offers this report. And you can access here an essay published last week entitled "The Charles Pickering I know," by Joe McKeever. Posted at 22:01 by Howard Bashman Get your American Bar Association judicial ratings here: For this year, and for the past two years too. Posted at 22:00 by Howard Bashman "LawMuse" wraps-up The Federalist Society's student symposium: My favorite line of Christine's summary -- "To our great fear and delight, Judge Kozinski capped it all off with a booming rendition of 'Strangers in the Night.'" Those of us who weren't there will simply have to leave that to the imagination. Posted at 15:41 by Howard Bashman "Senate Battle Over Estrada Hitting Airwaves": Reuters offers this report. Posted at 15:24 by Howard Bashman "Transcript: Alberto Gonzales on Fox News Sunday": Available here, via the FOXNews.com Web site. Posted at 12:34 by Howard Bashman "Bush Aide: Estrada Treated Differently": The Associated Press has this report about what was said during this morning's newsmaker interview programs. Posted at 12:18 by Howard Bashman "One Judge's Conservatism": Commentator George F. Will has an essay entitled "One Judge's Conservatism: J. Harvie Wilkinson says conservative jurisprudence, properly understood, serves compassion, properly understood" in the March 3, 2003 issue of Newsweek. Also, Eleanor Clift in a Newsweek Web exclusive dated February 21, 2003 had an essay entitled "Standoff: Senate Republicans and Democrats are ready to go to the mat over an obscure judicial nominee. Here's why." Elsewhere, today's edition of The New York Post contains an article entitled "Peeved Prez on Judge Vote: Get on with it!" The Sacramento Bee reports here that "GOP senators to press fight for Estrada court post." The Berkshire Eagle contains an editorial entitled "Signs of life from the Democrats." And the ranking Democrat on the Senate Judiciary Committee, Senator Patrick J. Leahy (D-VT), responds here to President Bush's radio address from yesterday on the issue of judicial confirmations. Posted at 09:14 by Howard Bashman Elsewhere in Sunday's newspapers: Today's edition of The Washington Times contains an article entitled "Vote on court choice, Bush says." A related op-ed by Paul Greenberg is entitled "The mob forms here." An article reports that "Texas schools find new way to diversity." And Walter Williams has an op-ed entitled "Affirmative mystique." Finally for now, The Los Angeles Times contains an op-ed by Louis Fisher that asks "Who's Minding the Courts on Rights?" Posted at 09:00 by Howard Bashman In Sunday's newspapers: The Washington Post reports here that "Bush Urges Confirmation of Estrada; Democrats Cite Latino Nominees Blocked by GOP in Past." Relatedly, letters to the editor run under the heading "The Democrats and Mr. Estrada." And an article entitled "Democratic Hopefuls Score Bush; Trio of Candidates Assails Economy, Foreign Affairs" contains the following: One of two African Americans now in the Democratic race, Sharpton attacked Bush as hypocritical on racial issues, calling him the ultimate example of someone who has benefited from affirmative action.In The New York Times, the Week in Review section contains a report entitled "Word for Word: Doctors, Soldiers and Others Weigh In on Campus Diversity." And you can access here an article entitled "Congress and the President: One Party, but Divided." Finally for now, OpinionJournal offers an essay by Ruth Wedgwood entitled "Lawyers at War: Will the American Bar Association make al Qaeda's task easier?" Posted at 00:20 by Howard Bashman "Partisan holdups shouldn't bar Estrada nomination": U.S. Senator John Cornyn (R-TX) had this op-ed in Saturday's edition of the San Antonio Express-News. Posted at 00:08 by Howard Bashman Saturday, February 22, 2003
An early report from The Federalist Society's student symposium at the Notre Dame Law School: "LawMuse" offers a first-hand account.
Posted at 23:53 by Howard Bashman
Yesterday's edition of The Baltimore Sun contained an editorial calling for the resignation of Attorney General John Ashcroft: You can access the editorial at this link (via "TalkLeft"). The editorial refers to a news article that The Sun ran last week entitled "Ashcroft's agenda: Critics of the attorney general wonder if the taking away of civil liberties goes beyond countering terrorism." Posted at 23:48 by Howard Bashman "A Dream Denied Leads Woman to Center of Suit; Gratz's Rejection by U-Mich. Led Her to Fight Against Race-Conscious Admissions": The front page of Sunday's edition of The Washington Post contains this article. Posted at 23:10 by Howard Bashman Taking the fight over Miguel A. Estrada to the Sunday morning news and public affairs interview shows: White House Counsel Alberto Gonzales is scheduled to appear tomorrow morning on both Fox News Sunday and This Week With George Stephanopoulos to discuss the Estrada filibuster. Posted at 18:55 by Howard Bashman Law Professor Cass R. Sunstein writes of "The Right-Wing Assault" on the federal judiciary: You can access his views here, in the March 1, 2003 edition of The American Prospect. (Via Sam Heldman.) Posted at 18:52 by Howard Bashman Orin Kerr says The American Constitution Society and The Federalist Society have more in common than you might think: You can access Orin's post here, at "The Volokh Conspiracy." Posted at 16:45 by Howard Bashman Democratic presidential candidate Rev. Al Sharpton discusses the Miguel A. Estrada filibuster: See the very end of this report from The Associated Press. Posted at 16:43 by Howard Bashman In Sunday's edition of The New York Times: Jacques Steinberg reports here that "3 See College Suit as a Way to Show They Belonged." And you can access here an article entitled "On Environmental Rules, Bush Sees a Balance, Critics a Threat." Posted at 16:32 by Howard Bashman Tonight on C-SPAN's "America and the Courts": Tonight on C-SPAN's fine program "America and the Courts," attorney Sarah Weddington gives a speech concerning the thirtieth anniversary of the U.S. Supreme Court's decision in Roe v. Wade, a case that Weddington argued and won at the age of twenty-six. Posted at 15:55 by Howard Bashman The Associated Press is reporting: This article reports that "Agent Orange Case Headed to Supreme Court," and here's an article entitled "Court: Juvenile Offenders Must Register." Posted at 15:49 by Howard Bashman "Dead Men Walking": Tomorrow's edition of The Washington Post Magazine contains an article entitled "Dead Men Walking: When a scandal-plagued governor cleared out Illinois' death row, he wasn't worried about his political future. He already knew he didn't have one." Posted at 15:34 by Howard Bashman "US factory boss guilty of 'slavery'": BBC News offers this coverage from American Samoa, the only United States possession in the southern hemisphere. Posted at 11:07 by Howard Bashman "Bush pleas end to Estrada filibuster; President blasts Democrats for delaying judicial confirmations": The Associated Press (via MSNBC) offers this report. Posted at 11:04 by Howard Bashman Today's radio address by the President to the Nation: Here's the text of today's presidential radio address: Good morning. This week, members of the House and Senate will return to Washington with a full agenda to address; from strengthening our economy to reforming health care to protecting national security.You can listen to an audiotape of the address via this link. Posted at 10:56 by Howard Bashman "McIntosh speaks at Notre Dame": Here's a tiny bit of news from yesterday's Federalist Society gathering in South Bend, Indiana. Posted at 09:58 by Howard Bashman In Saturday's newspapers: In The New York Times, Adam Liptak has a very interesting news analysis entitled "Judges and Politics Mix: U.S. Ruling Breaks Down a Wall." A related article runs under the headline "Partisan Pit Bull, but Not on the Bench." A short item reports that "Scalia to miss sessions." In news from Texas, "Judge Criticizes Letter From Bayer." And tomorrow's edition of the The New York Times Magazine contains the cover story "Fortress America." In The Washington Post, Charles Lane reports that "Scalia Is Out for a Few Days After Surgery on Right Shoulder." Today's edition of The Boston Globe reports here that "Professor in terror indictments was a Bush supporter; Key figure among Muslims in Tampa." You can access here an article entitled "From raft to halls of justice: Journey to freedom from Vietnam shaped new prosecutor's life." An article reports that "Suffolk Superior Court safe at home; Its Post Office Square lease extended 1 year." And an op-ed by the president of the Boston Bar Association is entitled "Fixing our Balkanized state courts." The Los Angeles Times reports here that "Ban on Porn Is Proposed at University; Professor's bid to limit use of computers spurs debate on academic, 1st Amendment freedoms." Students who decide where to attend college based on the easy availability of pornography may therefore wish to look at schools other than Cal Poly San Luis Obispo. An article you can access here reports that "New D.A. Breaks Down Old Stereotypes; San Diego County's Bonnie Dumanis, reportedly the nation's first openly gay district attorney, narrowly beat incumbent on issues." And a news item from California -- where else? -- reports that "Beach May Ban Vehicles on Pot Smokers' Day." Posted at 09:26 by Howard Bashman "Judge shifts her focus on conflicts; Marjorie O. Rendell, the governor's wife, said she would not rule in cases involving the state": Today's edition of The Philadelphia Inquirer contains this report. Judge Rendell serves on the U.S. Court of Appeals for the Third Circuit and is the wife of Pennsylvania's newly elected governor, Ed Rendell. Posted at 09:22 by Howard Bashman Friday, February 21, 2003
Available online at law.com: Jonathan Ringel reports here that "Thomas Speaking Engagement Sparks Protest at UGA." The letter of protest in question is reprinted here at "How Appealing Extra," as is a recent graduate's riposte thereto. Tony Mauro addresses "Where Does the Sidewalk End and the ADA Begin?" The National Law Journal reports here that "Colorado Jurors May Get Right to Quiz Witnesses; Attorneys on both sides say the move would help the prosecution." In news from New York, "New Trial Is Granted Based on Challenges to Black Jurors; 'Batson' issue raised by prosecutor's decision to strike black jurors." And in other news from New York, "Judge Composes Operas, Others Face Music." Finally for now, Marcia Coyle has an article entitled "A Death Penalty Duel; U.N. court orders U.S. to stay executions."
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Justice Bedsworth's most recent column is now available online: Associate Justice William W. Bedsworth is one of the most intentionally funny members of California's appellate judiciary, and his latest column is now available online at this link. His subjects this month -- "Technology run amok" and the LobsterGram that turned out to be a FrozenLegGram. Plus, you can access here a whole bunch of his previous columns, most of which remain as funny as ever. Posted at 22:38 by Howard Bashman President Bush's radio address tomorrow: The topic -- "the importance of the Senate['s] holding an up or down vote to confirm the nomination of Miguel Estrada to the D.C. Circuit." See the closing lines of Ari Fleischer's press gaggle today. Posted at 19:06 by Howard Bashman Can't keep a news story like this to myself forever: The news story that "How Appealing" apparently broke (see post immediately below) at 2:24 p.m. eastern time today is now news worldwide. The Associated Press reports here that "Justice Scalia Resting After Surgery." United Press International reports here that "Scalia has shoulder surgery." And Reuters reports here that "Supreme Court's Scalia Has Shoulder Surgery." Posted at 19:00 by Howard Bashman Email from a news reporter who covers the U.S. Supreme Court: The following email just arrived: FYI, Your tantalizing tidbit sent me to the SC PIO, which confirmed it was Antonin Scalia, who had surgery Thursday on his right rotator cuff, and is expected to miss next week's oral arguments but participate in the cases by reading transcripts. You had it first.As I've always insisted, this blog is bound to prove informative on rare occasion. Posted at 17:18 by Howard Bashman "Divided high court returns to work": Michael Kirkland, UPI legal affairs correspondent, offers this report. Posted at 17:00 by Howard Bashman This afternoon's Miguel A. Estrada news and commentary round-up: For those who simply can't wait until noon on Monday when U.S. Senators again begin talking about D.C. Circuit nominee Miguel A. Estrada, you've come to the right place. The Times Record of Fort Smith, Arkansas reports here that "Latino Group Plans Issue Ads." The ads in question are pro-confirmation, by the way. The Associated Press reports here that "Abortion opponents rally against Daschle over nominee." I'm sure not everyone will view that as a positive development. The Winston-Salem Journal yesterday ran an editorial entitled "Choosing Judges." It concludes, "Another truth is that the Constitution gives presidents the right to nominate judges, and that presidents usually choose nominees who they believe share their political views. If Democrats have a substantive reason for opposing Estrada's nomination, it's past time to produce it. If not, they should let the Senate vote." Finally for now, The Press-Enterprise of Riverside, California earlier this week ran an anti-filibuster editorial entitled "Advice and filibuster." Posted at 16:28 by Howard Bashman "Court may look at case that pits Fat Cats against Fatter Cats": Yesterday's edition of The Repository of Canton, Ohio contained this report about a case pending at the cert. petition stage before the U.S. Supreme Court. Posted at 15:21 by Howard Bashman "Force Democrats to Stage Real Filibusters": Paul M. Weyrich shares his thoughts here at Human Events Online. Posted at 14:29 by Howard Bashman Best wishes for a speedy recovery: Word on the street is that very recently one of the nine U.S. Supreme Court Justices has successfully undergone minor surgery but may miss some or all of next week's oral arguments as a result. We wish the Justice in question a speedy and pain-free recovery. Posted at 14:24 by Howard Bashman "U. of Michigan Draws a New Type of Recruit": Today's edition of The New York Times offers this report. Posted at 14:06 by Howard Bashman Recent University of Georgia School of Law graduate responds to law professor's open letter criticizing invitation to Justice Clarence Thomas: The other day I reprinted at this link the law professor's open letter criticizing the law school's invitation to Justice Thomas to serve as this year's graduation speaker. Today I'm pleased to reprint a response from recent UGA Law graduate Holly A. Pierson, which you can access here at "How Appealing Extra." Posted at 12:40 by Howard Bashman "Ginsburg Lifts High Court Curtain on Clerk Roles, Working With Scalia": Jonathan Ringel has an article by this title in today's edition of The Fulton County Daily Report. Ringel's article -- which reports on Justice Ruth Bader Ginsburg's recent visit to Atlanta -- isn't yet freely available online, but if it ever is I certainly will link to it. Thanks to the reader who emailed the article's text to me. In the meantime, you can access Ringel's most current article that is freely available online -- entitled "Ver-r-r-ry Close Doesn't Count, Court Tells Bar Applicant; Justices' decision leaves bar exam score .05 of a point short" -- at this link. Posted at 12:34 by Howard Bashman Eighth Circuit orders $2.5 million reduction in judgment awarded to survivor of American Airlines' crash in Little Rock and to his wife: The remittitur orders a reduction in the jury's award to the crash survivor from $4,242,000 to $3,242,000 and in the award to the survivor's wife from $2 million to $500,000. You can access the today's opinion -- which describes in vivid detail what the survivor endured during and immediately following the crash landing -- at this link. If the plaintiffs refuse the remittitur, they will receive a new trial. Posted at 11:56 by Howard Bashman Available at National Review Online: Ramesh Ponnuru has an essay entitled "Sexual Rights: Traditionalists v. libertarians at the Supreme Court." Posted at 11:32 by Howard Bashman "GAO: Justice Dept. Inflated Terror Cases": The Associated Press offers this report. Posted at 11:30 by Howard Bashman "Approve Estrada nomination or don't -- just get on with it": Today's edition of The Austin American-Statesman contains this editorial. Speaking of which, the U.S. Senate returns to business on Monday, February 24, 2003, and continuation of the Estrada debate is the first substantive item of business on the calendar. I guess we'll hear plenty of "Here's what my constituents told me while I was back home last week." Posted at 10:58 by Howard Bashman Keep an eye on this case: Today's edition of The New York Times reports here that "U.S. Ruling Allows New York Judges to Take Part in Politics." The article begins, "A federal judge ruled today that judges in New York State have the same constitutional right to participate in political activities as ordinary citizens, striking down several provisions of the state's code of judicial conduct." You can access yesterday's ruling by District Judge David N. Hurd of the U.S. District Court for the Northern District of New York at this link. Posted at 09:29 by Howard Bashman "Flag Flap Causes Flag Flap": Huh? The Associated Press provides this report. Posted at 08:49 by Howard Bashman Adam White responds: To a letter to editor (third item) of the Harvard Law Record critical of Adam's recent column supporting the Estrada nomination. You can access Adam's response here. Adam demonstrates one reason why it's nice to have a blog -- so that you can respond to critics of your published work. Sometimes you can even note praise (see here and here) of your published work. Posted at 08:45 by Howard Bashman Today's FindLaw commentator: Vikram David Amar has an essay entitled "A Crucial Contract Issue May Go All the Way to the Supreme Court: Are Agreements to Arbitrate Enforceable, Or Do Parties Still Retain the Right to Sue?" Earlier this month, I wrote about the case at issue in Amar's essay -- a decision I have described as "so very Ninth Circuit" -- in a post you can access here. Posted at 08:12 by Howard Bashman Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "Medium Security Captives Moving to New Guantanamo Site." In news from California, "Disney Suffers Blow in Pooh Case; State high court rejects bid to lift sanctions imposed because the firm destroyed evidence." And this article reports that "Ruling Is a Boon for State's Disabled Workers; The Supreme Court reaffirms a standard that is less restrictive than federal law." You can access here an article entitled "Police Continue Homeless Sweeps on Skid Row Despite ACLU Suit." An article reports that "Judge unseals juvenile records in Malvo case; Officials did not know his name, age or origin." And two letters to the editor run under the heading "Wrangling Over Judge's Meeting With Inmate." The Washington Times contains an op-ed by R. Emmett Tyrrell Jr. entitled "Identity gridlock." The first item of today's "Inside Politics" may be of interest. And an editorial is entitled "Ambulance chasers on the run." The Boston Globe reports here that "Romney details plan to manage judiciary." A related editorial is entitled "Reordering the courts." And you can access here an article entitled "Protesters rally against INS rules; Effort decried as racial profiling." Posted at 07:56 by Howard Bashman In Friday's newspapers: In The Washington Post, columnist E.J. Dionne Jr. argues "They Started It." "They" refers to Republicans, and "it" refers to unfairly delaying the approval of qualified judicial nominees. You can access here an article entitled "Anguish, Anger on Both Sides Of Md. Death Penalty Debate." And here's an article entitled "Evidence of Illegal Malvo Interview Cited; Court Order Bolsters Case, Defense Says." Posted at 00:13 by Howard Bashman Thursday, February 20, 2003
Tonight's judicial nomination and confirmation news and commentary from here and there: This article reports on "Estrada's Sioux Falls Supporters." Rick Martinez has an op-ed in The Raleigh News and Observer entitled "Nominee has earned his vote." The Hannibal Courier-Post contains an op-ed by Michael Reagan entitled "No Conservatives need apply." An editorial in The Reno Gazette-Journal is entitled "Estrada fray begs forgiveness." Gordon Sawyer has an essay entitled "The Estrada Case Is Not About Latinos. It Is Liberal vs. Conservative." The Kalamazoo Gazette contains an editorial entitled "Senate filibuster is a two-edged sword." The Minnesota Daily contains an editorial entitled "Partisanship is a democratic duty." And UPI offers a commentary entitled "Congressman Billybob sez." As someone on the verge of being famous once said, "At this rate, the Penny Saver will weigh in soon."
Finally for now, in commentary from that other Philadelphia, Bill Minor has an essay entitled "In defense of Charles Pickering" that ran in The Neshoba Democrat. Posted at 23:32 by Howard Bashman Available online at law.com: This article reports that "California Justices Give State Independent Disability Laws." You can access here an article entitled "New York State Judicial Conduct Rules Struck." In news from New Jersey, "Spying Spouse May Be Guilty of Stalking." And an article entitled "Method of Resolution in Domain Name Case Not True Arbitration" reports on a ruling that the U.S. Court of Appeals for the Third Circuit issued today. Posted at 23:24 by Howard Bashman Yay! Dahlia Lithwick's American Lawyer essay, entitled "Statutory Date," is now available online here. I hope Slate doesn't get jealous that she's writing such good stuff for another publication. (Thanks for taking my advice, AmLaw.) Posted at 23:14 by Howard Bashman A clash of two American icons: Today the U.S. Court of Appeals for the Tenth Circuit ruled that bald eagles are more important than golf. The blog "How Green Is My Country" has the details here. Posted at 23:03 by Howard Bashman "We would if we could": And now they can. Today the U.S. Court of Appeals for the Eleventh Circuit granted rehearing en banc in Glanzner v. Glanzner, a case in which the three-judge panel's original opinion concluded by stating: "That the Simpson decision has managed to survive as the law of this circuit for nearly three decades shows that inertia is more than just a law of physics. The time has come to overturn that decision, and rehearing en banc should be granted in this case for that purpose. Until then, we are required to affirm the district court's grant of summary judgment against Elisabeth Glazner." The Simpson case had held that the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which outlaw non-consensual recordings of private conversations, did not apply to a spouse who covertly records the telephone conversations of the other spouse in the marital home, and the recording is accomplished without the connivance of any outside party. It now appears that the Simpson case is on the verge of being overruled, and it will be very interesting to see whether the overruling will be prospective only. See footnote two of the original panel decision, which states "We express no opinion on whether, if en banc rehearing is granted and the Simpson decision is overturned, the new rule ought to be applied in this case or prospectively only." Posted at 22:53 by Howard Bashman "2 officers cleared in Schieber lawsuit": The Philadelphia Inquirer has this report on today's Third Circuit ruling. Posted at 22:48 by Howard Bashman Tonight's music selection: "When I'm Gone" by 3 Doors Down. You can access the music video at this link (Real Player required). Posted at 22:46 by Howard Bashman "Estrada Backers Say Ad Campaign to Go On": The Associated Press offers this report. I'll be posting links to other press coverage and commentary, plus some emails from readers, later tonight. Posted at 19:50 by Howard Bashman From tomorrow's edition of The Christian Science Monitor: An article entitled "Hispanic judicial nominee: Low profile, high stakes; Democrats filibuster the conservative's confirmation, hinting at possible row over next Supreme Court vacancy." I'm not going to wade into a discussion of that headline. Posted at 19:39 by Howard Bashman "Bookseller Purges Files to Avoid Searches": The Associated Press offers this report. Posted at 17:30 by Howard Bashman Memo to Al Hunt: The following email has just arrived from Law Professor, and National Review Online contributing editor, Jonathan H. Adler: There are more than one or two errors in Hunt's WSJ piece.Thanks for writing! Posted at 17:23 by Howard Bashman Virginia prisoner grooming policy challenged under the Religious Land Use and Institutionalized Persons Act: The Associated Press provides this report. You can access the text of the law in question at this link. Posted at 16:19 by Howard Bashman Divided Third Circuit panel holds Philadelphia police officers are entitled to qualified immunity in Shannon Schieber case: The lead opinion in this very high profile case begins, "In the early morning hours of May 7, 1998, Shannon Schieber was raped and murdered in her second floor apartment at 251 S. 23rd Street, Philadelphia, Pennsylvania. Ms. Schieber's parents, Sylvester and Vicki, brought this civil rights suit on their own behalf and as representatives of her estate against the City of Philadelphia and Steven Woods and Raymond Scherff, the police officers who responded to a 911 call from one of Schieber's neighbors on the night of her murder." Today's decision, which produced a separate opinion from each judge on the panel, holds that the two police officers are entitled to qualified immunity and will therefore be dismissed from the case. District Judge Gregory M. Sleet, sitting by designation from the U.S. District Court for the District of Delaware, dissented from today's ruling. You can access a news report on the perpetrator's guilty plea in May 2002 at this link. Posted at 15:51 by Howard Bashman I may not agree with Nan Aron's views on judicial selection: But I nevertheless found her to be a very effective debater. Yet I found the quality of today's Federalist Society debate, overall, to be disappointing. While the debate was occurring, the following email arrived: I think it is worth remembering that judicial activism is not measured by how many statutes a court strikes down -- contrary to the views of Al Hunt and some of your e-mailers. Whether a judge is a judicial activist depends upon whether he ignores or bends the plain language of the Constitution, statutes, and/or precedent to achieve the result he desires.Thanks for sharing those interesting views. Now why didn't anyone say something like that during today's debate? Posted at 15:24 by Howard Bashman "Law and Human Dignity": Tomorrow and Saturday, the Student Division of The Federalist Society will host its annual National Student Symposium, held this year at the Notre Dame Law School. At least four federal appellate judges, along with a whole bunch of law professors, are scheduled to take part in the event. You can access general information here, and there's a program describing the scheduled panel sessions at this link. Posted at 15:06 by Howard Bashman In about one half hour from now, you can watch the Federalist Society's debate on the Estrada nomination live on C-SPAN: The Federalist Society today hosts a debate on the nomination of Miguel A. Estrada to the U.S. Court of Appeals D.C. Circuit, and the debate -- between former White House Counsel C. Boyden Gray, who now heads The Committee for Justice, and Alliance for Justice President Nan Aron -- will be shown live on C-SPAN starting at 1:30 p.m. eastern time. You can watch live via this link. Posted at 13:01 by Howard Bashman U.S. District Judge, and former Clinton Third Circuit nominee, Stephen M. Orlofsky to return to private practice: Today's edition of The Newark Star-Ledger reports here that District Judge Stephen M. Orlofsky of the U.S. District Court for the District of New Jersey has decided to leave the judiciary and return to the private practice of law. President Clinton had nominated Orlofsky to fill a vacancy on the U.S. Court of Appeals for the Third Circuit in May 2000, but the U.S. Senate never acted on the nomination. For what it's worth, President Bush has not yet nominated someone to fill that Third Circuit vacancy. (Thanks to Adam Bonin for bringing the Star-Ledger article to my attention.) Posted at 10:53 by Howard Bashman Seventh Circuit reverses injunction intended to give witnesses to a crime who are undergoing interrogation prompt access to counsel: Yesterday's opinion, written by Circuit Judge Frank H. Easterbrook on behalf of a unanimous three-judge panel, holds that a criminal defense attorney "has neither a personal right, nor one derived from its clients, to have the police notify witnesses that a lawyer is at the front desk, let alone a right to be escorted inside immediately and to engage in confidential consultations within the police station." Posted at 10:15 by Howard Bashman Seventh Circuit falls two votes shy of granting rehearing en banc in United Center merchandise peddling case: Back on November 20, 2002, I wrote: Seventh Circuit strikes down Chicago ordinance that prohibited the peddling of merchandise near the United Center: You can access today's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit at this link. The plaintiff who won today's appeal, and thereby obtained the reversal of a trial court's ruling to the contrary, was seeking to sell a book that was highly critical of the owner of the Chicago Blackhawks. The Seventh Circuit concluded both that the ordinance was not a valid time, place, and manner restriction and that the ordinance constituted an unlawful prior restraint.Yesterday the Seventh Circuit entered an order noting that only four of the court's eleven active judges had voted in favor of a petition for rehearing en banc in this case. Attached to the order is an opinion dissenting from the denial of rehearing en banc written by Circuit Judge Frank H. Easterbrook, in which two other circuit judges joined. Posted at 10:10 by Howard Bashman This morning's judicial nomination and confirmation news and commentary from here and there: FindLaw commentator Edward Lazarus today has an essay entitled "How the Miguel Estrada Nomination Illustrates Our Out-of-Control Confirmation Process, And What We Can Do to Improve the System." Al Hunt has an op-ed entitled "Symmetry in Judicial Nominations" that contains at least an error or two in today's edition of The Wall Street Journal. The Star Press of Muncie, Indiana reports here that "Nominee Estrada being 'targeted.'" Jane Chastain has an essay entitled "Wimps, wimps, double wimps!" And The New York Post prints letters to the editor under the heading "Dems 'Judging' Estrada on Party Affiliation Alone." Posted at 09:38 by Howard Bashman Protests against Jeffrey S. Sutton's nomination to the U.S. Court of Appeals for the Sixth Circuit scheduled for today in California: "TalkLeft" supplies the details here. Posted at 06:58 by Howard Bashman Elsewhere in Thursday's newspapers: The Washington Times reports here that "Estrada backers cite ABA guidelines." Bob Dole has an op-ed in USA Today that asks, "Will eroding judges' salaries also undercut justice itself?" The Boston Globe reports here that "12 Democratic senators defend affirmative action in Mich. cases." Here's an article entitled "Judge rules church suits can proceed; Archdiocese's 1st Amendment motion rejected." In news relating to charges of judicial misconduct, this article reports that "Lopez lawyers castigate prosecutor; Say counsel treating case like 'vendetta.'" An editorial is entitled "Diversity defense." And columnist Ellen Goodman has an essay entitled "Demons in a death penalty case." In news from Florida, The Los Angeles Times reports here that "Court to Hear Challenge to Florida's 'Scarlet Letter Law'; The state won't defend a public disclosure statute for some women giving children up to adoption." John Walker Lindh's inmate identification number awaits you in an article entitled "Lindh Begins Sentence at Prison in Victorville; The man from Marin County is serving 20 years for fighting on the side of the Taliban." In news from Los Angeles, this article reports that "ACLU Sues to Block Enforcement of L.A. Ordinance Against Homeless." And, finally for now, you can access here an article entitled "Ruling Favors L.A. Bank Created to Aid Development After Riots." Posted at 06:31 by Howard Bashman It's officially the dead of winter: How can you tell? Sports Illustrated's swimsuit issue arrives at newsstands today (cover image here). Posted at 01:00 by Howard Bashman In Thursday's newspapers: The Washington Post reports here that "For Hispanic Groups, A Divide on Estrada; Political, Geographic Fault Lines Exposed." In news from Virginia, this article reports that "Vote Gives Felons 90 Days for Evidence; Va. Assembly Backs Extending Deadline," and you can access here an article entitled "Malvo Telecast Proposed." Warren Richey of The Christian Science Monitor reports here that "Florida fights over death-row lawyers; Gov. Jeb Bush wants to cut capital-appeals agency. Critics say it undermines justice." Warren picked the perfect time to be in Miami. The New York Times reports here that "Ruling Recognizes Patients' Right to Sue." A different NYTimes reporter had a story about the very same decision just two days ago. And here the Times runs an Associated Press article under the headline "Civil Liberties Lawyers Raise Questions About Web Filters." Posted at 00:14 by Howard Bashman Wednesday, February 19, 2003
700,000: Wow, according to this Web log's Bravenet hit counter, "How Appealing" has just experienced its 700,000th page visit since this Web log came into existence on May 6, 2002.
Posted at 23:46 by Howard Bashman
This is your brain on drugs: Perhaps you've seen that television commercial where the driver of a car is smoking marijuana while parked at a fast-food drive-through window and then speeds off, colliding the car at high speed into a young girl riding a bicycle. This opinion that the U.S. Court of Appeals for the Fifth Circuit issued today provides further, non-fictional proof (as if any were needed) that smoking marijuana and driving don't mix. Posted at 23:00 by Howard Bashman Bean there, done that: The U.S. Court of Appeals for the Fifth Circuit today issued this short per curiam opinion on remand from the U.S. Supreme Court's recent ruling in United States v. Bean, No. 01-704 (U.S. Dec. 10, 2002). You can access my summary of the Supreme Court's ruling in Bean at this link. Posted at 22:53 by Howard Bashman Available online at law.com: Tony Mauro has an article entitled "A Matter of Trusts; Using a takings argument to attack a major source of legal aid funding, IOLTA opponents may have picked the wrong amendment." And let me extend my personal thanks to the kind folks at law.com for making my February 2003 appellate column originally published in The Legal Intelligencer available online free of charge here to law.com's national audience. The title of the column is "Do's and Don'ts for Appellate Court Web Sites." You can access direct links to the best and worst appellate court Web sites mentioned in my column via this earlier post. Posted at 22:46 by Howard Bashman The Eleventh Circuit denies F. Lee Bailey's claim to $2 million attorney's fee that had been forfeited to the federal government: You can access the Eleventh Circuit's ruling, issued yesterday, at this link via FindLaw. Posted at 22:32 by Howard Bashman The U.S. Supreme Court's final oral argument calendar for the October 2002 Term: You can access it here, listing oral arguments for the two-week period beginning April 21, 2003. This could present your last chance to see an oral argument involving all of the Court's current Justices. Posted at 22:17 by Howard Bashman Love is a battlefield: The AP is reporting here that "Hustler Magazine Denied Access to Troops." You can access today's ruling by District Judge Paul L. Friedman of the U.S. District Court for the District of Columbia at this link. (This post's title courtesy of Pat Benatar.) Posted at 22:12 by Howard Bashman What about fire and famine? The Associated Press reports here that "Flooding Feared in Wake of the Blizzard." Relatedly(?), Gina Holland reports here that "U. of Mich. Filings Flood Supreme Court." Posted at 22:10 by Howard Bashman Tonight's music selection: "In Da Club" by 50 Cent. You can access the music video via this link. Posted at 22:05 by Howard Bashman Even more Federalist Society news: At the risk of becoming the place on the Web to turn for Federalist Society news, I have two quick things to report. First, tomorrow's debate on the judicial confirmation process at the National Press Club will indeed be televised, on C-SPAN's main television network (C-SPAN1, for those of you who like numbers with your letters). The original announcement of this rescheduled event can be accessed here. Second, Senate Judiciary Committee Chairman Orrin G. Hatch will be appearing this Saturday afternoon at the Columbia Law School to address the topic "Becoming a Federal Judge: Nomination to Confirmation." If this is a speech that he has given on past occasions, Senator Hatch may need to revise his outline to focus on the filibuster process. Posted at 17:23 by Howard Bashman This evening's round-up of Miguel A. Estrada-related commentary: The Spartanburg Herald-Journal this past Friday contained an editorial entitled "Filibuster over Estrada is unreasonable, partisan obstructionism." The Providence Journal the same day ran an editorial that began, "The decision of Senate Democrats to filibuster the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia is unfortunate, to say the least." On Sunday, The Atlanta Journal-Constitution ran an editorial entitled "Critics fail to make case vs. Estrada." The Augusta Chronicle contained an editorial that same day entitled "Support Estrada." And The Grand Forks Herald ran an editorial entitled "Stop the filibuster." On Monday of this week, Governor George E. Pataki had an op-ed in The New York Daily News entitled "The Senate should confirm Estrada." Also on Monday, Philip Terzian had an op-ed entitled "Latino pick for bench too Republican." Finally for now, in yesterday's edition of The Newark Star-Ledger, columnist Paul Mulshine had an essay entitled "The joke's on Bob Menendez." Posted at 17:01 by Howard Bashman Weather should be permitting: Time for another email from The Federalist Society: Judicial Confirmations Debate -- Rescheduled for Tomorrow, February 20C-SPAN2 was originally going to provide live coverage of the debate -- before inclement weather required its cancellation earlier in the week. No word yet on whether the debate will appear on TV (and over the Web) tomorrow. Posted at 15:25 by Howard Bashman Substitute panel of New Hampshire Supreme Court denies Justices' claims for attorneys' fees in defending against impeachment proceedings: You can access the opinion, issued yesterday, at this link. The concurring opinion contains the passage: "Though judicial restraint is less ubiquitous than desirable, it is no more recondite than in the case before us." Huh? Posted at 15:18 by Howard Bashman 18th Annual Fifth Circuit Appellate Practice and Advocacy Seminar: Received the program and an invite in today's mail to the 18th Annual Fifth Circuit Appellate Practice and Advocacy Seminar, which is taking place in New Orleans on April 10 and 11, 2003. The seminar is sponsored by the Bar Association of the Fifth Federal Circuit, Loyola University School of Law Institute for Continuing Legal Education, and the American Academy of Appellate Lawyers. I'm not sure I will be able to find a way to attend, but it definitely does look to be worth the effort (details here and here). Posted at 15:06 by Howard Bashman Jeffrey Rosen contends "We'd be better off without Roe": Jeffrey Rosen, who serves as legal affairs editor at The New Republic, has an essay entitled "Worst Choice: Why we'd be better off without Roe" in the February 24, 2003 edition of that publication. Thanks to the reader who emailed to draw this to my attention. Posted at 14:46 by Howard Bashman The defendant didn't plan to kill them with kindness--a weapon of some sort would have been necessary: This post's title paraphrases a passage from an opinion that Circuit Judge Terence T. Evans issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. Earlier in the opinion, Judge Evans notes that "It is, of course, certainly not surprising that someone who claims to hear bizarre commands from God and then embarks on a massive crime spree has more than a few mental problems." Posted at 13:52 by Howard Bashman Today's Ninth Circuit church vs. state ruling: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously ruled that officials at a California high school did not violate the First Amendment rights of the plaintiff-salutatorian "by censoring sectarian, proselytizing portions of a speech that Plaintiff gave at his high school graduation ceremony." You can access the court's opinion, by Circuit Judge Susan P. Graber, at this link. Posted at 13:27 by Howard Bashman "College Graduate Takes Helm at Harvard Law Review": You see, not just anyone qualifies this year. You had to graduate from college first. The Harvard Crimson has this report. Posted at 13:11 by Howard Bashman Another blogging law professor? Tung Yin of the University of Iowa College of Law has a new blog, and you can access it here. Some good news -- he likes TV! Posted at 12:19 by Howard Bashman Today's FindLaw commentator: Law Professor Michael C. Dorf has an essay entitled "The Misguided Quest for Geographic Uniformity in Capital Punishment." Posted at 11:58 by Howard Bashman Coverage from The Michigan Daily: Today's edition of the University of Michigan's student newspaper reports here that "'U' submits briefs to Supreme Court" and here that "Granholm brief argues colleges have discretion to shape policies." The Granholm in question is, of course, newly-elected Governor of Michigan Jennifer M. Granholm. Posted at 11:45 by Howard Bashman Available at National Review Online: Roger Clegg has an essay entitled "Corporate Correctness; Corporations line up with the University of Michigan." Posted at 11:01 by Howard Bashman The Second Amendment and the Ninth Circuit: In case you missed yesterday's ruling from the Ninth Circuit that involved the Second Amendment, you can access my summary here. The ruling, dare I say, triggered a bunch of press coverage in addition to the LATimes article I mentioned below. The Sacramento Bee reports here that "Court's rift sets up key gun ruling; Judges' disavowal of colleagues' opinion could send a Second Amendment case to the Supreme Court." Bob Egelko of The San Francisco Chronicle has an article entitled "Alameda fairgrounds' gun ban upheld; Panel's decision may be prelude to top court ruling." The Oakland Tribune reports here that "Prohibition of guns on county land to remain; Show promoters, citing Constitution, vow to keep fighting 1999 ordinance." The Bay City News reports here that "Federal appeals court upholds county gun show bans." David Kravets, who covers the Ninth Circuit for The Associated Press, has an article entitled "Appeals court reluctantly rejects challenge to gun show ban." And The Arizona Daily Sun contains an article with a notable anti-Ninth Circuit flavor to it entitled "Court: No absolute right to carry weapons in public buildings." Posted at 10:46 by Howard Bashman He can't resist: Stuart Buck "can't resist commenting on the shockingly dishonest, small-minded, and intolerant letter written by a University of Georgia law professor in opposition to the selection of Justice Thomas as a graduation speaker this year." You can access Stuart's post here and the letter here at "How Appealing Extra." Posted at 10:43 by Howard Bashman "Philippe de Croy" debates the role of race in the Estrada nomination: Debates with himself, that is. You can access his thoughts here, at "The Volokh Conspiracy." Posted at 10:39 by Howard Bashman Elsewhere in Wednesday's newspapers: The Washington Times reports here that "White House rips Estrada holdup." Frank J. Murray reports here that "The Supreme Court is considering an unusual church vs. state appeal this week that could govern whether shoppers can place their faith in kosher labels on food." In news from Virginia, "Senate OKs pro-life plates for vehicles." And the final item contained in "Inside the Beltway" discusses the Miguel A. Estrada confirmation battle. David G. Savage of The Los Angeles Times has an article entitled "A 'Powerful Message' on Diversity; More than 60 groups file briefs in support of the University of Michigan's admissions policy." Henry Weinstein reports here that "Federal Court Backs County Ban on Guns; Alameda ordinance can bar firearms from public property, panel says in the latest decision in a long-running debate on the 2nd Amendment." Weinstein's article quotes both Eugene Volokh and Erwin Chemerinsky. (I'll provide more news coverage of yesterday's Ninth Circuit gun ruling soon in an upcoming post.) Yale Law Professor Bruce Ackerman has an op-ed entitled "Judicial Extremism: a German Antidote." The Boston Globe reports here that "Harvard files brief on race use; Justices urged to uphold policies on admissions." And an article that the Globe has borrowed from The Baltimore Sun is entitled "ACLU grows in debate over antiterrorism steps." Posted at 10:22 by Howard Bashman The February 24, 2003 edition of The New Republic offers both Posner and Easterbrook: True, the Easterbrook in question is Gregg, but the Posner in question is Seventh Circuit Judge Richard A. Posner, and he is reviewing a biography of U.S. Supreme Court Justice William O. Douglas. You won't want to miss this review. (Link to review via "Sugar, Mr. Poon?") Posted at 10:19 by Howard Bashman The University of Michigan's U.S. Supreme Court merits briefs are now available online: You can access the Brief for Respondents in the Grutter case, which challenges the use of racial preferences in law school admissions, at this link. You can access the Brief for Respondents in the Gratz case, which challenges the use of racial preferences in undergraduate admissions, at this link. Posted at 10:12 by Howard Bashman In Wednesday's newspapers: The Washington Post reports here that "Parties Gamble on Estrada Nomination; Fight Over Appeals Court Hopeful May Set Tone for '04 Presidential Campaign." You can access here an article entitled "Much Rides on Terror Case; Appeal Could Alter U.S. Strategy in Similar Prosecutions." And might the Post's editorial page sometimes look to "How Appealing" in search of topics on which to opine? I'm not telling. But you can access here an editorial that begins, "'Whether Congress may ban electric guitars from federal prisons might seem an unimportant -- even trivial -- question,' writes Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit. Well, yes. But sometimes a case's triviality masks the importance of the principle it considers." The New York Times contains an article entitled "A Challenge in California Over Decisions for the Coast." And you can access here an editorial entitled "Bill Frist's Prescription." Posted at 00:15 by Howard Bashman Tuesday, February 18, 2003
"This is how the filibuster will fall to pieces": Byron York has this report in tomorrow's edition of The Hill.
Posted at 23:44 by Howard Bashman
Tonight's round-up of reader email on the Miguel A. Estrada confirmation battle: Here's one debate that inclement weather hasn't canceled. The reader whose email I posted and responded to here this afternoon replies: Thank you for maintaining such an engaging site ... it's a true service to the legal profession.A reader affiliated with the Republican party responds as follows to the same earlier post: The correspondent's argument is a theory, but it's not the one that Senator Leahy himself adopted when he took the floor last week and addressed his earlier statements. He simply denied that they applied here, claiming that he was talking about "holds" only and that his views were taken "out of context." Obviously if you read the quotes in full you can judge for yourself that response. Suffice it to say that he said he was opposed to "filibusters" as well as "holds," and that he was opposed to a filibuster with Thomas, too. So given the opportunity to say that he'd changed his mind, he passed. He just spun.Another reader emails: You make some very good points. Re the third, I think this is pretty clearly a Supreme Court battle being fought at a time when it can be fought -- i.e., when naming the nation's first Hispanic justice is not on the line. I believe the Democrats are miscalculating here, that this is a battle not worth fighting, and any victory destined to be Pyrrhic.And yet another reader comments: Sen. Kennedy said that if they confirmed Estrada for the D.C. Circuit, they would have a difficult time explaining their opposition to Estrada as a Supreme Court justice. On the D.C. Circuit, it is difficult, in my opinion, to accumulate a record that average Americans will find offensive. The average joe who supports or opposes abortion or school vouchers of the death penalty doesn't understand or care about Chevron doctrine or antitrust law. It is highly unlikely that Estrada will leave a smoking gun on that circuit, a circuit where the each member of the three-judge panels often agree with one another.Another reader emails: Democrats now complaining about Senator Hatch, and his treatment of Democratic nominees, should focus their blame on the President Clinton, not Senator Hatch. A President has a duty to expend political capital on judicial nominees. President Clinton was notorious for not backing his nominees (see Lani Guanier) and his failure to challenge Senator Hatch or anyone else is the prime reason many of his nominations never moved. I expect both sides to use underhanded tactics outside the public eye to thwart the other party's potential nominees. Only when the President uses his or her political capital will those shenanigans be exposed. Orrin Hatch would not have gotten up on the Senate floor and defended the Republican's right to not hold votes on President Clinton's nominations. But President Clinton never forced such a debate because he was too enmeshed in, uh, other matters.Finally, an associate at a large, prestigious Wall Street-based law firm emails: First, let me say how much I enjoy your site. However, I think you are letting your pro-Estrada fervor get the better of you. I think, with all due respect, your attempt to distinguish Senator Orrin Hatch's 1997 comments before the Federalist Society is completely disingenuous. The fact of the matter is that what Hatch did to Clinton's nominees was much worse (or at least equal) to what is being done to Bush's nominees now. Many of Clinton's nominees did not even get a hearing, much less a vote. Isn't that much worse than a filibuster? You can't filibuster something that never moves to the floor.Thanks again, everyone, for writing. Posted at 23:07 by Howard Bashman Available online at law.com: Jason Hoppin reports here that "2nd Amendment Fight Steals Show in Gun Ban Case; Conservative panel enters fray over individual rights." Here's an article entitled "Judges in 2nd Circuit Still Conflicted Over Federal Death Penalty." In news from New York, "Conviction Holds Even Though Defender Had Prosecuted Case." Finally for now, this article reports that "Texas Court Reverses $43M Judgment Against Automaker." Posted at 22:55 by Howard Bashman Doesn't Suck anymore: Another blog by someone who used to write for Suck. (Via "Soundbitten.") Posted at 22:29 by Howard Bashman University of Georgia School of Law Professor today sends "open letter" opposing choice of Justice Clarence Thomas as graduation speaker: The law professor in question is Donald E. Wilkes, Jr. His open letter begins: Dear Colleagues, Law Students, and Other Members of the Law School Community:You can access the complete text of the letter at "How Appealing Extra" via this link. Thanks to a reader for forwarding the letter to me. Posted at 22:07 by Howard Bashman The cover story of The Advocate asks "Is there a gay man on the U.S. Supreme Court?" You can access the cover story at this link (via "Eschaton"). Also in that issue, "David J. Garrow counts the potential votes." Posted at 21:57 by Howard Bashman "Estrada battle symbolises US judicial values": British spelling alert! Must be an article from The Financial Times. And this past Sunday, Myriam Marquez had an op-ed entitled "Democrats' desperate stretch" in The Orlando Sentinel. Posted at 21:05 by Howard Bashman Abolish the Texas Court of Criminal Appeals? Today's edition of The Austin American-Statesman contains an editorial that calls for the abolition of Texas' court of last resort in criminal cases. The editorial notes that "All other states except Oklahoma have one high court to handle both criminal and civil appeals, and the United States has gotten by with one Supreme Court for more than two centuries." (Link to editorial via "TalkLeft.") Posted at 20:56 by Howard Bashman From the February 17, 2003 issue of The National Law Journal: Marcia Coyle has an article entitled "A Death Penalty Duel; U.N. court orders U.S. to stay executions." Gary Young has an article entitled "Grounded by the IRS; The 9th Circuit ruled that two IRS lawyers committed fraud in tax case." And an op-ed by Vivian Berger is entitled "Consenting Adults." Posted at 18:02 by Howard Bashman "White House Says 'Liberal Wing' Stalling Judge": Reuters offers this report. You can access a transcript of today's White House press briefing -- from which the "liberal wing" comment is taken -- at this link. Posted at 17:24 by Howard Bashman "Groups Urge Limit on Govt. Spying Powers": Gina Holland of The Associated Press offers this report, which begins: "Civil liberties groups are using a long shot approach in an effort to get the Supreme Court to limit the government's power to spy, filing an appeal Tuesday on behalf of people who don't even know they're being monitored." You can access the cert. petition in question at this link. Posted at 17:20 by Howard Bashman Point, counterpoint: The following email arrived this afternoon: I understand why someone of your view on the Estrada nomination would find Senator Leahy's former comments, shall we say, entertaining. Nonetheless, I personally do not find them compelling when viewed acontextually. Leahy's view on holding up-or-down votes on judges may well have changed after experiencing the refusal of the Hatch Judiciary Committee to move on any number of qualified nominees, including those for whom no blue slip blocked movement, such as Elena Kagan or Alex Snyder, and even nominees reported favorably out of the committee, such as Bonnie Campbell, were denied an up-or-down vote. (Hatch's commitment to the priority of up-or-down votes seems to me to be rather newfound.) After such antics have been employed to shift the ideological balance of the judiciary, one becomes more open to meeting force with force, so to speak. That is, one who is opposed in general principle to denying nominees an up-or-down vote may nonetheless reasonably conclude that in a context where numerous federal appellate court nominees have been denied such a vote, that benefits of those denials should not inure to the very people who have adopted such radical means in the first place. I suspect that Leahy would be willing to trade a vote on all of these formerly denied Clinton nominees in exchange for a vote on the Bush nominees for the seats that remained open.I have three comments in response to this email. First, should it be easier for a President to get his judicial nominees confirmed when the same political party controls the White House and has a majority in the U.S. Senate? In the past, I think that the answer was understood to be "yes." Now the answer, at a minimum, is "not always." Thus, in the future, so long as there are forty-one Republican Senators willing to oppose a Democratic nominee, a Democratic President and a Democratic-controlled U.S. Senate won't be able to put that nominee on the bench. Second, while it's impossible to read Senator Hatch's mind to know for sure what he meant by a "nominee's jurisprudential views," Miguel A. Estrada has testified extensively concerning the approach he would take to deciding cases. What he has avoided is providing his personal opinions about issues that have in the past or could in the future come before courts. But he has also explained that his personal views will be irrelevant to how he decides legal issues that come before him as a judge. Many people of good will question whether it is possible for judges to put aside their personal and political views in deciding legal issues. I believe that it is indeed possible, as I have explained in more detail in my essay from December 2002 entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" Third and finally, it cannot be denied that the Democratically-controlled U.S. Senate last year allowed the confirmation of several federal appellate court nominees who could turn out to be very conservative judges -- much more conservative than Estrada is likely to be -- which raises the question why has Estrada's nomination resulted in the confirmation battle to end all confirmation battles? I can think of several possible explanations, but I find none of them to be satisfactory. Posted at 16:30 by Howard Bashman Battle between Attorney General of Texas and County's District Attorney over propriety of death sentence reaches Fifth Circuit: The Attorney General of Texas wishes to confess error, while the District Attorney from the County that prosecuted the convicted killer argues that the error was waived. When the convict's habeas petition reached a federal district court and the District Attorney sought to intervene in the matter, the district court ruled that the application for intervention presented a non-justiciable political question. Today the U.S. Court of Appeals for the Fifth Circuit reversed the trial court's political question ruling and sent the petition to intervene back to the trial court to be considered on the merits. You can access the Fifth Circuit's opinion here. Posted at 16:07 by Howard Bashman Loyola Law School Professor Rick Hasen joins the ranks of blogging law professors: You can access his brand new blog -- "Election Law" -- at this link. One of Rick's first posts pertains to Miguel A. Estrada's nomination to serve on the D.C. Circuit. Posted at 16:02 by Howard Bashman Civil liberties and Arab-American groups ask U.S. Supreme Court to review ruling of Foreign Ingelligence Surveillance Court of Review: You can access the cert. petition here and a press release from the ACLU at this link. The Court of Review's ruling is available here, and a transcript of the first ever oral argument before that court can be accessed here. Of course, because the organizations challenging the Court of Review's ruling were not parties in the Court of Review, they are also asking the Supreme Court for permission to intervene. Posted at 15:49 by Howard Bashman "Gulf War Vet on Death Row Seeks Clemency": The Associated Press offers this report. Posted at 14:12 by Howard Bashman En banc Ninth Circuit may yet examine meaning of the Second Amendment's right "to keep and bear arms," a decision issued today suggests: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued a very interesting opinion resolving "whether a local ordinance prohibiting the possession of firearms on county property infringes upon constitutional rights protected by the First and Second Amendments." The Ninth Circuit affirmed the district court's denial of a preliminary injunction sought by plaintiffs, individuals who promoted gun shows on county fairgrounds in Alameda County, California. The opinion for the panel was written by Circuit Judge Diarmuid F. O'Scannlain. The opinion's discussion of the plaintiffs' Second Amendment challenge is worth reproducing in full: Finally, we turn to Nordyke's challenge to the Ordinance on Second Amendment grounds. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." U.S. Const. amend. II. The meaning of this amendment and the extent of the constitutional right it confers have been the subject of much scholarly and legal debate.Also not to be ignored is the specially concurring opinion of Circuit Judge Ronald M. Gould, which begins: I join the court’s opinion, and write to elaborate that Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), was wrongly decided, that the remarks in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), about the "collective rights" theory of the Second Amendment are not persuasive, and that we would be better advised to embrace an "individual rights" view of the Second Amendment, as was adopted by the Fifth Circuit in United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001), consistent with United States v. Miller, 307 U.S. 174 (1939).You can access both opinions at this link. Posted at 13:25 by Howard Bashman "Halting Estrada won't beat GOP": Gregory Tejeda, in today's installment of his "Hispanidad" column for UPI, offers these thoughts. Posted at 12:27 by Howard Bashman Juan Non-Volokh asks "whether Estrada's nomination would have provoked the same level of opposition were he not Hispanic": You can access Juan's answer here. Apparently Juan's partially-Hispanic pseudonym gives him special insight into this matter. Posted at 12:17 by Howard Bashman "Denying Mr. Estrada an Up-or-Down Vote Would Set a Dangerous Precedent": You can access this press release via the Web site of the U.S. Senate's Republican Policy Committee. Posted at 12:06 by Howard Bashman "U-M to file Supreme Court briefs Tuesday; will be joined by more than 300 organizations": This press release was posted yesterday to the University of Michigan's Web site. Posted at 12:03 by Howard Bashman The U.S. Supreme Court is closed for business today, as is the U.S. Court of Appeals for the Third Circuit: Tom Goldstein reports the U.S. Supreme Court news here. The University of Michigan and its "friends" thus get a one-day extension of time for their briefs -- which were due today -- in the racial preferences in student admissions cases. The Third Circuit's closure today is just something I've heard through the grapevine. The First Circuit is proudly open (seen the message scrolling across the bottom of its main Web page). As for the Second Circuit, who knows? Update: The Fourth Circuit is closed today too. Posted at 11:52 by Howard Bashman Someone is "the Howard Bashman of theoretical jurisprudence"? So says Harvard Law student Nathan Oman over at his blog, "A Good Oman." Posted at 11:44 by Howard Bashman Thomas Sowell's "Random Thoughts": Sowell writes, "One of these days the 9th Circuit Court of Appeals may declare the Constitution unconstitutional." Hey, that's not very nice. And it reminds me of the USA Today hackers who posted the fake news that the Ninth Circuit had declared the Pentagon's shape unconstitutional because it too closely resembled the Star of David (see news reports here and here). (Link to Sowell's column via "Half Baked.") Posted at 11:39 by Howard Bashman "Four Remaining Questions About Copyright Law After Eldred": Peter K. Yu offers these thoughts at GigaLaw.com. Posted at 11:18 by Howard Bashman For those readers without access to the June 1998 Congressional Record: An email from a reader that I posted here on Sunday contained the following passage: Just a little more than four years ago, Senator Leahy stated on the Senate floor that "I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998). Sadly, this principled position appears to have evaporated into the ether now that the President is a member of the opposite party. Shame indeed.Readers who don't have access to the Congressional Record (or who don't want to take the time to track down Senator Patrick J. Leahy's statement in the online version of the Record) can find the very same statement here in this press release from June 18, 1998 available via Senator Leahy's Web site. (Link to press release via "Croooow Blog.") Posted at 10:31 by Howard Bashman "Now, Digging Our Way Out": Today's edition of The Philadelphia Inquirer contains this report. The photo accompanying the article captures well the scene where I live. Meanwhile, it's been snowing again all morning thus far. Posted at 09:13 by Howard Bashman Today's FindLaw commentators: Julie Hilden asks "If the Supreme Court Holds That Public Libraries Cannot Require Software Filters, Are There Other Ways to Protect Children on the Web?" And Alec Walen asks "If [Roe v. Wade] Is Overruled, What Arguments Should Abortion Rights Supporters Use?" Posted at 09:08 by Howard Bashman The Associated Press is reporting: You can access here an article entitled "Bitter Colo. Water Fight Heads to Court" and here an article entitled "Nev. Moves to Repeal Sheep-Shearing Law." Posted at 09:04 by Howard Bashman An email from The Federalist Society: The following email just arrived from The Federalist Society: Due to severe weather, the debate on Judicial Confirmations, originally scheduled for today at the National Press Club, is POSTPONED.I previously mentioned this debate -- entitled "What Does the Estrada Battle Mean in the War to Confirm the President's Judges?" -- in a post you can access here. Posted at 08:13 by Howard Bashman Elsewhere in Tuesday's newspapers: The Washington Times reports here that "GOP to use recess to press for Estrada." You can access here an article entitled "Ex-military brass support affirmative action." An article reports that "Secularists target prison charity." In an op-ed, Wesley Pruden asks "When can the judge watch the machine?" Bruce Fein has an op-ed entitled "Thwarting a useful jury experiment." Edward Blum and Roger Clegg have an op-ed entitled "Summer of discrimination." And Michelle Malkin has an op-ed that runs under the headline "Direct flight to the nearest courtroom." In USA Today, Joan Biskupic reports that "Same-sex couples are redefining family law in USA; Courts expand definition of 'parent,' but rights still limited in some states." Here's a list of "recent cases" that accompanies Joan's article. An article reports that "Government tries to keep branches unbroken; Continuity of Supreme Court, Congress, presidency mulled." An editorial is entitled "States' new diversity plans fail graduate students," and a related op-ed by Roger Clegg runs under the heading "Diversity is overhyped." The Los Angeles Times reports here that "ABA Adopts Guidelines for Capital Cases; Bar group proposes 'minimum standards' for lawyers whose clients face the death penalty." In news from California, an article reports that "Lesbian Sues Over Physician's Refusal to Do Insemination; Appeals court reviews case that pits civil rights claim against a doctor who declined for religious reasons to perform procedure." From Virginia comes news that "South Vietnam Flag Bill Dies in Subcommittee." And in the category of letters to the editor, you can access here letters that run under the heading "Cutting a Moral Path Through Bad Law" and here letters that run under the heading "A Better Way to Solve Death Row's Problems." The Boston Globe reports here that "Mass. backs University of Michigan; AG weighs in for affirmative action." And an op-ed by Carl Takei is entitled "A lesson of injustice from 1942." Posted at 07:54 by Howard Bashman In Tuesday's newspapers: In an editorial, The Washington Post calls on the U.S. Senate to "Just Vote" on pending judicial nominees. The New York Times reports here that "Groups Support University of Michigan Affirmative Action Case." And the final version of Robert Pear's article entitled "A Court Expands the Rights of Patients to Sue H.M.O.'s" has been revised to address the concern I noted below on reading an earlier version of that article. Posted at 00:17 by Howard Bashman Monday, February 17, 2003
Somewhere else that Ninth Circuit Judge Alex Kozinski has visited: The Angry Clam's law school class at UCLA. Mr. Clam provides this not to be missed report.
Posted at 19:28 by Howard Bashman
"U.S. Appeals Court Expands Patients' Rights Over H.M.O.'s": Robert Pear, who has covered the ERISA beat for The New York Times for years, late today has this report (which probably will run in tomorrow's newspaper) on a ruling that the U.S. Court of Appeals for the Second Circuit issued on February 11, 2003. I reported on that ruling here on the day it issued. Unfortunately, Pear's article fails to mention Circuit Judge Guido Calabresi's very interesting dissent from the ruling. Posted at 18:59 by Howard Bashman The University of Michigan's Web site pertaining to its admissions lawsuits: The University of Michigan has set up a Web site "as a resource for journalists and others who need background information" regarding the two racial preferences in student admissions lawsuits that are now pending before the Supreme Court of the United States. You can access the Web site at this link, and you can access specific court filings via this link. Posted at 16:35 by Howard Bashman University of Michigan President Mary Sue Coleman's Address to the American Council on Education this afternoon: Her speech began: Tomorrow the University of Michigan will file its briefs in the two admissions lawsuits now before the Supreme Court. We will be joined by over 300 organizations filing more than 60 amicus briefs in support of the University. This might well turn out to be the largest number of briefs ever filed in the history of the Court on a single issue.You can access the complete prepared text of Mary Sue Coleman's remarks this afternoon at this link. Posted at 14:55 by Howard Bashman "One For The Ages; Snowfall totals could rival region's worst storm in a century": Today's edition of The Philadelphia Inquirer provides this report. The snow appeared to have stopped a little while ago, and then a snow plow (thank Zeus!) performed its magic down the street in the out of the way place where I live. But moments ago it began snowing at a pretty good clip once again. Posted at 14:45 by Howard Bashman "Some Ex-Officers Back Affirmative Action": The Associated Press reports here that "Some of the nation's best known retired military officers and former top Pentagon officials will file a Supreme Court brief supporting affirmative action admissions at the University of Michigan." Tomorrow is the deadline for filing U.S. Supreme Court amicus briefs in support of the University of Michigan's position that the school's use of racial preferences in student admissions is lawful. The university's own briefs in the two cases are also due to be filed tomorrow. Posted at 14:40 by Howard Bashman "Google Deal Ties Company to Weblogs": Amy Harmon has this report in today's edition of The New York Times. Posted at 10:45 by Howard Bashman "White House Rallies Activists For Pressure on Estrada Nomination": The Cybercast News Service has this report. Posted at 10:31 by Howard Bashman "California Judges Clamp Down on Publicity": Concerning lawsuits pending in state court, that is. The Associated Press offers this report. Posted at 10:29 by Howard Bashman "24/7 sessions could pass Estrada": Robert Novak provides this commentary in today's edition of The Chicago Sun-Times. Posted at 08:01 by Howard Bashman Elsewhere in Monday's newspapers: This morning's edition of The Washington Times contains an editorial entitled "Filibuster schmilibuster." The San Francisco Chronicle reports here that "Heavy hitters back Michigan in race case; Stanford, Intel among those filing briefs." This morning's edition of The Los Angeles Times contains an article entitled "Broad Issues Put Bush and Democratic Contenders on a Collision Course." The Boston Globe reports here that "Study shows US blacks trailing; Immigrants from Africa, Caribbean found to fare better." Finally for now, the newspapers ombudswoman addresses the question "Fetus or baby?" Posted at 07:52 by Howard Bashman "Judge defends seeing inmate from death row; Attorney General alleges bias": Today's edition of The Mercury News contains this report concerning the conduct of Ninth Circuit Judge Alex Kozinski. The Los Angeles Times broke the story yesterday in an article you can access here. Posted at 06:42 by Howard Bashman Today is the federal holiday of Presidents' Day: As a result, most every federal and state appellate court will be closed today, with the exception of the U.S. Court of Appeals for the Fifth Circuit (details here). In honor of the holiday, I'm pleased to make reference to one of the greatest songs and music videos of all time, "Lump" by The Presidents of the United States of America. Posted at 06:23 by Howard Bashman In Monday's newspapers: In an article pertaining to the accused teenage DC-area sniper, The Washington Post reports here that "Fairfax Uses Voter Lists, Not DMV, for Jury Pools." Both Third Circuit Chief Judge Edward R. Becker and another acquaintance of mine are quoted in an article entitled "Independence Behind Bars in Philly." An editorial is entitled "Medicate to Kill." And columnist William Raspberry takes a look at the nomination of Charles W. Pickering, Sr. to serve on the U.S. Court of Appeals for the Fifth Circuit. Finally for now, The New York Times reports here that "Blackberry Battle Could Reverberate." Posted at 00:09 by Howard Bashman Sunday, February 16, 2003
Tonight's Miguel A. Estrada confirmation update: The February 24, 2003 edition of Time magazine contains a short item entitled "Going to War Over a Judge."
To access the transcript of the U.S. Senate's debate from Friday, February 14, 2003 via the Congressional Record Web site, simply follow these instructions. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 7, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 7, on the resulting page click on the link that reads "Printer Friendly Display." The Senate returns to the Capitol on February 24, 2003. Here's what to expect that day, as taken from Friday's Senate session: Mr. FRIST. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 12 noon, Monday, February 24. I further ask unanimous consent that on Monday, following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and as previously ordered, Senator Chambliss be recognized to deliver President Washington's Farewell address.So, more of the same is expected to begin just a little over one week from now. Posted at 22:47 by Howard Bashman Ninth Circuit Judge Alex Kozinski in the news: No, I don't have in mind the article that appeared on the front page of today's issue of The Los Angeles Times. Instead, I have in mind an article from The Daily Bruin reporting on a debate at UCLA in which Judge Kozinski recently took part concerning the looming war with Iraq. Posted at 22:40 by Howard Bashman Atrios isn't persuaded: Philadelphia-based blogger Atrios isn't persuaded by the reader's email that appears in the post immediately below this one, nor are the folks who so far have posted comments at Atrios's site. Pennsylvania is also home to the author of the quite wonderful humor blog ScrappleFace. So much blogging talent for one admittedly not so little state. Posted at 22:37 by Howard Bashman A reader's musings: The following email arrived just moments ago: I have enjoyed the running commentary by your readers about the Rush Limbaugh piece and the Estrada nomination, and I'm sure I speak for several that your site has become the venue of choice for those of us interested in such issues. I do wish to point out a couple of points which, to date, have gone unaddressed.Very well said! Posted at 17:50 by Howard Bashman Snow and even more snow: Instead of the mere twelve to twenty inches of snow that had been forecasted this morning for where I live, now the forecast is calling for eighteen to twenty-five inches of snow. Right now it's quite the winter wonderland outside, and to celebrate I've already enjoyed hot chocolate, a blood orange, and a homemade soft pretzel. Posted at 17:35 by Howard Bashman Today's Miguel A. Estrada news and commentary: The Salt Lake Tribune this morning contains an article entitled "From 'Borin' Orrin' to Hot-Ticket Hatch." The Times-Picayune presents a round-up of news from the Louisiana delegation in the nation's capital. An editorial in The Advocate of Baton Rouge, Louisiana is entitled "Landrieu gives Bush payback." Finally for now, The Denver Post contains an op-ed entitled "Confusing politics with principle." Posted at 12:08 by Howard Bashman "Google Buys Pyra: Blogging Goes Big-Time": This article from today's edition of The Mercury News reports that Google has purchased the company that created Blogger software and Blog*Spot hosting. Perhaps Web logs will turn out to be more than just a passing fad? Posted at 10:42 by Howard Bashman In Sunday's newspapers: The actions of Ninth Circuit Judge Alex Kozinski are the subject of a front page article in today's edition of The Los Angeles Times. The article -- entitled "State Fears Tough Judge Going Soft on Death Row; State questions a federal judge's ability to be impartial on the death penalty after he visited San Quentin and corresponded with lifer" -- begins: The scene was a packed auditorium at UC Santa Barbara; the time, late last month. Two prominent legal figures were debating the death penalty.You can access the complete article at this link. Elsewhere in today's edition of The LATimes, David G. Savage reports that "Democrats Draw Battle Lines Over Bush Court Pick; Latino nominee is at the center of a Senate tussle for ideological control of the federal bench." And an op-ed by Brian L. Buckley is entitled "Political Pronouncements -- for Better or Verse." Today's edition of The Boston Globe contains an editorial entitled "Executioner Ashcroft." The New York Times reports here that "Florida Ponders Fate of Historic 2000 Ballots." The fate of lots of chads hangs in the balance. You can access here an article entitled "Wal-Mart Faces Lawsuit Over Sex Discrimination." As tax day approaches, this article reports that "Courts Speak Out, Sometimes for Filers." And here's an article from today's Business section entitled "So Long. Now Don't Compete." Today's edition of The Washington Times contains an editorial entitled "ABA backs asbestos reform." And an op-ed by Steve Chapman asks, "A fast-track for fast-food lawsuits?" Posted at 09:45 by Howard Bashman Should we talk about the weather? The snow has already begun in earnest outside of Philadelphia, and a total of between twelve to twenty inches is expected before the storm wraps up sometime tomorrow evening. Good thing I followed my wife's advice Friday to bring home work to do on Monday just in case. (This post's title borrowed from R.E.M.'s "Pop Song 89.") Posted at 09:27 by Howard Bashman Saturday, February 15, 2003
Expect the unexpected: In a world without surprises, you would expect to find the final report of the Commission on Structural Alternatives for the Federal Courts of Appeals -- also known as "The White Commission" because of who served as its chair, retired U.S. Supreme Court Justice Byron R. White -- at the Commission's Web site. But, alas, all that one finds there is a draft version of the report. I'm very pleased to report, however, that the Web site of the library of the University of North Texas (of all places!) has available online The White Commission's final report, and you can access it here. Now who other than appellate law aficionados, after all, would ever want to access The White Commission's final report? My point exactly!
Posted at 23:29 by Howard Bashman
Judicial nomination and confirmation news and commentary from here and there: Michael Kirkland, UPI Legal Affairs Correspondent, has an essay entitled "Time for judicial compromise." The Associated Press reports here that "Hispanic lawmakers from California oppose Bush's court nominee." Rush Limbaugh notes that "GOP Backs Down On Estrada Fight -- For Now." And UPI commentator Horace Cooper has an essay entitled "Groundhog day redux." The Mercury News reports here that "Bush nominates Palo Alto Latina for appeals court bench." And you can access here an article from the Metropolitan News-Enterprise entitled "C.A. Justice Consuelo Callahan Nominated to Ninth U.S. Circuit Court of Appeals." Earlier this week, The Clarion-Ledger contained an article reporting that "Judge Charles Pickering, whose nomination to the 5th U.S. Circuit Court of Appeals has angered some black leaders, met privately Monday with Mississippi black caucus members to discuss his beliefs, life story and civil rights record." The AP ran a report entitled "Pickering seeks black support." And in news pertaining to Sixth Circuit nominee Jeffrey S. Sutton, The Cincinnati Post reports here that "Attorney clears judge's hurdle." Posted at 22:32 by Howard Bashman Third Circuit Judge Marjorie O. Rendell in the news: The Philadelphia Daily News on Wednesday contained an article entitled "Midge to hold office in state building; Expense of leaving free digs in governor's mansion questioned." Judge Rendell, of course, is also the wife of Pennsylvania's new Governor, Ed Rendell. The conclusion of the article states: As a federal appellate judge, the first lady also has offices in the federal buildings in Philadelphia and Harrisburg.In other news, on February 5, 2003, The Daily Pennsylvanian published an article entitled "Pa. First Lady gives leadership advice; Judge Marjorie Rendell spoke about various principles that leaders often keep in mind." Posted at 22:25 by Howard Bashman "States' Rights Take a Back Seat in Ashcroft's Justice Department": Adam Liptak has this report in The Week in Review section of tomorrow's edition of The New York Times. Posted at 22:16 by Howard Bashman Just in case: Anyone concerned about going through withdrawal next week while the U.S. Senate is out of town and the Miguel A. Estrada filibuster is temporarily adjourned should record tonight's episode of C-SPAN's fine program "America and the Courts." According to this description of tonight's program, "America and the Courts features continuing discussion in the United States Senate on the nomination of Miguel Estrada for the U.S. Court of Appeals for the DC Circuit. Senators Robert Bennett and Dick Durbin present the arguments of the two sides." Additionally, anyone with even more free time can watch online via this link Estrada's Senate Judiciary Committee confirmation hearing, which took place late last September. Posted at 14:43 by Howard Bashman U.S. District Judge Barbara Rothstein of Seattle will direct the Federal Judicial Center: Today's edition of The Seattle Times provides this report. Posted at 14:35 by Howard Bashman "Scalia defends originalist interpretation of Constitution; The conservative Supreme Court justice spoke on his views and being in a political spotlight": Yesterday's edition of The Daily Pennsylvanian contained this report. One of my readers who attended Justice Scalia's speech provided me with an even more detailed account of it, which you can access here via "How Appealing Extra." Posted at 10:31 by Howard Bashman President Bush is standing firm on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit: From yesterday's White House press briefing: Q The second question -- again, going back to the fight between Democrats and Republicans over the Miguel Estrada nomination. It seems to be an absolute deadlock. Democrats seem to have the vote, but keep filibustering. Republicans don't have the votes for cloture. But they do have the votes in after it gets to the floor. Is this going to be an unending or is the President going to --You can access the complete transcript at this link. Posted at 10:22 by Howard Bashman In Saturday's newspapers: The Boston Globe reports here that "Latinos bitterly debate Estrada nomination." A related editorial is entitled "Rush to judges." You can access here an article that begins, "Harvard, MIT, and dozens of other top colleges and universities - along with Fortune 500 companies - are vigorously defending affirmative action in college admissions, and plan to file an avalanche of briefs with the Supreme Court by Tuesday in support of the University of Michigan." And The Associated Press reports here that "House moves to bar release of gun data; Justices will hear case on identifying buyers and sellers." The Washington Times contains an op-ed by Thomas Sowell entitled "Big business and quotas." The newspaper reports here that "Republicans plan partial-birth ban, creation of jobs." The U.S. State Department is preparing to distance itself from Virginia, according to an article that begins, "The State Department is assuring Vietnamese officials that it opposes a Virginia bill calling for the display of the flag of long-defeated South Vietnam, but the bill's sponsor says his state doesn't kowtow to that federal department." The Los Angeles Times reports here that "Bush AIDS Relief Eases Abortion Rules." Los Angeles won't allow criminals to "super-size" their handguns, according to an article entitled "City Ban May Include .50-Caliber Handguns." Attention Ninth Circuit -- this article reports that "New U.S. Guidelines on Prayer in Schools Get Mixed Reaction; Policy says educators risk losing federal funds if they try to suppress such activities. The change comes in for praise and criticism." And an op-ed by Noriko Nakada is entitled "As in the 1940s, We Are Asleep to Loss of Rights." The Washington Post reports here that "Muhammed Granted Access to Evidence; Hearings on Sniper Suspect's Defense Experts to Be Conducted in Open Court." Finally for now, New York Times reporter Adam Liptak attends the theater to prepare his article entitled "The Death Penalty: Views of a Witness for the Prosecution." Posted at 09:58 by Howard Bashman The problem with "never": An article that I linked to below, published in Thursday's edition of The Los Angeles Times, contains the following text: The case is the first in which 11 judges have publicly registered a dissent when the court failed to rehear a case, said Arthur D. Hellman, a University of Pittsburgh law professor who follows the 9th Circuit closely. "It is very unusual," said Hellman, noting that there had been rare instances where eight or nine judges had registered a dissent.An amazingly erudite reader who recently clerked for a Ninth Circuit judge emailed early on Thursday morning to say that Professor Hellman was incorrect when he advised the reporter that "The case is the first in which 11 judges have publicly registered a dissent when the court failed to rehear a case." In Spears v. Stewart, the Ninth Circuit denied rehearing en banc over the recorded dissent of eleven circuit judges in an order issued March 20, 2002. Judge Stephen Reinhardt's opinion dissenting from the denial of rehearing en banc explains: Unfortunately, as I have noted on several occasions in the past, our rules preclude us from advising the bar and the public whether there were actually more yes votes than no votes cast (although less than an absolute majority); whether half of the non-recused active judges voted to hear the case en banc, or a lesser number; or describe in any way the margin by which a vote may have failed. In this case, as in all others, I believe the public has a right to know how close the vote was and how each of us exercised our judicial responsibilities; that information would surely be of interest to those concerned about the manner in which the courts and particularly our court functions.You can access the complete opinion at this link. (Judge Alex Kozinski's opinion concurring in the denial of rehearing en banc, which follows directly behind Judge Reinhardt's dissent, is also quite interesting. A total of five circuit judges joined in Judge Kozinski's opinion.) Posted at 08:30 by Howard Bashman Seth Finkelstein to the rescue: Perhaps he will see to it that "How Appealing" won't be classified as "pornography" by Web-filtering services. See Seth's post here. Thanks to the blog "Math Class for Poets" for bringing this to Seth's attention. And here's an amicus brief in the American Library Association case that describes Seth as follows: Seth Finkelstein is a computer programmer and civil liberties advocate. Since 1995, he has dedicated thousands of hours to studying commercially developed Internet blocking software. These efforts have revealed many of the mechanisms employed by blocking software, which Mr. Finkelstein has described in articles and reports. For his efforts "in the fight against government mandated use" of such software, Mr. Finkelstein received the Electronic Frontier Foundation's Pioneer Award. Mr. Finkelstein is interested in ensuring that the Court understands how commercially developed blocking software operates and the dangers that it poses to free speech.Now Seth stands ready to win the still non-existent "How Appealing" award for freeing this site from the constraints of over-aggressive Web-filtering software. Posted at 00:22 by Howard Bashman Kaimi Wenger corrects Tapped: Tapped writes, "it is also unprecedented for a president to nominate a man who has zero experience as a judge to the second-highest court in the land." That's simply not so, Kaimi explains here. Posted at 00:13 by Howard Bashman Friday, February 14, 2003
"This case exemplifies compassionless conservatism." Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit decided an appeal that provoked a passionate dissent from Circuit Judge Stephen Reinhardt. Judge Reinhardt's dissenting opinion begins:This case exemplifies compassionless conservatism. The majority reads the California Family Rights Act (sometimes referred to as the "Act"), a statute designed to afford a minimal amount of humane and decent treatment to working people with families, as if it were a rigid code intended to limit their rights. The majority ignores the plain language of the statute as well as its purpose and instead poses an imaginary chain of horrors, claiming that a plain reading of the statute would cause courts to have to (horrors!) make decisions "in each case." On that basis it grants summary judgment to the corporate defendant.You can access both the majority's opinion and Judge Reinhardt's dissent at this link. Posted at 23:56 by Howard Bashman Available online at law.com: Tony Mauro reports here that "Vince Foster Death Photos Bring Access Battle to High Court." You can access here an article entitled "Texas Court Keeps Out 'Frontline' Cameras." And this article reports that "Med-Mal Claim Not Automatically Pre-empted by ERISA." Posted at 23:48 by Howard Bashman Access online the transcript of the first ever oral argument before the U.S. Foreign Intelligence Surveillance Court of Review: It's available here. And the court's subsequent ruling, issued last November, is available here. Posted at 23:45 by Howard Bashman A star-filled send-off for Lawrence G. Wallace: Steph was there and has a full report at her blog. Posted at 23:42 by Howard Bashman Viewer mail: If it's Friday night, it must be time for viewer mail. An email bearing the title "Scalia and Estrada" arrived from Rick Hasen, Professor of Law and William M. Rains Fellow, Loyola Law School: Thanks so much for your posting the details of Justice Scalia's speech on "How Appealing Extra." Scalia's position defending originalism is not laughable (though I believe it is wrong for reasons I won't go into here), but his view that Senators can avoid politicization of the judiciary by choosing judges supporting originalism surely is laughable. Although Scalia is right that some conservatives are non-originalists, originalism tends to lead to conservative decisions. Scalia in his speech strongly intimates, for example, that Minor v. Happersett (upholding the denial of the right to vote for women) was correctly decided in the absence of a constitutional amendment granting women the right to vote. That would surely ring hollow with most Americans these days who vote for their Senators.The next email comes from a reader affiliated with the Brennan Center for Justice: I'd prefer to keep this anonymous should you choose to post yet another reaction. But the non-issue of whether Estrada is qualified, or whether Ginsburg or Breyer weren't, which your previous correspondents addressed (fairly enough, since it was the thrust of Limbaugh's piece) doesn't get to a more pernicious aspect of an otherwise laughable essay.An attorney from Rockford, Illinois sends an email entitled "Estradapalooza": Thank you for posting my thoughts on the possible connection between the Democrats' filibuster of Estrada and the recent passage of the campaign finance "reform" legislation. Given that the Senate is now in recess (and the Estrada-Thon postponed for a week), I may be able to watch a movie or two this weekend. I did, however, want to pass along another thought before moving on to other endeavors.An email from a law clerk on the U.S. Court of Appeals for the Seventh Circuit is entitled "Estrada and Limbaugh": Enough caterwauling of the elites. Yes, Limbaugh overstates his case: Nobody, including Miguel Estrada, "blows away" the credentials of Ruth Bader Ginsburg and Stephen Breyer. Whatever one thinks of their jurisprudence (personally, I think very little), each had reached the highest plateau of lawyering before earning a place on the Supreme Court. But the fundamental point of Limbaugh's analysis sticks: Estrada's credentials place him in the same league as both Ginsburg and Breyer, and it is silly for Estrada's critics to pretend that he is anything but their professional equal.Thanks for writing, everyone! Posted at 23:36 by Howard Bashman Email from The Federalist Society: I received the following email this afternoon from The Federalist Society: Debate on Judicial ConfirmationsYou can register to attend the debate via this link. I'll be listening in online from Philadelphia. Posted at 23:04 by Howard Bashman Why didn't I think of that? My weekly Friday afternoon email from Rich Barbieri, entitled "An early look at next week's Legal Times," notes that an article entitled "Estrada Blockade a Bad Sign for Pickering, Owen; Senate Democrats' so-far successful move to block D.C. Circuit nominee Miguel Estrada is a bad sign for other circuit court picks" will appear in the February 17, 2003 edition of that publication. Why didn't I think of that? Or maybe I did. Posted at 22:53 by Howard Bashman Some additional judicial confirmation-related news and commentary: The Post and Courier of Charleston, South Carolina contains an editorial entitled "The savaging of Miguel Estrada." An op-ed in The Philadelphia Inquirer is entitled "L'affaire Estrada is a Dem disgrace." The News Tribune of Tacoma, Washington contains an op-ed entitled "Democrats asking Estrada to tie his own noose." Finally for now, today's edition of The Cincinnati Enquirer reports here that "Panel approves Columbus lawyer to 6th Circuit." Posted at 20:00 by Howard Bashman Fray newbies on judicial silence: This is available online via Slate. When you have an article published at Slate, the first thing you learn is don't read the Fray. Posted at 19:48 by Howard Bashman "Judge: Muhammad Can Get Taped Confession": The Associated Press reports here on a development in the case against the older of the two accused DC-area snipers. Posted at 19:45 by Howard Bashman "Justice Scalia's affirmative action stance incites protest": The Daily Pennsylvanian -- the student newspaper of the University of Pennsylvania -- offers this report. Posted at 17:39 by Howard Bashman This evening's judicial nomination and confirmation update: The Harvard Crimson reports here that "HLS Alum Faces Senate Filibuster." U.S. Senator Jon Kyl tells "The Miguel Estrada story" at this link. Mel Martinez, Secretary of Housing and Urban Development, has an essay entitled "Giving minorities a chance." Humorist Mark Russell offers a few tidbits under the heading "Blocking Estrada." PBS's NewsHour ran a segment last night "on the continuing struggle in the Senate over the confirmation of judicial nominee Miguel Estrada." The Rocky Mountain News contains an editorial entitled "Democrats turn ugly on Estrada." Tom Jipping asks "What are Democrats afraid of?" And, in news from Ohio, The Cleveland Plain Dealer reports here that "Columbus lawyer gets panel's nod for federal bench." Posted at 17:19 by Howard Bashman "The GOP should counter-filibuster": Deroy Murdock has this essay, which appeared late this morning at National Review Online. Hiding in the middle of Murdock's essay is the following not-to-be-missed statement: "As for the slander that he is an ersatz Hispanic, Estrada's critics would not be mollified even if he swapped his black robes for a serape and wore a sombrero on the bench." Posted at 17:11 by Howard Bashman What a difference a day makes: The U.S. Court of Appeals for the Fourth Circuit yesterday granted rehearing en banc to consider further a divided three-judge panel's ruling that reversed a federal district court's dismissal of a death row inmate's federal habeas corpus petition filed one day after the expiration of the applicable statute of limitations. You can access both the notation of rehearing en banc and the three-judge panel's opinion at this link. You can access my report on the three-judge panel's ruling, posted online the day that ruling issued, at this link. Posted at 16:44 by Howard Bashman Federal Circuit grants rehearing en banc on bank's claim for $299 million in damages against the federal government arising from FIRREA: As if further proof were needed of why I don't report regularly on the decisions of the U.S. Court of Appeals for the Federal Circuit -- they're so gosh darn complicated. Nevertheless, this order (MS Word document) issued today granting rehearing en banc of this earlier panel decision seems quite significant, so I figured I'd at least mention it. Posted at 16:34 by Howard Bashman "Philippe de Croy" shares his "Notes on the Estrada Nomination": You can access them here, via "The Volokh Conspiracy." Posted at 16:28 by Howard Bashman Today's the day that I transmit 20 questions to the next appellate judge who has volunteered to be interviewed: Sometime within the next two hours, I will be sending via email my questions to the second appellate judge to volunteer to participate in this Web log's newest feature, "20 questions for the appellate judge." This interviewee, drum roll please, serves on the U.S. Court of Appeals for the Ninth Circuit. The interview is scheduled to appear here in early March 2003, but will appear sooner if the answers arrive sooner. Three other appellate judges have volunteered to be interviewed in the months ahead -- two federal appellate judges and one judge on a state court of last resort -- leaving six months (July through December) for which no volunteers have yet to come forward. This Web log's first ever installment of the feature appeared in late January 2003, and you can access my interview with Fifth Circuit Judge Jerry E. Smith at this link. If you're a federal or state court appellate judge and would like to participate in the "20 questions for the appellate judge" feature, simply send me an email expressing your interest. You will be assigned the next available month, and I will immediately let you know exactly when I will send your questions to you. More details are available here. Posted at 15:07 by Howard Bashman Attention John Doe I! Today the U.S. Court of Appeals for the Ninth Circuit granted rehearing en banc in John Doe I v. Unocal Corp. You can access the order granting rehearing en banc at this link. I wrote about the original panel's opinion on the day of its issuance, in a post accessible at this link entitled "Another example of the long arm of the law." Posted at 13:38 by Howard Bashman The U.S. Senate now stands in adjournment for a week: Thus, the Miguel A. Estrada filibuster has ended, but it will likely begin again after next week's break in the proceedings. Meanwhile, the Rush Limbaugh essay entitled "Estrada Qualifications Blow Away Breyer and Ginsburg" has, not unexpectedly, proved quite controversial. Samuel Bagenstos, Assistant Professor of Law, Harvard Law School, emails to say: I'm a frequent reader of your weblog and get a lot from it. But I have to admit I'm very disappointed in you for linking to Rush Limbaugh's screed that asserts, ridiculously, that "Estrada Qualifications Blow Away Breyer and Ginsburg." I don't mean to cast aspersions on Miguel Estrada's qualifications at all, but any comparison between Ginsburg and Estrada is absurd -- and to say that Estrada "blows away" Ginsburg is laughable. (I could say the same thing about the comparison between Breyer and Estrada. I focus here on Ginsburg because she's my former boss.)Another reader who will be heading for a clerkship at the U.S. Supreme Court soon from the second highest court in the land has emailed to say: You have a great blog, but I think you'd have to agree that the Limbaugh article you link to, comparing Estrada to Ginsburg and Breyer is simply baloney. In fact, I'm curious why, given your sophistication on these issues generally, you bothered to link to it.Please, people, just because I link to an article doesn't mean I concur in its reasoning. If that were a prerequisite to mentioning articles and commentary here, there would be much, much less to choose from. In that spirit, I'd prefer if people would focus their criticisms on the materials that are linked, rather than any perceived editorial judgment in deciding what to link. I have linked to as much pro- and anti-Estrada commentary from widely respected sources as I have been able to find. Finally for now, a reader with no apparent connection to the U.S. Supreme Court sends along these very interesting thoughts: I wanted to throw in my two cents on why the nominations process is so politicized. While there are plainly many reasons, I think one has to do with the past 30-40 years of relying more and more heavily on the courts, and especially the Supreme Court, to decide essentially political issues. Roe is only one example, and not the earliest, and its progeny includes not just other abortion decisions. As judges got more willing to make policy decisions, I think the US Congress got more willing to give them policy decisions to make. One great example is the recent Campaign Finance law. This law was passed and signed despite general agreement by senators and the president that it was unconstitutional, but they happily abdicated their oaths of office and positions as coequal branches of government to the Article III courts. I think there are other examples as well, of laws that don't raise constitutional specters but where Congress lazily leaves huge holes to fill (I think the ADA is often cited as a law that was left for the courts to write; I don't know it well enough to opine, but you get the idea.)Thanks, everyone, for writing. Posted at 13:21 by Howard Bashman My February 2003 appellate column is now available online: It bears the title "Appellate Court Web Sites: Some Are Excellent, But Many Others Could Easily Be Improved," and you can access it here. Posted at 10:47 by Howard Bashman "Delay on Estrada: Democratic debacle": Today's edition of the Boston Herald contains this editorial. Posted at 10:29 by Howard Bashman My thoughts exactly: A former Pennsylvania state court appellate judge emails to observe, "The classification of your blog as 'pornography' by screening software is further evidence supporting the findings in Chief Judge Becker's opinion in American Library Ass'n v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002) (3 Judge Court)." I must admit that that very same thought had crossed my mind this morning. Posted at 10:26 by Howard Bashman Now available at National Review Online: Robert Alt argues that "Mary Landrieu is caught in a bilingual lie." And Roger Clegg addresses "How is diversity like love?" Posted at 10:21 by Howard Bashman This morning's Miguel A. Estrada confirmation battle update: Jan Crawford Greenburg of The Chicago Tribune has an article this morning entitled "Stakes are high in Estrada filibuster; Racial politics, power at issue." The Hartford Courant this morning contains an editorial entitled "Give Mr. Estrada A Vote." The U.S. Senate's debate over Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit is scheduled to resume at 10 a.m. this morning. You can watch the debate live online via C-SPAN2 at this link. Via the Congressional Record Web site, you can now access online the transcripts of yesterday's debate. Here are the instructions you need to follow. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 7, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 7, on the resulting page click on the link that reads "Printer Friendly Display." Then, return to the main page listing yesterday's transcripts, select item number 9, which is also entitled "Executive Session," and on the resulting page click on the link that reads "Printer Friendly Display." In reader mail pertaining to the Estrada filibuster, Judge Stuart Shiffman, of Springfield, Illinois, who serves on a state court in Sangamon County, emails in his personal capacity to say: I am a great admirer of your site. In addition to my state court judicial duties I teach a class in Evidence at the University of Illinois in Springfield. Your site is one that I recommend to my students to keep current on the law. While I admire your efforts I must take issue with you on the Estrada affair.And another reader sends an email entitled "Hit record raises suspicions": Two days in a row with new hit records? Basically doubling your readership in two days? You sure your not behind this Estrada filibuster? Seriously though, keep up the good work.I'd gladly suffer a diminution in my blog's popularity in exchange for an end to the filibuster. I explain my substantive views more fully in an essay you can access here entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" Posted at 09:43 by Howard Bashman They know it when they see it: Just received the following email from a reader: Your blog is fascinating, as always, even to a non-lawyer like me. And your coverage of political issues, such as the ongoing Estrada saga is to be commended for its fairness and balance. Because thinkers like you and Eugene Volokh put your principles before your political labels, you are essential reading, even though I may often be at the opposite end of the political spectrum.I'm flattered to be in the company of the other pornographic sites that your email identifies. Look on the bright side, though: If my Web log is classified as "pornography," perhaps some actual pornography has been classified as a Web log devoted to appellate litigation. Posted at 07:28 by Howard Bashman "Estrada Qualifications Blow Away Breyer and Ginsburg": Rush Limbaugh makes the argument here. Posted at 07:23 by Howard Bashman Valentine's Day is supposed to be about love, not sex, right? This report states that the Supreme Court of the United States "may take up a tricky question: What is 'sex'?" Posted at 07:21 by Howard Bashman In Friday's newspapers: The New York Times reports here that "Filibuster on Judgeship Stalls Senate Before Recess." You can access here an article entitled "Ban on Internet Cigarette Sales Is Upheld." An editorial is entitled "The Antiwar Non-March." And letters to the editor run under the heading "Sanity and Execution: A Tale Worthy of Kafka." The Washington Times reports here that "Hispanics call for 'cool down' on Estrada." This article reports that "Senate panel OKs Sutton judgeship." Jennifer Braceras, a commissioner on the U.S. Commission on Civil Rights, has an op-ed entitled "Misguided judicial politics." And you can access here an editorial entitled "Justice denied for Dawn Garvin." In The Washington Post, Charles Lane reports here that "On Further Review, It's Hard to Bury Douglas's Arlington Claim." And in news from Texas, you can access here an article entitled "Tex. Court's Death Row Debate; Ruling on Competence of Inmate's Counsel Spurs Angry Dissent." The Los Angeles Times reports here that "Conservative State Judge Nominated for Federal Bench; President Bush names Consuelo M. Callahan, who has served on the appellate court since 1996, to U.S. 9th Circuit." In other news from California, you can access here an article entitled "Continuing Debate Over Megan's Law: Some question whether sex offender list curbs crime. The state statute is set to expire next year." From Orange County, California comes word that "In a preliminary ruling, an appeals court says the D.A. lacks jurisdiction in the Mickey Thompson killing but allows one more chance." And a commentary explains "When an appeal might backfire." Posted at 06:50 by Howard Bashman "Scalia: Judicial Selection Too Political": The Associated Press offers this report. And you can access an even more detailed account of U.S. Supreme Court Justice Antonin Scalia's speech yesterday at the University of Pennsylvania Law School at this link, via "How Appealing Extra." Posted at 06:30 by Howard Bashman "How Appealing" site news: Yesterday this Web log's hit counter recorded 12,592 visits -- a new one-day record. And yesterday marked the second day in a row in which this blog has received the most visits in its history. Thanks for visiting, everyone! Posted at 06:20 by Howard Bashman Thursday, February 13, 2003
A first-hand report on U.S. Supreme Court Justice Antonin Scalia's speech this evening at the University of Pennsylvania Law School: Justice Antonin Scalia delivered the Owen J. Roberts Memorial Lecture this evening at the University of Pennsylvania Law School and then accepted questions from the audience. "How Appealing" reader Tobias James Stern was in attendance, and he has provided me with a wonderfully detailed report on what he observed. You can access the report online here at "How Appealing Extra."
Posted at 22:56 by Howard Bashman
Slightly mo' money: A press release at the White House Web site states: On Thursday, February 13, 2003, the President signed into law:You can access the press release here. Posted at 22:47 by Howard Bashman Listing the errors contained in Michael Kinsley's Slate essay today entitled "The judicial nominee's ridiculous code of silence": Reader Ryan D. Walters, a third-year student at the University of Michigan Law School wins the distinction of pointing out the most errors contained in Kinsley's essay published today. Ryan's email states: |