How Appealing

Wednesday, April 30, 2003
"Juan Non-Volokh" provides his views on judicial confirmation history: You can access his thoughts here, via "The Volokh Conspiracy."
Posted at 23:23 by Howard Bashman



"Blog from the top of the world": BBC News reports here that "A blog from Everest could prove to be the most remote location for a web diary yet." (Via "Balasubramania's Mania.")
Posted at 23:08 by Howard Bashman



Available online at law.com: An article reports that "Supremes Examine Trespassing Policy." Jonathan Ringel took the trip up from Georgia to report that "Redistricting Case Divides U.S. High Court; Justices wrestle with competing interpretations of Voting Rights Act." An article without a byline is entitled "High Court: Immigrants Can Be Held After Jail Time." You can access here an article entitled "Texas Chief Justice Takes Heat for Judicial Selection Stance." And the link to a cert. petition found in this item proves my point beyond any shadow of a doubt.
Posted at 22:52 by Howard Bashman



What's the difference? In a post that appeared here earlier today, I wrote that John G. Roberts, Jr. is one of the most highly qualified candidates imaginable to join the U.S. Court of Appeals for the D.C. Circuit. And it appears that his path toward confirmation will be a smooth one, as well it should be. Roberts will receive a vote from the Senate Judiciary Committee next week and has the probability of a floor vote from the full U.S. Senate not too far off in the distance after that.

Longtime readers of this blog also know that I'm a staunch supporter of the nomination of Miguel A. Estrada to serve on the very same federal appellate court. That court currently has four vacant active judgeships. Confirming Roberts doesn't preclude the confirmation of Estrada, and confirming Estrada doesn't preclude the confirmation of Roberts. If both are confirmed that court will still have two vacancies.

The Democrats who are leading the Senate filibuster against Estrada complain (1) that he has failed to disclose adequately his personal views of the law and (2) that the Bush Administration has failed to turn over Estrada's confidential recommendations made while serving as an Assistant to the Solicitor General. Anyone who listened to the Judiciary Committee's hearing today for Roberts can confirm that he too was not very forthcoming about his personal views of the law. In fact, Senator Charles E. Schumer's (D-NY) evident frustration with Roberts's answers is what gave rise to the exchange in which Committee Chairman Orrin G. Hatch (R-UT) said that Senator Schumer sometimes asks "dumb-ass questions" (see my earlier post on this subject here). And, it almost goes without saying, the Bush Administration hasn't released Roberts's confidential memos prepared during his distinguished service at the SG's office.

So, I ask almost rhetorically, why is the Senate on the verge of confirming Roberts -- as well it should be -- while Estrada's nomination languishes without any hope of a positive outcome at present? I don't think that any adequate explanation exists.
Posted at 22:47 by Howard Bashman



Can't resist: The ninth word in the final sentence of the majority opinion in this decision that the Fifth Circuit issued today would probably benefit from the addition of the letter "t" at its beginning. Should this prove to be a valid find, I'll take credit for having discovered it myself.
Posted at 22:31 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Dems to Filibuster 2 Bush Judicial Picks"; here "U.S. Urges Moussaoui Barred From Hearing"; here "Mass. Court Dismisses Clergy Abuse Case"; here "Neb. Same-Sex Marriage Ban Challenged"; and here "N.C. Senate OKs Bill Halting Executions."
Posted at 22:21 by Howard Bashman



"Schumer Proposes New Confirmation Process for Judicial Nominations": See this press release at the Senator's Web site, and here's a letter that Senator Schumer sent today to President Bush on that subject.
Posted at 22:14 by Howard Bashman



Some humor at one of today's U.S. Supreme Court oral arguments: And at Harvard's expense, perhaps? Eugene Volokh quotes from Mark T. Stancil's report here.
Posted at 20:56 by Howard Bashman



Yale Law School Professor Jack M. Balkin addresses "Why the Confirmation Process is Broken": You can access his views here, at his blog "Balkinization."
Posted at 20:49 by Howard Bashman



Email from a veteran Court-watcher: My expression of surprise at the Solicitor General's suggestion of summary reversal in the petition for writ of certiorari filed today in the Pledge of Allegiance case precipitated the following email from a veteran Court-watcher:
I noted today your apparent amazement that the SG would recommend summary reversal in the Pledge of Allegiance case. As you probably know, summary reversal is disfavored at the Court, and that is why one sees so few such reversals, even over the course of several terms. Some members of the Court -- Justice Stevens, perhaps most notably (and Justice Marshall, formerly) -- oppose the idea of deciding cases without plenary review, because of the perceived unfairness of denying the parties an opportunity to brief the merits, rather than simply argue for grant of review.

Another reason why one sees so few is that, under conventional practice within the Court, it takes the votes of six justices to reverse summarily at the petition stage. That by itself is a strong suggestion that the idea is disfavored. As you can perceive, it takes a slam dunk to get six votes.

Nevertheless, counsel fairly often will propose summary reversal; one who makes a steady diet of reading cert petitions will see the suggestion several times each year.

My reading of such a suggestion is that it is an inexpensive tool of advocacy: it will not offend the Court, and thus has no cost, but it aims to leave the impression that no court could possibly have strayed as far from sense and justice as the lower court here did, and that the claim being advanced in the cert petition is unanswerable.

As I said, it doesn't work often; it will be interesting to see if it does this time.
It's a privilege for me to have readers such as this one, and an even greater privilege when they take the time to share their knowledge.
Posted at 20:37 by Howard Bashman



The text of today's letter from ten newly elected U.S. Senators about the federal judicial confirmation process: Here's the text of the letter discussed in the press release that appears two posts below this one:
April 30, 2003

Dear Senators Frist and Daschle,

As the ten newest members of the United States Senate, we write to express our concerns about the state of the federal judicial nomination and confirmation process. The apparent breakdown in this process reflects poorly on the ability of the Senate and the Administration to work together in the best interests of our country. The breakdown also disserves the qualified nominees to the federal bench whose confirmations have been delayed or blocked, and the American people who rely on our federal courts for justice.

We, the ten freshmen of the United States Senate for the 108th Congress, are a diverse group. Among our ranks are former federal executive branch officials, members of the U.S. House of Representatives, and state attorneys general. We include state and local officials, and a former trial and appellate judge. We have different viewpoints on a variety of important issues currently facing our country. But we are united in our commitment to maintaining and preserving a fair and effective justice system for all Americans. And we are united in our concern that the judicial confirmation process is broken and needs to be fixed.

In some instances, when a well qualified nominee for the federal bench is denied a vote, the obstruction is justified on the ground of how prior nominees - typically, the nominees of a previous President - were treated. All of these recriminations, made by members on both sides of the aisle, relate to circumstances which occurred before any of us arrived in the United States Senate. None of us were parties to any of the reported past offenses, whether real or perceived. None of us believe that the ill will of the past should dictate the terms and direction of the future.

Each of us firmly believes that the United States Senate needs a fresh start. And each of us believes strongly that we were elected to this body in order to do a job for the citizens of our respective states - to enact legislation to stimulate our economy, protect national security, and promote the national welfare, and to provide advice and consent, and to vote on the President's nominations to important positions in the executive branch and on our nation's courts.

Accordingly, the ten freshmen of the United States Senate for the 108th Congress urge you to work toward improving the Senate's use of the current process or establishing a better process for the Senate's consideration of judicial nominations. We acknowledge that the White House should be included in repairing this process.

All of us were elected to do a job. Unfortunately, the current state of our judicial confirmation process prevents us from doing an important part of that job. We seek a bipartisan solution that will protect the integrity and independence of our nation's courts, ensure fairness for judicial nominees, and leave the bitterness of the past behind us.

Yours truly,

John Cornyn; Mark Pryor; Lisa Murkowski; Lindsey Graham;
Elizabeth Dole; Saxby Chambliss; Norm Coleman; Jim Talent;
Lamar Alexander; John Sununu
Special thanks to all of those readers of this blog who took the time to make sure that I had a copy of this letter.
Posted at 20:16 by Howard Bashman



"Key McVeigh Witness Testimony Questioned": The Associated Press provides this detailed report.
Posted at 17:26 by Howard Bashman



A press release: The office of U.S. Senator John Cornyn (R-TX) today issued the following press release:
JUDICIAL NOMINATION PROCESS NEEDS "A FRESH START"

- Freshmen Senators seek a bipartisan solution; ask leadership to improve process for consideration of judicial nominations -

WASHINGTON – U.S. Sens. John Cornyn (R-Texas) and Mark Pryor (D-Ark.), joined by all freshmen Senators, urged the Senate leadership Wednesday to seek a fresh start and create a better process for the Senate's consideration of judicial nominations. Cornyn, a member of the Judiciary Committee and chairman of the Subcommittee on the Constitution, led the group of new Senators in petitioning for timely consideration of all judicial nominees.

"The Senate needs to find an end to the downward spiral of accusations, obstruction and delay," Cornyn said. "The President's nominees, and in fact our entire judicial system, deserve no less."

In the letter, the Senators wrote that, "when a well qualified nominee for the federal bench is denied a vote, the obstruction is justified on the grounds of how a prior nominee -- typically, the nominees of a previous President -- was treated. All of these recriminations, made by members on both sides of the aisle, relate to circumstances which occurred before any of us arrived in the United States Senate."

The letter continued: "None of us were parties to any of the reported past offenses, whether real or perceived. None of us believe that the ill will of the past should dictate the terms and direction of the future."

Rather than continue the obstruction that has plagued nominees in the past, the ten Senators committed themselves to solutions for all nominees. "We seek a bipartisan solution that will protect the integrity and independence of our nation's courts, ensure fairness for judicial nominees, and leave the bitterness of the past behind us."

The letter was sent to Senate Majority Leader Bill Frist of Tennessee, and Senate Minority Leader Tom Daschle. It was signed by Sens. Cornyn, Pryor, Lamar Alexander (R-Tenn.), Saxby Chambliss (R-Ga), Norm Coleman (R-Minn.), Elizabeth Dole (R-NC), Lindsey Graham (R-SC), Lisa Murkowski (R-Alaska), John Sununu (R-NH), and Jim Talent (R-Mo). Also copied on the letter were Judiciary Committee Chairman Orrin Hatch (R-Utah) and the panel's senior Democrat, Patrick Leahy (D-Vt).

Sen. Cornyn will hold a hearing of the Constitution subcommittee on May 6 to discuss reform of the broken judicial process. The hearing, titled Judicial Nominations, Filibusters, and the Constitution: When a majority is denied its right to consent, will be held in the Dirksen Senate Office Building, Room 226 at 2 p.m. The hearing will take place nearly two years after the President announced his first class of nominees to the federal courts of appeals, including Texas Supreme Court Justice Priscilla Owen. Her nomination is currently being filibustered in the Senate.

Sen. Cornyn chairs the subcommittee on the Constitution, Civil Rights & Property Rights, and is the only former judge on the committee. He also serves on the Armed Services, Environment and Public Works, and Budget Committees. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.
It will be interesting to see what, if anything, comes of this. Because nine of the ten signatories are Republicans, it may be easy for Democrats to dismiss this request, no matter how heartfelt its sentiments may be.
Posted at 17:17 by Howard Bashman



You can now access the federal government's cert. petition in the Pledge of Allegiance case online: Here.
Posted at 16:56 by Howard Bashman



Some first paragraph: The Solicitor General's petition for writ of certiorari in the Pledge of Allegiance case has arrived thanks to a valuable source. The first paragraph of the petition's most important section -- "Reasons for Granting the Writ" -- states:
Two decisions of this Court have said without qualification that the Pledge of Allegiance is constitutional. Numerous other opinions, joined in by at least twelve Justices of this Court, have likewise expressly addressed and affirmed the constitutionality of the Pledge of Allegiance notwithstanding its reference to God. No Justice has expressed the view that the Pledge violates the Establishment Clause. The court of appeals, however, dismissed those majority and separate opinions as unconsidered dicta. But a fair reading of this Court's decisions demonstrates that those consistent and oft-repeated statements stand as a fixed lodestar in this Court's Establishment Clause jurisprudence that has informed and directed the resolution of a number of the Court's cases. They reflect a point of exceptional unity and consistent agreement among Members of this Court within Establishment Clause jurisprudence. Whatever else the Establishment Clause may prohibit, this Court's precedents make clear that it does not forbid the government from officially acknowledging the religious heritage, foundation, and character of this Nation. That is what the reference to God in the Pledge of Allegiance does. The Pledge is therefore constitutional, as the Seventh Circuit held when confronted with the same Establishment Clause challenge. Because the court of appeals' error is so manifestly contrary to precedent, the Court may wish to consider summary reversal of the decision below.
Wow, a call for summary reversal. I expect the petition to be available online very soon, so stay tuned.
Posted at 16:36 by Howard Bashman



If you read nothing else on the Web today: Be sure not to miss Law Professor Lawrence Solum's brand new post on the constitutionality of recess appointments to the federal judiciary, at his "Legal Theory Blog."
Posted at 16:27 by Howard Bashman



"A Supreme Court justice's uneven volume of views": This past Sunday's edition of The Chicago Tribune contained a review by Pulitzer Prize-winning Law Professor David J. Garrow of Justice Sandra Day O'Connor's newest book, "The Majesty of the Law: Reflections of a Supreme Court Justice." The review is notable, among other reasons, for the sharply-worded criticisms of the book that Garrow provides. (Thanks to the reader who emailed to make sure that this review didn't evade my attention.)
Posted at 16:04 by Howard Bashman



"Administration Appeals for 'Under God'": Anne Gearan has this report, which contains my nominee for Associated Press headline of the day. If anyone wants to email to me the cert. petition, I'd be more than happy to receive it. Update: Thanks, it has arrived!
Posted at 15:58 by Howard Bashman



Yesterday's procedural ruling in the three-judge panel McCain-Feingold challenge is now available online: You can access it online here. (Via "Election Law.") My only question is -- is that really how Circuit Judge Karen LeCraft Henderson signs her name to opinions and orders?
Posted at 15:54 by Howard Bashman



Where credit is due: I appreciate it when readers email to note that a court has amended an opinion to eliminate an error noted recently at "How Appealing." (Thankfully, the day when an occurrence like this made for big news is long gone.) In this instance, however, the credit belongs to the anonymity-requesting DC-area lawyer who brought the mistake to my attention in an email that was interesting in its own right. For better or worse (better, I think), there's probably not a federal appellate court in the United States where "How Appealing" is not being read. But that doesn't mean that anyone should expect this blog to turn into a clearinghouse for errors found in federal appellate rulings. All humans -- including your narrator -- commit errors. And fortunately most errors are both boring and inconsequential. The errors I long to hear about most, and fastest, are ones you spot on this page. But I'm sure readers will keep sending along news of errors spotted elsewhere as well, and I'll keep using my judgment to decide which are worth airing in this particular forum.
Posted at 15:33 by Howard Bashman



"Bush Signs National Amber Alert Bill": The Associated Press has this report.
Posted at 14:56 by Howard Bashman



Downward spiral? J.J. Gass, Associate Counsel, Democracy Program, Brennan Center for Justice at NYU School of Law, sends an email bearing the title "Two Years is Too Long." In it, he writes:
A clever title for Sen. Cornyn's press release. It's a nice hook for a hearing to be held on the second anniversary of some appointments that haven't been finally acted upon (although I think it's not particularly fair to count Owen against the Democrats, since they did act definitively on her in the last Congress). But does it represent a "downward spiral of partisan obstruction," as the subtitle has it? I think these data are interesting. Credit goes to Professor Wendy Martinek and her colleagues for maintaining a database of federal judicial appointments from which these results have been drawn.

Nineteen of President Clinton's appointees waited for at least two years before being confirmed, returned (i.e., never voted on), or withdrawn (i.e., they waited more than two years, didn't get a vote, and gave up). Of those nineteen, eight were circuit court nominees and eleven were district court nominees. A further breakdown is at the end of this e-mail.

I think those of us who follow your blog are pretty familiar with the current nominees whom the Republicans consider their best (or worst) cases, e.g., Estrada or Cook. Here are some of the Democrats' potentially best (or worst) "you started it" cases:

Helene White was nominated to the Sixth Circuit shortly before President Clinton completed his first term, and the nomination died four years later, near the end of his second term, without ever being voted on (actually, it didn't formally die until President Bush withdrew the nomination in March 2001);

Richard Paez was confirmed to the Ninth Circuit 4 years, 1 month, and 13 days after being nominated;

Willie Fletcher was confirmed to the same court a little under 3 1/2 years after being nominated; and

James Beaty waited almost three years without a vote on his Fourth Circuit nomination, then gave up (he goes into the special category of North Carolina 4th Cir. appointees; whether and how to "count against the Republicans" Sen. Helms's blocking of all such nominees is a matter of interpretation).

Also interesting to note that some of the nominations that are currently controversial are to seats that Clinton also had a hard time filling. For instance, Estrada and Roberts are nominated to D.C. Circuit seats for which Clinton made nominations (Elena Kagan and Allen Snyder) in 1999. And there's the Fifth Circuit seat to which Justice Owen has been twice nominated: Clinton nominated Jorge Rangel to that seat in 1997, and then appointed Enrique Moreno to the same seat in 1999 after Rangel gave up (neither nomination is counted in the statistics above because neither was separately pending for more than two years). Clinton actually renominated Moreno in January 2001, during the 107th Congress, so President Bush had to withdraw the Moreno nomination in order to nominate Owen on May 9, 2001--one of the nominations whose second anniversary will be celebrated/decried at the hearing.

In all, fodder for interesting discussion, though whether we can expect much that's genuinely interesting or remotely disinterested from either side at Sen. Cornyn's hearing is at best uncertain. If the system as it operates today is broken, I think there's a good case to be made that it's been broken for a while. On the other hand, there is also an argument that the advent of the filibuster is qualitatively different from what the Republicans did with Clinton's nominee, hence the subtitle of Cornyn's hearing: "When a majority is denied its right to consent." And on the third hand, failing to hold hearings or bring nominees to the floor, to say nothing of honoring a single home-state senator's withholding of blue slips (see J. Helms) or even a non-home-state senator's anonymous holds (see C. Burns) on a large number of nominees can also be characterized as denying a majority its right to consent; Jeffrey Sutton's confirmation yesterday shows that even controversial nominees can pick up a few votes from the other party. But on the fourth hand, Bush has been in office only a little more than two years, so there hasn't been as much time for long-term languishing nominations to pile up. But on the fifth, there were more than a dozen Clinton nominees who were appointed between around 1 1/2 years before the end of Clinton's second term and who never got acted on, plus cases like Rangel & Moreno where vacancies existed for several years, but the Clinton administration switched nominees.

On the whole, my view of the evidence is that unless one is in principle against filibusters, it's hard to claim that the Democrats are behaving any worse than the Republicans did under Clinton. Whether that justifies what they're doing is another question, of course, and I suppose some people would say that neither party has done anything wrong and that these tactics are appropriate when dealing with lifetime appointments to the third branch.

The breakdown:

Five circuit court nominees were confirmed after waiting for two years or more, two had been pending for more than two years when the 106th Congress concluded in 2000, and one was pending for almost three years when the 105th Congress ended in 1998 and was not renominated in the 106th Congress. Three district court nominees were confirmed after a wait of at least two years, four had been pending for more than two years at the end of the 106th Congress, four had been pending for more than two years at the end of the 105th Congress and were not renominated, and one (Ronnie White) had been pending for more than two years when he was voted down. It should be noted that to be pending for two years, a nominee must have been renominated at least once; all of the nominees whose quests ended in the 105th Congress, therefore, were originally nominated in the 104th and didn't get a vote in either Congress.

There were also 14 nominations that had been pending between 15 and 21 months when the 106th Congress ended in December 2000 and nine nominations between 1994 and 1999 that were withdrawn before two years had passed.
Thanks for taking the time to send this along.
Posted at 14:41 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge Rejects Suit Against Bush Over War" and here an article entitled "Mont. Violated Inmate Rights, Court Says."
Posted at 14:08 by Howard Bashman



Not Guilty: On the afternoon of August 22, 2002, the following post appeared here at "How Appealing":
An FAA form that's too vague and confusing to support criminal charges for lying: The U.S. Court of Appeals for the Ninth Circuit has ruled today, in a quite short and interesting opinion you can access here, that Federal Aviation Administration Form 8500-8 -- a medical information form that pilots must complete each year to achieve recertification -- is too vague and ambiguous to support federal criminal charges for materially false responses. The opinion is also notable because it explains the game of "Dizzy Izzy":
"Dizzy Izzy" is a contest, often put on between innings of baseball games, in which two spectators are invited down to the field, where they place their foreheads on top of a baseball bat standing on the ground and then circle the bat a number of times, after which they must run in a straight line down the field.
I observed my first game of "Dizzy Izzy" just a few weeks ago between innings at the home field of this minor league baseball team.
Well, today the Ninth Circuit tells us nevermind. That court today issued an order withdrawing its opinion of August 22, 2002 and replacing it with this decision, which affirms the pilot's conviction for having made a false statement. Now I've got nothing against a federal appellate court that works its darnedest to reach the correct result. But for the pilot defendant, who learned eight months ago that the Ninth Circuit had set aside his conviction, to learn today that the Ninth Circuit has just reinstated his conviction, the whole thing must be a bit disquieting. Moreover, the new opinion doesn't mention "Dizzy Izzy."
Posted at 13:40 by Howard Bashman



"Court Debates Loitering in Public Housing": Gina Holland of The Associated Press has this report.
Posted at 12:35 by Howard Bashman



All in good humor: Senate Judiciary Committee chairman Orrin G. Hatch (R-UT) just stated during today's hearing on the nomination of John G. Roberts, Jr. to serve on the D.C. Circuit that sometimes Senator Charles E. Schumer (D-NY) asks "dumb ass questions" of judicial nominees at such hearings. By the way, the portion of the hearing focusing on the Roberts nomination has just concluded.
Posted at 12:25 by Howard Bashman



Put aside your picks and trowels: Why is First Circuit Judge Bruce M. Selya among the leading candidates to be one of the five federal appellate judges whose judicial opinions I'd want to have access to if stranded alone on a desert island. (No, I didn't dream up that question myself; it's one of the "20 questions" I'm answering at the behest of another blog.) In an opinion issued yesterday, Judge Selya writes: "In this instance, we need not undertake an archeological dig to locate the case's center of gravity"; "Litigation is not a game of hopscotch"; and -- after describing the appellant's principal argument -- "This is wishful thinking." Of course, given Judge Selya's proclivity toward using obscure words, I'd hope to have access to an unabridged dictionary lest I be tempted to defenestrate those passages of his opinions that I fail to understand.
Posted at 12:15 by Howard Bashman



"Citizen Bloggers in N.H.?" Dave Winer, a fellow at the Berkman Center for Internet and Society at Harvard Law School, has this op-ed in today's edition of The Harvard Crimson.
Posted at 11:49 by Howard Bashman



"Dems to Filibuster 2 Bush Judicial Picks": Jesse J. Holland of The Associated Press has this report. The article says expect cloture votes tomorrow on both filibustered nominations.
Posted at 11:28 by Howard Bashman



Ruling in McConnell v. FEC imminent? According to an announcement posted today at the Web site of the U.S. District Court for the District of Columbia:
In advance of the three-judge panel's ruling in the consolidated cases, McConnell vs. FEC, et al, interested persons are invited to subscribe to the Court's e-mail notification service ("listserv").
I have just done so, and it was quite easy to sign-up. (Law Professor Rick Hasen has posted the entire listserve announcement here.) The D.C. Circuit used a similar listserve to distribute its opinion in the Microsoft antitrust appeal, and I can tell you from first-hand experience that that listserve worked quite well.
Posted at 10:43 by Howard Bashman



In the news from Detroit: The Detroit News reports here that "Feds rest case in terror trial; Judge denies request for mistrial of 4 men after 9-11 inquiry." And The Detroit Free Press reports here that "U.S. terror case riding on who's more believable; Defense has informant of its own to present."
Posted at 10:40 by Howard Bashman



Scheduled to get underway this hour in the Senate Judiciary Committee: This morning D.C. Circuit nominee John G. Roberts, Jr. has the pleasure of returning for his second visit with the Senate Judiciary Committee, but this time he doesn't have to share the microphone with any Sixth Circuit nominees. You can see the announcement of this morning's meeting here, and you can listen to the festivities online at this link. Roberts is one of the most highly qualified candidates imaginable, and I trust that the full U.S. Senate will confirm him sooner rather than later.
Posted at 10:00 by Howard Bashman



Today's federal judicial confirmation news and commentary: Just posted online at The Hill is Byron York's essay, "GOP can't avoid question: Is Estrada doomed?"

The Dallas Morning News reports here that "Democrats plan filibuster against Texan Owen's nomination; GOP criticizes 'obstructionist' tactic against Bush nominees." And the The Times-Picayune reports here that "Bush judicial choice running into trouble; Breaux, Landrieu refuse to offer support." But the news is not all bad today for the Fifth Circuit. The San Antonio Express-News contains an article entitled "S.A. Judge Prado may be moving closer to getting a new job."

The Cincinnati Post reports here that "Senate confirms Sutton to post." The Plain Dealer reports here that "Ohioan confirmed to appeals court." The Detroit News reports here that "Bush nominee wins spot on federal court." The Chicago Sun-Times contains an article entitled "Bush judicial pick approved, but barely." Reuters reports here that "Divided Senate Confirms Judicial Nominee Sutton." And from Bloomberg News comes an article entitled "U.S. Senate Approves Jeffrey Sutton for U.S. Appeals Court Seat."
Posted at 09:49 by Howard Bashman



"Georgia argues redistrict appeal": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 09:35 by Howard Bashman



In news from Alabama: The Associated Press reports here that "Alabama Votes Against Legalizing Sex Toys."
Posted at 07:12 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports that "U.S. Can Hold Immigrants Set to Be Deported, Supreme Court Says." Neil A. Lewis reports that "Senate Approves a Nominee; Filibuster Is Set for Another." Adam Liptak has an article entitled "Prosecutors in Sniper Case Deny Rights Were Violated." You can access here an article entitled "Republican Lawmakers Back Senator in Gay Dispute." An editorial is entitled "A Judicial Witch Hunt." And letters to the editor run under the headings "Judges and Sentencing" and "Texas's Justice System."

In The Washington Post, Charles Lane reports that "High Court Upholds Immigrants' Custody; Decision Requires Jail Pending Deportation." An article reports that "Second Judicial Nominee Targeted; Senate Democrats Plan Filibuster to Stop Selection of Owen." In local news, "Malvo Attorneys Voice Suspicions; Police Tactics Challenged at Hearing." And a letter to the editor appears under the heading "Faith in the Constitution."

In The Los Angeles Times, David G. Savage reports that "High Court Upholds Jailing of Immigrants; Justices rule that criminals legally in U.S. can be held without a hearing and deported." An article reports that "Bush Appellate Nominee Sutton Wins Senate OK." In local news, this article reports that "Holocaust art theft suit gets go-ahead," while this article is entitled "Conviction in Killings Upheld; Appeals court rejects claims of insufficient evidence in the case of a 15-year-old accused of slaying two other teens."

In The Washington Times, Frank J. Murray reports that "Court rules legal immigrants may be held without bail." An article reports that "Senate OKs Sutton; Democrats filibuster Owen." In local news, you can access here an article entitled "Malvo's attorneys hammer on rights," here an article entitled "Delegate wants pill off state campuses," and here an article entitled "Clues few 2 years after Levy's death." And this article reports that "Santorum retains support of Republican leaders."

In The Boston Globe, Lyle Denniston reports here that "Immigrants' detention upheld" and here that "Judges bar prayer at public college." In local news, "Hearing officer calls for Lopez suspension; Report says judge lied under oath." And an editorial is entitled "An unfit judge."

In USA Today, Joan Biskupic has an article entitled "Court: Legal immigrants can be jailed." And letters to the editor run under the heading "Santorum threatens everyone, not just gays."
Posted at 06:30 by Howard Bashman



"Ashcroft Rejected By Newly Created Bride of Ashcroft": The brand-new edition of The Onion has this report.
Posted at 02:02 by Howard Bashman



Tuesday, April 29, 2003
U.S. Supreme Court round-up for Tuesday, April 29, 2003: Today the Supreme Court of the United States issued two 5-4 rulings.

The first case that I will summarize presented the question whether litigants through their conduct may manifest consent to have a non-Article III federal magistrate judge decide the case in the trial court, in lieu of an Article III federal district judge, even though the applicable statute and court rule require express written consent. This decision was undoubtedly of great interest to Major League Baseball, because any rebroadcast, retransmission or other use of this game without the express written consent of that organization is prohibited.

The second case involved the question whether Congress could lawfully require aliens subject to deportation proceedings for having committed a crime to remain imprisoned pending the outcome of their removal proceedings. In the case under review, the Ninth Circuit ruled that it was unconstitutional to hold a lawful permanent resident awaiting the outcome of removal proceedings without the possibility of bail. Recognizing that a Ninth Circuit ruling was under review, the Supreme Court reversed, 5-4, in a decision that generated opinions totaling nearly 75-pages in length. Fortunately for me, those most interested in this ruling are in custody of the Attorney General and therefore won't require an exhaustive rehearsal of the case here at "How Appealing." For those readers who are aliens but are not yet in custody, my advice is don't commit serious crimes. That goes for the rest of this blog's readers, too. (And while you're at it, don't commit minor crimes, either. Why not take up blogging instead?)

1. A Texas state prisoner filed suit in federal court under the federal Civil Rights Act asserting a claim of deliberate indifference to his serious medical needs. Named as defendants in the suit were three individuals, two of whom the Texas Attorney General's Office defended, and the third of whom had private counsel. At a preliminary hearing to determine whether the suit could proceed without the prepayment of costs, the federal magistrate judge assigned to consider the plaintiff's in forma pauperis motion told counsel for the parties that they could consent to have the magistrate judge preside over the entire case, and enter final judgment thereon, in lieu of an Article III federal district judge. The prisoner readily consented, first orally and then in writing (not to mention verbally, for people who prefer to misuse that word). The private attorney for the third defendant soon thereafter also consented in writing. The Texas Attorney General's Office, meanwhile, entirely overlooked the need to consent expressly and in writing, perhaps distracted by his office's ever burgeoning death penalty caseload. But the AG's lawyer didn't ever object and voluntarily participated through to a jury verdict in favor of the defendants.

The prisoner filed a timely appeal to the U.S. Court of Appeals for the Fifth Circuit. The Fifth Circuit, in an unpublished opinion, remanded the case to the trial court for a determination of whether the parties had properly consented to have a federal magistrate judge preside. The district court sent the matter back to the magistrate judge, at which time the Texas AG's office filed its consent, hoping to retain its victory at trial. Not so fast, the magistrate judge concluded, recommending that the proceedings be invalidated due to the failure of all parties to consent expressly and in writing at the necessary early stage of the proceedings. The federal district judge agreed. A unanimous three-judge Fifth Circuit panel ruled, in an opinion by Circuit Judge Rhesa Hawkins Barksdale, that the trial court's judgment had to be set aside due to the failure of all parties to consent, expressly and in writing, before the entry of judgment.

Today, in Roell v. Withrow, No. 02-69 (U.S. Apr. 29, 2003), the Supreme Court reversed. Justice David H. Souter delivered the opinion of the Court, in which the Chief Justice and Justices O'Connor, Ginsburg, and Breyer joined. Consent by conduct suffices, the majority held. As the majority opinion's second to last paragraph explains:
The bright line is not worth the downside. We think the better rule is to accept implied consent where, as here, the litigant or counsel was made aware of the need for consent and the right to refuse it, and still voluntarily appeared to try the case before the Magistrate Judge. Inferring consent in these circumstances thus checks the risk of gamesmanship by depriving parties of the luxury of waiting for the outcome before denying the magistrate judge's authority. Judicial efficiency is served; the Article III right is substantially honored.
Those followers of the Court who woke up this morning certain that they would never see the day when Justices Clarence Thomas and Antonin Scalia joined together to rule in favor of a prisoner on a claim of deliberate indifference to serious medical needs watched in disbelief today as Justice Thomas issued a dissenting opinion in which Justices Stevens, Scalia, and Kennedy joined.

Justice Thomas began his dissent by noting that the operative statute states that a magistrate judge may fulfill the role of an Article III federal district judge "[u]pon the consent of the parties." "Upon," Justice Thomas explained, requires that the consent comes first, not last. Moreover, the statute in combination with the applicable Federal Rule of Civil Procedure unambiguously require that consent be express and in writing. Those requirements weren't satisfied here before the entry of final judgment. Given the Article III concerns that an imperfect consent raises, adherence to the literal requirements of the statute and rule should be mandated, Justice Thomas explained. In the final part of his dissent, Justice Thomas concluded that a failure to consent properly gives rise to a jurisdictional defect that the Fifth Circuit properly raised on its own even in the absence of any party's objection. The majority, by contrast, avoided reaching this issue.

So, in the aftermath of today's ruling, if Major League Baseball signals to you through its conduct that it wouldn't mind if you rebroadcast, retransmit or otherwise use the contents of a game, that might just be enough to suffice. Only time will tell for certain.

2. Ninth Circuit Judge William A. Fletcher got to experience first-hand today the emotions that accompany a U.S. Supreme Court reversal. But, truth be told, it was only a reversal in part. The Court agreed 6-3 with the Ninth Circuit's view that the federal appellate court had jurisdiction to consider the habeas corpus petition in question. But then, on the merits, the Court reversed 5-4.

Chief Justice William H. Rehnquist delivered today's decision in Demore v. Kim, No. 01-1491 (U.S. Apr. 29, 2003). On the jurisdictional point, Justices Stevens, Kennedy, Souter, Ginsburg, and Breyer joined in the Chief Justice's opinion. On the merits, Justices O'Connor, Kennedy, Scalia, and Thomas joined in the Chief Justice's opinion. The Chief Justice's opinion clocked in at an economical 20 pages. But those who find themselves behind bars, affected by today's ruling, and without much to read -- do not despair; Justice Souter provides plenty of additional reading material in his dissent, as I explain below.

Moving back for a moment to the jurisdictional point, today was another example of how difficult it now is for Congress to strip federal courts of habeas corpus jurisdiction to consider petitions from aliens awaiting removal. Unless it's super duper clear that no jurisdiction exists, then jurisdiction does exist. As a result, it was on to the merits.

Aliens don't much enjoy being deported from the United States. You see, chances are the destination where the alien is going to be sent isn't as great of a place to reside when compared to all that the fabulous United States of America has to offer. Thus, when removal seems likely, some aliens aren't predisposed to cooperate. If I may invoke the title of a movie about to be released on DVD, "Catch Me if You Can." Cognizant of this aspect of human nature, Congress passed a law that allows the Attorney General to hold in custody (um, behind bars) individuals who are awaiting removal proceedings as the result of having been convicted of a removable offense.

Hyung Joon Kim arrived in the United States at the age of six. Now all growned-up (as we once said in my house) and sporting the much coveted lawful permanent resident status, Kim had the bad fortune to commit the burglary of a residence and petty theft and get caught and convicted of those crimes. In California, no less, where he was probably just one strike away from getting to live in the United States, behind bars, for twenty-five years to life. But I digress. As a result of those convictions, Kim was subject to removal. And, as the case reached the Supreme Court, Kim had conceded his removability, but he intended to apply for discretionary withholding of removal. (The four Justices who dissented on the merits didn't accept that Kim had conceded his removability; only Justice Stephen G. Breyer, in his separate opinion, went so far as to say that the majority was right on the detention issue if Kim had in fact conceded removability.)

The majority proceeded to hold that because aliens don't have as many rights as the rest of us (a pretty scary proposition given how few rights the rest of us have these days), and because the detention for the duration of removal proceedings lasts only one-and-a-half to six months (if an appeal is taken!), Congress didn't exceed its lawful powers to mandate that even permanent residents be imprisoned pending the outcome of removal proceedings.

Justice Anthony M. Kennedy, who provided the crucial fifth vote on the merits, issued a short concurring opinion in which he noted that aliens who don't concede removability have the right to a hearing to determine whether the prerequisites to pre-removal-proceeding detention exist. Justice Sandra Day O'Connor wrote an opinion dissenting from the Court's jurisdictional ruling but agreeing with the result on the merits; Justices Scalia and Thomas joined in her opinion.

Justice Souter wrote the principal dissent on the merits, and his opinion totals nearly 40 pages. Justices Stevens and Ginsburg joined in the dissent. Justice Stephen G. Breyer, as I have already noted, issued a separate, much shorter dissent from the decision on the merits. Believing that anything worth saying is probably worth saying in fewer than 40 pages, Justice Breyer's dissent was just three pages long and nevertheless contained one "For one thing * * *. For another * * *."

I don't have much to say about the substance of Justice Souter's dissent. Anyone who wishes to get into the good graces of Justice Souter and the Court's reporter of decisions should bring to their attention the fact that Justice Souter's dissent omits from the case citations to Lau Ow Bew v. United States, found on page 7 of his dissent, and United States v. Salerno, first found on page 10 of his dissent, the years in which those two cases were decided. If you're going to write possibly witty reviews of the U.S. Supreme Court's work product, you've gotta be willing to serve as backstop-fifth law clerk in times like these.

* * * * *

Word on the street is that the Court won't be issuing opinions again until next Monday. I'll nevertheless try to remain vigilantly on the lookout in case the Court tries to sneak some rulings past me tomorrow.
Posted at 23:38 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Washington Times, Frank J. Murray reports that "Court turns away challenge to S. Carolina abortion law." An article reports that "Appeals court upholds ban on VMI prayer." You can access here an article correctly observing that "Senate expected to OK Sutton." In local news, "Detective testifies Malvo knew rights." An article reports that "Racial preferences widely opposed, poll finds." And Bruce Fein has an op-ed entitled "Who creates privacy rights?"

In USA Today, Joan Biskupic reports that "High court rejects challenge to S.C. abortion-records rules; Inspectors can look at patient files." An article is entitled "How good a defense should a suspect get? Mississippi case looms as test of the public-defender system." An editorial is entitled "Death penalty discriminates against black crime victims." And Susan Estrich has an op-ed entitled "Laci Peterson's unborn child becomes pawn in abortion debate."

The Boston Globe reports here that "Bill to ban same-sex marriage debated."

The Los Angeles Times reports here that "Campaign Targets City's Gay-Rights Vote; Ohio conservatives wage an all-out crusade in Kentucky to stop a proposed law to protect homosexuals from discrimination." An article reports that "State High Court Denies Newport Prisoner's Award; The city is not liable for a $175,000 judgment to a man beaten in 1997 by an inmate, justices rule." From Fairfax, Virginia comes news that "Killing Spree Detailed in Court; Teen sniper suspect waived his right to talk with a lawyer and laughed as he recounted some of the shootings, police detective testifies." An essay by a high school senior is entitled "Look beyond standards to judge college admissions." Finally, columnist Patt Morrison has an essay entitled "Wal-Mart May Value Families, but Women?"
Posted at 22:58 by Howard Bashman



"Just Don't Do It": TomPaine.com has this op-ed about the Nike v. Kasky case.
Posted at 22:56 by Howard Bashman



President Bush commends the U.S. Senate for confirming Jeffrey S. Sutton to serve on the Sixth Circuit: Access the official White House statement here.
Posted at 21:12 by Howard Bashman



Bygones: In case you hadn't noticed -- Former Philadelphia Mayor Ed Rendell defeats Pennsylvania Attorney General Mike Fisher to become Governor of Pennsylvania; Ed Rendell's wife, Third Circuit Judge Marjorie O. Rendell, becomes First Lady of Pennsylvania; yesterday, President Bush announces his intention to nominate Attorney General Fisher to fill a vacancy on the U.S. Court of Appeals for the Third Circuit; after his confirmation, Judges Rendell and Fisher have life tenure working together on the Third Circuit; and Judge Rendell and everyone else remain constantly mindful that had Fisher defeated Ed Rendell in the race for Governor, there would be no Third Circuit Judge Fisher. (This post's title courtesy of "Richard Fish.")

Still to come someday, my recollections on having served as the "appellate guru" on a Continuing Legal Education panel in March 2001 with fellow panelists Ed Rendell and Mike Fisher on the subject of what would have happened had the Florida Presidential Election debacle instead occurred in Pennsylvania. And my interactions with Attorney General Fisher also include opposing him in appellate litigation, where I have found him and his office to be remarkably capable and ethical (to the point of confessing error in a prisoner pro bono appeal that the Third Circuit assigned me to handle (access my appellate brief here)). I have no doubt that he'll make an excellent Third Circuit judge once the U.S. Senate finally gets around to confirming him.
Posted at 20:50 by Howard Bashman



"Philippe de Croy" is against recess appointments: He explains why here, at "The Volokh Conspiracy."
Posted at 20:47 by Howard Bashman



Special three-judge McCain-Feingold panel issues ruling: Law Professor Rick Hasen has the details here, at his "Election Law" blog (which now sports a familiar, soothing yellowish background).
Posted at 20:39 by Howard Bashman



"Dial Settles Illinois Sex Harassment Suit": Reuters provides this report.
Posted at 19:04 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Court OKs Limited Detention of Aliens." Jesse J. Holland reports that "Senate Democrats said Tuesday they would filibuster another of President Bush's federal court nominees, minutes after allowing the Senate to confirm a Bush nominee who critics said had worked to curtail the rights of the disabled." And in other news, "Mo. Death Row Inmate Conviction Reversed"; "Media Seeks Openness in Moussaoui Appeal"; "Judge Waits to Rule on Malvo Confession"; and "County Sues Miss. Over Public Defenders."
Posted at 19:01 by Howard Bashman



"Long Post on Judicial Nominations": Online here, at the blog "Demagogue."
Posted at 15:33 by Howard Bashman



"U.S. courts may rule on criminal aliens": Michael Kirkland of UPI has this report.
Posted at 14:39 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Supreme Court Takes Minority Ballot Case"; here "Senate OKs Bush Appeals Court Nominee"; here "Nation's Courts Grapple With Budget Woes"; and here "Bush to Sign Broad Child Protection Bill."
Posted at 14:36 by Howard Bashman



Lawrence Solum considers recess appointments to the federal judiciary: Be sure to read this impressive post at his Web log, "Legal Theory."
Posted at 14:11 by Howard Bashman



The official roll call vote tally on the confirmation of Jeffrey S. Sutton to serve on the Sixth Circuit: You can access it here. Only two Democrats joined with the 50 Republicans who voted in favor of confirmation. One Republican and six Democrats did not cast votes.
Posted at 13:33 by Howard Bashman



A press release: Senator John Cornyn (R-TX), who serves as Chairman of the Senate Judiciary Committee's subcommittee on the Constitution, today issued the following press release:
TWO YEARS IS TOO LONG

Cornyn to hold hearings on reform of judicial confirmation process, find solutions to fix downward spiral of partisan obstruction

WASHINGTON – U.S. Sen. John Cornyn, Chairman of the Judiciary Committee’s subcommittee on the Constitution, announced Tuesday that he will convene a hearing on reform of the broken judicial confirmation process. The hearing, Judicial Nominations, Filibusters, and the Constitution: When a majority is denied its right to consent, will be held in 226 Dirksen on Tuesday, May 6, 2003 at 2:30 p.m.

"The judicial confirmation process is broken, is badly in need of reform, and the U.S. Senate needs a fresh start," Chairman Cornyn said in announcing the hearing. "The process has become increasingly bitter and destructive, and does a terrible disservice to presidents, senators, nominees, and the American people."

The hearing comes nearly two years after President Bush announced his first class of nominees to the federal courts of appeals, including Texas Supreme Court Justice Priscilla Owen, whose nomination is pending before the Senate. Five of the 11 nominees have still not had a vote by the full Senate.

"Two years is too long," Sen. Cornyn said. "And the Senate reached a new low in recent months with the unprecedented and dubious filibuster of an exceptionally qualified judicial nominee who enjoys the support of a bipartisan majority, but suffers from the obstruction of a partisan minority."

To address the problems facing the Senate and federal judiciary, the subcommittee will hold a hearing to allow senators and the nation’s leading constitutional experts the opportunity to discuss the serious constitutional questions raised by the obstruction of judicial nominations, and to consider and debate potential solutions and reforms.

Sen. Cornyn chairs the Subcommittee on the Constitution, Civil Rights & Property Rights, and is the only former judge on the committee. He also serves on the Armed Services, Environment and Public Works, and Budget Committees. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.
When this press release becomes available online, I hope to provide a link here. Update: Here's a link to the Notice of Hearing.
Posted at 12:50 by Howard Bashman



The U.S. Senate has confirmed Jeffrey S. Sutton to serve on the Sixth Circuit by a vote of 52-41: Congratulations to Jeffrey S. Sutton for his well-deserved confirmation to serve on the U.S. Court of Appeals for the Sixth Circuit. Forty-one no votes means that the confirmation failed to garner a filibuster-proof majority, but it's the result, rather than the margin of victory, that counts.
Posted at 12:46 by Howard Bashman



The U.S. Senate's vote on the nomination of Jeffrey S. Sutton has just started: Results to follow shortly.
Posted at 12:12 by Howard Bashman



Nevada; Nebraska -- what's the difference? A reader from one of the many very fine law firms located in Washington, DC emails:
In the VMI prayer case decided yesterday, Judge King's opinion for CA4 erroneously states, twice, that the Supreme Court's legislative prayer case, Marsh v. Chambers, concerned a challenge to prayer in the Nevada legislature. As any good Cornhusker knows, the case arose from the practices of the Nation's only unicameral legislature, that of Nebraska.
You are correct, as the links I've added to your email demonstrate.
Posted at 11:27 by Howard Bashman



"Is Federalism Conservative? A new line of attack against Bush's judges." Robert D. Alt has this essay just posted at National Review Online.
Posted at 11:15 by Howard Bashman



"Supreme Court Allows Criminal Immigrants' Detention": James Vicini of Reuters has this report.
Posted at 11:10 by Howard Bashman



Today's two U.S. Supreme Court opinions: Even if you had never before heard of the two cases that the U.S. Supreme Court decided today, those decisions are nevertheless worth a look. I'll have a complete wrap-up of both decisions online sometime tonight. For now, here's a very quick summary. In one case, the Court split 5-4 over the power of a federal magistrate judge to enter judgment in lieu of an Article III federal district judge without the express, advance consent of the parties. Justice David H. Souter delivered the opinion of the Court, in which the Chief Justice and Justices O'Connor, Ginsburg, and Breyer joined. Justice Clarence Thomas issued a dissenting opinion, in which Justices Stevens, Scalia and Kennedy joined. In the other case, which produced opinions totaling nearly 75-pages in length, the Court upheld the constitutionality of a statute mandating the detention of all aliens who are removable based on having committed an aggravated felony.
Posted at 11:03 by Howard Bashman



The Priscilla R. Owen filibuster is underway: Senate Majority Leader Bill Frist (R-TN) announced at the start of today's U.S. Senate session that after the vote on Jeffrey S. Sutton's nomination to the Sixth Circuit, the Senate will return to debate over the nomination of Priscilla R. Owen to the Fifth Circuit. Assistant Democratic Leader Harry Reid (D-NV) then stated that it will be necessary for the Republicans to file for cloture to seek an end to the debate on the Owen nomination.
Posted at 10:09 by Howard Bashman



The Supreme Court of the United States has issued two opinions today: The Court issued its decisions today in Roell v. Withrow (decision delivered by Justice David H. Souter; reversed and remanded; oral argument transcript here) and in Demore v. Hyung Joon Kim (decision delivered by the Chief Justice; reversed; oral argument transcript here).
Posted at 10:00 by Howard Bashman



"Conservatives Rise for the Bill of Rights!": Nat Hentoff has this essay at The Village Voice.
Posted at 09:58 by Howard Bashman



Sixth Circuit grants stay of execution: Reuters reports here that "Serial Killer Granted Stay of Execution in Tenn."
Posted at 09:51 by Howard Bashman



On the agenda: Today at 10 a.m. eastern daylight time, the Supreme Court of the United States is scheduled to issue one or more opinions. Also at 10 a.m., the U.S. Senate begins the final two hours of debate over the nomination of Jeffrey S. Sutton to the U.S. Court of Appeals for the Sixth Circuit. The Senate will vote on the nomination at noon today. You can watch the Senate's proceedings online via C-SPAN2 at this link. Stay tuned for details as they become available.
Posted at 09:42 by Howard Bashman



"Benching Bork: How to end the war over judges." Law Professor Randy E. Barnett has this essay just posted at National Review Online. While noting the unquestionable historical pedigree of recess appointments to the federal judiciary, Barnett's essay does not grapple with the serious questions that exist concerning the practice's constitutionality (see the March 2001 installment of my monthly appellate column for background). In his essay, Barnett asks "Or how about Morris Arnold, Alex Kozinski, Richard Posner, Frank Easterbrook, Edith Jones, or even Robert Bork as recess appointments to the Supreme Court?" It is doubtful, however, that a sitting federal judge (which five of those six individuals currently are) would be able to resume his or her prior judicial federal judicial position after accepting a recess appointment to a different one. I previously discussed this issue in a blog post that you can access here.
Posted at 09:34 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "High Court to Hear Minority Ballot Case." And here's an article entitled "Hate Crimes Bill Become Law in Hawaii."
Posted at 06:59 by Howard Bashman



"Senate expected to OK Sutton": Today's edition of The Washington Times contains this report. Also this morning, Reuters reports here that "Disabled Oppose Bush Judicial Nominee Sutton," and The Associated Press reports here that "Dems Seek Vote Block of Court Nominee."
Posted at 06:56 by Howard Bashman



"Bush picks N.C. judicial nominees; African Americans await hearings for seats on appellate bench": Today's edition of The Charlotte Observer contains this report.
Posted at 06:51 by Howard Bashman



Third Circuit intended nominees in the news: Today's edition of The Pittsburgh Post-Gazette reports here that "Bush nominates Fisher to 3rd U.S. circuit court." The Philadelphia Inquirer reports here that "Bush taps Fisher for judgeship." The Patriot-News reports here that "Fisher nominated to 3rd Circuit Court; He asks Rendell to support him in U.S. Senate hearings." And The Express-Times reports here that "Bush nominates Mike Fisher for spot on the federal bench."
Posted at 06:41 by Howard Bashman



"Top court rejects jailed Pa. lawyer; H. Beatty Chadwick, held since 1995 in a property dispute with his ex-wife, said he still will fight on." Today's edition of The Philadelphia Inquirer contains this report.
Posted at 06:40 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices to Take Up Interstate Water Fight." If you missed this item in today's Order List from the U.S. Supreme Court, you must learn to read the list more carefully (see the second item on page one). An article reports that "Holocaust List Is Unsealed by Insurers." In DC-area sniper related news, "Sniper Suspect Was Interrogated After He Requested Lawyer." You can access here an article entitled "Moussaoui Should Get Details in '5th Plane' Theory, Judge Says." An article entitled "Congress, Back at Work, Tries to Mend Breach Over Tax Cut" briefly mentions today's U.S. Senate debate over a federal appellate court nominee. And this article reports that "MasterCard Settles Case With Retailers Ahead of Trial."

In The Washington Post, Charles Lane has a front page article entitled "High Court to Hear Md.-Va. Water Case." An article reports that "Virginian Picked for 4th Circuit Judgeship; Bush Nominates Ex-Aide to Gilmore." In other Fourth Circuit news, "Court Rules Pre-Meal Prayer Violates VMI Cadets' Rights." An article reports that "Malvo Read Rights Repeatedly, Judge Told; 3 Early Questionings Described; Detective Recalls Suspect Was Jovial." And in music news, here's an article entitled "Apple's Different Tune; Jobs Sells Web Music Service as Solution to Piracy."

Finally for now, The Christian Science Monitor contains an article entitled "Redistricting with a twist: Parties switch arguments; The high court considers Tuesday whether Georgia Democrats can reduce black-voter concentration."
Posted at 00:10 by Howard Bashman



Monday, April 28, 2003
Available online at law.com: You can access here an article entitled "Do Not Enter: The Supreme Court will have its say on a Richmond, Va., rule that bars unapproved visitors from a crime-plagued housing project." An article reports that "2nd Circuit Allows Video Surveillance Into Evidence." And in top-secret news from Connecticut, "Secret Cases Vote to Be Held in Secret; Judges' special meeting off-limits to press, public."
Posted at 23:46 by Howard Bashman



The U.S. Senate's vote on the nomination of Jeffrey S. Sutton to serve on the Sixth Circuit will occur at noon on Tuesday, April 29, 2003: See page two of this PDF document for verification. Sutton will be confirmed -- as well he should (I've publicly supported his nomination since June 2001, as the final part of this document shows) -- but it will be interesting to see whether the Senate provides sixty or more votes in favor of confirmation. Stay tuned tomorrow for all the details on what -- with the scheduled issuance of U.S. Supreme Court opinions -- is likely to be an interesting day.
Posted at 23:38 by Howard Bashman



"Judge: Moussaoui Must See New Case Info": The Associated Press tonight offers this report.
Posted at 23:30 by Howard Bashman



"Blogs, Esq.": Robert J. Ambrogi, whose blog you can access here, has this article online at Corporate Counsel, a law.com affiliate. Thanks for another very kind mention, Robert!
Posted at 23:09 by Howard Bashman



H-p-y -i-t-d-y: Just noticed that today's my half birthday. Only three hours and ten minutes left to celebrate turning 38.5.
Posted at 20:51 by Howard Bashman



What flattery might get you: The following email arrived today:
Before I mention anything else, I want to say that I find your blog to be wonderfully interesting. I can say that many individuals overseas (I spend a lot of time overseas) actively read it as a way of keeping in touch with developments in American law.

I have posted two of my articles on SSRN:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=394840
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=392502

Given the subject of your blog and the nature of its readership, I think that both of these articles might be of interest to your readers. One article discusses an old Supreme Court case that receives very little attention, but is very important as a result of the events of September 11th. The other article discusses comparative law as an interpretive tool that might aid American courts attempting to decide difficult cases (this subject came up during the Gratz oral arguments and in the Lawrence v. Texas briefs, by the way).

Best wishes,

David Fontana
Of course, Law Professor Lawrence Solum, at his "Legal Theory" blog, noted the posting of these two articles this morning.
Posted at 20:43 by Howard Bashman



Today's federal judicial nominations: The White House today issued this press release, which includes two nominations to the U.S. Court of Appeals for the Fourth Circuit and numerous U.S. District Court nominations. The Associated Press reports here that "Bush Moves to Fill Judicial Vacancies." The AP report is premature in two respects -- it states that Pennsylvania Attorney General Mike Fisher and Judge Jay C. Waldman of the U.S. District Court for the Eastern District of Pennsylvania have both been nominated to the U.S. Court of Appeals for the Third Circuit. Both of these nominations are anticipated (see this intent to nominate announcement issued today), but neither has formally occurred as of today.
Posted at 20:03 by Howard Bashman



Pa. Supreme Court holds that hospital which contracts with employer to perform drug testing owes duty of care to employee undergoing the testing: You can access this past Friday's unanimous ruling of the Supreme Court of Pennsylvania at this link. A friend who works elsewhere briefed, argued, and won this appeal.
Posted at 16:28 by Howard Bashman



How to promote your blog: Eugene Volokh offers some characteristically thoughtful remarks. And I have two additional suggestions.

First, tools such as Technorati's link cosmos (when it's working, which is most of the time, but regrettably not at this very moment) allow bloggers to keep track of which other blogs are linking to them. Given how many visitors "How Appealing" receives (something for which I am most thankful, mind you), it's impossible for me to spot many new incoming links just from my hit counter's referral logs. But every few days or so, I visit Technorati to see what new links "How Appealing" has received, and I attempt to visit those blogs that I hadn't heard of previously and at least add them to my blog roll if they seem worthwhile. So, it doesn't hurt for you to link to those blogs that you'd like to have link back to you.

Second, if you've started a law-related blog, be sure to register it at the Legally-Inclined Weblogs Net Ring. Both Denise Howell and Ernie the Attorney do a thorough job of staying on top of that list for new arrivals, and a link from their blogs will bring you a bunch of visitors.

I'm told that a link from "How Appealing" doesn't hurt either, and you could do much worse than to visit an interesting new law blog known as "Legalguy."
Posted at 15:41 by Howard Bashman



When and where? Law Professor Rick Hasen, at his "Election Law" blog, posts the text of his letter to the editor of The New York Times about the still long-awaited ruling of the three-judge U.S. District Court for the District of Columbia panel in the case challenging the McCain-Feingold campaign finance law. Meanwhile, I've begun to wonder whether that opinion, when it finally does issue, will appear first at the D.C. Circuit's Web site (which still proudly displays a link to an earlier three-judge district court opinion in State of Georgia v. Ashcroft) or at the recent opinions page of the district court's Web site.
Posted at 15:25 by Howard Bashman



"Senate Expected to OK Bush Judge Nominee": The Associated Press has this report.
Posted at 15:16 by Howard Bashman



Fourth Circuit holds Virginia Military Institute's "supper prayer" violates First Amendment's Establishment Clause: You can access today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link. Hmm, next thing you know, VMI will have to admit women.
Posted at 15:07 by Howard Bashman



"Two ships passing in the night": During my clerkship on the U.S. Court of Appeals for the Third Circuit over ten years ago, I reserved that designation for cases in which, after reading the Brief for Appellant and the Brief for Appellee, it was impossible to tell that the parties were in fact briefing the same case. In an opinion issued today, the U.S. Court of Appeals for the Ninth Circuit uncovered another, arguably even more troubling, manifestation of the principle:
The decisions on review can best be described as two ships passing in the night. We are presented with a petition for review of a final deportation order of the Board of Immigration Appeals ("BIA") affirming a decision that the Immigration Judge ("IJ") did not make. We hold that the BIA committed legal error in deporting Petitioner based on his ineligibility for a waiver which, as the IJ noted in the very decision under review, was not required in the first place. While we recognize that the BIA is swimming in a sea of cases, barely able to keep itself afloat, there remains no excuse for the apparent failure to read the decision one is reviewing and to review the decision that was made.
You can access today's Ninth Circuit ruling at this link.
Posted at 13:33 by Howard Bashman



"Two Judges Face the Heat": Roll Call today contains an article by this title (registration required). The article begins, "Senate Republicans are expected to try to force votes on two of President Bush's top judicial picks this week, testing Democratic will to maintain simultaneous filibusters and likely imperiling working relations between the two parties for the foreseeable future." And the article goes on to note that Democrats are accusing Republicans of stalling the confirmation vote for Fifth Circuit nominee Edward C. Prado to gain further rhetorical advantage in the confirmation battle over D.C. Circuit nominee Miguel A. Estrada.
Posted at 13:15 by Howard Bashman



The U.S. Senate's debate on the nomination of Jeffrey S. Sutton to the Sixth Circuit is scheduled to get underway now: I've already composed a blog post congratulating him on his confirmation, which you should expect to see posted here before the end of the day tomorrow. But if you'd like to see the Senate go through the motions -- um, I mean perform its solemn constitutional duty -- this afternoon, you can watch live online here via C-SPAN 2. I'll be listening in a bit myself, time permitting.
Posted at 13:00 by Howard Bashman



"Detective: Sniper Suspect Was Read Rights": The Associated Press offers this report.
Posted at 12:53 by Howard Bashman



"Death row inmate seeks organ transplant; Prison officials struggle with ethical issues, costs of caring for a killer." Today's edition of The Statesman Journal of Salem, Oregon contains this report. And a bunch of related articles are linked on the right-hand column of the page. (Thanks to the reader who forwarded the link.)
Posted at 12:49 by Howard Bashman



"Pryor's Restraint: What does the Left have against the Alabama AG?": This essay by Quin Hillyer, "a national award-winning editorial writer and columnist for the Mobile Register," appears today at National Review Online.
Posted at 11:11 by Howard Bashman



The wire services are reporting from the U.S. Supreme Court: James Vicini of Reuters reports here that "Supreme Court Rejects Appeal on Ten Commandments" and here that "State Abortion Law Challenge Rejected by High Court." And The Associated Press reports here that "High Court Refuses Abortion Privacy Case" and here that "Justices Decline To Take Healthgrades.com Case."
Posted at 10:58 by Howard Bashman



"Mastercard Settles Debit Card Trial": Reuters has this report.
Posted at 10:41 by Howard Bashman



Today's Order List from the U.S. Supreme Court: It is available online here. The Court today granted review in one case and requested the views of the Solicitor General of the United States in another. The Court is scheduled to issue opinions tomorrow.
Posted at 10:00 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Feminists criticize female court picks." Read the article to learn who says: "The women [President Bush] is nominating are Scalia in a skirt." And an article reports that "Border Patrol acquires high profile in battle on terror."

In The Washington Post, Charles Lane has an article entitled "Old Debate, New Relevance; Supreme Court to Address Free Speech in Housing Suit."

The Los Angeles Times reports here that "Hemp foods on the ropes; Products containing the active ingredient in marijuana remain on the shelves as a federal court reviews a ruling that would ban them." You can access here an article entitled "Mayor Wants to Outlaw Lying -- Yeah, That's the Ticket; Lively conversation is considered an art and a pastime in a tiny Iowa town. But its leader wants to make the place a beacon of honesty." In music news, "Apple to Unveil Music Service; Online offering faces a greater marketing task due to court decision in favor of free networks." An article reports that "Talks Set on Sale of Veterans Cross Site; A court ruling means San Diego has to either take down memorial or sell the land under it." In local news, "City Seeks to Bar Parolees From Trouble Areas; Lancaster's novel proposal to fight rising crime draws criticism from the ACLU." You can access here an article entitled "Brief Details Gender Bias Claims at Wal-Mart; Testimony from women is gathered to make the case for a class-action suit." Continuing this blog's coverage of a certain architect's work, you can access here an article entitled "A siren song; Frank Gehry's newest performing arts center is an alluring beauty." And letters to the editor appear under the heading "Peterson Case Links Abortion and Murder."

The Boston Globe reports here that "Hearing set on measure to ban same-sex marriage." An editorial is entitled "Streetwise security." Cathy Young has an op-ed entitled "Santorum's odious comparisons," and George F. Will has an op-ed entitled "GOP is courting the black vote."

In USA Today, letters to the editor appear under the heading "If Republicans were pro-family, they would support gay unions."

The Harvard Crimson contains an editorial entitled "No Immunity for Gun Industry; Americans must have, and retain, the right to sue firearm manufacturers and dealers." And an op-ed about the death penalty is entitled "Only Human."
Posted at 09:50 by Howard Bashman



"Malvo hearing may be 'granddaddy of them all'; Comments by teen sniper defendant focus of legal battle": CNN.com offers this report.
Posted at 09:48 by Howard Bashman



Today's FindLaw columnist: Julie Hilden has an essay entitled "The Supreme Court Considers the Boundaries of Anti-Trespassing Laws: If They are Too Broad, Do They Violate the First Amendment?"
Posted at 09:41 by Howard Bashman



"Gay judges open eyes in judiciary": This article appears in today's issue of The Chicago Sun-Times.
Posted at 09:39 by Howard Bashman



"Santorum makes a valid point on sex": My friend Mitch Sommers has this op-ed in today's issue of The Philadelphia Inquirer. Meanwhile, yesterday's edition of The Pittsburgh Post-Gazette contained an editorial entitled "Senator Sanctimonious; Not much moderation in his comments on gays."
Posted at 09:35 by Howard Bashman



"Redistricting suit holds voting rights future": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 09:32 by Howard Bashman



"Bush, Schumer Agree: Unite on Hispanic candidate for federal judge in Brooklyn": Newsday today contains this report. And The New York Daily News reports here that "Schumer brokers new judge pick."
Posted at 06:53 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue an Order List at 10 a.m. eastern time today. The U.S. Senate returns to active session today. Pursuant to a unanimous consent agreement reached earlier this month (see page 2 of this PDF document), it is:
Ordered, That at 1:00 p.m. on Monday, April 28, 2003, the Senate proceed to executive session to begin consideration of the nomination of Jeffrey S. Sutton, of Ohio, to be United States Circuit Judge for the Sixth Circuit;

Ordered further, That following debate on April 28, 2003, the nomination be set aside; that the Senate resume consideration of the nomination on Tuesday, April 29, 2003, at a time to be determined by the Majority Leader, after consultation with the Democratic Leader; and that the Senate proceed to a vote on the confirmation of the nomination, with no intervening action or debate.
Also, be on the lookout today for more judicial nominations, as I have previously hinted at here and here.
Posted at 06:46 by Howard Bashman



"Dog bites man": Hendrik Hertzberg has this Talk of the Town item in the May 5, 2003 issue of The New Yorker.
Posted at 06:42 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Poll: Split on College Affirmative Action" and here an article entitled "Dial Soap in Sexual Harassment Case."
Posted at 06:38 by Howard Bashman



In Monday's newspapers: The New York Times contains an editorial entitled "Another Ideologue for the Courts." An article reports that "Big Credit Card Suit Goes to Trial." You can access here an article entitled "Two Democratic Contenders Clash on Universal Health Coverage." An article reports that "Slate Sets a Web Magazine First: Making Money." In other news, "Apple Said to Be Entering E-Music Fray With Pay Service." And columnist Bob Herbert has an op-ed entitled "The Tulia Story Isn't Over."

The Washington Post contains a front page article entitled "Coded Messages Add to Mystery Of a Failed Spy." And an op-ed by Denise Johnson is entitled "A Widow's View of Gun Accountability."
Posted at 00:16 by Howard Bashman



Sunday, April 27, 2003
Meanwhile, Blogger and Blog*Spot are working perfectly: Even fancy sites that don't rely on free servers can stop working from time to time, as InstaPundit notes here and here.
Posted at 22:44 by Howard Bashman



How to celebrate the one year anniversary of "How Appealing"? Sure, I already know what I'll be doing on May 6, 2003. But the rest of you can mark the occasion by reading my responses to the "20 questions" that I received from the bloggers at "The Academy" blog. Those questions and my answers to them should be posted online over at that blog sometime on May 6th.
Posted at 22:28 by Howard Bashman



Available online at law.com: Tony Mauro takes a look at cases in which the U.S. Supreme Court may discuss whether to grant review at private conferences scheduled for May 2 and May 15, 2003. In news from Georgia, Jonathan Ringel reports that "Democrats' Fate Could Rest on Redistricting Case; Unusual alliances emerge in dispute." From California comes a report that "Judge Tosses Suit Against Grokster, StreamCast." And commentary by Lawrence J. Siskind about the Supreme Court's recent cross-burning decision is entitled "The Right to Discomfit."
Posted at 22:11 by Howard Bashman



"Laci Peterson killing renews debate on 'unborn victims'": Today's edition of The Arizona Republic contains this report. And The Oakland Tribune reports here on "Cops' big secret in Laci's death."
Posted at 22:04 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Paper: Peterson Remains Located in March" and here an article entitled "Lawyer Returns $19K to School District."
Posted at 22:01 by Howard Bashman



In next week's news magazines: The May 5, 2003 issue of Newsweek contains an article by Howard Fineman entitled "Having a Gay Old Time: While Bush stresses his role as commander in chief, a GOP senator muses about ‘man on dog.’ Can the Dems get traction in either the real war or the culture wars?" You can access here an article entitled "The Tale of the Peterson Tapes; Evidence piles up against Scott Peterson." And Anna Quindlen has an essay entitled "Tort Reform At Gunpoint: Ought the gun industry, of all businesses, be the only one to be exempted from exercising reasonable care to prevent injury to others?"

In U.S. News and World Report, columnist John Leo has an essay entitled "Anger mismanagement." In the essay, Leo cites favorably to former "The Volokh Conspiracy" guest blogger Clayton Cramer's blog postings about the U.S. Senator Rick Santorum (R-PA) interview controversy.
Posted at 20:54 by Howard Bashman



Havin' fun at a D.C. Circuit oral argument: See the second item in Lloyd Grove's column from today's issue of The Washington Post. And thanks to the reader who made sure that not even this minor item slipped by unnoticed.
Posted at 20:51 by Howard Bashman



Elsewhere in Sunday's newspapers: In The Washington Times, Frank J. Murray reports that "'Odd bedfellows' bring perspectives to death penalty." An article reports that "D.C. police imposing antiloitering law." An editorial is entitled "The gun-control issue." And an op-ed by James L. Swanson is entitled "Forthcoming clash for the court."

Today's edition of The Los Angeles Times contains an article entitled "Faster Than the Speed of Software; The record labels have a new idea for selling music online. The only catch: This time, they are ahead of the technology needed for it to happen." And a letter to the editor appears under the heading "Captive Children at Guantanamo."

Finally for now, The Boston Globe contains an op-ed by Thomas Oliphant entitled "GOP comfort for Santorum."
Posted at 16:26 by Howard Bashman



"Federalism key Pryor issue; Stance may decide appellate court post": Today's edition of The Birmingham News contains this report, which mentions at its conclusion Sam Heldman's "ongoing Internet critique" of the nominee. (Via "Southern Appeal.")
Posted at 11:41 by Howard Bashman



"6th Circuit part of battle; Democrats oppose GOP nominees": Today's edition of The Cincinnati Enquirer contains this report.
Posted at 10:10 by Howard Bashman



What kind of law do sad facts make? It is said that "hard cases make bad law" -- an adage to which I do not fully subscribe -- but what kind of law do sad facts make? Two federal appellate decisions that issued on Friday cause me to ask this question.

The U.S. Court of Appeals for the Fifth Circuit, in Austin v. Johnson, confronted the case of a minor who was sentenced to a day at juvenile boot camp for having stolen a candy bar from a concession stand at his school. As the opinion describes, after passing out that afternoon from over-exertion:
John E suffered from serious conditions such as hyperpyrexia and acute rhabdomyolysis resulting from heat stroke; he was admitted to a local hospital, where his temperature was 107.9º Fahrenheit, and later was transferred to Children's Hospital in Dallas, where he remained for over two weeks, suffering from acute renal failure, acute hepatitis, and pancreatitis. [footnotes omitted]
On interlocutory appeal, the Fifth Circuit held that the plaintiff's claim for cruel and unusual punishment failed as a matter of law, but that the plaintiff could pursue his claim for deliberate indifference to his serious medical needs.

And speaking of serious medical needs, on Friday the U.S. Court of Appeals for the Seventh Circuit decided an appeal involving a claim asserted under a federal law known as the Emergency Medical Treatment and Active Labor Act (EMTALA). In that case, a husband brought his wife to the emergency room of a hospital because she was exhibiting symptoms of serious psychological illness. After being seen by a social worker and a physician, the hospital decided that instead of admitting the wife for psychiatric treatment against her will, it would recommend that she see her family doctor as soon as possible because a medication the family doctor had prescribed may have been causing the wife's symptoms. Three days later (on a Monday), the wife went to see her family doctor. As the opinion explains:
On Monday, July 12, Chyrl went to see Dr. Palmer, again accompanied by her husband, Richard. After evaluating Chyrl, Dr. Palmer formulated a treatment plan including a sedative medication and instructed Chyrl not to drive. That evening, Chyrl and Richard went to dinner and a movie. While sitting in the theatre before the movie began, Chyrl got up from her seat and, without saying anything to Richard, exited the theatre. Richard was under the impression Chyrl had simply gone to the restroom. Unfortunately, however, Chyrl had actually left the building and was in the process of driving northbound on Chicago's Michigan Avenue reaching speeds in excess of eighty miles per hour. At 91st Street, a "T" intersection requiring traffic north on Michigan Avenue to make a left or right turn, Chyrl continued straight ahead. She was fatally injured when her car struck a light pole and a building. She was pronounced dead shortly after she arrived at Christ Hospital late Monday night (around 11:00 p.m.), July 12.
On these facts, the trial court granted summary judgment dismissing the husband's EMTALA claim. But on appeal, the Seventh Circuit reversed.

So, what kind of law do cases with sad facts make? You decide.
Posted at 08:56 by Howard Bashman



In Sunday's newspapers: In The Washington Post, new mom Dahlia Lithwick reviews Justice Sandra Day O'Connor's new book. And David S. Broder has an op-ed entitled "Bush's Leadership Pinnacle."

In The New York Times, Stephen Gillers has a Week in Review essay entitled "Upholding the Law as Pretrial Publicity Goes Global." An article reports that "Aides Say McGreevey Will Seek Another Term for Chief Justice." And a letter to the editor from Law Professor Charles Fried runs under the heading "In Defense of a Judge."
Posted at 00:21 by Howard Bashman



Saturday, April 26, 2003
"Opposition swells against Ohio judge nominee": The Associated Press has this news.
Posted at 23:43 by Howard Bashman



"The GOP's Judiciary Showdown: The mother of all battles never materialized in Iraq. But flip on your TV this summer, and you may catch the Senate in hand-to-hand combat over the future of the Supreme Court": TIME.com today offers this report.
Posted at 23:41 by Howard Bashman



"Report: Allen to be nominated to 4th federal appeals court": The Associated Press provides this article. You heard it here first.
Posted at 23:38 by Howard Bashman



"Groups to fight Pryor's appeals court nomination -- but how hard?" The Associated Press has this report. (Via "Southern Appeal.")
Posted at 23:28 by Howard Bashman



Most pugilists become trial lawyers: But not Mary A. Lehman, certified appellate specialist. Denise Howell has the details here.
Posted at 16:47 by Howard Bashman



Tonight on C-SPAN's "America and the Courts": On tonight's program: "On Thursday April 24, Asst. Attorney General Viet Dinh addressed the ABA Standing Committee on Law & National Security in Washington, DC. He discussed the USA Patriot Act and how it has aided law enforcement in the prevention of terrorist attacks in the U.S." If you happen to miss the program on television this evening, you can view it online via this link during the next several weeks.
Posted at 16:41 by Howard Bashman



"Limits on leaflets trigger lawsuit; Lebanon's 'free speech zones' policy draws ire of minister intent on distributing literature": Today's edition of The Indianapolis Star contains this article.
Posted at 15:56 by Howard Bashman



"The Bush administration and the end of civil liberties": The current edition of City Pages contains this report by Elaine Cassel, whose blog "Civil Liberties Watch" you can access here.
Posted at 15:40 by Howard Bashman



In Saturday's newspapers: The Los Angeles Times reports here that "Battle Over Judiciary Enters New Phase; As Democrats prepare to fight Bush choice, other nominees move toward approval." You can access here an article entitled "Music, Movie Companies Rebuffed in Online Piracy Suit; A judge's ruling that file-sharing networks are legal could prompt the entertainment industry to go after individual users." In related news, "Copyright Battle Now Turns to Other Fronts; A judge's ruling may force the industry to widen its strategy against online pirates." An article reports that "White House Offers Support to Beleaguered Senator; The gesture could help Santorum weather the storm over his remarks about homosexuality." A front page article is entitled "A Rebel's Political Odyssey: Former Atty. Gen. Ramsey Clark's baffling choices in causes and allies, including ties to Saddam Hussein, leave him reviled, shunned." An article reports that "Prosecutors Decide to Seek the Death Penalty Against Scott Peterson." A report from The Associated Press is entitled "Court's Bite Is Less Than His Bark." In media news, "Imprint speaks for the right." And letters to the editor run under the headings "Santorum's View of Sodomy Case" and "Enforceable Remedies for Endless E-Mail."

The Washington Post reports here that "White House Defends Santorum; Aides Say Bush Believes Pa. Senator Is an 'Inclusive Man.'" In tech news, "File-Swap Sites Not Infringing, Judge Says; Firms Held Blameless For Copyright Violations." A front page article reports that "Laws Not Up to SARS Epidemic; Quarantining the Infected and the Exposed May Trample Civil Liberties." And letters to the editor run under the headings "Qualified for the Bench" and "No Case For Any Preference."

The New York Times reports here that "Entertainment Industry Loses in Web Case." You can access here an article entitled "Illegal Aliens Can Be Held Indefinitely, Ashcroft Says." In local news, "Law School's Dean Tells Students, 'I Object.'" In other news, "Writing in Schools Is Found Both Dismal and Neglected." And in the category of "who cares?" an article reports that "Presumed Innocence? Not on Cable TV News."

The Boston Globe reports here that "Bid to halt swapping of songs voided." And an article reports that "Gay civil unions find support in Democratic field."

Finally for now, today's edition of The Washington Times contains the following op-eds: Clarence Page writes of "Fighting for privacy in era of terrorism"; Thomas Sowell considers "Human livestock"; and Paul Craig Roberts has an essay entitled "Gun control: The criminal lobby."
Posted at 09:57 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Pundits: Santorum Will Survive Scandal"; here "N.Y. School Won't Honor Accused Lawyer"; here "Cleric Sentenced to 11 Months in Prison"; here "Idaho Judge Rules Student Can Be Deported"; here "Okla. Officials Hit With $34.4M Judgement"; and here "Man Sentenced to Die Indicted Again."
Posted at 09:54 by Howard Bashman



"Impasse on judges ending? Federal judges from N.C. likely": An article in today's edition of The Charlotte Observer states that "Other sources said Claude Allen, a onetime aide to former U.S. Sen. Jesse Helms of North Carolina, would be the other appeals court nominee." You heard it here first.
Posted at 09:48 by Howard Bashman



Friday, April 25, 2003
Just a guess: An article published in today's issue of The Raleigh News and Observer states that "Bush plans Monday to nominate two African-Americans for the 4th Circuit." The article identifies by name one of those two nominees; it then goes on to say that "[White House Counsel] Gonzales describes the second nominee as someone 'who currently lives in Virginia and has strong roots in and ties to both Virginia and North Carolina.' The identity of that individual could not be learned Thursday." Here's a guess as to the identity of the other nominee -- Claude A. Allen, who currently serves as Deputy Secretary of Health and Human Services. This is just a guess, so don't take it to the bank quite yet.
Posted at 23:50 by Howard Bashman



"DOJ to court: Keep detentions closed": United Press International provides this account.
Posted at 22:27 by Howard Bashman



"DNA Gothic": This upcoming Sunday's edition of The New York Times Magazine contains this report.
Posted at 22:20 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "Terror Suspect to View Secrets; The judge in the trial of Zacarias Moussaoui orders prosecutors to share their plan for giving him access to Al Qaeda intelligence." An article reports that "No-Bail Ruling Targets Some Refugees; Ashcroft says illegal immigrants can be held indefinitely. Haitian's case spurred decision." In business news, "Verizon Ordered to ID Song Swappers." From Washington, DC comes a report that "Senator Catches GOP Flak Over Comments on Gays; Colleagues chide Santorum for his 'regrettable' and 'hurtful' statements." In local news, you can access here an article entitled "Court Backs Limits on Laguna Artists; Appeals panel rules the city does not infringe on free speech by banning sales in public places" and here an article entitled "'Secret Witness' in 3 Killings Loses Appeal; Justices reject claims by murderer who collected rewards after reporting his crimes to a tip line." Walter L. Larimore has an op-ed entitled "Abortion, Murder and the Law: If 'fetal homicide' can be cited in the Scott Peterson case, what about the killing of the unborn in other instances?" and Law Professor Erwin Chemerinsky has an op-ed entitled "To Prevent a Repeat of Rampart, Fix More Than the LAPD."

The Washington Times reports here that "Case renews push for fetus protection." In other news, "Ashcroft: U.S. can hold illegals." And in op-eds: Jonah Goldberg writes that "Santorum's remarks were not unconstitutional"; Linda Chavez discusses "Santorum's rationale"; Thomas Sowell addresses "Assertions and assumptions"; and Michael I. Krauss considers "Bankruptcy reform . . . with a thorn."

USA Today reports here that "Moussaoui case prosecutors have fifth-plane theory." And in other news, "Rent-a-judges forced out of California courts; Arbiters asked to choose between public bench or private for-hire cases."

In The Boston Globe, Lyle Denniston reports that "Illegal immigrants' detention policy changed; Ashcroft allows them to be held indefinitely if deemed security risk." And Robert Kuttner has an op-ed entitled "Far right greases skids for GOP fall."
Posted at 22:18 by Howard Bashman



"DA Will Seek Death Penalty for Peterson": The Associated Press offers this news.
Posted at 22:14 by Howard Bashman



"Bush to Nominate Wray As Top Prosecutor": The Associated Press has this report. Plus, another nomination of interest also occurred today:
The President intends to nominate Jack Landman Goldsmith III of Virginia, to be an Assistant Attorney General (Office of Legal Counsel). Mr. Goldsmith serves as Special Counsel to the General Counsel of the Department of Defense. Although currently on leave, he also serves as Professor of Law at the University of Chicago Law School. Mr. Goldsmith recently accepted a position at the University of Virginia Law School. He earned his first bachelor's degree from Washington & Lee University and a second bachelor's degree from Oxford University. Mr. Goldsmith received his master's degree also from Oxford University and his J.D. from Yale Law School. He went on to earn his Diploma in Private International Law from The Hague Academy of International Law.
More nominations likely to be of interest are expected to issue Monday, as I previously hinted at here.
Posted at 19:30 by Howard Bashman



"The dullest blog in the world": No -- not "How Appealing" -- but this one. (Via "Cosmo Macero Jr.," who has a very interesting post about newspaper reporter-bloggers that you can access here.)
Posted at 17:34 by Howard Bashman



Access today's "file-swapping tools are legal" decision: Today's ruling by Judge Stephen V. Wilson of the U.S. District Court for the Central District of California can be accessed here. And Reuters reports here that "Suit Against Web Song-Swappers Rejected."
Posted at 16:33 by Howard Bashman



"Rangel Urges Senate to Confirm Pickering": The Associated Press is reporting:
A Hispanic lawyer who was nominated to a federal appeals court by President Clinton but blocked by Republicans is urging Senate Democrats to confirm Mississippi Judge Charles Pickering to the same court despite accusations of racial insensitivity.

Texas lawyer Jorge Rangel called for the confirmation of Pickering, a U.S. District Court judge, for the 5th U.S. Circuit Court of Appeals in an April letter to the Senate Judiciary Committee.
You can access the complete article here. And the letter in question can be viewed here.
Posted at 16:15 by Howard Bashman



Access online the D.C. Circuit's order yesterday in the Indian Trust case: As The Washington Post today reports here in an article entitled "Interior Gets Break In Trust Fund Case; Judges Halt Work of Special Master":
Hours after the hearing, the three-judge panel of the U.S. Court of Appeals for the D.C. Circuit handed the government a significant victory when it ordered a halt to the work of a court-appointed special master, whose harshly critical evaluations of Interior's reform efforts laid the groundwork for some of the contempt findings.

In a one-paragraph order, the panel, composed of Chief Judge Douglas H. Ginsburg and Judges A. Raymond Randolph and Karen L. Henderson, stayed the work of Joseph F. Kieffer III pending its further orders.
You can now access the D.C. Circuit's order entered yesterday at this link. (Thanks to a reader for forwarding a copy of the order to me, and to the good folks at "SCOTUSblog" for hosting the order online.)
Posted at 16:01 by Howard Bashman



The Associated Press is reporting: You can access here an article reporting that "the White House on Friday called on Congress to pass a law making it a federal crime to harm a fetus during an assault on its mother." And in other news: "N.H. Considers Abortion Notification Law"; and "Critics Say Inmates Are Driven Insane."
Posted at 15:51 by Howard Bashman



In news from Utah: Today's edition of The Salt Lake Tribune reports here that "SLC to Pony Up $200,000 to ACLU Lawyers." And by popular demand, you can access here a short item from yesterday's paper entitled "Utah Polygamist: He's Right, Wrong."
Posted at 15:46 by Howard Bashman



"Judge: File-swapping tools are legal": John Borland of c|net News.com has this breaking news from Los Angeles.
Posted at 14:29 by Howard Bashman



Next week's Federalist Society programs: According to an email that The Federalist Society sent to me at 3:34 a.m. today (heck, even I'm asleep then!):
On Tuesday, April 29, the Los Angeles Lawyers Chapter hosts Dean Doug Kmiec, of Catholic University Law School, who will deliver a speech on "Observations on the Court: Michigan Affirmative Action Cases, Texas Sodomy Case, and Other Pending Cases."

On Tuesday, April 29, the Philadelphia Lawyers Chapter hosts a debate between Professor Kermit Roosevelt, Penn Law and Curt Levey, Center for Individual Rights, concerning "Affirmative Action and the Michigan cases."

The Atlanta Chapter and the Federalism Practice Group are sponsoring a Law Day Federalism mini-conference on Thursday, May 1. Speakers include Kenneth Starr from Kirkland & Ellis, Walter Dellinger of Duke University Law School, Michael Greve of the American Enterprise Institute, LSU Law Professor John Baker, and Jonathan Vogel of the U.S. Department of Education.
More information about two of these programs is available via this link.
Posted at 14:29 by Howard Bashman



"The Importance of Selective Filibusters Against Bush's Court-Packing Plan": People For the American Way issued this press release yesterday. (Thanks to Rick Hasen for the pointer.)
Posted at 13:29 by Howard Bashman



That's the trouble with living in a glass house: With the exception of a "Dorf on Golf" joke every so often in honor of one of my favorite FindLaw columnists, I try to avoid making fun of other people's names. But today a reader calls to my attention that the lawyer who argued on behalf of the petitioner this appeal that the D.C. Circuit decided today has the last name "Moot." Fortunately for his client, the court nevertheless reached the merits and vacated in part.
Posted at 13:16 by Howard Bashman



Available online at law.com: In addition to the item that I just couldn't resist poking fun at last night, you can access here an article entitled "Bench Bristles at New Sentencing Law; Judges say measure that aims to curb their discretion in deciding criminal punishment sends wrong message."

A sharply divided ruling that the Supreme Court of California issued yesterday is the subject of an article entitled "No Arbitration for Injunctive Relief Claims." In other news from California, The Recorder gives Ninth Circuit nominee Carlos T. Bea an up-arrow here.

The New York Law Journal reports here that "Court Finds Woman Unable to Recover for Loss of Twins."

Finally, anyone who has been following with interest the reaction to Senator Rick Santorum's (R-PA) recent Associated Press interview will find it quite worthwhile to undergo the free registration necessary to access online this op-ed by Roger Clegg entitled "A Gay Rights Dilemma: Debating Lawrence v. Texas." That same free registration will also enable you to access an op-ed by Frank O. Bowman III entitled "No Time for Judges: With Feeney Amendment, Justice Department seeks control of federal sentencing."
Posted at 13:08 by Howard Bashman



"Bush Praises Santorum As 'Inclusive Man'": The Associated Press has this report.
Posted at 12:17 by Howard Bashman



Some big news pertaining to the Fourth Circuit: The News and Observer of Raleigh, North Carolina reports here that "Bush to nominate Raleigh lawyer; Selection would break impasse in 4th Circuit." And The Charlotte Observer reports here that "N.C. may get a nod for Court of Appeals; 2 in Charlotte may get bench bids, too." (Thanks much to a recent former Ninth Circuit law clerk for the links.)
Posted at 11:49 by Howard Bashman



Elsewhere in today's edition of The New York Times: An article reports that "Lawyers Seek Information Behind Theory on Hijacking." In local news, "Arguments Heard in Appeal of Ruling for Term Limits." And Dan Savage has an op-ed entitled "G.O.P. Hypocrisy."
Posted at 11:25 by Howard Bashman



"Job makes lawyers sick; boss loves every minute": Today's edition of The Cleveland Plain Dealer provides this report.
Posted at 11:12 by Howard Bashman



Ideas? I'm currently in the midst of deciding what will be the subject of my May 2003 appellate column to be published in The Legal Intelligencer on Monday, May 12, 2003. I already have a few possibilities under consideration, but I'd more than welcome reader input via email. An online archive of prior months' columns is accessible here.
Posted at 11:08 by Howard Bashman



"Commercial Talk Is Free…but will the Court uphold it?" Deroy Murdock has this essay today at National Review Online.
Posted at 11:03 by Howard Bashman



"Panel Urges More School Writing Classes": The Associated Press has this report. Hmm, perhaps someday this will increase the number of lawyers who are good writers?
Posted at 11:00 by Howard Bashman



"Dial trial pits clean vs. filthy; Soap plant sexual-harassment case is biggest in years": Today's edition of The Chicago Tribune contains this report.
Posted at 10:57 by Howard Bashman



Another federal appellate court refuses "to play archaeologist with the record": I have previously explained the need for lawyers to learn and abide by an appellate court's rules, and I've even noted how useful it can be to obtain the help of an experienced appellate practitioner. But nothing beats a concrete example of what can go wrong if these pieces of advice are ignored, courtesy of an opinion that the U.S. Court of Appeals for the Sixth Circuit issued today:
In its Final Brief, Stewart presents us with three issues for review, but it actually briefs only the third issue. For its first issue, Stewart purports to incorporate by reference a motion for reconsideration filed with the district court and found in the joint appendix; for its second issue, Stewart would incorporate three different documents it filed with the district court.

Stewart, in other words, invites us to unearth its arguments lodged here and there in the joint appendix, leaving it to us to skip over repetitive material, to recognize and disregard any arguments that are now irrelevant, and to harmonize the arguments in the various documents. Stewart also attempts by this incorporation maneuver to add forty-two pages to the twenty-six page brief it filed with this Court. For the reasons we shall explain, we hold that Stewart has failed to brief its first two issues, and therefore it has waived its argument on these issues. See United States v. Elder, 90 F.3d 1110, 1118 (6th Cir. 1996) ("[I]t is a 'settled appellate rule that issues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.'") (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990)).

The incorporation by reference of arguments made at various stages of the proceeding in the district court does not comply with the Federal Rules of Appellate Procedure. See Fed. R. App. P. 28(a)(9) (instructing that a component of the brief is "the argument, which must contain . . . [the] appellant's contentions and the reasons for them, with citations to the authorities and parts of the record on which the appellant relies[.]") (emphasis added); 6th Cir. R. 30(a) ("The purpose of the appendix is to assist the judges in reviewing the briefs and in preparing for oral argument by providing to them those parts of the record necessary for effective understanding of the issues raised in the briefs.") (emphasis added); 6th Cir. R. 30(f)(1)(E) ("Except where they have independent relevance, memoranda of law filed in the proceedings below shall not be included in the joint appendix."). This practice has been disallowed by this circuit, albeit in an unpublished opinion, see Snyder v. United States, No. 01-1258, 23 Fed. Appx. 212, 213, 2001 WL 1298954, at *1 (6th Cir. Aug. 7, 2001) ("Snyder's attempt to merely incorporate his district court claims by reference does not serve as an appellate argument."), and by the vast majority of the other circuits, see Desilva v. DiLeonardi, 181 F.3d 865, 866-67 (7th Cir. 1999) ("Petitioners direct us to a document filed in the district court, but we have not read it because adoption by reference amounts to a self-help increase in the length of the appellate brief. Even when a litigant has unused space . . ., incorporation is a pointless imposition on the court's time. A brief must make all arguments accessible to the judges, rather than ask them to play archaeologist with the record.") (citation omitted); Gaines-Tabb v. ICI Explosives, USA, Inc., 160 F.3d 613, 623-24 (10th Cir. 1998); Toney v. Gammon, 79 F.3d 693, 696 n.1 (8th Cir. 1996); Gilday v. Callahan, 59 F.3d 257, 273 n.23 (1st Cir. 1995); Cray Commun., Inc. v. Novatel Computer Sys., Inc., 33 F.3d 390, 396 n.6 (4th Cir. 1994); Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir. 1993); Phillip v. Mayo Clinic Ariz., No. 01-16062, 33 Fed. Appx. 287, 289, 2002 WL 464582, at *2 (9th Cir. Mar. 21, 2002); see also 16 Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure sec. 3974.5, at 532-33 (3d ed. 1999) (noting that where there are multiple appellants or appellees, a party may incorporate another's brief by reference, but this does not "allow adoption by reference of the briefs filed in the district court, a practice that has been strongly and rightly condemned.") (footnotes omitted).

Of particular concern in this case are the word and line limitations found in Fed. R. App. P. 32(a)(7), which limit the principal brief to 30 pages, 14,000 words, or 1,300 lines of text. See also 6th Cir. R. 28(b) (establishing that certain documents that must be included in the brief are not to be included in the calculation of page limitations, but including no omission for arguments that are incorporated by reference). Stewart, at the end of its Final Brief, certifies that "the foregoing Brief complies with Fed. R. App. P. 32(a)(7)(A) and is under the 30 page limitation," and assures us that "[t]he Actual word count is 5802." Both of these assertions are incorrect: the page count clearly omits the incorporated documents, since the brief along with the incorporation is 68 pages long, and a word count of 5802 is reasonable for a 26-page brief (roughly 223 words per page), but not for one that is 68 pages. Indeed, if one assumes that the 223-word average is maintained through the incorporated documents, Stewart's word count is 15,164--well above the permitted number.

For all of the foregoing reasons, we join the many circuits that have explicitly disallowed the incorporation by reference into appellate briefs of documents and pleadings filed in the district court. Further, we have no hesitancy in applying our holding in the case before us. The Federal Rules of Appellate Procedure, the commentaries, and the published law of other circuits are sufficiently clear to put Stewart on notice that it could not properly incorporate into its appellate brief the materials filed in the district court.
You can access the complete opinion at this link.
Posted at 09:37 by Howard Bashman



"Office workers give away passwords for a cheap pen": As the article itself exclaims, "D'oh!"
Posted at 09:35 by Howard Bashman



"Township loses again in fight to regulate nude dancing club": The Cincinnati Enquirer today contains this report on a Sixth Circuit ruling that I previously reported on here.
Posted at 09:32 by Howard Bashman



Innocent until proven guilty: Today's edition of The Dayton Daily News contains an article entitled "Judge indicted in arson; Fairfield County jurist also faces fraud charge."
Posted at 09:30 by Howard Bashman



Some U.S. Supreme Court news and commentary: MSNBC.com reported here on Wednesday that "Sodomy law ruling may reverberate in 2004 elections; Both gay rights advocates and foes could use decision as motivating issue." Columnist Clarence Page today has an op-ed entitled "Defending our privacy rights against all-out assault." You can access here an essay entitled "He drafted the blueprint for affirmative action." And this sports article from overseas notes that Rehnquist was upset earlier this week.
Posted at 06:58 by Howard Bashman



"Ruling: Chamber broke election law": The Associated Press this morning has an article that begins, "The U.S. Chamber of Commerce violated the state's ban on corporate spending against candidates with its ads in 2000 attacking Ohio Supreme Court Justice Alice Robie Resnick, The Ohio Elections Commission ruled Thursday." Update: The earlier link that this post had provided no longer works, so I have updated the post to point to a new link.
Posted at 06:50 by Howard Bashman



"Panel Provides a Historical View of Affirmative Action": Today's edition of The Columbia Spectator contains this report.
Posted at 06:45 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Interior Gets Break In Trust Fund Case; Judges Halt Work of Special Master." An article reports that "File Sharing Forfeits Right To Privacy; Judge Tells Verizon To Identify Customer." You can access here an article entitled "Santorum Controversy Illustrates Dilemma of Catholic Politicians." An article reports that "More Illegal Immigrants Can Be Held; Ashcroft's Ruling Cites National Security Issues." In local news, you can access here an article entitled "Sniper Case Prosecution Need Not ID Shooter; Ruling Opens Door To Death Penalty for 'Principal' in Slaying"; here an article entitled "Bush Sidesteps Senate, Appoints Two to Employment Agencies"; and here an article entitled "Judges Lose Power Over Youth Delinquent Care; Ruling Says City Agency, Not D.C. Superior Court, Controls Juvenile Treatment." Last but not least, letters to the editor run under the heading "Mr. Santorum on the Right to Privacy."

In The New York Times, you can access here an article entitled "Impolitic, Maybe, but in Character." From Iowa comes an article entitled "Hear the One About the Mayor Who Wanted to Ban Lying?" And finally for now, an editorial is entitled "The Class Action Unfairness Act."
Posted at 00:10 by Howard Bashman



Thursday, April 24, 2003
The Associated Press is reporting: You can access here an article entitled "White Supremacist Group Fined $1,000 a Day"; here "Alabama Executes Inmate for 1986 Murder"; and here "Human Rights Groups Sue Petroleum Co."
Posted at 22:21 by Howard Bashman



Know your Easterbrook brother: I don't mind that law.com's brand new "Roundup of Today's News" column tends to report on many of the same things that appear throughout the day here at "How Appealing" -- it could merely be a coincidence. But when tomorrow's installment of the column attributes a Seventh Circuit opinion to "Judge Gregg Easterbrook" of the "6th U.S. Circuit Court of Appeals," I start to wonder. Perhaps I should apologize if my earlier post about that opinion wasn't as clear as it might have been. And maybe now Frank will begin writing a column for ESPN.com featuring photos of scantily clad women. Update on April 25, 2003: I'm pleased to report that law.com has now corrected these errors.
Posted at 22:13 by Howard Bashman



"Enough is enough." In an opinion issued today, a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit affirmed a $1.1 million default judgment entered as a sanction to punish the defendants for having "repeatedly, willfully, and in bad faith failed to comply with discovery orders."
Posted at 20:43 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Appeals Judges Hear Norton Contempt Case," which reports on an oral argument today before a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit. And you can access here an article entitled "ACLU Challenges N.M. Sex Offender Law."
Posted at 20:35 by Howard Bashman



"Verizon Loses Suit Over Music Downloading": The Associated Press has an article that reports on two rulings that the U.S. District Court for the District of Columbia issued today. You can access the rulings directly here and here.
Posted at 17:33 by Howard Bashman



"Judge rules Moussaoui can see top secret material." The AP has this news alert. You can access today's ruling at this link. Update: The AP now has this more complete report. Does this put the federal government one step closer to opting for prosecution before a military tribunal? Time will tell.
Posted at 16:26 by Howard Bashman



"Give it away, give it away, give it away, give it away now": A law professor whom the author of "How Appealing" is pleased to have among this blog's readers emailed yesterday evening in response to this post about possible impending changes to the Second Circuit's Web site. The law professor's email states:
I don't remember your mentioning this, but the E-Government Act - which includes the provisions about making unpublished opinions available - also includes a provision (Section 205(e)), which, if I am reading it correctly, revises the statute that now says that the Judicial Conference "shall hereafter prescribe reasonable fees." Instead, the statute now tells the judiciary that it "may, only to the extent necessary," prescribe reasonable fees.

I have not studied this carefully, so you should check it for yourself. But my understanding is that the JCUS was never enthusiastic about requiring the payment of fees but did it because Congress required it. Now - if I'm right - Congress is no longer requiring it.
Excellent point. The E-Government Act of 2002, which I first linked to in a post that appeared on January 27, 2003, certainly does provide in Section 205(e) that fees for PACER access should now be charged "only to the extent necessary." (Access the Act here in HTML format and here in PDF format; in the PDF document, Section 205(e) appears on page 17.)

This amendment takes effect 120 days after December 17, 2002, which by my calculation was April 16, 2003. Thus, today all federal courts have the discretion to abolish PACER access fees. And let me once again sing the praises of the Seventh Circuit, which was the only appellate court that previously refused to impose fees for Web access to its electronic dockets notwithstanding the former statutory requirement. (This post's title courtesy of the "Red Hot Chili Peppers.")
Posted at 16:08 by Howard Bashman



Today's FindLaw columnist: Law Professor Marci Hamilton has an essay entitled "How Congress Undermined the American Dream: The Effect of the Religious Land Use and Institutionalized Persons Act on Residential Neighborhoods."
Posted at 15:24 by Howard Bashman



"Prosecutors Win Point in Sniper Case": The Associated Press offers this article.
Posted at 15:22 by Howard Bashman



"Environmentalists go after Ohioan's judicial nomination": Yesterday's edition of The Cleveland Plain Dealer contained this report.
Posted at 14:05 by Howard Bashman



Compensation for taking paid in delay? Today the U.S. Court of Appeals for the Seventh Circuit issued an opinion containing this very interesting first paragraph:
EASTERBROOK, Circuit Judge. After the City of Galesburg enacted an ordinance banning most of the signage that they own within its borders, Key Outdoor and Robert Dahl filed suit in state court seeking compensation for what they deem a taking of property. The complaint alleged that both federal and state constitutions require compensation in cash, rather than in delay. Galesburg has deferred the effective date of its law until 2009, and it contends that owners' ability to profit from their signs in the interim (which the City calls "amortization") is all the compensation that the Constitution requires--though what an owner can make during the years remaining is not "compensation" but is only the existing value that the government had refrained from extinguishing. (The United States, acquiring land for a post office, could not say anything like: "You have ten acres now; we are taking one of them, and the nine left behind compensate you for the acquisition." Nor could Illinois announce tomorrow that on January 1, 2100, all private property within its borders must be handed over to the state without compensation, even though the delay would allow owners to extract 95% of the land's value.)
You can access the complete opinion at this link.
Posted at 13:33 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Justices Urged to Reject Suit Against Nike; The California case before the U.S. Supreme Court will test the boundary between corporate free speech and false advertising"; here that "Rejection of State's Disclosure Law Urged"; and here that "Tax Board Can Be Sued Over Pursuits." In other news, "U.S. Fights Bid by Moussaoui to Meet Suspects; Contact between the defendant and other alleged terrorists is called a security threat." In sports-related news, "Davis Has Already Beaten Law of Averages." And you can access here an article entitled "GOP Leaders Shrug Off Senator's Remarks on Gay Sex; Unlike the Trent Lott racial segregation flap, which led to a change in the Senate leadership, Santorum's statements draw little outrage."

In The Boston Globe, Lyle Denniston reports here that "Justices grapple with Nike case; 'Commercial speech' definition debated" and here that "Court weighs issue tied to Holocaust claims." And in local news, an article reports that "School busing policy unbiased, judge rules."

In The Washington Times, Frank J. Murray reports that "Justices dismiss Nike motives." An article entitled "Kennedy pits tax cut vs. drug plan" contains a discussion of judicial nominations toward its conclusion. And Thomas Sowell has an op-ed entitled "Quota 'logic.'"

Bob Egelko reports in today's edition of The San Francisco Chronicle that "Nevada inventor can sue California; Justices rule protections don't apply in Nevada." And you can access here an article entitled "How prosecutors choose death penalty; Stanislaus D.A. says Laci case meets most of his criteria."

Finally for now, USA Today reports here that "Gay rights issues scuttle GOP efforts at unity" and here that "Peterson case is not sealed tight."
Posted at 13:12 by Howard Bashman



"Birth mothers regain privacy in adoptions; Appeals court strikes down law requiring disclosure of sex history": This article appears in today's edition of The Miami Herald. I linked to the ruling in question yesterday in a post you can access here.
Posted at 12:23 by Howard Bashman



"Supreme Court hears Nike case": Today's edition of The Oregonian contains this report.
Posted at 12:06 by Howard Bashman



"Ashcroft Rules on Immigrants' Detention": The Associated Press has this report.
Posted at 12:04 by Howard Bashman



Too early in the morning for a little nude dancing? "How Appealing" is fortunate to have a readership that spans the globe, from Hong Kong to Honolulu. So, someplace where this post will be viewed just as soon as I click the "post and publish" button, it's not too early for a little nude dancing. And certainly the Cincinnati-based U.S. Court of Appeals for the Sixth Circuit doesn't think that it's too early for nude dancing, because that court has already posted online this morning an opinion that holds unconstitutional various provisions of an Ohio township's ordinance intended "to minimize the adverse secondary effects of sexually oriented businesses." You know you've looked at one too many nude dancing opinions when you see an opinion entitled Deja Vu of Cincinnati, L.L.C. v. Union Township Board of Trustees and your first thought is, "That might be an opinion about nude dancing."
Posted at 10:11 by Howard Bashman



In Thursday's newspapers: In The New York Times, Linda Greenhouse reports here that "Nike, Fighting Trade Suit, Asks Justices for Free-Speech Protection" and here that "Justices Show Their Doubts on State Law on Holocaust." In other news from Washington, you can access here an article entitled "Prosecutors Seek to Limit Questioning in Terror Trial" and here an article entitled "A Republican Group Demands That Senator Apologize to Gays." In business news, an article reports that "Asbestos Accord Said to Be Near." You can access here an article entitled "Suit Challenges a University's Speech Code." In local news, one article reports that "Restitution Sought in Prison Guard's Stabbing," while another is entitled "Brooklyn Judge Faces Charges of Corruption." And columnist Bob Herbert has an op-ed in which he again calls for an end to the death penalty.

In The Washington Post, Charles Lane reports here that "Supreme Court Considers Nike's 'Free Speech'" and here that "Justices Rule State Not Immune to Suit." An article reports that "U.S. to Compromise In Moussaoui Case; Limited Access to Detainee Considered." In DC-area sniper news, you can access here a report entitled "Threat Lands Malvo in Disciplinary Segregation." From the west coast comes word that "California City Sues Over U.S. Drug Policy." In news from the world of politics, you can access here an article entitled "Frist and Specter Defend Santorum; Remarks on Gays Should Not Be Misconstrued, Leaders Say." Relatedly, columnist Richard Cohen has an op-ed entitled "A 'Voice for Inclusion,'" and an editorial is entitled "Adultery, Incest, Whatever." Another editorial in today's newspaper is entitled "Let Nike Speak."

Finally for now, at OpinionJournal, this morning's installment of John Fund's Political Diary is entitled "Demolition Derby: With the war won, it's time for Bush to master the Senate."
Posted at 06:26 by Howard Bashman



Wednesday, April 23, 2003
"Justices to hear Perdue's appeal on redistricting": Yesterday's edition of The Atlanta Journal-Constitution contained this report. (Via the "Election Law" blog.) By the way, I don't agree with the article's speculation that the appeal may be moot after the U.S. Supreme Court's oral argument in the Georgia redistricting case. I think the question of which official decides whether Georgia should pursue that case won't become moot until, at the earliest, the U.S. Supreme Court issues its ruling.
Posted at 23:44 by Howard Bashman



"Another Unworthy Judicial Nominee": Thursday's edition of The New York Times contains an editorial which contends that the U.S. Senate should not confirm Carolyn B. Kuhl to serve on the U.S. Court of Appeals for the Ninth Circuit. Although the editorial does not expressly urge a filibuster, such a maneuver is in my view the only way for Kuhl's nomination to be defeated. If the Democrats decided to filibuster this nomination, it would raise the number of filibusters now underway against U.S. Court of Appeals nominees to three.
Posted at 23:34 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Supremes Hear Nike Speech, Holocaust Insurance Cases." The New York Law Journal reports that "Justices Allow Late Claims of Ineffective Counsel." And you can access here an article entitled "High Bar Set for Michigan Drug Claims."
Posted at 23:30 by Howard Bashman



U.S. Supreme Court round-up for Wednesday, April 23, 2003: The Supreme Court of the United States issued two unanimous opinions today. We should all try our best to remember the era of good feelings that the unanimous and nearly unanimous decisions issued yesterday and today heralded, because given the number of important contentious cases in which opinions remain to be announced, odds are that this week's lack of divisiveness will be but a dim memory come the end of June 2003.

1. The U.S. Court of Appeals for the Second Circuit is one of just two federal appellate courts (the Seventh Circuit is the other) that require a criminal defendant who is capable of raising an ineffective assistance of counsel argument on direct appeal to do so. In plain English, what that means is that if a convicted criminal has a new lawyer handling his appeal, and if the trial court record would permit the appellate court to determine with certainty whether trial counsel was ineffective, then the criminal defendant has to raise the issue of ineffective assistance of trial counsel on direct appeal or else be prohibited from raising it later on collateral, habeas corpus review. The other ten federal appellate courts that regularly hear criminal appeals do not follow the Second Circuit's approach. Instead, they allow a criminal defendant to raise the issue of ineffective assistance of trial counsel on collateral review even if the issue could have been, but was not, raised on direct appeal. For those waiting to see how the U.S. Court of Appeals for the Federal Circuit will rule on the issue, please continue holding your breath.

Today, in Massaro v. United States, No. 01-1559 (U.S. Apr. 23, 2003), a unanimous Court, in an opinion by Justice Anthony M. Kennedy, abrogated the approach followed by the Second and Seventh Circuits and opted instead for the approach that vast majority of circuits follows. Perhaps in an effort to cement his fan base in Pennsylvania for his bid to become Chief Justice, Justice Kennedy's opinion noted that even the Supreme Court of Pennsylvania -- a court that has been in business for many more years than the U.S. Supreme Court -- at the end of 2002 abandoned its longstanding rule that ineffective assistance of counsel claims must be raised, on pain of waiver, just as soon as new counsel appears on the scene. In closing, Justice Kennedy's opinion notes that the federal government's position in this case -- which the Court rejected -- was directly contrary to its approach in some earlier cases. Ouch!

2. Just eight days after "Tax Day 2003," California's "Tax Man" received some bad news from the Court in today's second and final decision. Believing that the grass is always greener on the other side, a California resident moved to Nevada in late 1991. Vowing to pursue him to the ends of the earth or at least into the neighboring State of Nevada, California's Franchise Tax Board decided that this individual in fact remained a California resident until April 1992. Coincidentally, that allowed California's taxing authority to claim that the individual in question owed quite a bit in taxes to California, and the Franchise Tax Board also imposed a substantial civil fraud penalties. Perhaps this individual fled California to avoid its huge tax burden -- or in a misguided effort to reside in the new Twelfth Circuit -- but whatever the reason, after receiving news of California's tax assessment and penalties, the former California resident filed suit against California's Franchise Tax Board in a Nevada state court.

Had the former California resident sued that State's tax agency in a California state court, he would have been out of luck, because a California statute provides the agency with immunity from suit. In Nevada, by contrast, state tax agencies have no similar immunity from suit. Today, in Franchise Tax Bd. of Cal. v. Hyatt, No. 02-42 (U.S. Apr. 23, 2003), the Court considered whether the U.S. Constitution's Full Faith and Credit Clause required the State of Nevada to afford California's Franchise Tax Board the same immunity from suit that the tax agency would have had under California law if sued in a California state court. In a word, the Court answered "no." Justice Sandra Day O'Connor delivered the unanimous opinion.

Justice O'Connor's opinion explained that "We have held that the Full Faith and Credit Clause does not compel a state to substitute the statutes of other states for its own statues dealing with a subject matter concerning which it is competent to legislate." (internal quotations omitted). Here, that rule proved dispositive, as even California's Franchise Tax Board freely admitted in its briefing. To quote again from the opinion, "Instead, CFTB urges this Court to adopt a 'new rule' mandating that a state court extend full faith and credit to a sister State's statutorily recaptured sovereign immunity from suit when a refusal to do so would 'interfer[e] with a State's capacity to fulfill its own sovereign responsibilities.'" Let's just say that none of the Members of the Court was in much of a "new rule"-making mood in this case.

Toward the close of her opinion, Justice O'Connor explained: "Without a rudder to steer us, we decline to embark on the constitutional course of balancing coordinate States' competing sovereign interests to resolve conflicts of laws under the Full Faith and Credit Clause." And on that poetic note, tonight's recap comes to an end. More U.S. Supreme Court opinions are sure to issue next week.
Posted at 22:30 by Howard Bashman



Not surprised: A reader of "How Appealing" attended an event this evening at the National Press Club featuring Justice Sandra Day O'Connor. According to the reader's email:
I went to the National Press Club this evening to hear Justice O'Connor. We were allowed to submit questions in writing. My question was "Do you read weblogs?" To my surprise, it was one of the questions she answered. Her answer: she didn't know what weblogs were until a few months ago, a former law clerk (Volokh I presume) had started one and she checked it out, but she doesn't have time to read it.
Perhaps she found too much indiscreet sexual banter at "The Volokh Conspiracy." But in any event, a whole new generation of judges is now on the scene, and I can tell you from first-hand experience that many of them certainly do read Web logs.
Posted at 22:11 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Rules States Can Be Sued Elsewhere"; here an article entitled "Florida Court Strikes Down Adoption Law" (plus, access here today's opinion of Florida's Fourth District Court of Appeal); and here an article entitled "U.S.: Moussaoui Not Entitled to Witnesses."
Posted at 19:18 by Howard Bashman



"Justices Question California's Holocaust Victim Insurance Law": Linda Greenhouse offers this report at the Web site of The New York Times.
Posted at 17:40 by Howard Bashman



Huh? A reader located in Connecticut emailed yesterday to ask whether I understood what information the Second Circuit Web site's pesky pop-up window was trying to communicate. I pride myself in being able to ignore that pop-up window, while secretly cursing its existence as it momentarily locks up my system while it prepares to load online after I browse over to the Second Circuit's Web site. But I did start noticing just the other day that the pop-up window is now especially dense with text. Let's see what it says:
The Second Circuit will soon be providing access to opinions, summary orders and docket sheets through the PACER internet site which is located under the Clerk's Office menu on the home page of the court's website. When the court links to PACER, the Appellate Bulletin Board System (ABBS) will be disabled. You will, however, be able to access information on PACER using your current ABBS password/login. Docket sheets are presently available and current on ABBS. Decisions and summary orders are now available by clicking "Decisions" which is located in the main menu on the home page of the court's website.

When the conversion to PACER is completed, we will post a notice on the website.
One possible understanding of this very murky language is that someday soon, when the Second Circuit eliminates its ABBS service (which I think is some type of telephone modem dial-in service), the Second Circuit will be making its opinions available through PACER. Because PACER now charges a fee to access docket sheets, my reader was rightfully concerned that the Second Circuit intended to charge a fee for Web access to its opinions. Say it ain't so, Second Circuit!
Posted at 17:31 by Howard Bashman



"Supreme Court Considers Nike Advertising Case": James Vicini of Reuters provides this report.
Posted at 17:00 by Howard Bashman



"Vomit Yields Evidence, And A Court Challenge": Today's edition of The Hartford Courant contains this article about an appeal argued today before the Supreme Court of Connecticut. (Thanks to the author of the blog "The Comedian" for the pointer via email.)
Posted at 16:51 by Howard Bashman



"Court puts a hold on hemp food ban; Items containing substance found in pot can still be sold pending review": Thanks to the author of the blog "Balasubramania's Mania" for drawing to my attention this article from today's edition of The Seattle Post-Intelligencer about a stay that the U.S. Court of Appeals for the Ninth Circuit recently issued.

That blog has also recently provided coverage of Washington State's efforts to enact a law prohibiting up-skirt photography. Speaking of which, today's edition of The Seattle P-I reports here that "'Up-skirt' camera ban goes to Locke."
Posted at 16:07 by Howard Bashman



"Recess Time: With Senate Democrats taking obstructionism to new levels, the president should re-read Article II, Section 2, Paragraph 3." The Weekly Standard has posted online today this essay from Hugh Hewitt. Coincidentally, yesterday the White House did make a bunch of recess appointments (as I noted in this post from last night), but none were to the judiciary. As the March 2001 installment of my monthly appellate column explained, a strong argument exists that recess appointments to the federal judiciary are unconstitutional.
Posted at 14:46 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Supreme Court Examines Free Speech Rights." And you can access here an article entitled "Group Sues Pa. Univ. Over 'Speech Codes.'"
Posted at 14:43 by Howard Bashman



"A bent toward cruelty," yes; but torture, no: Yesterday the U.S. Court of Appeals for the D.C. Circuit issued this very interesting unanimous three-judge panel opinion written by Circuit Judge David B. Sentelle in a case in which the plaintiff had sued Libya for holding her and her husband captive in an rather unfortunate end to a Mediterranean cruise. While there's nothing at all funny about the facts of that case, Judge Sentelle's literary flair in describing Libya's actions as exhibiting "a bent toward cruelty" reminds me of this New Yorker cartoon from 1988.
Posted at 14:36 by Howard Bashman



Justice Sandra Day O'Connor to receive Philadelphia's Liberty Medal for 2003: Thus, you'll know where to find her this July 4th. KYW NewsRadio offers this report. Meanwhile, for news of why I'm working from home today, see the final three paragraphs of this article.
Posted at 14:24 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Court Rejects Appeal Limits for Inmates." And you can access here an article entitled "Court Weighs Holocaust-Era Insurance Case" and here an article entitled "Court Halts Convicted Killer's Execution."
Posted at 12:46 by Howard Bashman



Carolina's still on my mind: On Friday night, I had a post entitled "Which Carolina are you?" in which I noted a typo contained in the U.S. Supreme Court's hearing list for the first case argued yesterday (see page 4 of this PDF document).

This morning, I received an email from a reader who happened to be at the Court yesterday:
It was quite a day for "Carolina." In announcing the opinion in Jinks v. Richland County, Justice Scalia's entire announcement consisted of "This case is here on a writ of certiorari to the Supreme Court of South Carolina. In an opinion on file with the Clerk, we reverse the judgment below and remand to the Supreme Court of North [sic] Carolina. The opinion of the Court is unanimous; Justice Souter has filed a concurring opinion."

Then, during Green Tree v. Bazzle, which was in fact on writ of certiorari to the Supreme Court of South Carolina, Justice Breyer asked a question about prior holdings of the Supreme Court of North Carolina, and the Chief Justice corrected him.

Whatever the Justices' virtues, it is very clear that most of them don't do a very good job keeping the two Carolinas separate.
Thanks much for that report.
Posted at 12:23 by Howard Bashman



"Top court to hear '99 insurance law; State says insurers must disclose their Holocaust policies": In yesterday's edition of The San Francisco Chronicle, Bob Egelko had this report on one of the cases being argued at the U.S. Supreme Court today.
Posted at 11:55 by Howard Bashman



Elsewhere in Wednesday's newspapers: In The Los Angeles Times, Henry Weinstein has an article entitled "Appeal Lost, Yet Freedom Won: A dissenting opinion was so persuasive that prosecutors dropped the case that convicted a man of immigrant smuggling" which answers the question I posed here yesterday. Thanks, Henry! In other news, you can access here an article entitled "Leaders of Olympic Bid Scandal Must Stand Trial; Court reinstates case against Johnson and Welch, who headed the effort to secure Games for Salt Lake City." From Washington, DC comes news that "Juveniles Are Among Cuba War Detainees; U.S. military officials are sorting out the next step for teens being held at Guantanamo Bay." And The LATimes runs an AP report entitled "Kuralt Kin Liable in Tax Dispute, Court Rules."

The Boston Globe reports here that "SJC affirms charitable immunity law; Voids $4.1m award against Hub hospital." And here's an article entitled "String of tragedies leaves deep wounds in California city; Peterson case is latest that gives Modesto concern for notoriety."

In The Washington Times, Frank J. Murray reports that "Fetal death in Peterson case lets state pursue execution." Relatedly, you can access here an editorial entitled "Protecting the most vulnerable," and Cal Thomas has an op-ed entitled "The Scott Peterson conundrum." I would have thought that a Michigan Court of Appeals decision that I first linked to last October would have resolved this debate, but then what do I know?
Posted at 11:33 by Howard Bashman



"Supreme Court Allows Ineffective Lawyer Claims": Reuters has this report.
Posted at 11:17 by Howard Bashman



More good news for fans of this Web log's monthly "20 questions for the appellate judge" feature: A judge who serves on the one U.S. Court of Appeals that "How Appealing" covers the least has agreed to be this blog's "20 questions" interviewee for September 2003. You won't want to miss it.
Posted at 11:15 by Howard Bashman



"Group questions state site-blocking law": Declan McCullagh of c|net News.com has this report.
Posted at 10:51 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Mass. Court Caps $4.1M Malpractice Award"; here "Fla. Sen. Graham May Not Seek 4th Term"; and here "Bush Urges Ex-Ill. Gov. on Senate Run."

Finally, you can access here "An unedited section of the Associated Press interview, taped April 7, with Sen. Rick Santorum, R-Pa. Words that couldn't be heard clearly on the tape are marked (unintelligible)." The reporter who conducted the interview is quoted as saying: "I'm sorry, I didn't think I was going to talk about 'man on dog' with a United States senator, it's sort of freaking me out." (This last item via "CalPundit"; meanwhile, "The Angry Clam" -- just selected to serve on law review -- offers some additional thoughts here and here.)
Posted at 10:44 by Howard Bashman



Sixth Circuit applies the "walk, talk, and squawk test": In this opinion, issued today.
Posted at 10:37 by Howard Bashman



Today's U.S. Supreme Court opinions: The Supreme Court of the United States issued two opinions today. Justice Anthony M. Kennedy delivered the opinion for a unanimous Court in Massaro v. United States (opinion here; oral argument transcript here), in which the decision below was reversed and remanded. And Justice Sandra Day O'Connor delivered the opinion for a unanimous Court in Franchise Tax Bd. of Cal. v. Hyatt (opinion here; oral argument transcript here), in which the decision below was affirmed. As always, I'll provide a full recap of these rulings online tonight.
Posted at 10:00 by Howard Bashman



In Wednesday's newspapers: This morning's edition of The Christian Science Monitor contains an article entitled "If Nike defends itself, is that a commercial? Wednesday, the high court tackles parameters of free speech, in a decision that may determine how companies rebut criticism." The Monitor also contains an editorial entitled "Just Do What?" And you can access here an article entitled "Native Hawaiians want their share of paradise; They demand royalties for land annexed by the US, but the state and some residents balk at paying all reparations."

In The Washington Post, columnist David S. Broder provides a correction at the end of this essay to explain that Fifth Circuit nominee Edward C. Prado doesn't sing songs; rather, Judge Prado plays pre-recorded music. An article reports that "N.H. House Passes Abortion Bill; Restriction That Breaks With Tradition Heads for Senate." You can access here an article entitled "U.S. Admonished in Terror Case; Government Must Give Moussaoui Relevant Material, Judge Says." An article reporting on an oral argument that occurred yesterday before the U.S. Court of Appeals for the D.C. Circuit is entitled "Muslim Charity Fights Closure; Appellate Panel Is Told That Holy Land Foundation Didn't Fund Hamas." This morning's installment of Howard Kurtz's Media Notes is entitled "Santorum's Stumble." And an editorial is entitled "Rights and Wrongs for Victims."

The New York Times reports here that "Judge Rules U.S. Must Provide Statements From Qaeda Leaders." A news analysis is entitled "Persistent Conflict for Gays and G.O.P." You can access here an article entitled "Recording Industry Goes After Students Over Music Sharing." From Detroit comes news that "Fraud Charged in Rollover Case." An article reports that "Gun Maker Found Liable in Shooting Accident." In local news, "Testifying Anonymously, Undercover Officer Describes Fear of His Work." And finally, here's an article entitled "A Mermaid Made to Cover Up Settles With City for $10,000."
Posted at 09:40 by Howard Bashman



43M Award to Colo. Mill Neighbors Tossed: The Associated Press has this report about a ruling that the U.S. Court of Appeals for the Tenth Circuit issued last night. Coincidentally, the Tenth Circuit last night also issued a second decision in a case involving neighbors and damages in the millions of dollars. You can access that second ruling, involving neighbors who didn't get along, at this link.
Posted at 09:26 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "Time Warner's $257M Bill Comes Due." You can access here an article entitled "Sacramento Revival for Death Debate; Capital punishment foes try to turn up heat for moratorium." Shannon P. Duffy reports here that "Police Officer Must Stand Trial in Fatal Shooting; Federal judge in Pennsylvania issues decision under new circuit rule" and has a second article entitled "Walking Away: Federal Judge Steps Down From Case." And in news from New York, you can access here an article entitled "Panel Revives Case Over Domain-Name Registry," here an article entitled "Malpractice Suit Against Lawyer Can Proceed Despite Guilty Plea; Bad advice on bribery in Panama allegedly given," and here an article entitled "Court TV Suit to End Camera Ban Sparks Debate on Civil Rights Law."
Posted at 06:58 by Howard Bashman



"Interpreting Miranda": Today's edition of The Denver Post contains this editorial.
Posted at 06:54 by Howard Bashman



In news from Salt Lake City: The Salt Lake Tribune reports here that "Court Restarts Bribery Case Against Olympic Bid Leaders." The Deseret News reports here that "Appeals court reinstates bribery case against Welch, Johnson." And The Denver Post reports here that "Court says two must stand trial for bribery; Accused headed Olympic group." I first linked to last night's Tenth Circuit ruling here.
Posted at 06:53 by Howard Bashman



"Supreme Court to Consider Nike Ad Case": James Vicini of Reuters provides this report.
Posted at 06:42 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Court Considers Corporate Free Speech." And in other news: "Moussaoui Wants Access to Documents"; "Court Rules for Bush on Union Notices" (access yesterday's divided D.C. Circuit ruling here); "Missouri Court Sets Aside Death Sentence" (access Judge Ronnie L. White's unanimous opinion for the Supeme Court of Missouri at this link); "'Thrill Killer' Executed in Texas"; "Santorum Seeks to Clarify Remarks on Gays"; "Ex-Prosecutor Pushes Prisoners' Rights"; and "Man Charged With Barking at Police Dog."
Posted at 06:30 by Howard Bashman



Tuesday, April 22, 2003
U.S. Supreme Court round-up for Tuesday, April 22, 2003: The Supreme Court of the United States issued three short and relatively straightforward decisions today, only one of which appears to have generated any attention from the popular press. But here at "How Appealing," no U.S. Supreme Court opinion ever goes ignored, even those involving whether shareholder-physicians count toward a prescribed number of employees to trigger the protection of the Americans with Disabilities Act, whether Congress may toll the statute of limitation applicable for claims against a State's political subdivisions during the time such claims are a part of a case pending in federal court, and whether a company whose parent corporation is owned by another company that is owned by Israel can remove a case pending against it to federal court under the Foreign Sovereign Immunities Act.

1. The U.S. Congress, in its infinite wisdom, decided that very small businesses don't have to comply with various federal antidiscrimination laws. So, those employers who wish to discriminate on the basis of disability, age, race, sex, or national origin and not face repercussions under federal law can do so, but only if they have fewer than fifteen employees. Whenever Congress draws such a line, you can be sure that some litigant somewhere is ready to argue about whether it or its adversary in litigation falls on one side or the other. Today, in Clackamas Gastroenterology Associates, P.C. v. Wells, No. 01-1435 (U.S. Apr. 22, 2003), the Court was faced with the question whether doctors who worked in this medical practice and who also were its shareholders and directors should be counted as employees for purposes of determining whether the medical practice had fifteen or more employees, enabling it to be sued for violations of the Americans with Disabilities Act. If these physicians qualified as employees, then the ADA applied to the practice; if the physicians did not qualify as employees, then the plaintiff who sued under the ADA for wrongful termination was out of luck.

The case before the Court arose from the U.S. Court of Appeals for the Ninth Circuit, where a divided three-judge panel ruled that, in light of the ADA's substantial purpose to avoid disability discrimination, the mere fact that a doctor was a shareholder-employee precluded any further examination of the actual economic realities. In dissent, Circuit Judge Susan P. Graber argued that the Ninth Circuit should instead have followed the economic realities test used by the majority of other circuits. Today, in a majority opinion by Justice John Paul Stevens, the U.S. Supreme Court agreed by a vote of 7-2 with Judge Graber's dissenting position, and Justice Stevens' opinion even mentioned Judge Graber's dissent by name twice. Today's majority reasoned that when Congress uses the term employee, it means for the term to have its usual common law meaning, which requires an examination of the economic realities. The majority also noted that it is overreaching to employee the ADA in an attempt to root out all instances of disability discrimination, where Congress expressly exempted especially small employers. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justice Breyer joined. The two dissenting Justices would have affirmed the Ninth Circuit's judgment by holding that the physician-shareholders were employees for purposes of the ADA. So, in the final analysis -- Ninth Circuit reversed; Judge Graber affirmed.

2. In Jinks v. Richland County, No. 02-258 (U.S. Apr. 22, 2003), the Court considered whether the U.S. Congress had the power to toll the statute of limitations applicable to claims against a State's political subdivisions (say, a county) while such claims are part of a case that is pending in federal court. Explaining what this case was all about is more difficult than explaining what the Court actually held, so please bear with me for a moment.

In 1990, the U.S. Congress enacted what is known as a supplemental jurisdiction statute. Federal courts are courts of limited jurisdiction and can only hear those claims that Congress has authorized them to hear. In the 1990 law, Congress allowed federal courts to exercise "supplemental jurisdiction" over claims otherwise outside of the court's subject matter jurisdiction that are closely related to claims over which the court has subject matter jurisdiction. However, if the court later dismisses the claims over which it had subject matter jurisdiction, the court either may or must dismiss the supplemental jurisdiction claims without prejudice to the plaintiff's refiling them in state court. The portion of the supplemental jurisdiction statute at issue in today's case provided that the statute of limitations applicable to supplemental jurisdiction claims would be tolled while those claims were a part of a case pending in federal court. Thus, if those claims were ultimately dismissed without prejudice to allow their refiling in state court, the plaintiff would have at least some feasible amount of time to refile in state court before the applicable statute of limitations expired.

The Supreme Court of South Carolina, perhaps in a bid to be appointed en bloc to the U.S. Court of Appeals for the Fourth Circuit, ruled in the case before the Court today that the U.S. Congress did not have the power to stay the statute of limitations on claims against a State's political subdivisions. Today, the U.S. Supreme Court unanimously disagreed and held that Congress was well within its powers to pass this law and to make it apply to counties and the like. Justice Antonin Scalia delivered the unanimous opinion. Justice David H. Souter issued a one sentence concurring opinion in which he explained that by joining in today's opinion, he did not signal any change from the views expressed in his dissenting opinion in Alden v. Maine. Presumably the other three dissenters from Alden feel the same way but saw no need to interject that irrelevancy into today's decision. Plainsman, over at the "Sub Judice" blog, has more to say about today's ruling in this case.

3. Today's third and final ruling is actually of great interest and help to me in an appeal that I'm currently in the midst of briefing. But for that fact, however, it would qualify as the most boring and obscure of today's decisions. For reasons that are not self-evident, two corporations named as defendants in a lawsuit filed in state court in Hawaii attempted to remove the case to federal court under the Foreign Sovereign Immunities Act. Perhaps they were hoping to get the Ninth Circuit reversed following an unfavorable ruling on the merits of their case. Instead, however, today they received the sad news that the Supreme Court of the United States agrees with the Ninth Circuit that these defendant have no right under the FSIA to bring this case into federal court. Circuit Judge Alex Kozinski wrote the opinion of the Ninth Circuit that the Supreme Court affirmed today, and Circuit Judge Graber was on this panel too and joined in the result, making her the only Ninth Circuit Judge to go 2-0 today.

Justice Anthony M. Kennedy delivered the majority opinion in Dole Food Co. v. Patrickson, No. 01-593 (U.S. Apr. 22, 2003). The Court first held that a subsidiary company cannot remove a case as an instrumentality of a foreign state (here, Israel) unless the foreign state directly owns a majority of the shares of the company. In this case, Israel apparently owned a majority of shares in a grandparent company, which owned a majority of shares in a parent company, which owned a majority of shares in the subsidiary. And if tracing were allowed, Israel owned a majority of shares in the subsidiary. Nevertheless, the Court today held that corporate structure had to be respected, and that Israel's lack of a direct ownership interest in the subsidiary deprived the subsidiary of the power to remove the case. The second question that the Court resolved focused on timing. The Court ruled that whether a case is removable under the FSIA is governed by the facts as they exist at the time of removal. That's the way the law of federal subject matter jurisdiction has always worked, so that ruling was not a big surprise. Justice Stephen G. Breyer issued an opinion dissenting in part, in which Justice Sandra Day O'Connor joined. Justice Breyer would have held that Israel's ownership interest in the subsidiary, even thought it was indirect, sufficed to allow removal under the FSIA.

* * * * *

The Court is due to issue one or more opinions on Wednesday morning, so stay tuned for that.
Posted at 23:35 by Howard Bashman



Judicial confirmation commentary from here and there: James L. Swanson of the Cato Institute has an essay entitled "The Coming Battle for the Court" at FOXNews. And maybe my sense of humor is becoming warped [Ed. -- becoming?], but I found this Rush Limbaugh essay from yesterday, entitled "Poor GOP Senate Babies Get Tired," to be rather funny.
Posted at 22:49 by Howard Bashman



A day for recess appointments: The White House today issued this Personnel Announcement.
Posted at 22:36 by Howard Bashman



Should an arguably incorrect Fifth Circuit decision from 1957 construing the Railway Labor Act be reconsidered en banc? That question was the subject of a very interesting debate that divided a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in this opinion issued yesterday. As every good Eleventh Circuit practitioner must know, "In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to close of business on September 30, 1981."
Posted at 22:33 by Howard Bashman



"Senator Santorum Sounds Off": Tomorrow's edition of The New York Times contains this editorial, which calls it a case of "Santorum v. Reality."
Posted at 22:26 by Howard Bashman



No parking, and we really mean it: A qualified immunity appeal that the U.S. Court of Appeals for the Seventh Circuit decided yesterday involved a plaintiff in his late sixties who rented a motel room in Danville, Illinois. When the plaintiff refused the requests of the motel's operator to move his oversized truck to a different parking spot, the motel's operator called the sheriff's office. As yesterday's unanimous opinion by Circuit Judge Terence T. Evans states at its conclusion:
The issue for us is whether [Deputy Sheriff] Cruppenink could reasonably have thought that [motel operator] Payne's desire to have a truck moved by an uncooperative guest allowed him to kick the door in. Cruppenink can be charged with knowledge that it is clearly established that a person is entitled to protection against unreasonable searches and invasions of privacy in a motel room and that motel personnel cannot give permission to enter a room. Stoner. Here, on the facts as we must view them, it is clear that [motel guest] Finsel was not doing anything to disturb the public order. He was breaking no laws. And it was Cruppenink's actions which were far from peaceful. Surely a reasonable officer should know there are limits to what he can do in the name of caretaking. Caretaking cannot reasonably be seen as license to take outrageous steps to get a truck moved. Calling a tow truck would have been a more reasonable way to solve the problem.

We have found no case specifically outlawing Cruppenink's conduct. But as the Court recently said in Hope, even in novel situations, in an appropriate case, officials can be on notice that their conduct violates established law. This is such a case. Given the facts as we must interpret them, Cruppenink should have known that he could not break down the door and forcibly enter Finsel's motel room.

Accordingly, the decision of the district court denying Deputy Cruppenink's motion for qualified immunity is AFFIRMED.
You can access the Seventh Circuit's opinion at this link.
Posted at 22:21 by Howard Bashman



Unanimous Tenth Circuit panel reinstates all federal criminal charges against president and vice president of Salt Lake City Olympic Bid Committee: You can access today's ruling of the U.S. Court of Appeals for the Tenth Circuit, which reverses the trial court's dismissal of an indictment containing fifteen bribery-related counts of criminal misconduct in connection with the committee's activities in procuring the 2002 Olympic Games, at this link. And The Associated Press already has this report on the ruling.
Posted at 20:35 by Howard Bashman



"Embarrassing lesson: Duped reporter learns the hard way": Sunday's edition of The Post and Courier of Charleston, South Carolina contained this report. How exactly was the reporter duped? See this article for the details. Or, as Jim Romenesko wrote yesterday at Obscure Store, "Newsman won't trust the next guy claiming to be 'Heywood Jablome.'"
Posted at 19:01 by Howard Bashman



"Texas Man Gets Death Penalty Reprieve": One week ago today, The Associated Press had this report about a stay of execution that the U.S. Court of Appeals for the Fifth Circuit granted last week with just two hours to spare. Reuters and United Press International also covered the story. This evening, the Fifth Circuit posted online its order granting the stay, which is why I'm writing about the matter now.
Posted at 18:43 by Howard Bashman



What gives? A reader whose name you'd recognize if only I wasn't sworn to secrecy emails to ask:
I'd be curious if anyone else is beginning to think that Justice Scalia must be in the Chief Justice's doghouse. Scalia wrote his sixth majority opinion of the term today, and every one of them has been in a relatively minor case. There have been quite a few significant decisions this term in which both Rehnquist and Scalia were in the majority, but those cases were assigned to O'Connor (the two 3-strikes cases and the Cuyahoga Falls Fair Housing case ), Ginsburg (the Eldred copyright extension case), Kennedy (the Alaska sex offender registration case), Thomas (Chavez v. Martinez, the Miranda damages case - I'm guessing on this one, since it hasn't been decided yet), and Rehnquist himself (the Connecticut sex offender registration case and Scheidler v. NOW). Scalia's decisions have covered such unexciting topics as death penalty resentencing (Sattazahn), Mississippi congressional redistricting, ERISA preemption, the arbitrability of RICO's treble damages provision, and today's decision on tolling state statutes of limitations. Only his NextWave decision on spectrum auctions sparked any interest whatsoever, and even that one was significant solely because of the large amount of money at stake. Scalia usually gets a fair chunk of the important conservative decisions. What gives?
I don't know for sure, but plenty of important cases still remain to be decided this Term.
Posted at 17:19 by Howard Bashman



"High Court Sets Standards on Employees, Bias Law": Reuters offers this report.
Posted at 17:01 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Moussaoui Crafts Defense in Between Rants"; here an article entitled "Judge Makes Ruling in Peyote Case"; and here an article entitled "Dems Call for Santorum to Quit Leadership."
Posted at 17:00 by Howard Bashman



Proofreading iz guud: An opinion that the Court of Appeals Of Ohio, Eighth Appellate District issued last week contained the following quotation from the appellate brief of the defendant-appellant:
"The trial court denied Mr. Woodley his federal and state constitutional rights to due process, protection from unreasonable search and seizure, protectioin [sic] against self incriminatin [sic], the effective assistance of counsel[,] [sic] and equal protection when it denied his motions for a psychiatric evaluation in order to allow him to properly investigate and prepare a meaningful motion to suprrese [sic] evidence."
So, the next time anyone asks you why it's useful to have an extra set of eyes look over that appellate brief before it is filed, I hope you'll recall this example.
Posted at 16:52 by Howard Bashman



"Judges will ask official to resign in wake of questionable remark": Sometimes the use of the word niggardly can be racially insensitive, this article from today's edition of The St. Louis Post-Dispatch makes clear. As the reader who emailed this link to me observed in his email, "but niggardly means stingy." True enough, but "stingy" doesn't seem to be the meaning that the speaker was intending to communicate.
Posted at 16:25 by Howard Bashman



What does "substantially prevailing party" really mean? A federal judicial law clerk last week sent along the following email:
The Ninth Circuit "Area 51" opinion you linked to recently begins with a short paragraph about attorneys' fees under RCRA that I found interesting. The court held that the attorneys' fees are not available under RCRA on a "catalyst theory" basis, concluding that "Frost is not a prevailing party (and thus cannot be a substantially prevailing party)" because Frost had not met the standard announced in Buckhannon. That case, of course, rejected the catalyst theory under the "prevailing party" statutory formulation present in many fee shifting statutes.

The court apparently reads "substantially" as modifying prevailing to mean "prevailing to a great degree," in other words, a really big win, I guess. But the court doesn't acknowledge that the word substantial can also mean "being largely but not wholly that which is specified." (See Webster's online definition 5). Thus, a "substantially prevailing party" is one that is largely, but not wholly, prevailing -- less than prevailing. That clearly is the meaning contemplated by RCRA, because if substantially is read as the court reads it, the "substantially prevailing" language is superfluous, as the provision already authorizes fees to a prevailing party.

The case is much harder than the court makes out if you accept substantially as modifying prevailing in the "largely but not wholly" sense, and is not resolved by Buckhannon because fee awards to less than prevailing parties are authorized under that reading of RCRA, although the content of "substantially" still must be determined. This is the in-between case: between Buckhannon and the cases you have been linking to finding that the "any party" formulation allows the catalyst theory even after Buckhannon. I won't go into any detail, but I think a plausible (if not persuasive) argument can be made from the legislative history of RCRA that the catalyst theory is available under that statute's fee-shifting provision. Hopefully the next court to address the issue will give a more convincing explanation of its decision.

Just thought you might find interesting the court's failure to acknowledge a perfectly plausible meaning of the word "substantially." Thanks for putting up a great blog.
I must admit that I had the same reaction when I originally read the Ninth Circuit's opinion in that case, although I don't pretend to be an expert on the availability of attorneys' fees under RCRA.
Posted at 15:55 by Howard Bashman



You don't see this every day: I was in the Philadelphia Courtroom of the Superior Court of Pennsylvania this morning for an oral argument. The Superior Court is perhaps unusual in that it allows the parties to decide whether oral argument will be held, and that remains true even in a case where one of the parties does not have an attorney. (As an aside, although there have been many instances when I have accepted pro bono assignments from the U.S. Court of Appeals for the Third Circuit to represent pro se litigants, I don't think that I have ever litigated against one.)

This morning I saw two pro se litigants argue at the podium in two separate appeals. The second one began her time at the podium by asking the three-judge panel if she could quote from the Scriptures before beginning her oral argument. Now that's the first time I had ever seen anything like that in my dozen years of practicing law, and the panel seemed equally taken by surprise. But, after the judge presiding over the arguments established that the Scriptures quotation was separate from the argument that the litigant intended to present, the judge explained that the litigant should simply start her argument directly. And that's precisely what the litigant did.
Posted at 15:35 by Howard Bashman



Tooting one's own horn: Today the U.S. Court of Appeals for the First Circuit issued an opinion that observes: "Blowing an air horn is not an expressive act a fortiori, and thus does not implicate the First Amendment unless context establishes it as such." You can access the entire opinion at this link.
Posted at 14:53 by Howard Bashman



Does your law school's library have its own Web log?: The answer is yes if you attend the University of Baltimore School of Law.
Posted at 14:42 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Court Rules for Clinic in Disability Case." And in other news, "Montana Balks at Open Container Law"; "Lawyer: DNA Clears La. Death-Row Inmate"; "Judge Denies Delay in Okla. Bomb Hearing"; "Kansas Gov. Vetoes Obscenity Provision"; and "UC Considers Professor-Student Dating Ban."
Posted at 14:38 by Howard Bashman



Today we learn that a feisty dissent by Circuit Judge Alex Kozinski has been withdrawn: Today the U.S. Court of Appeals for the Ninth Circuit issued an order causing the publication of this earlier order from slightly over one month ago. The earlier order withdrew the court's decision of January 10, 2003, which contained a feisty dissent by Circuit Judge Alex Kozinski. I previously reported on that dissent in a post you can access here. There must be more to this story, but I'll leave that to the professional journalists to uncover.
Posted at 13:47 by Howard Bashman



Philadelphia-based bloggers may be talented, but we ain't no ScrappleFace: InstaPundit links this morning to an article from today's issue of The Philadelphia Inquirer entitled "Unleash the jokes of war." Near its conclusion, the article states:
Like the rest of the media, Philadelphia's Scrappleface (www.scrappleface.com), a collection of tightly written and totally fake news briefs, quickly grew bored with victory and moved on to looting ("Shroud of CNN Missing from Baghdad Museum.")
As a Philadelphia-based blogger myself, I'd love it if it were possible to claim ScrappleFace as one of Philadelphia's own. But, sadly, it just isn't true. Scott Ott resides in State College, Pennsylvania, as this article from the Newhouse News Service confirms. Heck, if you Google Scott Ott, you can even obtain his address and phone number there. So, Philadelphia will simply have to content itself with being home to Atrios, who authors the blog "Eschaton," and to the author of the blog "Throwing Things." Oh yeah, and to me too.
Posted at 13:01 by Howard Bashman



"The Never-Ending Story: When will racial preferences end?" Peter N. Kirsanow, a commissioner serving on the U.S. Commission on Civil Rights, has this essay today at National Review Online.
Posted at 12:33 by Howard Bashman



Today's U.S. Supreme Court opinions: Today the Supreme Court of the United States issued opinions in three cases: Clackamas Gastroenterology Associates, P. C. v. Wells; Jinks v. Richland County; and Dole Food Co. v. Patrickson. In the event that there's anything worthwhile to say about these rulings, I'll have a complete round-up of today's decisions posted online sometime tonight.
Posted at 12:30 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue one or more opinions at 10 a.m. eastern time today. I will be in court at that time for an appellate oral argument. You will be able to access the opinion(s) online here (via Cornell Law School) and here (via the Court's own Web site) soon after the decisions are released.
Posted at 08:47 by Howard Bashman



Elsewhere in Tuesday's newspapers: In USA Today, Joan Biskupic reports here that "Chief Justice William Rehnquist has extended the contract of his administrative assistant, a possible -- but not definitive -- signal that he will stay on the bench another year." She also reports here that "Justices to decide extent of 'Miranda' Suspect's statements pointed to evidence" and here that "Case tests free commercial speech." And you can access here an article entitled "Peterson pleads innocent to killing wife, baby; Double murder charges allow for possibility of death penalty."

In The Los Angeles Times, David G. Savage reports here that "Justices to Weigh Miranda Limits" and here that "Supreme Court to Hear Reverse Age Bias Case; Middle-aged employees say company's health plan discriminates in favor of older workers." Henry Weinstein reports here that "High Court Agrees to Review Texas Death Penalty Case; Justices will take up inmate's claims that his lawyer was inept and key facts were withheld." In news from California, you can access here an article entitled "High Court Throws Out Binding Arbitration Law; Public safety workers' unions lose key case before state justices"; here an article entitled "Students argue case for affirmative action; Claremont Colleges group takes part in D.C. rally while Supreme Court hears Michigan challenge"; and here an article entitled "Scott Peterson Killed Wife in Their Home, Police Say; Modesto man pleads not guilty to the murders of Laci Peterson and the couple's unborn child." You can access here an article entitled "Taking the Initiative Too Far? A Washington state man has been labeled a horse's hindquarters for bringing messy California-style tax reform north. Taxpayers love him." And an op-ed by three UCLA Law Professors is entitled "A Faculty for Misstatement; Three who back Iraq liberation decry their UCLA senate's antiwar statement."

In The Boston Globe, Lyle Denniston reports here that "Court taking on age-bias case; Miranda question, death row appeal also to be decided" and here that "High court to review SEC's power; Fixed-return investments focus of legal dispute." In other news, here's an article entitled "Ruling hits Xerox results."

In this morning's edition of The Washington Times, Frank J. Murray reports here that "Justices to review Miranda frontiers." And an editorial is entitled "Say what?"
Posted at 08:30 by Howard Bashman



"How Appealing" -- Your source for news of Dahlia Lithwick's baby: A post in which I interview myself.
Q. So Dahlia Lithwick's baby has arrived?

A. Yes. I made that announcement here on Saturday in what I believe was a Web exclusive.

Q. Aha! I thought that's what that post from Saturday meant. But what about the details?

A. C'mon. I provided plenty of details. I told you when the baby was born, that the baby's a boy, his birth weight, that he already has a nice head of hair, and that he's so very cute.

Q. But you didn't post the baby's photo online.

A. Nothing gets past you, does it.

Q. Can't you give us more details?

A. Well, I'm not going to post the photo online or tell you the baby's name. His first initial is "C" and his middle initial is "T." As best as I can tell, no U.S. Supreme Court Justices participated in the delivery.

Q. So the baby is named after Clarence Thomas?

A. Yeah, that's the ticket.

Q. Well, I bet if Justice Ruth Bader Ginsburg emailed you to ask the baby's name and to see the photo, you'd forward the electronic birth announcement to her.

A. You know me far too well.
Posted at 08:14 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports here that "Justices Take Case On Scope of Miranda; Issue Is Evidence Gleaned Before Rights Are Read" and here that "Supreme Court to Review Inmate's Death Sentence." You can access here an article entitled "Prosecutor Says Malvo Spoke Freely to Police; Brief Claims Teen Laughed at Missed Shot." In business news, an article is entitled "Tobacco's New Troubles: Profits, Sales Are Down, and Ill. Case May Open Way to More Lawsuits." An article reports that "Peterson Pleads Not Guilty; Calif. Man's Wife, Unborn Son Killed." In other news, an article is entitled "Santorum Angers Gay Rights Groups." And columnist Ruben Navarrette Jr. has an essay entitled "Affirming Exploitation."

In The New York Times, Linda Greenhouse reports here that "Justices Will Revisit Rules Governing Use of Evidence" and here that "Texas Death Penalty Case to Get Supreme Court Review." In news pertaining to the Zacarias Moussaoui case, an article reports that "Some Secret Documents in Terror Case Can Be Unsealed." You can access here an article entitled "Likely Ban on Abortion Technique Leaves Doctors Uneasy." An article reports that "DNA Clears Louisiana Man on Death Row, Lawyer Says." And from California comes a report entitled "As Both Families Look On, Scott Peterson Denies Guilt."

The Christian Science Monitor contains an article entitled "A Bill of Rights, looted long ago, is stolen back." And at OpinionJournal, Brendan Miniter has an essay entitled "The Constitution Be Damned: Democrats try to impose a religious test on judges."
Posted at 00:10 by Howard Bashman



Monday, April 21, 2003
Available online at law.com: Tony Mauro reports here that "High Court to Hear Death Penalty, 'Miranda' Cases" and here that "High Court to Look at Internet Jurisdiction Case." Jason Hoppin reports here that "Supreme Court to Scrutinize California's Holocaust Insurance Law." And in news from New York, you can access here an article entitled "Fraud Suit Over Rezulin Revived," here an article entitled "Agency's Role Under 'Spargo' Clarified; Prosecutions for behavior on the bench may proceed," and here an article entitled "In Spite of Reform Law, Milberg Weiss Emerges as Winner in Securities Suits."
Posted at 22:22 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Briefs: Sniper Suspect Confessed Willingly"; here "Peterson Pleads Innocent in Laci's Death"; here "Opponents of Malpractice Caps Begin Ads"; here "Ex-Lecturer Sues Four Yale Officials" (and The Yale Daily News has this report); here "Gay Groups Urge GOP to Remove Santorum"; and here "Family Values Drive Pa. Sen. Santorum."
Posted at 19:48 by Howard Bashman



Judicial confirmation commentary from here and there: U.S. Senator John Ensign (R-NV) had an op-ed entitled "Estrada's wisdom will strengthen courts" in yesterday's edition of The Reno Gazette-Journal. Today's edition of The St. Louis Post-Dispatch contains an editorial entitled "Compromise, not filibuster." And today's edition of The Dallas Morning News contains an editorial entitled "Estrada Nomination: Let's fix judicial confirmation process."
Posted at 16:58 by Howard Bashman



"Court Overturns 1,140-Year Assault Term": The Associated Press has this report on a decision that the Supreme Court of Appeals of West Virginia issued today. You can access that court's majority opinion here and a concurring opinion here. The court's opinion explains that the defendant "was sentenced to imprisonment in the penitentiary for a period of 1,140 to 2,660 years." Update: Eugene Volokh offers his thoughts on the court's ruling.
Posted at 15:12 by Howard Bashman



The Confrontation Clause and testimony via closed-circuit television: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins:
18 U.S.C. section 3509 sets forth the procedure by which an alleged child victim can testify outside of the physical presence of the defendant via two-way closed circuit television. The statute requires, among other things, that the defendant's televised image be transmitted into the room where the child is testifying. We hold today that the television monitor must be called to the child's attention and be readily visible from where she is seated, but that it does not have to be in her direct field of vision while she is facing forward.
You can access the complete ruling at this link.
Posted at 14:06 by Howard Bashman



"Supreme Court Turns Back Six Flags Appeal": The Associated Press provides this report about one very large punitive damages award that isn't being sent back for another look.
Posted at 13:51 by Howard Bashman



"DA: Peterson Likely to Face Death Penalty": The Associated Press has this report.
Posted at 13:34 by Howard Bashman



Available online from The National Law Journal: You can access here an article entitled "Corporate Privilege in Fraud Cases Is at Stake; Much rides on a 9th Circuit decision" and here an article entitled "Final Review: Texas is revising how it hires habeas lawyers."
Posted at 13:31 by Howard Bashman



To understand Hobbes, just ask a philosopher: Danielle E. Sucher, a 1L at New York Law School, emails to say:
This morning at 9:45, you linked to an article by Peter Wood posted at the National Review Online where he tried to determine what Mr. Payton meant when he used the phrase "Hobbesian choice" during the oral arguments for Gratz v. Bollinger. The phrase is not so obscure or "sloppy about the details" as Mr. Wood seemed to believe, but perhaps it has earned some explanation.

In his essay, Mr. Wood quoted Mr. Payton as saying "I think the decision which would say we have to choose, would be a Hobbesian choice here." Wood tells us that this quote was made in response to Scalia's asking Payton "why, if the University of Michigan put such a high value on diversity, it didn't just lower admission standards for everyone." (Wood's summary). Scalia then went on to say "You don't have to be the great college you are, you can be a lesser college if that value [diversity] is important enough to you." This was the statement Mr. Payton was responding to, and it contains the Hobbesian choice to which he referred. Lack of diversity, or becoming a lesser college. Or as Payton himself put it, "the decision is, oh, gee, we want you to decide to either have a poor education for the essentially white students and/or you can say, change what you are as an institution. I think we get to decide what our mission is."

Mr. Wood determined that a Hobbesian choice is not quite Hobson's choice, and not quite Calvin-and-Hobbes's choice. Wood suggested that if a Hobbesian choice refers to a choice like that made by Thomas Hobbes, it would refer to the idea that without affirmative action, the state of Michigan would be reduced to the Hobbesian state of nature, with perpetual war of all against all. He also mentioned Hobbes's desire for an all-powerful government and lack of scrutiny by the people. Wood would prefer that to examine diversity and not permit it to remain obfuscated like Hobbes's ideal government. These are good things to know about the philosophy of Thomas Hobbes, but they do not actually explain what a Hobbesian choice is.

A Hobbesian choice is like the choice between Scylla and Charybdis. It is any choice as impossible to make and as free of true liberty as the choice Hobbes offered us, between living in a state of nature and living under an arbitrary and absolute government. Hobbes told us that in a state of nature, the life of the people is "solitary, poor, nasty, brutish, and short." He offered the choice between that sort of life and life under an absolute power. Hobbes deemed the latter superior, but for many of us neither option is acceptable. A Hobbesian choice is no choice at all. This is what Mr. Payton referred to in his argument.
Another reader emailed to say:
I think the Hobbesian choice essay neglected to mention one possibility--that a Hobbesian choice is the kind of choice that Hobbes faced when playing "Calvinball"--a game with "rules" that essentially provide that there are no rules. Here are the "rules."

In other words--you wear a mask, and make the rules up as you go along. Can anyone find a metaphor in this?
Hmm, we shall see.
Posted at 13:22 by Howard Bashman



But seriously: Today the Supreme Court of the United States denied certiorari in No. 02-9471, Clinton Bush v. United States (see page 12 of this PDF file). Thanks to reader Jonathan Soglin for noticing.
Posted at 13:13 by Howard Bashman



The other wire services are reporting from the U.S. Supreme Court: Reuters reports here that "Court to Hear SEC Appeal on Alleged Scam." And United Press International reports here that "Court looks at Miranda loophole"; here that "Court to hear Texas death row case"; and here that "Court looks at 'reverse' age bias."
Posted at 12:23 by Howard Bashman



Today's FindLaw commentator: Law Professor Anthony J. Sebok has an essay entitled "The Supreme Court's Recent Bombshell Punitive Damages Decision: Its Important Holdings and Implications."
Posted at 12:07 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Supreme Court to Hear Age Bias Case." Anne Gearan reports here that "High Court to Hear Texas Death Row Appeal." And in cert. denied news, Ms. Holland reports here that "Supreme Court Won't Review Religion Case."
Posted at 11:13 by Howard Bashman



Good news for alcoholic beverage advertisers seeking to use billboards in Cleveland: Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit unanimously affirmed a federal district court's judgment that had invalidated "a municipal ordinance banning within city limits all billboard advertising of alcoholic beverages, except in certain instances and in restricted areas of Cleveland." You can access the Sixth Circuit's per curiam opinion at this link.
Posted at 10:56 by Howard Bashman



"High Court to Reconsider Miranda Warnings": Anne Gearan of The Associated Press has this report on one of the cases in which the U.S. Supreme Court granted review this morning.
Posted at 10:34 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access today's official Order List at this link (PDF). The Court granted review in five cases and called for the views of the Solicitor General of the United States in three other cases. The Court also GVR'd in five cases in light of its recent punitive damages ruling in State Farm Mut. Automobile Ins. Co. v. Campbell.
Posted at 10:00 by Howard Bashman



"Confirmation battles heating up": Yesterday's edition of The Times-Picayune contained a paragraph bearing this heading in an article reporting "News from the Louisiana delegation in the nation's capital."
Posted at 09:50 by Howard Bashman



"What in the world is a Hobbesian choice?" Guest commentator Peter Wood tries to answer that question -- which arises from a statement found on page 38 of the U.S. Supreme Court's oral argument transcript in Gratz v. Bollinger -- in an essay posted this morning at National Review Online.
Posted at 09:45 by Howard Bashman



On the agenda: The Supreme Court of the United States today begins its final two-week oral argument session of the current Term. The Court will issue orders at 10 a.m. today and is scheduled to issue opinions tomorrow and Wednesday. The U.S. Senate's recess continues for another week, after which it is scheduled to debate and vote on the nomination of Jeffrey S. Sutton to serve on the U.S. Court of Appeals for the Sixth Circuit (more details available here).
Posted at 07:26 by Howard Bashman



"Stealing America's Civil Liberties": Today's edition of The Harvard Crimson contains this op-ed.
Posted at 07:23 by Howard Bashman



Currently online at The Village Voice: You can access here Nat Hentoff's essay entitled "Bush-Ashcroft vs. Homeland Security; Clean Air Act Polluted by the Justice Department." And here's an article entitled "Ashcroft's New Ally: Senator Schumer Pushes to Make Covert Surveillance Easier."
Posted at 07:21 by Howard Bashman



Elsewhere in Monday's newspapers: The Los Angeles Times reports here that "Nike Case Before U.S. High Court; The shoemaker's appeal of a California ruling has implications for firms' free-speech rights." Patt Morrison has a column entitled "GOP Hopes Hillary Sits Out Boxer's Next Fight; Two million and counting -- and gloating." In local news, "Coalition will appeal water company ruling; Activists continue to insist San Antonio Water Co. should open its meetings." Law Professor Jonathan Turley has an op-ed entitled "Congress Must Send Spammers a Message; Legislation is needed to ban the virtual pollution that threatens the Internet and costs business billions." And letters to the editor run under the headings "Road to Hell Is Paved With Legalized Torture"; "Early Segregation"; and "Citizens Take a Stand for Legal Immigration."

The Washington Times reports here that "GOP targets lawyers' fees, which pay to back Democrats." You can access here an article entitled "Limited liability faces Senate hurdle." In news from Maryland, "Death sentence remains on hold." And Nat Hentoff has an op-ed entitled "'Under God' or 'under conscience'?"
Posted at 07:07 by Howard Bashman



In Monday's newspapers: In The New York Times, Linda Greenhouse has an article entitled "Essays on Law (But Life Creeps In)" about Justice Sandra Day O'Connor's new book, "The Majesty of the Law: Reflections of a Supreme Court Justice." An article reports that "Bill to Bar Suits Against Gun Industry Stuns Crime Victims." In other news, "U.S. Backs Record Labels in Pursuit of Music Sharer." And a letter to the editor runs under the heading "Fairness in Court."

OpinionJournal features an editorial entitled "Favorite Son Candidacy: Tort lawyers open their wallets for John Edwards."

The Washington Post contains a front page article entitled "Local Officials Rise Up to Defy The Patriot Act." Today's installment of The Federal Diary is entitled "Uncle Sam May Want You, but Do You Really Want Uncle Sam?" And a letter to the editor runs under the heading "When Eyewitnesses Err."
Posted at 00:13 by Howard Bashman



Sunday, April 20, 2003
"Confirming Judges: The Need for Rules": Jason Mazzone, a graduate fellow at Yale Law School, had this essay posted online at Jurist last week.
Posted at 20:48 by Howard Bashman



"No Trace Of A Gun Study": The April 28, 2003 issue of Time magazine contains this report.
Posted at 20:44 by Howard Bashman



"Nike free-speech claim has wide implications": Today's edition of The Oregonian contains this report.
Posted at 11:22 by Howard Bashman



Happy birthday! U.S. Supreme Court Justice John Paul Stevens turns 83 today.
Posted at 11:12 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports here that "Free Speech Often a Casualty of War, Teachers Learn; Recent cases hark back to precedents from earlier conflicts, even to Roman times. Courts tend to side with silence." An article from The Associated Press reports that "Memphis University Majors in Diversity." You can access here an article entitled "Peterson Carried $10,000 in Cash; Modesto man arrested in the slaying of his pregnant wife is said to be 'a little scared' in jail." And an op-ed by Gary J. Bass is entitled "First Combat, Then Court; International trials, despite backlashes, show the importance of law."

The Boston Globe reports here that "Smoking war heats up; SJC to decide whether restrictions should extend to nonpublic clubs, fraternal groups."

And finally for now, this morning's edition of The Washington Times contains a lengthy article entitled "Jail time coming for deadbeat dads."
Posted at 09:46 by Howard Bashman



In Sunday's newspapers: In The New York Times, Linda Greenhouse reports here that "Free Speech for Companies on Justices' Agenda." Adam Liptak reports that "Lawyer Whose Disclosure Brought Down a Judge Is Punished." You can access the opinions that the Supreme Court of Washington State delivered in that case here (majority), here (concurring), and here (concurring in part and dissenting in part). You can learn here "What Washington Did While the War Was on TV." An article reports that "Oregon Muslims Protest Monthlong Detention Without a Charge." Three editorials may be of interest: "The War at Home"; "Time Is Not on Our Side"; and "Making the Number Mobile, Too."

Finally for now, The Washington Post contains an op-ed by Richard C. Atkinson, president of the University of California system, entitled "Diversity: Not There Yet."
Posted at 00:33 by Howard Bashman



Saturday, April 19, 2003
"Federalist Case: Is gun lawsuit pre-emption unconstitutional?" Jacob Sullum has this column, posted online at Reason yesterday. You can access the text of the pending legislation at this link. (Thanks to "The Goat" for the pointer.)
Posted at 19:38 by Howard Bashman



"GOP tiring of judicial confirmation battles": That's the title of Robert Novak's column today. (Thanks to "White Noize" for the pointer.)
Posted at 19:33 by Howard Bashman



The "Wee Bald Stranger" has arrived! Warm congratulations to Dahlia and Aaron on the birth of their son last night. From the photo, he doesn't look bald, and at 8 lbs. 2 oz., he might not qualify as "wee" either. But he certainly is cute as a button, as expected.
Posted at 19:29 by Howard Bashman



"Boyle battle brewing anew: Edwards and Senate Judiciary Committee chairman at odds over nominee to 4th Circuit": Thursday's edition of The News and Observer of Raleigh, North Carolina contained this report.
Posted at 16:51 by Howard Bashman



"Judge wants Ashcroft out of terror trial": Today's edition of The Detroit Free Press provides this report.
Posted at 15:09 by Howard Bashman



The Associated Press reporting: Anne Gearan reports here that "Several Major Rulings Await Supreme Court." And in other news: "Hundreds Mark 8th OKC Bombing Anniversary"; "Lawsuits Help Bush Get Way on Environment"; "U.S. Backs Industry in Web Music Case"; "Judge Orders Alleged Nazi Guard Deported"; "Prosecutors to Retry Four Miami Officers"; "Pa. Borough Considers Loitering Law"; "Utah Suburb Attracts Supremacist Parolees"; and "Exotic Dance Club Recruits at High School."
Posted at 15:06 by Howard Bashman



Elsewhere in Saturday's newspapers: The Boston Globe contains an article entitled "New debate on judge 'litmus tests'; Kerry triggers flare-up among Democrats."

The New York Times reports here that "Legal Aid Programs Challenge Restrictions Against Class-Action Suits." An article reports that "Ashcroft Is Criticized for Remarks About Witness in Terror-Cell Case." In other news, "After Trial, Operative Offered Judge an Apology and a Blessing." An article you can access here reports that "Court Is Asked to Bar Public When Officer Takes Stand." Here's an article entitled "All-American? U.S. Says No." And a review of the book "A Murder in Virginia: Southern Justice on Trial," by Suzanne Lebsock, appears here.

The Washington Post reports here that "Options on Handling of Iraqi POWs Considered; Geneva Conventions May Complicate U.S. Trial Plans." You can access here an article entitled "Sniper Case Judge Assails Leaks; County Employees Who Discuss Probe Face Prosecution." And the president and chief executive officer of the United Negro College Fund has a letter to the editor that runs under the heading "Selective Support for Preferences."

The Los Angeles Times reports here that "Bush Weighs Endangered Species Delay." An article reports that "Luster Appeal Planned; Fugitive rapist's attorney takes the first step to overturn the conviction." You can access here an article entitled "Scott Peterson Arrested in Wife's Slaying; Laci Peterson's body and that of her unborn son are identified with DNA evidence." And here's an article entitled "Contrasts Mark Fatal Stabbing Case; The accused is pursuing a master's degree at Harvard. The teenager who died, a cook, left high school to support his parents."

The San Francisco Chronicle reports here that "Laci's husband held for murders; Scott Peterson accused of killing wife and their unborn son; DNA analysis identifies 2 bodies, state attorney general says" and here "How young husband became slaying suspect." Both of those articles also list a number of other related reports in today's paper.

Finally for now, The Washington Times reports here that "Decision due soon on traffic cameras," and you can access here an op-ed entitled "Traffic cameras should add to safety, not revenues."
Posted at 14:26 by Howard Bashman



Kasky wins the support of the Attorneys General of California and seventeen other States: Those who think that Nike, Inc. v. Kasky will be a slam dunk for broadening commercial speech rights may have their Air Jordans laced up too tightly. See the amicus brief that the good folks at SCOTUSblog have posted here (and be sure to use the "rotate view" button on your Adobe Acrobat Reader to align the page in the right direction). Tony Mauro's article about the case, which I first linked to last night, also observes that this may not be a cakewalk for the sneaker manufacturer.
Posted at 11:27 by Howard Bashman



In today's and tomorrow's newspapers: In Sunday's edition of The New York Times Magazine, Anthony Lewis has an article entitled "The Silencing of Gideon's Trumpet." And in the Sunday Book Review, Robert Stone reviews "After: How America Confronted the September 12 Era," by Steven Brill.

Today's edition of The Washington Post contains a front page article entitled "Wider Fallout Seen From Race-Neutral Admissions; Fewer Minority MDs, Lawyers May Be Result."
Posted at 11:06 by Howard Bashman



Friday, April 18, 2003
Which Carolina are you? The U.S. Supreme Court's official hearing list for its final oral argument session of the current 2002 Term states on page four of this PDF document that the case of "Green Tree Financial Corp., nka Conseco FinanceCorp. v. Lynn W. Bazzle, etc., et al." is on "Certiorari to the Supreme Court of Carolina." Well, perhaps that's close enough for government work, but in fact the case is on certiorari to the Supreme Court of South Carolina (and you can access that court's ruling in the case here). Popular music notwithstanding, there simply is no State of Carolina. As explained here, "The colony, named Carolina after King Charles I, was divided in 1710 into South Carolina and North Carolina." No doubt the U.S. Supreme Court will have this all ironed out by the time an opinion issues in the case.
Posted at 23:40 by Howard Bashman



Available online at law.com: Tony Mauro has an article entitled "Supreme Court Renovations Set to Start," but be sure to read on to the very end so as not to miss several interesting insights on a few other subjects that the article also covers. Tony's second article posted online tonight is entitled "Nike Speech Case: Can Companies Just Say It?"
Posted at 23:32 by Howard Bashman



Should "actual innocence" exception for procedurally defaulted habeas claims apply to non-capital sentences? Back in late September 2002, a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit answered that question in the affirmative. One month ago, however, the full Fifth Circuit fell just two votes shy of granting rehearing en banc to reconsider that ruling. Today the Fifth Circuit posted to its Web site the opinion of Circuit Judge Jerry E. Smith dissenting from the denial of rehearing en banc. Judge Smith's opinion, in which five of his Fifth Circuit colleagues joined, began:
This exceptionally important case deserves the attention of the en banc court. For the first time, we extend the "actual innocence" exception for procedurally defaulted habeas corpus claims to non-capital sentences. The federal courts of appeals are split three ways on this question, and the panel opinion aligns this court with one of the two positions adopted by only one other circuit. Before this decision is set in stone as binding circuit precedent, the issue should receive review and thorough consideration by the entire court.
You can access the complete dissent from the denial of rehearing en banc at this link.
Posted at 23:15 by Howard Bashman



Fourth Circuit Judge H. Emory Widener, Jr. will be taking senior status on September 30, 2003: So says this official list of "future vacancies" in the federal judiciary. Judge Widener, who turns 80 this year, has served on the Fourth Circuit since 1972.
Posted at 23:02 by Howard Bashman



"I write separately to express my displeasure with the mode of analysis employed in the panel opinion (which I authored)." Tenth Circuit Judge Harris L. Hartz today issued both the unanimous opinion for a three-judge panel in an employment discrimination case and also a separate opinion the same case in which he remarks:
As is often true of the great mysteries in life, the more we don’t understand them, the more we resort to unthinking use of formulas, worrying about technicalities instead of comprehension and meaning. That has happened in applying McDonnell Douglas.
Judge Hartz's separate opinion also contains many other interesting observations, and you can access both of his opinions in the case at this link.
Posted at 22:53 by Howard Bashman



"Remains Are Laci, Baby; Husband Arrested": The Associated Press has this report. Many more details are available here, via the Web site of The Modesto Bee.
Posted at 22:39 by Howard Bashman



An email entitled "9th circuit split arcana": I received the following email this evening:
I just got around to reading your column on splitting the 9th Circuit. One interesting issue you may not have considered: Judge Margaret McKeown, a Clinton nominee from Seattle, was confirmed in 1998 and set up chambers in Seattle. In August 2001, however, she moved her chambers to San Diego, for personal reasons. If Washington and California are put into separate circuits, in which which would Judge McKeown serve? Personally, I have no idea, and I strongly suspect the situation would be without precedent.
This reader appears to be correct. This announcement of Circuit Judge M. Margaret McKeown's investiture and this list from the Ninth Circuit's Web site of judges, home chambers, date of birth, and date of appointment both show Judge McKeown's home chambers to be in Seattle. But this other recent document from the Ninth Circuit's Web site suggests that Judge McKeown is now based in San Diego.

In any event, I have no idea either regarding the answer to the question this reader has raised. What I can report is that my search for an answer has turned up this very interesting Interim Report of the Ninth Circuit's Evaluation Committee from March 2000. The report, among other things, considers possible changes to en banc procedures and addresses whether the large size of the court negatively affects collegiality.
Posted at 21:02 by Howard Bashman



"Ashcroft Remarks 'Distress' Federal Judge": The Associated Press offers this report from Detroit.
Posted at 17:35 by Howard Bashman



Second Circuit reinstates class action suit filed by health care benefits providers seeking $1.2 billion in damages from makers of the drug Rezulin: You can access today's ruling at this link.
Posted at 17:14 by Howard Bashman



Even more spanking: The Associated Press reports here that "Paddling of boy, 13, not abuse, court rules."
Posted at 16:51 by Howard Bashman



Math is hard: Attorney Brian T. Fitzpatrick, now working in private practice following clerkships on the Ninth Circuit and at the U.S. Supreme Court, emails:
I must disagree with one point you made in your article on splitting the 9th Circuit: the 9th Circuit's size does not contribute to the extremity of its decisions. It is a mathematical fact that if you hold the percentage of extreme judges on a court constant, the probability of randomly selecting at least two extreme judges on a panel of three judges increases as the number of judges on the court increases. For example, on a court of 10 judges, three of which are extreme (30%), the chance of selecting a panel of three that includes at least two extreme judges is 18.3%. By contrast, on a court of 20 judges, six of which are extreme (30%), the chance of selecting a panel of three that includes at least two extreme judges is 20.2%. Although a 2% increase may not seem like much, when you multiply it over the hundreds of panels selected by the Ninth Circuit every year, it makes a difference.
I don't think that my column took a position about whether the Ninth Circuit's size contributes to the extremity of some of its rulings, although I did write that splitting the Ninth Circuit won't prevent extreme decisions from issuing after a split has occurred. In any event, thanks for sending along this interesting email.
Posted at 15:46 by Howard Bashman



"Supreme Court's Thomas Seems More at Ease": Anne Gearan of The Associated Press has this report. And you can access the "Clarence Thomas Bio Box" here.
Posted at 15:09 by Howard Bashman



"Bat Gets Quick Ouster From Supreme Court": The Associated Press has this report. (Thanks to Rick Hasen for the pointer.)
Posted at 14:15 by Howard Bashman



Five years in custody on criminal charges without a preliminary hearing or trial does not satisfy U.S. Constitution's speedy trial requirement, Ninth Circuit rules: Accordingly, today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ordered the State of California to dismiss criminal charges of lewd and lascivious conduct upon a child under the age of 14 and failing to register as a sex offender in violation of the law, which had been filed against the defendant in April of 1998. You can access today's ruling at this link.
Posted at 14:06 by Howard Bashman



"Federal judge: Case borders on improper": Today's edition of The Orlando Sentinel reports here on a case that might soon be pending on appeal before the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 12:15 by Howard Bashman



A single instance of a male worker's grabbing a female co-worker's buttock does not a claim of sexual harrassment make: At least where the employer takes prompt remedial action. See this decision that the U.S. Court of Appeals for the Eighth Circuit issued today.
Posted at 12:12 by Howard Bashman



"Lawyer Accused of Kidnapping Associate": The Associated Press has this report.
Posted at 11:38 by Howard Bashman



"Court of Appeal Overturns Conviction Because Witness Was Allowed to Testify Behind Glass Shield": Yesterday's edition of The Metropolitan News-Enterprise contained this report. And you can access Tuesday's ruling of the California Court of Appeal, Sixth Appellate District, at this link.
Posted at 10:29 by Howard Bashman



"Pryor nominated to 11th U.S. Circuit Court of Appeals": Today's edition of The Crimson White contains this report.
Posted at 10:28 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "U.S. Firms Secretly Bid to Uphold Law in Iraq; Computer Sciences unit is one of a few asked to compete for contract to rebuild police, judiciary." Letters to the editor run under the heading "Prisoners Don't Live by the Law of the Land," and the first letter begins, "Jonathan Turley's April 15 commentary 'End Apartheid in the State Prisons' is just about the most absurd piece I have ever read."

The Boston Globe today reports that "Harvard sex assault policies reviewed; Group's report advises changes." And The Washington Times reports here that "GOP likely to improve odds without Fitzgerald."
Posted at 10:24 by Howard Bashman



Today's FindLaw columnist: Law Professor Vikram David Amar today has an essay entitled "Will The Supreme Court Compound Its Ex Post Facto Error? Part Two of a Two-Part Series on Unconstitutional Retroactive Criminal Legislation."
Posted at 09:57 by Howard Bashman



Available online at law.com: The Legal Intelligencer contains an article entitled "Non-Reliance Pacts Don't Foreclose Reliance Claims Under Securities Act" about a recent ruling of the U.S. Court of Appeals for the Third Circuit. And the redesigned law.com site is also becoming more Web friendly -- as it should -- citing and linking to the vicinity of Denise Howell's account of her recent lunch with the Ninth Circuit's chief judge.
Posted at 07:05 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Torture Fears Don't Halt Deportation"; here "Ruling Opens Miss. Courts to Cameras"; here "N.C. Bill Eliminates Sterilization Law"; here "Patent Office Sees Record Backlog"; and here "Governor's Reprieve Frees Iowa Inmate."
Posted at 00:53 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Judges Question U.S. Move in Cheney Suit; Panel Criticizes Request for Intervention in Two Groups' Bid for Task Force Data." And in local news, you can access here an article entitled "Ex-Judge Accused Of Ethical Lapses; Va. Senator Faults Actions in Office" and here an article entitled "Convict Survives Suicidal Jump; Man Throws Himself Through Court Window at Sentencing."

In The New York Times, Adam Liptak reports that "Crime Bill Would Curb Judges' Powers." In local news, "Civil Rights Lawyers Seek Teeth for Rules on Police Surveillance." And an editorial is entitled "Preventing a Miscarriage of Justice."

Finally for now, The Christian Science Monitor reports here that "Bungles in Texas crime lab stir doubt over DNA; Botched tests cast inmates' guilt into question - an error that may be an anomaly, or an indicator of a wider problem." And an op-ed that seems relevant to a Third Circuit concurring opinion I described here Wednesday is entitled "The darker side of the circus hoopla."
Posted at 00:30 by Howard Bashman



Battle Royale vs. Royale with Cheese: Law Professor Lawrence Solum at his "Legal Theory Blog" appears to have been the first today to note the posting online of a forthcoming California Law Review article in which two other law professors "suggest a Tournament of Judges where the reward to the winner is elevation to the Supreme Court." Larry persuasively, and quite analytically, explains here why the article is absurd. On the other hand, something akin to what the article's authors are proposing may in fact already be occurring, which is one way to understand the behavior I noted here on Tuesday in describing a rather puzzling dissent that a judge serving on the U.S. Court of Appeals for the Fourth Circuit issued that day.
Posted at 00:15 by Howard Bashman



Thursday, April 17, 2003
Use of INS departure control checkpoint to screen passengers traveling from the U.S. Virgin Islands to the mainland United States is not unconstitutional, Third Circuit holds: You can access today's unanimous, three-judge panel ruling of the U.S. Court of Appeals for the Third Circuit at this link. District Judge Thomas K. Moore, who was the author of the ruling that the Third Circuit reversed today, had this to say about the issue in an amicus brief he recently filed in the U.S. Supreme Court:
Congress also subjects territorial residents and visitors to daily indignities it does not impose on travelers in the continental United States, Alaska, and Hawaii. Specifically, Congress treats all persons traveling from the United States Virgin Islands to the mainland, including United States citizens, as aliens who must satisfy an immigration inspector of their right to be admitted to the continental United States.
You can access Judge Moore's amicus brief at this link.
Posted at 16:00 by Howard Bashman



In the news from Mississippi: Today's issue of The Sun Herald contains an article entitled "High court's records subpoenaed; Feds probing if lawyers paid off loans for judges."
Posted at 14:15 by Howard Bashman



More good news for fans of this Web log's "20 questions" feature: A federal appellate judge has moments ago volunteered to fill the August 2003 interview slot. As a result, the next appellate judge to volunteer (which is done via email) will have his or her interview appear online in September 2003.
Posted at 13:56 by Howard Bashman



"Ohio justices cite limits to gun rights; Supreme Court tells firearm advocates state has right to regulate weapons use": Yesterday's edition of The Toledo Blade contained this report.
Posted at 13:50 by Howard Bashman



Judicial nomination and confirmation news from here and there: Tuesday's edition of The Cleveland Plain Dealer reported here that "Confirmation appears near for Ohio judicial nominees."

The Metropolitan News-Enterprise reports here that "San Francisco Superior Court Judge Carlos Bea Nominated to Ninth Circuit Court of Appeals," and the article notes that "Bea has not been without controversy since being appointed to Superior Court." Additionally, a MetNews column by David Kline is entitled "Democrats Have No Good Reason for Blocking Estrada's Confirmation."

The Daily Herald reports here that "Hatch talks on oil drilling, judicial nominee at UVSC." Jillian Jonas has a UPI commentary entitled "Democrats right on Estrada." The Las Vegas Review-Journal recently published an editorial entitled "Not enough hours."

The Baltimore Sun reported here earlier this week that "Bush set to cash in on 'peace dividend'; President eager to exploit likely postwar popularity to push domestic agenda." Howard Feinman yesterday had an essay online at Newsweek entitled "President Bush's War at Home; A divided GOP could hamper president's re-election efforts." Speaking of re-election efforts, The Associated Press reported here yesterday that "Sen. Schumer Amasses $14.8M Campaign Fund." The Jersey Journal today contains an article entitled "Menendez gets heat from Arango on criticism of gov." Finally for now, today's edition of The Fort Worth Star-Telegram contains an op-ed by Don Erler entitled "No bench for them?"
Posted at 13:27 by Howard Bashman



The Erwin Chemerinsky op-ed that you should (but probably won't) be reading today: Law Professor Erwin Chemerinsky has a rather pedestrian write-up of the U.S. Supreme Court's cross-burning decision online at FindLaw today. What you won't find freely available on the Web, however, is Professor Chemerinsky's column today in the Los Angeles Daily Journal, in which he writes that "Now it is up to Senate Democrats, by a filibuster if necessary, to prevent [Ninth Circuit nominee Carolyn B.] Kuhl's confirmation."
Posted at 12:40 by Howard Bashman



"Judges Question Bid to Stop Cheney Suit": The Associated Press has this report on today's D.C. Circuit oral argument.
Posted at 12:24 by Howard Bashman



Rule of lenity benefits profane criminal defendant: Yesterday, the U.S. Court of Appeals for the Fourth Circuit issued a ruling in which that court held that a criminal defendant who, at sentencing, cursed out the federal district judge, ridiculed him, and gave him the middle finger could not be held in criminal contempt three times, because these outbursts constituted just a single episode of rudeness. Had the defendant known of his eventual victory on appeal, perhaps he would have had some other choice words or gestures to express to the trial court judge while being escorted from the courtroom.
Posted at 12:06 by Howard Bashman



Just stay tuned: A longtime reader in search of "some hints on how to be sexy" finally realizes that "How Appealing" is in fact an appellate law blog.
Posted at 11:58 by Howard Bashman



Elsewhere in Thursday's newspapers: The Los Angeles Times reports here that "Minority Admissions Rise in UC System but Fall at UCLA; Berkeley also registers a decline even as highest percentage of blacks, Latinos and Indians are admitted statewide since affirmative action ban." An article reports that "As Fair Housing Act Turns 35, Discrimination Persists." You can access here an article entitled "Rave Crackdown Targets Drugs, Not Music, Biden Says; Activists condemn the measure, saying it is an attack on the all-night dance parties popular with young adults. Bush has said he'll sign bill." In local news, you can access here an article entitled "Mom Held Liable for Teen Son's Graffiti" and here an article entitled "Parents Rally to Stop 'Cyber Bullying'; Calling Internet rumor mills harmful, some move to shut sites. Defenders say free speech is at stake." Law Professor Alan M. Dershowitz has an op-ed entitled "Painful Moral Questions; German issue is one for U.S. too: Can torture, or the threat of it, be right?" Columnist Michael Hiltzik has an essay entitled "Tobacco Fires Back as Ads Become Sorely Personal." And letters to the editor run under the heading "USA Patriot Act: Last Refuge of a Senator."

The Washington Times reports here that "Suit filed against traffic cameras." And you can access here an article entitled "N.Y. judge rules for gay 'spouse.'"
Posted at 10:54 by Howard Bashman



"Segregation in Alabama constitution to go": United Press International provides this report.
Posted at 10:52 by Howard Bashman



"Fat Man Sues McDonald's Over Non-Hire": The Associated Press offers this report from Bridgeport, Connecticut. And The New Haven Register reports here that "420-pounder sues McDonald's."
Posted at 10:47 by Howard Bashman



"Former Illinois Governor Attacks Death Penalty": Today's edition of The Harvard Crimson contains this report.
Posted at 10:44 by Howard Bashman



Now available online: My April 2003 monthly appellate column, originally published Monday in The Legal Intelligencer, is entitled "When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How." You can now access it online here.
Posted at 10:17 by Howard Bashman



Will Pennsylvania's Attorney General be nominated to fill Third Circuit vacancy from Pittsburgh? That's what a columnist with The Philadelphia Daily News reported here last Friday, in an essay that began: "Inclusionary, big-tent though he may be, President Bush couldn't find a qualified Republican woman to serve on the U.S. Third Circuit Court of Appeals."

The vacancy in question arose in March 2002 when Circuit Judge Carol Los Mansmann died of cancer at the age of 59. Earlier this month, The Pittsburgh Post-Gazette reported here that "[Attorney General] Fisher may fill vacancy in U.S. District Court." And an article that The Post-Gazette published in June 2002 was entitled "Five in running for vacancy on federal appeals court."
Posted at 10:08 by Howard Bashman



"License to Legislate": Columnist George F. Will doesn't agree with the U.S. Supreme Court's recent ruling in State Farm Mut. Automobile Ins. Co. v. Campbell for reasons he explains in this op-ed published in today's edition of The Washington Post.
Posted at 09:55 by Howard Bashman



"Area Schools Prepare For Chief Justice's Visit": The Post-Journal of Jamestown, New York recently published this article about Chief Justice William H. Rehnquist's visit scheduled for May 16, 2003 to dedicate the Robert H. Jackson Center.
Posted at 07:27 by Howard Bashman



"Judges face temptations under new conduct code; Campaign donors may pressure them to predict how they would rule": This past Sunday's edition of The Charlotte Observer contained this report about North Carolina's revamped Code of Judicial Conduct.
Posted at 07:22 by Howard Bashman



In Thursday's newspapers: Today's edition of The New York Times contains an editorial entitled "Filibustering Priscilla Owen" that expresses support for the maneuver.

At OpinionJournal, John Fund's Political Diary is entitled "Not the American Way: The left's 'judicial Armageddon' is an assault on democracy."

The Washington Post reports here that "U.S. Argues Against Access to Operative in Sept. 11 Trial." You can access here an article entitled "Frist Off to Rocky Start; Senate Leader's Tax Cut Flap, Missteps Have Caused Problems for Bush, GOP." And an article reports that "Malvo Faces Jail Discipline; Teen Allegedly Threatened Deputy in Letter to Inmate."

Finally for now, The Christian Science Monitor contains an editorial entitled "Reforming Class-Action Suits."
Posted at 00:01 by Howard Bashman



Wednesday, April 16, 2003
May a habeas petitioner whose request for a certificate of appealability is denied by a federal appellate court petition for rehearing en banc? Today the U.S. Court of Appeals for the Seventh Circuit answered that question in the affirmative, in a quite interesting, unanimous, and pithy three-judge panel opinion written by Circuit Judge Frank H. Easterbrook.
Posted at 23:19 by Howard Bashman



The constitutional right to spank a child: Today the U.S. Court of Appeals for the Seventh Circuit issued a lengthy qualified immunity opinion involving a private school at which the staff seems to have had a penchant for not sparing the rod. The opinion concludes, "However, no matter one's view of corporal punishment, the plaintiff parents' liberty interest in directing the upbringing and education of their children includes the right to discipline them by using reasonable, nonexcessive corporal punishment, and to delegate that parental authority to private school officials."
Posted at 23:10 by Howard Bashman



Available online at law.com: Marcia Coyle has an article entitled "New Battles to Come Over Punitives Ruling; High court's guides include ratios." You can access here an essay entitled "The Elevated Headnote: Top court may revisit notion, noted by a court reporter 117 years ago, that a corporation is entitled to free speech."

Shannon P. Duffy, in an article entitled "'Constructive Discharge' Bars Use of 'Faragher/Ellerth' Defense," reports on a very interesting and lengthy opinion that the Third Circuit released today on an employment law issue that has previously divided the circuits. In other news, you can access here an article entitled "Harry Joe and the Duty Owed: Texas justices hold fate of lawyer-legislators in their hands." And Law Professor Richard A. Epstein has an essay in The National Law Journal entitled "Michigan Case: Let competition solve the quandary."
Posted at 23:04 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "U.S. Mulls Trial for Captured Terrorist"; here an article entitled "Convicted Man Appeals Sentence Over Bible"; and here an article entitled "Sleeping Juror Leads to Mistrial."
Posted at 22:44 by Howard Bashman



News from Colorado: The Associated Press reports here that "Colorado sets up school voucher plan." United Press International reports here that "Colorado governor signs school voucher law." And Reuters reports here that "Colorado School Voucher Program Signed Into Law." All three articles note that this is the first school voucher program signed into law since the U.S. Supreme Court late last Term ruled that public funds could be used toward paying tuition at private schools, including religious schools.
Posted at 22:24 by Howard Bashman



Denise Howell has a fascinating and thorough account of her lunch today with Ninth Circuit Chief Judge Mary M. Schroeder: You can access it here. Denise closes her report with mention that Chief Judge Schroeder is looking forward to the next installment of my blog's "20 questions" feature (the past installments of which you can access here). Of course, little can top the email I received yesterday from a knowledgeable source in Washington, D.C. who reported that "Your site has gained widespread readership in the nation's highest court," but Chief Judge Schroeder's comments come close. And that's because if I were given the option to serve as a judge on any federal appellate court in the Nation, the Ninth Circuit would be my first choice.
Posted at 22:11 by Howard Bashman



A third grader and her First Amendment right to petition against a class trip to the circus: Yesterday a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued an opinion (posted online today) addressing this surprisingly interesting question (and I'm not saying that simply because I'm the parent of a second grader who has already turned into quite the young litigator; fortunately for him, though, he still intends to become a paleontologist).

Each of the three judges on the panel wrote separately. In his concurring opinion, Senior Circuit Judge Morton I. Greenberg observes:
I think that it is unlikely that the third grade children here could have had knowledge of how a circus treats its animals. After all, I have no such knowledge myself. Yet Amanda induced more than 30 of them to sign a petition that they did not want to go to the circus because it "hurt[s] animals." Of course, I recognize that even adults will sign petitions without understanding the issues involved and in doing so likely will be protected constitutionally, as will be the persons circulating the petitions. But the status of adults differs from that of children at school as in general public officers and agencies have no obligation to protect adults from their own conduct or the importuning by other persons. On the other hand, students are in the temporary custody of the school authorities who must protect them during the period of the custody. See Bd. of Educ. of Indep. Sch. Dist. No. 92 v. Earls, 122 S.Ct. 2559, 2565 (2002). Moreover, an eight- or nine-year old child might not be able to resist the peer pressure to sign a petition and thus might do so even if the petition advocates a position with which he or she does not agree. In any event, a child of such age should not be confronted with having to make the choice to sign or not sign.
You can access the complete ruling at this link.
Posted at 15:08 by Howard Bashman



Remember that time when the federal appellate judge stole a car? Today the U.S. Court of Appeals for the Ninth Circuit issued a decision in which the court ruled that an Arizona statute that defined "theft of a means of transportation" did not proscribe a "theft offense" sufficient to have an alien convicted under the Arizona law qualify as an "aggravated felon" subject to removal from the United States. Circuit Judge John T. Noonan, the author of today's unanimous opinion, writes in the penultimate paragraph of the decision:
Section 4 [of the Arizona statute] could be violated by a person at a hotel taking delivery from a valet of a rental car, not the one that he had parked, and keeping the car for the evening on the theory that rental cars are fungible (a case familiar to the author of this opinion).
Hmm, is Judge Noonan saying what I think he's saying?
Posted at 14:08 by Howard Bashman



Access the text of Justice Stephen G. Breyer's speech Monday night to the Association of the Bar of the City of New York: Available here. Bernard Hibbitts asserts that Justice Breyer's translation of Cicero employed poetic license.
Posted at 12:41 by Howard Bashman



"Supreme Court Nominees and the Fourth Circuit Curse": Attorney Adam M. Gershowitz has this essay online at FindLaw.
Posted at 11:20 by Howard Bashman



Terror Alert downgraded from Orange to Yellow (except at U.S. Cellular Field): The Associated Press offers this report.
Posted at 10:48 by Howard Bashman



On the agenda: Denise Howell has interesting lunch plans today.
Posted at 10:37 by Howard Bashman



A Pyrrhic victory: The plaintiff in this abortion protestor-free speech case that the Sixth Circuit decided today won his case and two dollars in damages. As a result of today's ruling on appeal, however, the abortion protestor lost his ability to recover counsel fees from the opposing parties and became liable to pay the costs that his adversaries in the litigation incurred after he turned down their pre-trial settlement offer of $2,500.
Posted at 10:03 by Howard Bashman



Listen online to the "judge song": David Post has the details here. Unfortunately, the link appears to support just one or two listeners at a time, so I wish you the best of luck.
Posted at 09:53 by Howard Bashman



Former Ninth Circuit nominee of President Clinton placed on Supreme Court of Hawaii by that State's Republican Governor: Today's edition of The Honolulu Advertiser reports here that "Lingle's high court choice a surprise to some." And you can access the Governor's official press release here. By the way, the photo accompanying the newspaper article presents one of those "only in Hawaii" images. (Thanks much to the reader who drew this to my attention moments ago via email.)
Posted at 09:30 by Howard Bashman



The Bush Administration is attempting to overcome the Senatorial blockade of Sixth Circuit nominees from Michigan: Back on March 31, 2003, I noted here that both of Michigan's U.S. Senators returned negative Blue Slips (a procedural device that allows home-state U.S. Senators to record their dissatisfaction about a given nominee) with regard to all four of President Bush's nominees from the State of Michigan to serve on the U.S. Court of Appeals for the Sixth Circuit (see this chart for all the details).

Byron York, in his column published one week ago today in The Hill, noted "a March 28 letter from White House counsel Alberto Gonzales to Judiciary Committee Chairman Orrin Hatch (R-Utah)" on the issue of the Michigan blue slips. You can access the complete text of that letter online here at "How Appealing Extra." On April 2, 2003, Gonzales sent a separate letter on the subject to Michigan's two U.S. Senators. The full text of this other letter can be viewed online here, also at "How Appealing Extra."
Posted at 08:55 by Howard Bashman



Elsewhere in Wednesday's newspapers: In news pertaining to the Zacarias Moussaoui case, The New York Times reports here that "Prosecution Says Qaeda Member Was to Pilot 5th Sept. 11 Jet." And an article reports that "Columbia Names New Dean for Its Journalism School."

USA Today reports here that "Options sought in al-Qaeda case."

Today's edition of The Los Angeles Times reports here that "Appeals Court Seeking a Compromise in Moussaoui Case; Judges want the defense and prosecution to come up with proposals for how best to assure a fair trial for the accused Sept. 11 conspirator." In other news, "GOP's Fitzgerald Won't Try to Retain Senate Seat; The Illinois lawmaker was seen as vulnerable in a contest that could be vital to both parties' hopes of dominating a closely split Congress." And finally for now, an article reports that "Rolling Hills Adulterers May Face Doghouse, but Not Jail."
Posted at 08:35 by Howard Bashman



"Court weighs mental disability rule in death cases": Today's edition of The Atlanta Journal-Constitution offers this report.
Posted at 07:22 by Howard Bashman



"Or are you just happy to see me?" Today's edition of The Dayton Daily News reports here that "The Ohio Supreme Court heard from both sides Tuesday in a high-profile case that could decide whether Ohioans will be free to carry concealed guns whenever and wherever they chose."
Posted at 07:21 by Howard Bashman



The Associated Press is reporting: Gina Holland this morning has an article entitled "Supreme Court Remains Secretive Place." You can access here a report entitled "Texas Man Gets Death Penalty Reprieve"; here "Lawyers Give to Edwards for '04 Election"; and here "Iowa Awaiting Miss Nude World Pageant."
Posted at 07:15 by Howard Bashman



In the news from California: Bob Egelko reported here in yesterday's edition of The San Francisco Chronicle that "Judge gets 2nd chance with 2nd Bush; Bea nominated for federal appeals court." And The Mercury News reported here that "S.F. judge nominated for 9th Circuit court; Latino Tapped by Bush has Democratic Support."
Posted at 06:55 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, columnist David S. Broder provides here an enlightening "Tale Of Two Judges." And an article reports that "Court Seeks Deal on Terror Witness Access."

The New York Times reports here that "Illinois Senator Announces He Won't Seek Re-election." And an article reports that "Court Hears Fight Over Numbers Used for Cellphones."
Posted at 00:20 by Howard Bashman



Tuesday, April 15, 2003
Elsewhere in Tuesday's newspapers: The Boston Globe reports here that "Court rules against alleged victims' kin." And The Washington Times contains an op-ed by Bruce Fein entitled "Is cross burning ever free speech?"

The Los Angeles Times reports here that "Judge Slashes Philip Morris' Appeal Bond; The firm has to deposit only $6.8 billion. It says it will make settlement payments to states." An article you can access here reports that "Class Action Is Rejected in Microsoft Lawsuit; Judge rules individual plaintiffs can't expand their group to include business customers." In local news, you can access here an article entitled "Judge Calls Halt to Skid Row Searches" and here an article entitled "Marine Was Fired Unfairly, Lawyer Says; An Irvine man dismissed by Hyundai over sexual harassment claims cannot defend himself because he is in Iraq, his attorney says." Finally, Law Professor Jonathan Turley has an op-ed entitled "End Apartheid in the State Prisons."
Posted at 23:40 by Howard Bashman



A hint: The home chambers of the federal appellate judge who has volunteered to be the May 2003 participant in "20 questions for the appellate judge" are the second farthest away from me in distance of all federal appellate judges currently in active service. For those who are ready to grab tape measures, I'm based in Philadelphia, Pennsylvania. Update: This hint proved far too easy, even to readers who didn't use an online distance calculator such as this one. I had a much more difficult hint, but instead I made it the subject of question number 19.
Posted at 20:54 by Howard Bashman



"San Francisco Superior Court Judge Nominated to Ninth Circuit Court of Appeals": The Ninth Circuit's Web site contains this news release. While the White House's Web site still offers no confirmation of the news, the Department of Justice's site notes the nomination here.
Posted at 20:26 by Howard Bashman



Judge Luttig isn't happy about something: Several frequent email correspondents have written this afternoon to make sure that I haven't overlooked Fourth Circuit Judge J. Michael Luttig's quite remarkable dissent issued today in a qualified immunity case. And while it would not be proper for me to express a view on any case without doing the intensive work that a judge hearing that case would have to undertake (thanks, Dahlia), I can't figure out what's gotten Judge Luttig so exercised. In other words, on the facts of today's case, the majority's decision seems reasonable. Perhaps Judge Luttig is still a little steamed about being the only dissenter from the denial of rehearing en banc in this earlier case -- a decision that he vehemently disagreed with then but today claims as controlling precedent!?! (And while I continue on a hunt for typos (see the post immediately below), let me observe that the quote from the Fifth Circuit's ruling in the Sanders case on page 24 of today's dissenting opinion perpetuates a typo found in the Fifth Circuit's original decision (misspelling the defendant's name), and page 30 of today's dissent contains an unnecessary period before the call for footnote 4.) Update: A reader whose email address somewhat ironically reveals that the reader is associated with Catholic University notes another typo in Judge Luttig's dissent -- on page 29 Judge Luttig misidentifies a party to a cited case as "DaimlerChrystler Corp."
Posted at 19:10 by Howard Bashman



Further proof that librarians are the best: Even the author of "How Appealing" can have a typo. If this blog isn't evidence enough, the PDF file that I sent to my ever-growing list of email subscribers to my monthly appellate column used the word "fell" instead of "feel" in a sentence that should have read "Professor Hellman also reports that the Tenth Circuit is none too pleased with the prospect of expanding to include Arizona, and I imagine that most judges and lawyers in Arizona feel the same way about joining the Tenth Circuit." Coincidentally, the person who brought this typo to my attention is an Arizona-based librarian for the Ninth Circuit. (My editor at The Legal Intelligencer also gets credit and my thanks for having caught and corrected this typo for the newsprint version of my column, which appeared yesterday.)
Posted at 16:33 by Howard Bashman



"Court Seeks Compromise in Moussaoui Case": The Associated Press provides this report. You can access the Fourth Circuit order issued yesterday, which is the subject of The AP's article, at this link. And the trial court has already entered this order implementing the instructions that the Fourth Circuit provided yesterday.
Posted at 16:00 by Howard Bashman



Seattle newspapers cover yesterday's good news for Microsoft: Today's edition of The Seattle Times contains a Bloomberg News article entitled "Judge protects Microsoft from 1 big lawsuit by software buyers." And The Seattle Post-Intelligencer reports here that "No class-action antitrust claims against Microsoft."
Posted at 14:17 by Howard Bashman



Today's FindLaw commentator: Julie Hilden has an essay entitled "When Nike Speaks, Is It Always 'Commercial Speech'? The Supreme Court Will Soon Be Asked To Decide."
Posted at 14:12 by Howard Bashman



Access the order reducing the amount of a supersedeas bond for Philip Morris: The order is available online here, courtesy of FindLaw.
Posted at 14:09 by Howard Bashman



From the University of Virginia School of Law's Web site: Reports on last week's two speeches by U.S. Supreme Court Justices. You can access here a report entitled "Supreme Court Justices Should Shun Other Duties, Rehnquist Says" and here a report entitled "Kennedy Calls on Congress to Stop Playing Politics With Judicial Confirmations."
Posted at 13:58 by Howard Bashman



Now available online at the U.S. Supreme Court's Web site: (1) All of the oral argument transcripts for the March 24 to April 2, 2003 argument session are available online here; (2) a page explaining "The Supreme Court of the United States Building Modernization Project" is accessible here; and (3) the text of Chief Justice William H. Rehnquist's speech last week at the University of Virginia School of Law is available here, and the text of Justice Stephen G. Breyer's speech on April 4, 2003 to the The American Society of International Law is available here.
Posted at 13:56 by Howard Bashman



United Press International is reporting: You can access here an article entitled "Breyer: Detainees can ask courts for help" and here an article entitled "Florida's 'Scarlet Letter' law to be fixed."
Posted at 13:48 by Howard Bashman



Divided Eighth Circuit panel holds that inadmissible aliens may be detained indefinitely: You can access today's ruling here. The preexisting circuit split intensifies.
Posted at 12:14 by Howard Bashman



Steven Wu hates the Bluebook: He explains why here.
Posted at 12:06 by Howard Bashman



A bargain at under five dollars: Alice W. of the "a mad tea party" blog -- who brought us news late last September of Seventh Circuit Judge Richard A. Posner's appearance in Cosmopolitan magazine -- is now reporting here that "you can own Posner for less than five bucks?!" And it seems from the link she provides that she's not kidding.
Posted at 12:01 by Howard Bashman



"Court blocks security conference talk": c|net News.Com has this report.
Posted at 10:48 by Howard Bashman



Alphabet soup: Fans of acronyms will enjoy this opinion issued today by the U.S. Court of Appeals for the D.C. Circuit, because the opinion is chock full of 'em. Although it's difficult to choose a favorite, the opinion's use of FONSI reminded me of a certain television show that I enjoyed as a youth.
Posted at 10:44 by Howard Bashman



News from Minnesota: The Star Tribune reports here that "Abortion law change signed by governor." And The St. Paul Pioneer Press reports here that "Opponents of abortion seize the day." You can access the Minnesota Senate's vote on the measure at this link, and here's the answer for those wondering "What's a DFLer?"
Posted at 08:30 by Howard Bashman



Newz from New Zealand: Last night I received the following email in response to my "Road Trip?" post:
I really enjoy reading your blog, although I am not a lawyer. After Alaska and Hawaii, if you'd like to continue your road trip, you're welcome here in Wellington, New Zealand.

Our government has introduced a bill that will abolish our highest court and replace it with a completely new court, containing judges all to be appointed by the present government.

You can read more about it here.

This is terrible constitutional behaviour, especially for a western democracy. The U.S. is fortunate, by comparison, that their biggest dispute is over the confirmation of a judge to an intermediate court.

Thanks again for the work you have done on your blog.
And thank you for that very interesting email. I think that the news report that you've linked to would justify a "How Appealing" road trip to New Zealand, and I doubt that my wife and son would complain, so long as they were able to come along too.
Posted at 07:16 by Howard Bashman



"20 questions" for the appellate judge and for the appellate law blogger: Today I will be dispatching my latest installment of "20 questions for the appellate judge" to the federal appellate judge who has kindly agreed to serve as the May 2003 interviewee. Coincidentally, as reported in more detail here, last night I received my own "20 questions" to answer from the good people at "The Academy" blog. At least they didn't ask me to weigh in on their debate about whether New York or Los Angeles is the better place to live. But nevertheless, their questions are quite entertaining. And my answers may be too -- time certainly will tell.
Posted at 07:11 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports here that "Former President Bush Joins Battle Over Judges; Funds Raised for Ads Targeting Democrats." An article about Zacarias Moussaoui's case is entitled "Justice Deems Secrecy Fears 'Unfounded.'" And you can access here an article entitled "Va. Prisoner Has Support in Innocence Claim; Prosecutor, Detective Back Him."

In The New York Times, Adam Liptak reports that "County Says It's Too Poor to Defend the Poor." And here's an article entitled "Phillip Morris Appeal Bond Is Cut in Half." Or at least the amount of the bond has been.

The Christian Science Monitor contains an article entitled "Fifty years after admitting women, law school hires woman dean." And you can access here an article entitled "New front in the tobacco wars: light cigarettes; Group of lawyers is filing more lawsuits challenging the industry's marketing claims, with some success."
Posted at 00:30 by Howard Bashman



"Moose to Appeal": The Associated Press provides this report.
Posted at 00:26 by Howard Bashman



Federal judicial confirmation news and commentary from here and there: The Copley News Service reported here on Friday that "Decision on Kuhl may tell future for court; 9th Circuit could get Bush nominee; others want split." On Sunday, Russ Pulliam of The Indianapolis Star had an op-ed entitled "Stay tuned for a good brawl over judicial nominations." Sunday's edition of The Courier-Journal contained an editorial entitled "The Bush judiciary." Elsewhere, Insight on the News magazine asked the question "Are the Democrats treating President George W. Bush's judicial nominees unfairly?" The magazine supplies separate yes and no answers. Finally, University of Chicago student Will Baude also offers some thoughts on this subject matter.
Posted at 00:11 by Howard Bashman



"Judge Rejects Class-Action in Microsoft Suits": Reuters offers this report. And you can access yesterday's ruling here.
Posted at 00:11 by Howard Bashman



Monday, April 14, 2003
"Loitering is aimless. Social protest is by definition purposeful." Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed an injunction prohibiting the use of a Virginia anti-loitering statute to arrest protestors. You can access the Fourth Circuit's ruling here.
Posted at 23:55 by Howard Bashman



Some notable Fourth Circuit occurrences: Fourth Circuit Judge Dennis W. Shedd today issued his first for-publication opinion since joining the court of appeals. And in other news, today the Fourth Circuit issued four separate opinions (here, here, here, and here) in cases that were pending before the same panel for more than two years after oral argument had occurred.
Posted at 23:50 by Howard Bashman



The story behind the story: The Governor of New Jersey was reportedly planning to nominate a female Hispanic to fill a vacancy that existed on the Supreme Court of New Jersey. Instead, he nominated an African-American male. According to an article that ran in Saturday's edition of The Newark Star-Ledger:
The selection of Coleman's successor has set off a bitter intra-party squabble among Democrats. Some are angry that the governor dropped his support of former Public Advocate Zulima Farber after learning that a bench warrant was issued for her earlier this year when she failed to pay a speeding ticket.

Some leading Democrats wondered whether McGreevey was simply looking for a reason to eliminate Farber. Several state senators wanted Coleman's seat to go to another African-American rather than Farber, who is a black Cuban-born American.
You can access this article here. Pay your speeding tickets and nanny taxes, potential judicial nominees.
Posted at 23:45 by Howard Bashman



Road trip? As "How Appealing" gains more and more readers in Alaska and Hawaii, I can't help but think that a road trip will soon be in order.
Posted at 23:41 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Scope of 'Miranda' Rule Up for High Court Discussion." And from New York comes word that "Spargo Chides Conduct Commission for 'Arrogance.'"

My monthly appellate column appeared in today's edition of The Legal Intelligencer and will be emailed tomorrow morning to those who have signed-up to receive it via email. This week's edition of the Fulton County Daily Report contains an article described as follows "Daily Report Lawmanac: The Daily Report contacted prosecutors, defense lawyers, law school librarians and attorneys representing many specialized interests and asked them for the Web sites they used most. Here are the results." According to an Atlanta-based reader of "How Appealing" who emailed me this morning, "You are listed under 'Appellate Law' in a listing of useful websites in today's Daily Report. Congratulations!" Cool.
Posted at 23:30 by Howard Bashman



Elsewhere in Monday's newspapers: In today's edition of The Washington Times, Frank J. Murray reports here that "Critics rule on renovation of courthouse." And an op-ed by Jacob Sullum is entitled "Can punitive damages be tamed?"

The Los Angeles Times contains an editorial entitled "A Sly Move by Sen. Hatch." And in USA Today, Tony Mauro has an op-ed entitled "U.S. fights unfairly in legal battles."
Posted at 23:22 by Howard Bashman



The U.S. Court of Appeals for the Third Circuit is conducting an online Electronic Case Filing Survey: You can access it here.
Posted at 23:12 by Howard Bashman



First Circuit today decides appeal involving James "Whitey" Bulger: Today the U.S. Court of Appeals for the First Circuit issued an opinion that begins:
Three individuals moved to intervene in a long-closed civil forfeiture action. They sought to assert claims to a one-sixth share of a $14.3 million winning state lottery ticket, still in payout, which had belonged to James "Whitey" Bulger. Two of the claimants, Olga Davis and Marion Hussey, are mothers of young women whom Whitey Bulger allegedly murdered in the 1980s; the other is one of his brothers, John Bulger.
James "Whitey" Bulger is on the FBI's ten most wanted list, and he is the brother of University of Massachusetts President William M. Bulger. Coincidentally, today's edition of The Boston Globe contains an editorial entitled "Questions for Bulger."
Posted at 23:02 by Howard Bashman



Strange cases call for strange measures: The U.S. Court of Appeals for the Ninth Circuit decided a case involving the mysterious Area 51 today. Senior Circuit Judge Harlington Wood, Jr., sitting by designation from the Seventh Circuit and sporting the highly-coveted triple asterisk, had this to say in a concurring opinion:
After oral argument in the successive appeal, I initially indicated my approval of the draft submitted by Judge Rymer. However, while the case was still pending, I viewed a History Channel documentary entitled "Area 51: Beyond Top Secret." I have sent the other panel members copies of this documentary. Ordinarily I would not consider something that appeared on the television and was not a part of the record. I recognize that the information contained in the video has not been confirmed or denied by the government, and this concurrence is not intended to vouch one way or the other as to its truth. I do, however, believe this documentary is pertinent. In the documentary, counsel for plaintiffs, Professor Jonathan Turley of George Washington University, makes the point that all he wanted for his clients in these cases was to gain knowledge that would aid in their treatment, and not a big money judgment against the government. I write separately to urge the government, now that these cases are concluded, to strongly consider releasing any information possible which might aid plaintiffs. That is unless, of course, there is no information which might help them, or if the disclosure of any helpful information that may exist would still risk significant harm to national security under the mosaic theory.
I say the entire panel should receive the X-Files series on DVD. (I, by contrast, continue to hope for The Complete Beavis and Butt-Head - 6 Volume Set.)
Posted at 22:31 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Breyer Discusses Terror War, Civil Rights." And you can access here an article entitled "U.S. Says Moussaoui OK for Civil Court."
Posted at 22:02 by Howard Bashman



Sealed for your protection: The U.S. Court of Appeals for the Fourth Circuit today decided the case of Under Seal v. Under Seal. Under Seal regrettably could not be reached for comment concerning whether it was pleased or disappointed with its victory and loss in the case.
Posted at 20:22 by Howard Bashman



"Judge Lowers Philip Morris Appeal Bond": Reuters has this report.
Posted at 18:24 by Howard Bashman



From the April 2003 edition of The American Lawyer: You can access here a very funny essay by Dahlia Lithwick entitled "Empty Bench: An exclusive advance transcript of the Senate's Judicial Confirmation Hearings, 2004." And Tony Mauro has an article entitled "Of Renewal and Recusal: Maine wants a free hand to rein in drug prices, but an arguably conflicted Court seems inclined to let the feds rein in Maine."
Posted at 12:03 by Howard Bashman



Debating President Bush's recent Eleventh Circuit nomination: Sam Heldman (begin here and scroll down) and the author of the blog "Southern Appeal" (see this post) have quite differing views about the merits of President Bush's recent nomination of Alabama Attorney General Bill Pryor to serve on the U.S. Court of Appeals for the Eleventh Circuit.

"Southern Appeal" also points to two items published in newspapers yesterday. Yesterday's edition of The Mobile Register contained an article entitled "Pryor's record: Ammunition or affirmation?" And yesterday's edition of The Tuscaloosa News contained an essay by Tommy Stevenson entitled "Pryor is a man to be respected as a judge."
Posted at 11:53 by Howard Bashman



"Confirmation Consternation: Justice Kennedy speaks out on judicial confirmation deadlock." Dahlia Lithwick has this essay just posted online at Slate. "Dahlia Lithwick" is also my answer to the "Trivial Pursuit" question "Why in April 2003 did the U.S. Supreme Court release the University of Michigan oral arguments audiotape on the day of the oral arguments, and why later that month did two U.S. Supreme Court Justices travel to the University of Virginia Law School to deliver speeches?"
Posted at 11:13 by Howard Bashman



"Chief justice speaks to law students at University of Virginia": The Associated Press provides this report, which proves that the University of Virginia School of Law was the place to be last week in order to hear speeches from more than one U.S. Supreme Court Justice. (Via "Jurist," now back online.)
Posted at 11:11 by Howard Bashman



"A Filibuster About Something vs. A Filibuster About Nothing": Byron York has this essay today at National Review Online.
Posted at 10:59 by Howard Bashman



"Lawsuit Says Rapper Killed to Hone 'Gangsta' Image": Reuters offers this report.
Posted at 10:20 by Howard Bashman



"Myths And Realities About Affirmative Action": Stuart Taylor Jr. has this essay online today at National Journal.
Posted at 09:24 by Howard Bashman



Who gets to decide the State of Georgia's litigation strategy in the Supreme Court of the United States? You can access Friday's ruling by Judge Constance C. Russell of the Fulton County, Georgia, Superior Court at this link. Thanks to a friend from Georgia for forwarding a copy of the decision to me, and thanks to the good folks at SCOTUSblog for hosting it online.
Posted at 08:38 by Howard Bashman



In Monday's newspapers: Today's edition of The New York Times contains an editorial entitled "Straitjackets for Judges." And The Washington Post contains an article entitled "Death Penalty Goes Nowhere In Md. Session."
Posted at 08:19 by Howard Bashman



Lyrics: The lyrics to "the judge song" -- a song whose actual title is "Appointed Forever" -- are available here, at the Greedy Clerks Board.
Posted at 08:16 by Howard Bashman



Sunday, April 13, 2003
U.C. Berkeley's Graduate School of Journalism panel on Weblogs, Information, and Society: If you missed the presentation live on Thursday night, you can watch the video online via a link that you'll find here. (Via "bIPlog.")
Posted at 23:33 by Howard Bashman



Tonight's music selection: "Sing For The Moment," by Eminem (Windows Media Player required).
Posted at 21:45 by Howard Bashman



"That gum you like is going to come back in style." Desuetude is one of my favorite words in the lawyer's vocabulary. And it's making a comeback in West Virginia, as Brian Peterson and Rory Perry are reporting. (This post's title courtesy of "Twin Peaks.")
Posted at 20:59 by Howard Bashman



Last night on C-SPAN's "America and the Courts": Last night's edition of C-SPAN's fine program "America and the Courts" featured "[p]ortions of last Wednesday's hearing on the Supreme Court's budget, where Justices Kennedy & Thomas appeared before a House Approps. Subcmte. They discussed the Court's annual budget request, its infrastructure, technological upgrades & staffing issues." You can watch the program online at this link (Real Player required).
Posted at 13:38 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports here (via The Associated Press) that "State Appeals Judge's Ruling in Dog Mauling." Another AP article is entitled "This Lawyer Lets Free Speech Do the Talking; Bob Herman, a Jew, has represented the KKK and a white supremacist. He doesn't want anyone's First Amendment rights stifled." And Edward Lazarus reviews the book "Wild Bill: The Legend and Life of William O. Douglas," by Bruce Allen Murphy.

The Boston Globe reports here that "SJC considers sports violence case." Business columnist Charles Stein has an essay entitled "States confront a necessity: 'evil.'" An editorial is entitled "Ashcroft v. Tobacco." And Jeff Jacoby has an op-ed entitled "Kerry's abortion litmus test."
Posted at 12:00 by Howard Bashman



Some judicial confirmation-related news and commentary from here and there: Yesterday's edition of The Daily Camera contained an article entitled "Getting the call: After a long wait, Broomfield attorney confirmed to U.S. Circuit Court." And somehow I managed to overlook a Denver Post editorial from April 3, 2003 entitled "Judge Tymkovich."

Today's edition of The Washington Times contains an op-ed by Steve Chapman entitled "Benchmarks of a bogus threat." The Tennessean today reports that "First 100 days bring mixed results for leader Frist." Yesterday, Reuters reported here that "Bush Wins in War, Takes Hit on Domestic Agenda." And today's edition of The Free Lance-Star contains an op-ed by Peter Wood entitled "Country would do well to abandon 'diversity.'"
Posted at 11:55 by Howard Bashman



In Sunday's newspapers: The New York Times reports here that "South Jersey Judge Is Nominated for State Supreme Court." In golf news, "Augusta National Protesters (Pro and Con) Have Their Day." From New York comes word that "Case for a Tougher Bar Exam Prompts a Forceful Rebuttal." The Week in Review section contains an item entitled "Analyze This: Vincent Gigante, Not Crazy After All Those Years." And in letters to the editor, you can access here a letter entitled "Judges' Life Experience" and here a letter entitled "Case of Five Cubans."

The Washington Post reports here that "Protest Draws Little Support; Burk Backers Find Small Turnout at Augusta Demonstration 'Discouraging.'" And columnist George F. Will has an op-ed entitled "Burning to Regulate Expression."
Posted at 00:10 by Howard Bashman



Saturday, April 12, 2003
This makes me sad: Andrew Raff reports on "End of Free at NYT."
Posted at 21:16 by Howard Bashman



A report on Ninth Circuit Judge Diarmuid F. O'Scannlain's speech earlier in the week at the University of Chicago Law School: Here, via the blog "another 1L."
Posted at 20:31 by Howard Bashman



In Sunday's edition of The New York Times: Sunday's edition of The New York Times contains a book review entitled "'Wild Bill': Dirty Rotten Hero." The book being reviewed is "Wild Bill: The Legend and Life of William O. Douglas," by Bruce Allen Murphy. My favorite review of this book remains the one by Seventh Circuit Judge Richard A. Posner.

Sunday's NYTimes also contains the latest Education Life section. It features two articles about the University of Michigan racial preferences in student admissions cases: "Where Race Matters" and "The Man Behind the V."
Posted at 13:19 by Howard Bashman



"$53.5 million sought for federal courthouse": Today's edition of The Greenville News contains this report.
Posted at 11:08 by Howard Bashman



"Scalia Attacks 'Living Document' Interpretations of Constitution": From the University of Mississippi's newsdesk comes this report. (Via "The Ole Miss Conservative.")
Posted at 11:03 by Howard Bashman



"Perdue loses suit against Baker": Today's edition of The Atlanta Journal-Constitution contains this report about which Georgia official will control that State's litigation strategy in a case pending before the U.S. Supreme Court.
Posted at 10:58 by Howard Bashman



In Saturday's newspapers: The Boston Globe reports here that "SJC ruling is end of the legal line for F. Lee Bailey." And yesterday's edition contained an article entitled "Romney sends White House 13 choices for US judgeship; Six state judges on the list for District Court seat."

The New York Times reports here that "Lawyers for Sniper Suspect Raise Issue of Chemical Exposure." And from Detroit comes an article entitled "Chilling Testimony and Questions About the Man Offering It."

The Washington Times reports here that "Senate panel approves curbs on class-action suits." And in other news, "Justice seeks end to slavery-tax scam."

Today's edition of The Washington Post reports here that "Fairfax Police, FBI 'Tricked' Malvo, Attorneys Claim; Questioning Said to Violate Rights."

Today's edition of The Los Angeles Times contains an article entitled "'How Not To' Book Taxes IRS; U.S. says 'The Federal Mafia' encourages filers to claim no income. Judge weighs a halt to promotion and sale of the guide." From yesterday's newspaper, you can access here an article entitled "Crime Bill Passes Easily in Congress; Measure includes expansion of Amber alert system. Rehnquist assails sentencing changes, saying they 'would do serious harm.'" An article reported that "Inmate on Death Row Gets Reprieve." In other news, "Court Blocks Easing of 'Dolphin Safe' Tuna Labeling Rules; Federal judge attributes Bush policy change mainly to international trade concerns. Environmentalists applaud the injunction." And an op-ed by the senior vice president and deputy general counsel at R.J. Reynolds Tobacco Co. appeared under the headline "Anti-Tobacco Ads Don't Educate; They Just Vilify."
Posted at 10:20 by Howard Bashman



Say hello to the new law.com homepage: It looks great.
Posted at 10:15 by Howard Bashman



Friday, April 11, 2003
Associate Justice William W. Bedsworth's latest column is available online: You can access it here. I haven't read it yet, but chances are it's funny. (Thanks to the blog "WeirdOfTheNews" for the pointer.)
Posted at 22:31 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court: Atheist Can Pray at City Meeting" (reporting on this opinion that the Supreme Court of Utah issued today) and here an article entitled "Malvo Lawyers Want Confession Tossed Out."
Posted at 22:28 by Howard Bashman



"Bush Nominates Bea for Ninth Circuit Judgeship": Jason Hoppin of The Recorder has this report. This nominee is now sixty-eight years old.
Posted at 22:18 by Howard Bashman



Expect no progress toward the merit selection of appellate judges in Pennsylvania anytime soon: Today, in my capacity as co-chair of the Philadelphia Bar Association's appellate courts committee, I had the pleasure of hosting a luncheon meeting at which President Judge James Gardner Colins of the Commonwealth Court of Pennsylvania was the guest.

Although both Governor Ed Rendell and his Republican rival endorsed "merit selection" of state appellate judges, I have seen no progress toward that goal since inauguration day. As a result, I asked President Judge Colins whether he expected to see progress toward "merit selection." His answer was a resounding "no."

In a nutshell, Pennsylvania's Constitution must be amended to switch from elected judges to a system of "merit selection," and a proposed constitutional amendment must first be approved by Pennsylvania's legislature before appearing on the ballot for a vote by the electorate. The Republican party has a majority in both houses of Pennsylvania's state legislature, and in the past several judicial election cycles, Republican candidates for appellate court positions have triumphed. Thus, there is no incentive for the legislature to allow the electorate to vote up or down on a constitutional amendment. So perhaps now is a good time for me to point again to my September 2001 appellate column, entitled "Pennsylvania Should Keep, But Reform, Its System Of Electing Appellate Judges."
Posted at 20:14 by Howard Bashman



"Florida Judge Must Apologize for Remarks": Earlier today I linked to this AP article. Thanks to a reader from Florida, I can now link to the Florida Supreme Court's decision in the matter.
Posted at 20:04 by Howard Bashman



"Georgia Gov. Loses Redistricting Fight": The Associated Press offers this report.
Posted at 20:02 by Howard Bashman



"Vanishing Liberties: Where's the Press?" Nat Hentoff has this essay today at The Village Voice. And James Ridgeway has a piece entitled "Throwing the Book at Us; FBI Snoops at Libraries."
Posted at 18:07 by Howard Bashman



An email from a reader at the Harvard Law School entitled "What's a Federalist to do?": I just received the following email:
Today at HLS conservatives and libertarians faced quite a choice: Judge O'Scannlain and Assistant Attorney General Viet Dinh both gave talks on campus at 3:00. Before the talks there was also a conservative dream team assembled at John Harvard's (restaurant) down in the Square: Judge O'Scannlain went out for lunch with Federalist Society members, and while there the group was only a couple tables away from Viet Dinh's table, where he was lunching with the campus GOP and Professor Charles Fried.

In any event, I attended Judge O'Scannlain's talk, in which he made a good case for splitting the 9th Circuit. His four reasons for doing so are decisional inconsistency, lack of accountability, its increasing resemblance to a legislature, and the delay of justice. On the third point, he lamented the lack of opportunity for collegiality with such a large number of judges.

In the Q&A time afterward, he spoke to one of your concerns: unpublished opinions. He said he supports the practice, for two reasons: for most cases, "there's nothing there" (i.e. it's a straightforward question of applying law to fact), and there's not enough of interest to the bar. However, he says he favors the exemption whereby parties can petition for court recognition of an unpublished opinion.

In a lighter moment, when asked about whether the fact that judicial salaries are much lower than what judges could make elsewhere, he said the salaries tend to discourage one sector of possible appointees: "the successful practitioner." He followed that with a pregnant pause, leaving it up to the audience to decide whether that statement was a reflection on his time in private practice.

As for what Assistant A.G. Dinh had to say on "Unity in Diversity: An Affirmation of Our Core Values" (see this link), I can't tell you.
Thanks so very much for that thorough and interesting report.
Posted at 17:11 by Howard Bashman



This news just in from Georgia: You can access here an article from The Atlanta Journal-Constitution that begins, "A Fulton County judge ruled Friday afternoon for Democratic Attorney General Thurbert Baker in his constitutional struggle with Republican Gov. Sonny Perdue. Perdue brought suit in Superior Court against Baker to try to force the attorney general to drop a redistricting lawsuit pending before the U.S. Supreme Court."
Posted at 17:00 by Howard Bashman



Dogs named "Poopi" don't make for good plaintiffs: Thanks to the reader who emailed to draw to my attention a fairly recent opinion from Ohio's Second District Court of Appeals that begins, "This is the story of 'Poopi,' a dog who tried to sue for emotional distress and failed."
Posted at 16:58 by Howard Bashman



Another first-hand report on Justice Antonin Scalia's speech yesterday: Here, via the blog "The Ole Miss Conservative."
Posted at 16:53 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Senate Panel OKs Class-Action Bill"; here "Groups Ask Court to Open Moussaoui Files"; here "Sniper Suspect May Have Faced Nerve Agent"; and here "Florida University Shuts Student Paper."
Posted at 16:43 by Howard Bashman



Pronouncing URL, part three: A reader emails:
You'll be happy to know that in my office, which is chock full o' geeks, we all say URL like you do. We even use it as a verb, as in "Have you seen this interesting website? Which one? Just URL me."

So, you may be alone in Philly, but there are a couple of us here in DC who support you.
And I'm pleased to report that this reader's return email address confirms his self-proclaimed geeky identity.
Posted at 16:40 by Howard Bashman



"Senate Sets Vote Date For Federal Judicial Nominee": The Columbus Dispatch has this report from The Associated Press.
Posted at 16:33 by Howard Bashman



In the news: The Chicago Tribune reports here that "Court rips college for censoring paper; Appeals panel decides against Governors State" and The Chicago Sun-Times reports here that "Campus editors win right to sue."

In other news, today's edition of Newsday reports here that "Playboy Settles 'Sex Court' Suit; Jury leaned toward underdog Web maven."
Posted at 16:05 by Howard Bashman



Michigan law requiring drug testing of welfare parents isn't exactly voided: A reader who requests total anonymity emails to say:
I'm not sure why the order isn't up yet -- it's very short (2 pages). NYT and AP have it totally wrong as far as I can tell. The law is not voided.

This is the procedural posture: District court enters order enjoining Michigan from drug-testing welfare recipients; 6th Circuit panel reverses and vacates injunction; Evenly divided en banc court merely affirms the judgment of the district court. Sooooo, the preliminary injunction is upheld. I assume there will be more activity regarding the merits of the constitutionality of the law if Michigan decides to fight.

As an aside, this case is totally fascinating. It really gets to the heart of the conservative/libertarian split.
You can access my post on this matter from last night at this link.
Posted at 15:45 by Howard Bashman



The cheese stands alone: It turns out that I may be in the minority in my bad habit of pronouncing URL as though it rhymes with something one might do after consuming a particularly unpleasant meal. A law clerk from the Sixth Circuit writes, in response to this post of mine from last night:
Thanks for your blog; I learn from it almost daily.

In response to your question, where I come from tech savvy folks pronounce "URL" like "you are L," not "Earl." How do you Northerners pronounce IRS or CIA by the way?
But some acronyms are pronounced like words, such as ERISA, CERCLA, FOIA, sometimes AEDPA, and everyone's favorite (via my colleague from down the hall) ISTEA (pronounced "ice tea," acronym for the Intermodal Surface Transportation Efficiency Act of 1991). Moreover, a rule that the first letter in an acronym needs to be pronounced just like it sounds in the first word being abbreviated doesn't work, as CERCLA demonstrates. (The title of this post courtesy of "The Farmer in the Dell.")
Posted at 15:16 by Howard Bashman



Be sure not to give away the ending: My monthly appellate column for April 2003 will be published in The Legal Intelligencer on Monday, April 14th, and its title -- "When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How" -- appears to violate the cardinal principle announced in this post's title. Anyone who would like to sign-up to receive free email delivery of my monthly appellate column in PDF format can easily do so at this link.
Posted at 15:08 by Howard Bashman



"Supreme Court reprimands judge": Today's edition of The Orlando Sentinel contains this report.
Posted at 15:03 by Howard Bashman



Eleventh Circuit nominee Bill Pryor is "Judge Unfriendly"? Today's Washington Post editorial opposing the nomination of Alabama Attorney General Bill Pryor to serve on the U.S. Court of Appeals for the Eleventh Circuit led me to recognize the remarkable similarity between the positions attributed to Pryor and those I attributed to the hypothetical "Judge Unfriendly" in my December 2002 monthly appellate column, which was entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" I guess that so long as Pryor gives the correct answers at his confirmation hearing, I've already committed to a position on his nomination.
Posted at 14:59 by Howard Bashman



"Alliance for Justice Outraged Over Alabama Attorney General Pryor's Nomination to 11th Circuit": The Alliance for Justice issued this press release on Wednesday. (Thanks to Rick Hasen for pointing me to some liberal outrage to balance the conservative outrage expressed in the preceding post.)
Posted at 14:49 by Howard Bashman



"Outrage: Senate Democrats to Filibuster Owen": The Committee for Justice yesterday issued this press release. For what it's worth, the U.S. Senate last night did confirm by a vote of 72-24 someone with the middle name "Owen" (roll call vote available here).
Posted at 14:05 by Howard Bashman



"Scalia defends legal views": Today's edition of The Daily Mississippian has this report on Justice Antonin Scalia's speech yesterday at the University of Mississippi School of Law. And today's edition of The Clarion-Ledger contains an article entitled "Scalia: 'Living Constitution' could mean less freedom." A report on Justice Scalia's speech yesterday from an embedded "How Appealing" reader who was in attendance appeared here on this blog last night.
Posted at 10:44 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Univ. of Michigan Diversity Discussed"; here "Judge Sentences KKK Members to Prison"; here "Florida Judge Must Apologize for Remarks"; and here "Judge Upholds 'Dolphin-Safe' Definition."
Posted at 09:56 by Howard Bashman



In Friday's newspapers: In The New York Times, Jennifer 8. Lee has an article entitled "Attack on Judicial Nominee Leads Senate Panel to Delay Vote." An article reports that "Court Is Urged to Restore Material Witness Law." In other news (be sure to check out the URL in the context of this article), "Suit Says Refusal to Fire Unattractive Woman Led to Dismissal." And letters to the editor run under the headings "A Diverse Future"; "Excesses in Court"; and "Same Rules for All."

The Washington Post reports here that "Moussaoui Can't Offer Argument In Appeal; Court to Consider Access to Witness." You can access here an article entitled "Death Penalty Rejected in Deadly 1986 Hijacking of Plane." U.S. Supreme Court correspondent Charles Lane's column today is entitled "On Second Thought . . ." An article reports that "Congress Approves 'Amber Alert' System; Bill Also Heightens Sex Offense Penalties." In local news, "Defense May Target Malvo Interrogation." And an editorial entitled "Unfit to Judge" criticizes President Bush's recent nomination of Alabama Attorney General Bill Pryor to the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 09:33 by Howard Bashman



Thursday, April 10, 2003
Elsewhere in Thursday's newspapers: Joan Biskupic of USA Today has an article entitled "O'Connor pauses to reflect on 'The Majesty of the Law.'" And in today's debate: "Court makes fine distinction" versus "'Speech' intends to harm."

The Los Angeles Times contains an article entitled "College Diversity Feared at Risk." And from the golf world, you can access here a report entitled "Federal Appeals Court Blocks Burk; Three-judge panel backs ruling that says protest can't be held at the gates of Augusta National" and here a report entitled "This Protester Put Issue in Black and White."

Finally for now, yesterday's edition of The Wall Street Journal contained an editorial entitled "Punitive Damage Repairs" and an op-ed by Law Professor Eugene Volokh entitled "Burning to Say Something."
Posted at 22:14 by Howard Bashman



"Congress Passes Amber Alert System": The Associated Press tonight provides this report. Additionally, The AP furnishes this list of "Amber Alert Provisions."
Posted at 21:31 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "11th Circuit Nominee Draws Immediate Criticism." In news from the Second Circuit, "U.S. Attorney Defends Detention of Material Witness for 9/11 Proceeding." And an article explains that "Judges Agree That Politics Is Crucial on Road to Bench."
Posted at 21:28 by Howard Bashman



Victory for the free speech rights of college journalists: The U.S. Court of Appeals for the Seventh Circuit today delivered its much anticipated ruling in the Governors State University case, which has been described as "The Next Battle for College Press Freedom." You can learn more about the case here and here.
Posted at 21:19 by Howard Bashman



"Perverse and absurd statutory interpretations are not to be adopted in the name of literalism; they merely show the limitations of literalism as a mode of interpretation." Seventh Circuit Judge Richard A. Posner has that to say, and more, in this decision issued today.
Posted at 21:08 by Howard Bashman



A ban on Internet access "is the early 21st century equivalent of forbidding all telephone calls, or all newspapers": That quote originates from Circuit Judge Diane P. Wood's opinion today on behalf of a unanimous three-judge Seventh Circuit panel. Judge Wood's opinion begins: "[The defendant] is an information system technologist. He is before us now because he downloaded onto his home computer more than 100,000 pornographic images, approximately 10 to 20 percent of which depicted underage children engaged in sexually explicit activity."
Posted at 21:03 by Howard Bashman



Justices speak: Anne Gearan of The Associated Press reports here, in an article entitled "Supreme Court Justice Warns on Nominees," on a speech that Justice Anthony M. Kennedy gave today at the University of Virginia School of Law. Expect the law school to post its own report on the speech here sometime soon.

Meanwhile, today also was the day that Justice Antonin Scalia delivered a speech at the University of Mississippi School of Law. Yesterday's edition of The Daily Mississippian contained this preview. I'm pleased to report that a reader of "How Appealing" was present for Justice Scalia's speech this afternoon and forwards this report:
The speech was his standard one on constitutional interpretation. He explained his originalist philosophy and challenged his audience to come up with a coherent counter jurisprudence that made as much sense. He explained that the court in the last 50 years has embraced the idea of the "living constitution" by "making up" new rights under the Bill of Rights (here he mentioned the confrontation clause and the child abuse case and the 4th Amendment and wiretapping) and the concept of substantive due process (mentioned abortion and made fun of the idea that grandparents should have the right to see their grandchildren or that there is a right to suicide). His basic premise was that if something is not within the original text of the Constitution, as that text was understood in 1791, it's not protected by the Constitution. Whether a policy should be implemented outside of the constitution is up to the legislature. He pointed to the increased political nature of confirmation battles as proof that the Supreme Court is no longer a legal body interpreting a text, but a political body made up of policymakers who make up the living constitution as they go (he should, given his political decision in Bush v. Gore).

As always, his talk was equal parts fiery, funny and provocative. And for me, unconvincing. BTW, he was well received at conservative Ole Miss by about 1000 people in the audience.

P.S. I did not get invited with Pickering, Scalia et. al. on the ol' turkey hunt.
Well, I can see why not. But seriously, thanks so much for that entertaining (if not entirely impartial) account.
Posted at 20:41 by Howard Bashman



Attention Sixth Circuit: The Associated Press reports here, in an article entitled "ACLU Hails Ruling on Welfare Drug Tests," that the en banc U.S. Court of Appeals for the Sixth Circuit issued a ruling which reversed a panel opinion that I first reported on here moments after its issuance on October 18, 2002. For whatever reason, the en banc opinion (as best I can tell) hasn't yet been made available online at the Sixth Circuit's Web site. Of course, this still doesn't come anywhere close to the Sixth Circuit en banc peculiarities reported on here and here.

Update: A reader points out via email that The AP's report is quite misleading and draws to my attention an article entitled "Law Requiring Drug Testing of Welfare Parents Is Voided" by New York Times reporter Adam Liptak in which Liptak explains that the Sixth Circuit's en banc affirmance was by an evenly divided court. Now, I'd still prefer that the order noting the evenly divided affirmance be posted to the Web site where the original three-judge panel's opinion appeared, but at least this perhaps explains why it hasn't yet appeared there.
Posted at 20:19 by Howard Bashman



Does the presence of another's trademark in the post-domain path of an URL violate trademark law? If that's gobbledygook to you, then may not be interested in this ruling that the U.S. Court of Appeals for the Sixth Circuit issued today. The court's opinion explains: "Apparently, the present case marks the first time a circuit court has considered the issue of whether the presence of another's trademark in the post-domain path of a URL violates trademark law." And the court remarks: "Because post-domain paths do not typically signify source, it is unlikely that the presence of another's trademark in a post-domain path of a URL would ever violate trademark law." By the way, am I the only one who prefers "an URL" to "a URL" (Dixie Chicks excluded)?
Posted at 20:00 by Howard Bashman



An anonymous but quite humorous correspondent emails to ask "Is Justice Kennedy a Kabbalist?" The email states:
The naive and uninformed reader might be somewhat puzzled by the Supreme Court's recent opinion in State Farm Mutual Automobile Insurance Co. v. Campbell. In that case, the Court concluded that the Due Process clause limits punitive damages awards to multipliers of less than 10. The first source of the reader's puzzlement might be that the Due PROCESS clause would contain such a substantive limitation. The second source of puzzlement might be the fact that Justice Kennedy came up with a particular number. Where, the reader might think to himself or herself, did Justice Kennedy come up with that number? Thousands and thousands of attorneys and judges have been reading this clause for hundreds of years, but nobody has found the number 10 contained in it.

I have some guidance for the perplexed reader that can answer these questions: Justice Kennedy is a kabbalist. A kabbalist is someone who believes in or practices Kabbalah—a form of Jewish mysticism (although lately it has become rather trendy and includes many people who aren't Jewish). One of the aspects of Kabbalah (known as "gematria") is the belief that the letters of the Hebrew alphabet also serve as numerals and they provide a method of reading novel and unexpected meanings into a text.

This helps explain the State Farm opinion. One problem, however, is that unlike Hebrew, English letters do not have a particular numerical value. Justice Kennedy has apparently solved this problem by counting each letter as having the value of one.

How does this explain the opinion? "Due process" has 10 letters. Justice Kennedy concluded that the "due process" clause contains the number 10 when it comes to punitive damages cases. This explains how Justice Kennedy was able to discern a particular number, even though many thousands before him did not.

This explanation provides a new and potentially very fruitful way of looking at the Constitution. Already there is much talk about the Constitution's "structure." Isn't the number of letters in a word part of the Constitution's "structure"? Don’t letters "build" a word, which in turn helps to "build" phrases, and clauses, and so on?

Suppose the question before the Court is whether the President or Congress should prevail on a war powers issue. That is easy--the President (9 letters, equaling the number 9) would prevail over Congress (8 letters, equaling the number 8). One can easily imagine how this would apply to other constitutional issues.

Thank you Justice Kennedy, for helping us to see what many thousands of others have not been able to discern.
And thank you, anonymous reader, for sending this along.
Posted at 19:07 by Howard Bashman



Should a criminal defendant be prohibited from defending himself without counsel in a death penalty prosecution? Three Justices of the California Supreme Court appear to think so -- including possible U.S. Supreme Court nominee Janice Rogers Brown -- while recognizing that binding U.S. Supreme Court precedent requires a ruling to the contrary. Today's decision, which contains a noteworthy concurring opinion, is accessible here. Update: The Associated Press has this report on the ruling.
Posted at 18:59 by Howard Bashman



D.C. federal district court bars federal government from seeking death penalty for person alleged to have hijacked Pam Am flight 73 in September 1986: The hijacking resulted in the death of an American citizen. You can access today's ruling -- which holds that applying the federal death penalty statute would "violat[e] retroactivity principles and the Ex Post Facto clause of the Constitution -- at this link.
Posted at 18:51 by Howard Bashman



"Moussaoui Banned From Closed Hearing": The Associated Press has this news from the U.S. Court of Appeals for the Fourth Circuit.

In related news, a correspondent who requests anonymity has this report on an oral argument that occurred today before the U.S. Court of Appeals for the Second Circuit:
I don't know how much you've been paying attention to this case, but the Second Circuit held oral arguments today in United States v. Awadallah. Awadallah was one of many Arab men arrested on material witness warrants in the immediate aftermath of September 11th. The District Court (Shira Scheindlin, J.) held that the material witness statute, 18 USC 3144, does not apply in the grand jury context. In other words, the government cannot arrest people as material witnesses to grand jury investigations. Some months later, another district court (Michael Mukasey, C.J.) held exactly the opposite. Anyway, the arguments were lively, with the United States Attorney himself (James Comey) appearing on behalf of the government. In the end, however, a full exegesis isn't warranted -- the court made perfectly clear that it had absolutely no intention of reaching the question of statutory construction. Both defense and government urged the court to reach that broad question, and were given permission to submit supplemental briefing on the question of "whether the court would be justified in reaching" that question, but it seems certain that they won't. Oh well, perhaps the Ninth Circuit will get the Mike Hawash case on habeas. (see here for the story, here for the commentary, here for the detention order).
Thanks much for that report.
Posted at 18:46 by Howard Bashman



Some judicial confirmation news: Thanks to all who sent along emails today in response to the post immediately below. Remember back on January 17, 2003 when the Senate Judiciary Committee held a single confirmation hearing for three federal appellate court nominees? Well, as I reported here last night, Sixth Circuit nominee Jeffrey S. Sutton's nomination has been scheduled for a vote from the full U.S. Senate on April 29, 2003 (see page 2 of this PDF file for the unanimous consent agreement). Today an agreement was reached to hold another Judiciary Committee hearing for D.C. Circuit nominee John G. Roberts, Jr. after the Senate returns from its April recess. Sixth Circuit nominee Deborah L. Cook will not have to undergo another Judiciary Committee hearing, but it's not yet clear whether the full Senate's vote on her nomination will follow the second Roberts committee hearing or will occur sooner.

In other news, The Mobile Register reports here that "President Bush nominates Bill Pryor for federal judgeship; Alabama attorney general hailed by Republicans but could face tough battle for Senate approval." The Birmingham News reports here that "Bush nominates Pryor for federal appeals bench." And The Times Daily reports here that "Bush nominates Pryor for judgeship."

Yesterday's edition of The Dallas Morning News contained an article entitled "Senate debate on Owen nomination may be long. Both parties plotting strategies; will Texas judge be filibustered?" And yesterday United Press International reported here that "The drive to win confirmation for Miguel Estrada, whom the president has nominated for a seat on the U.S. Court of Appeals for the D.C. Circuit, is increasing in its intensity and spreading out across the nation."
Posted at 18:16 by Howard Bashman



I'm going to prison: But just visiting, thankfully. I will be spending most of the day today driving approximately 450 miles round-trip to visit an appellate client who is incarcerated some seventy miles east of Pittsburgh. Neither blogging from behind bars nor blogging while driving has caught on yet, and thus "How Appealing" will be mercifully update-free for most of the day. If you spot news or new appellate opinions of interest while I'm away, send me an email, and I'll do my best to catch up ever so gradually on my return to the blogosphere.

Update (6 p.m.): Some 474 miles and nearly $20 in tolls to the Pennsylvania Turnpike Commission later, I'm pleased to say that I've made it back safely and soundly to the keyboard.
Posted at 00:36 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Pa. High Court Hears Alimony Case" and here an article entitled "Martha Burk Loses Masters Protest Appeal."
Posted at 00:22 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "Family's Killer Dies in Va. Electric Chair." And The Christian Science Monitor contains an editorial entitled "Jackpot Judgments."
Posted at 00:15 by Howard Bashman



Wednesday, April 09, 2003
Available online at law.com: Tony Mauro reports here that "Sentencing, Clerkships Discussed at High Court Budget Hearing." C-SPAN2 plans to broadcast the hearing at 3:14 a.m. eastern daylight time Thursday morning, so get your VCRs and TiVos ready. In other news, an article reports that "'Dirty Bomber' Questions Get Quick Appeal." You can access here an article entitled "Foes of Limits on Sentence Departures Make Headway; Attorneys, judges object to restrictions tacked on to Amber Bill." And from California comes news that "Supreme Court to Mull Coastal Panel's Makeup."
Posted at 23:14 by Howard Bashman



"Soon to Be a Major New York Times Correction: A New York Times editorial gets a Supreme Court decision exactly wrong." David Tell offers these thoughts today online at The Weekly Standard. Pray tell what he would say about an article entitled "'Burning Crosses' Splits US Jury" from The Times of London.
Posted at 22:51 by Howard Bashman



"Kennedy: Too Many People Are Behind Bars": Anne Gearan of The Associated Press has this report. The Kennedy in question is Justice Anthony M. Kennedy, speaking along with Justice Clarence Thomas today to a subcommittee of the House Appropriations Committee.
Posted at 22:44 by Howard Bashman



"Pot bongs legal": Bob Egelko of The San Francisco Chronicle has this report in today's newspaper. You can access yesterday's ruling of the California Court of Appeal, Fourth District, at this link. Atlanta Braves pitcher Jung Bong could not be reached for comment on the ruling.
Posted at 22:37 by Howard Bashman



Full U.S. Senate to vote on Jeffrey S. Sutton's nomination to the Sixth Circuit on April 29, 2003: I am reliably advised that an agreement was reached today pursuant to which the full U.S. Senate on Tuesday, April 29, 2003 will vote on the nomination of Jeffrey S. Sutton to serve on the U.S. Court of Appeals for the Sixth Circuit. This is excellent news for Sutton, whose nomination I publicly endorsed way back in June 2001 (at the close of that month's installment of my monthly appellate column).
Posted at 19:10 by Howard Bashman



"Padilla case going to appeals court; Issues include enemy combatant status": CNN.com offers this report.
Posted at 17:06 by Howard Bashman



"Pryor nominated to court bench": The Montgomery Advertiser has this report. And although the nomination is only hours old, a contributor to the blog "Demagogue" (hey, that rhymes) is already "preparing for battle" against it.
Posted at 15:20 by Howard Bashman



From today's issue of The Hill: You can access here an article entitled "Senate's 'holds' rule scrutinized," and Byron York's column this week is entitled "Democrats complain, but they refuse to be consulted."
Posted at 14:15 by Howard Bashman



Trial judge allows federal government's interlocutory appeal to Second Circuit in "dirty bomber" case: The Associated Press has this report.
Posted at 14:05 by Howard Bashman



"'Sex Court' Dispute Gets Day Before Real Judge": And in federal court, no less. Today's issue of Newsday contains this report. (Via "Obscure Store.")
Posted at 13:57 by Howard Bashman



"Dems aim to down 2 judges": Today's edition of the New York Daily News contains this article.
Posted at 13:19 by Howard Bashman



Gone but not forgotten: Several readers have emailed today to note that the link to the appellate court's opinion in my post below entitled "After thirteen identical reversals in thirteen years, an appellate court can begin to get perturbed with the trial court judge" is no longer working. Although I have no answer for why that is so, an industrious reader has turned up this link to the Microsoft Word version of the opinion. Get it while it still works.
Posted at 12:50 by Howard Bashman



Some newly released U.S. Supreme Court transcripts: The Supreme Court of the United States has posted to its Web site oral argument transcripts for the week of March 24, 2003. One that some may find to be particularly of interest is the transcript in Lawrence v. Texas.
Posted at 12:46 by Howard Bashman



Fifth Circuit holds that one-year outer time-limit for removing diversity case to federal court is subject to "equitable exception": According to the Fifth Circuit's opinion (accessible here), no other federal appellate court has ever resolved this issue, although the Eleventh Circuit once endorsed the opposite conclusion in dicta. Federal district courts, meanwhile, are split on the question.
Posted at 12:41 by Howard Bashman



President Bush today has nominated Alabama's Attorney General to serve on the U.S. Court of Appeals for the Eleventh Circuit: You can access today's announcement -- which also includes several federal district court nominations -- at this link. Some readers of "How Appealing" may recall that I first linked to a news report about the possibility of this Eleventh Circuit nomination back on January 5, 2003.
Posted at 11:49 by Howard Bashman



Conjunction junction: Footnote three to an opinion that the U.S. Court of Appeals for the Sixth Circuit issued today begins:
We note that this court has not been altogether consistent on the standard for overturning erroneous jury instructions. According to Westlaw, there have been forty-two cases in which we have stated that we will overturn jury instructions only if they are "confusing, misleading, and prejudicial." See, e.g., United States v. Kone, 307 F.3d 430, 435 (6th Cir. 2002) (italics added). However, again according to Westlaw, there have been eighty cases where we have stated that we will overturn jury instructions when they are "confusing, misleading, or prejudicial." See, e.g., Toth v. Grand Trunk R.R., 306 F.3d 335, 351 (6th Cir. 2002) (italics added). This semantic difference has real importance in this context, where we recognize that the jury instructions below were confusing and misleading (indeed, they were flatly incorrect), but not prejudicial.
As it turns out, the rule applied in the vast majority of cases, which used the "or" formulation, was based on a typo. Too funny.
Posted at 10:47 by Howard Bashman



Too bad "How Appealing" doesn't hold caption contests: The Harvard Crimson supplies this photograph from yesterday's gun-related debate at the Harvard Law School.
Posted at 10:42 by Howard Bashman



"Congress Set to OK National Amber Alert": The Associated Press has this report on proposed legislation containing a few other features not mentioned in the headline.
Posted at 10:27 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times reports here that "Senate GOP seeks to end deadlock on judge." From The Associated Press comes a report that "Killer chooses electrocution to protest." An editorial is entitled "A reasonable ruling." And Chris Jolma has an op-ed entitled "No license for life."

The Los Angeles Times reports here that "Attorneys Scramble to Highlight Damage Ruling; Corporate lawyers work the high court's decision into pending lawsuits. Consumer advocates fear a chilling effect." Bloomberg News supplies two reports: "Philip Morris May Not Have to Post a $12-Billion Bond"; and "Schering Seeks Return of Claritin Patent." An editorial is entitled "Threat to Class Actions." And Arianna Huffington has an op-ed entitled "Affirmative Action? Lose the Drug Task Forces."

Finally for now, today's edition of The Boston Globe reports here that "Kerry vows court picks to be abortion-rights supporters."
Posted at 10:04 by Howard Bashman



"Democrats Block Vote On Bush Court Nominee": Today's edition of The Washington Post contains this report.
Posted at 09:29 by Howard Bashman



"Federal judges' sentencing flexibility may be cut; Bush administration backs amendment to set punishment in crimes against kids." Today's edition of The Sacramento Bee contains this article.
Posted at 09:26 by Howard Bashman



"Expert Panel Debates Gun Control": Today's edition of The Harvard Crimson contains this report.
Posted at 09:10 by Howard Bashman



"Fast ruling likely on legal struggle; Perdue, Baker claim final authority": Today's edition of The Atlanta Journal-Constitution contains this article.
Posted at 06:20 by Howard Bashman



"U.S. Appeals Court Throws Out AT&T Slamming Fine": Reuters has this report. You can access yesterday's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 00:30 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Barry Meier reports that "Judge Considering Options for Philip Morris Bond." And from Augusta comes word that "Burk Appeals Protest Ruling."

The Washington Post reports here that "Judge Orders Release of Two Denver Men In Terror Probe; Ruling Says U.S. Failed to Prove Pakistanis Are Potential Terrorists." An editorial is entitled "Legal Services Spared." And a letter to the editor from the President of the U.S. Court of Federal Claims Bar Association runs under the heading "A Court of Necessity."

The Christian Science Monitor contains an editorial entitled "Limits on Cross Burning."
Posted at 00:10 by Howard Bashman



Tuesday, April 08, 2003
Available online at law.com: Jonathan Ringel reports that "Judge Gets Tough Over Georgia Redistricting Fight; Probing questions 'harass' lawyers; decision expected 'very quickly.'" From California, Jason Hoppin reports that "Memo Airs AG's Angst Over the ADA." The memo in question can be read here. Finally for now, you can access here an article entitled "1st Circuit: Boston Overcorrected for Past Fire Department Biases."
Posted at 23:51 by Howard Bashman



Additional news coverage of yesterday's Ten Commandments oral argument in the U.S. Court of Appeals for the Third Circuit: The Daily Local News of West Chester, Pa. reports here that "Panel hears arguments in plaque case." And NEPA News reports here that "Judges contemplate legality of Ten Commandments plaque on county courthouse."
Posted at 22:51 by Howard Bashman



Tonight's music selection: "No One Knows," by Queens Of The Stone Age (Real Player required).
Posted at 22:36 by Howard Bashman



Two filibusters for the price of none: Reuters reports here tonight that "Senate Democrats Block Vote on Owen Nomination." According to the article: "The Senate began considering the nomination on Monday, and Republicans asked Democrats on Tuesday to agree to six or 10 more hours of debate before holding a vote. After Democrats objected to both offers, Sen. Robert Bennett, a Utah Republican, asked 'if any number of additional hours would be sufficient.' 'There is not a number in the universe that would be sufficient,' replied Senate Democratic Whip Harry Reid of Nevada."
Posted at 22:33 by Howard Bashman



Another fan of the "judge song": Eddie Felson at the Greedy Clerks board observes that the Alliance for Justice has reported here (under the heading "Judicial Temperament") that Fifth Circuit nominee Edward C. Prado is a fan of the song "Appointed Forever" (a song about which you can learn more here).

Of course, careful readers of "How Appealing" were introduced to Judge Prado's humorous inclinations back on February 6, 2003 -- the day of his nomination to the Fifth Circuit -- when I linked to this article from The San Antonio Express-News reporting that "More than anything else, Prado's humor has set him apart from the relatively formal federal judiciary. A recent article in the San Antonio Bar Journal recalled how Prado played snippets of a song called 'Foxy Lady' on the courthouse sound system when the president of Fox Consumer Products took the witness stand in an antirust trial last year."
Posted at 20:50 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Abortion Rights Group Fighting Judgeship" and here an article entitled "States Fear Loss of Tobacco Suit Money."
Posted at 20:40 by Howard Bashman



Fair weather friend? In response to my recent request for input concerning whether Arizona should be moved into the U.S. Court of Appeals for the Tenth Circuit, a reader emails:
As a frequent practitioner in the Tenth Circuit, a former 10th circuit clerk, and a resident of the Denver metro area who had to shovel 40 inches of snow off his driveway a couple of weeks ago, I can say, completely objectively and with no ulterior motive, that Arizona should be placed in the Tenth Circuit and the November, January and March terms of court should be moved there, preferably to a federal courthouse near the Biltmore or the Boulders.
But doesn't New Mexico, which is already a part of the Tenth Circuit, stay nice and warm during the winter?
Posted at 17:37 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Legal Authority at Issue in Georgia" and here an article entitled "N.C. Supreme Court Hears Death-Row Case."
Posted at 17:33 by Howard Bashman



Attention oenophiles: Today the U.S. Court of Appeals for the Fourth Circuit affirmed a trial court's ruling which held that North Carolina's Alcoholic Beverage Control laws, although adopted pursuant to the Twenty-first Amendment, nevertheless violated the dormant Commerce Clause because they allowed in-state wine manufacturers and sellers to ship directly to consumers but prohibited out-of-state wine manufacturers and sellers from doing so. However, the Fourth Circuit disagreed with the trial court's remedy. The trial court had decreed that sales directly to consumers could be made from out-of-state. The Fourth Circuit today instead struck down the provision that allowed local wineries to sell directly to consumers and kept the no-direct-sale prohibition in place for out-of-state wineries. You can access the Fourth Circuit's ruling at this link.
Posted at 17:26 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Colo. to Allow Public School Vouchers" and here an article entitled "Appeal Filed in Molestation Fantasy Case."
Posted at 16:01 by Howard Bashman



After thirteen identical reversals in thirteen years, an appellate court can begin to get perturbed with the trial court judge: See, for example, this recent ruling of the First District Court of Appeals of Ohio.
Posted at 15:55 by Howard Bashman



"Court Urged to Reject Detainees Appeal": The Associated Press offers this report.
Posted at 15:42 by Howard Bashman



Debating guns at Harvard Law School: A debate involving guns could be more interesting -- not to mention dangerous and messy -- than a debate that doesn't involve guns. You can access the announcement of today's debate here; chances are you'll recognize at least several of the participants.
Posted at 15:21 by Howard Bashman



Federal Circuit grants interlocutory appeal by permission in U.S. Department of Justice attorney overtime compensation class action: You can access last week's unpublished order of the U.S. Court of Appeals for the Federal Circuit at this link. The order explains: "The Court of Federal Claims concluded that the United States is liable to the plaintiff class, composed of more than 9,000 Department of Justice (DOJ) attorneys, for overtime compensation under the Federal Employees Pay Act." And the order concludes: "We note that a damages trial would necessarily be complex and time-consuming for both sides and the trial court . Thus, deciding the liability issue now serves the interests of all involved." You can access here a Web site about the case.
Posted at 15:16 by Howard Bashman



A tiny bit of good news for tobacco companies: Today the U.S. Court of Appeals for the Sixth Circuit affirmed a trial court's dismissal of a proposed class action on behalf of Blue Cross/Blue Shield subscribers in Tennessee who sought to sue tobacco companies to recover for increased insurance premiums paid because of the presence of smokers in the insurance pool. You can access today's opinion at this link.
Posted at 14:51 by Howard Bashman



OxBlog has reorganized its blogroll: "How Appealing" is included in the category known as "Daniel Patrick Moynihan." More details are available here.
Posted at 13:58 by Howard Bashman



De novo vs. plenary: Someday I may open the debate over whether there is any difference between those two standards of review. The purpose of this post, however, is to draw attention to a sentence contained in an opinion that the Court of Appeals of Ohio for the Sixth Appellate District issued on March 31, 2003. The court wrote: "However, an appellate court reviews December novo the trial court's application of the law to the facts." Ah, the perils of auto-complete. (Thanks to the reader who emailed to draw this new standard of appellate review to my attention.)
Posted at 13:20 by Howard Bashman



What Eighth Circuit future vacancy? After a reader yesterday emailed to question a post here that listed the existence of a future vacancy on the U.S. Court of Appeals for the Eighth Circuit, I went back to my source, who has this morning advised that the original listing is correct because Circuit Judge Pasco M. Bowman gave notice last week that he intends to take senior status.
Posted at 12:23 by Howard Bashman



Bond, Supersedeas Bond: Just had the pleasure of being interviewed by a reporter for The New York Times who is preparing an article on the broader implications of the scenario facing Philip Morris in Illinois. Reuters is now reporting that "An Illinois court on Tuesday temporarily blocked a $3 billion punitive damages award Philip Morris USA was ordered to pay the state in a class action suit over 'light' cigarettes."
Posted at 12:14 by Howard Bashman



"Senate begins debate on Owen; Justice's contentious nomination could be discussed for weeks": Today's edition of The Dallas Morning News contains this report. And yesterday Reuters reported here that "Senate Begins Consideration of Owen Nomination."
Posted at 11:24 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Court Ruling May Spur Cross-Burning Bans." And in golf-law news (a topic that the "Sneaking Suspicions" blog covers in-depth), you can access here a report entitled "Court Rulings Highlight Masters' 1st Day" and here a report entitled "Judge Upholds Augusta Protest Law."
Posted at 11:15 by Howard Bashman



Ju-Jitsu: Peter N. Kirsanow, a member of the U.S. Commission on Civil Rights, has an essay at National Review Online today in which he argues that "The generals' [amicus] brief so persuasively makes the point for striking down preferences at the University of Michigan (and, by extension, elsewhere) that a conspiracy theorist might well be excused for concluding that the brief was actually a malevolent attempt to undermine UM's argument."
Posted at 11:10 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports here that "States Can Outlaw Burning of Crosses, Justices Rule" and here that "Justices Limit Punitive Damages in Victory for Tort Revision." In local news, you can access here an article entitled "Gigante Says He Was Crazy...Like a Fox" and here an article entitled "No Madness as a Method for Mob Boss." Joseph B. Treaster has an article entitled "Holocaust Survivors' Insurance Ordeal." Bloomberg News reports that "Managed Care Companies Win Ruling." Reuters reports here that "States File Brief in Tobacco Case." And you can access here an editorial entitled "A Decision on Cross-Burning" and here an editorial entitled "Congress's Pet Arsenal."

The Washington Post reports here that "State Bans on Cross Burning Upheld; High Court Affirms Parts of Va. Law but Strikes Down Others" and here that "Justices Overturn Big Jury Award; Punitive Damages Called Unreasonable." In local news, you can access here an article entitled "Race-Neutral Policies Planned at Va. Tech; Board Chairman Makes Vow After Reversal of Affirmative Action Ban"; here "Defense Probes 'Triggerman' Issue; Muhammad Seeks Details of Allegations in Sniper Case"; here "Condemned Va. Man Chooses The Chair"; and here "Iran Stands Trial in 1983 Suicide Bombing in Beirut." In other news, an article reports that "Mob Boss Admits Insanity Was a Ruse; Gigante Fooled Doctors for Decades in Order to Avoid Prosecution." And an editorial entitled "Cross Burning in Court" notes that Virginia's Attorney General and some news outlets appear not to have appreciated some of the subtleties of yesterday's decision.

In The Los Angeles Times, David G. Savage reports here that "Justices Limit Cross Burners' Claim to Free Speech; Where there is 'intent to intimidate,' there is a punishable hate crime, the high court rules" and here that "Justices Act to Restrict Punitive Damage Awards; The Supreme Court ruling is a move to control excessive, punishing verdicts." An article reports that "Two HMOs Win U.S. Ruling on Arbitration; High court decides in favor of UnitedHealth, PacifiCare on doctor disputes. Critics call move too narrow." A news analysis is entitled "Ruling May Aid Cigarette Makers; Some say high court's decision on punitive damages could boost the firms' cases, but others say it doesn't apply." Relatedly, an article reports that "37 Attorneys General Back Philip Morris." And in news from California, an article reports that "Ruling Gives Investors a New Weapon; State high court says suits can be brought by shareholders who didn't sell stock because of a firm's erroneous claims."

In The Boston Globe, Lyle Denniston reports here that "Court rules cross burning can be crime; Separate opinions cite intimidation" and here that "Limits set on punitive verdicts; Supreme Court nullifies $145m State Farm ruling."

In The Washington Times, Frank J. Murray reports here that "Court upholds Virginia's ban on cross burning" and here that "High punitive award deemed unconstitutional." And an article reports that "Tech advised to follow the law."

Finally for now, The Christian Science Monitor reports here that "High court upholds ban on cross burning; It says cross burning is a particularly virulent form of intimidation and is not protected by speech rights."
Posted at 10:31 by Howard Bashman



This morning's Senate Judiciary Committee meeting: At 10 a.m. today, the Senate Judiciary Committee will hold a hearing on a proposed constitutional amendment to protect crime victims. Scheduled to testify in support of the proposal is Assistant Attorney General Viet D. Dinh, who heads the U.S. Department of Justice's Office of Legal Policy. You can watch the hearing online via this link (Real Player required).
Posted at 09:50 by Howard Bashman



Bart nods: Yesterday afternoon, I posted a response to Jacob Levy's question asking why Justice Clarence Thomas's separate opinion in yesterday's cross-burning decision was labeled a "dissent" instead of something else. Thereafter, in thinking further about the question, I concluded that my original response was incorrect, and therefore I replaced it with the answer that I should have given from the outset.

The U.S. Supreme Court's judgment in the cross-burning case was determined by the answers that the Court supplied to two questions that the case raised. On the first, arguably much more significant, question, Justice Thomas's approach was very similar to that employed by Justice Sandra Day O'Connor, who wrote the majority opinion on that point. On the second point, however, Justice Thomas disagreed with a majority of the other Justices on the Court. As a result of Justice Thomas's disagreement with a majority of his colleagues on the second question, a majority voted to set aside (or to uphold the setting aside) of the defendants' cross-burning convictions. By contrast, Justice Thomas concluded that the defendants' convictions should have been affirmed.

That difference concerning the outcome of the case (which, technically, is referred to as the Court's "judgment"), rather than Justice Thomas's agreement with the Court as to how the most important question in the case should be decided, gave Justice Thomas no option but to issue an opinion identified as "dissenting" from the judgment. In other words, a judge who agrees in large measure with her court's approach to an issue presented on appeal, but who disagrees entirely with the outcome the court reaches, has no alternative but to dissent, because it is the outcome, rather than the approach, that determines whether one dissents, concurs only in the judgment, etc.
Posted at 07:20 by Howard Bashman



They speak: Anne Gearan of The Associated Press reports here that "O'Connor Speaks About Death Penalty Cases." And AP reporter Gina Holland has an article entitled "Justice Speaks Out on Cross Burning."
Posted at 06:20 by Howard Bashman



Monday, April 07, 2003
Yeah, it's that song, you know: mindse, over at "The Academy" blog, has tracked down the source of that humorous song making the rounds (I've only received three copies so far) about how great it is to be a federal district judge. The answer can be found here.
Posted at 23:01 by Howard Bashman



U.S. Supreme Court round-up for Monday, April 7, 2003: The Supreme Court of the United States today issued two of the more significant opinions of this Term. If it wasn't snowing heavily throughout much of the morning, I might have thought that June was finally here.

1. At issue in Virginia v. Black, No. 01-1107 (U.S. Apr. 7, 2003), was whether the First Amendment prohibits a State from making cross-burning with the intent to intimidate a crime. On that issue, the Court ruled 6-3 that a State may criminalize cross-burning done with the intent to intimidate. Justice Sandra Day O'Connor delivered the opinion of the Court on that point, and her opinion was joined by Chief Justice Rehnquist and Justices Stevens, Scalia, and Breyer. Justice Clarence Thomas -- whose opinion was identified as a dissent for reasons I earlier explained here -- agreed with the majority on this point.

Justice O'Connor's opinion for the Court observes that "Cross burning originated in the 14th century as a means for Scottish tribes to signal each other." But, by the early 1900s, the Ku Klux Klan (second edition) began burning crosses in the State of Georgia to intimidate blacks. The First Amendment prohibits laws "abridging the freedom of speech." Spoken and written thoughts of course qualify as speech, and it's difficult to quarrel with the concept that a picture is worth a thousand words. The idea that performance art -- e.g., burning things to communicate a concept -- qualifies as speech is a bit more tenuous, but the Supreme Court long ago agreed with that proposition.

After engaging in a lengthy and detailed review of cross-burning's sordid history, Justice O'Connor writes that "In sum, while a burning cross does not inevitably convey a message of intimidation, often the cross burner intends that the recipients of the message fear for their lives. And when a cross burning is used to intimidate, few if any messages are more powerful."

Today's case also presented a second question, and its resolution caused the Court to splinter. The Virginia statute provides that the fact of cross-burning serves as "prima facie evidence of an intent to intimidate a person or group of persons." Justice O'Connor, writing for a plurality that consisted of the Chief Justice and Justices Stevens and Breyer, concluded that the prima facie provision was invalid. Instead, the State must prove the prohibited intent without the assistance of any presumption in the law. In this portion of her opinion, Justice O'Connor writes:
As the history of cross burning indicates, a burning cross is not always intended to intimidate. Rather, sometimes the cross burning is a statement of ideology, a symbol of group solidarity. It is a ritual used at Klan gatherings, and it is used to represent the Klan itself. Thus, "[b]urning a cross at a political rally would almost certainly be protected expression." R. A. V. v. St. Paul, 505 U. S., at 402, n. 4 (White, J., concurring in judgment) (citing Brandenburg v. Ohio, 395 U. S., at 445). Cf. National Socialist Party of America v. Skokie, 432 U. S. 43 (1977) (per curiam). Indeed, occasionally a person who burns a cross does not intend to express either a statement of ideology or intimidation. Cross burnings have appeared in movies such as Mississippi Burning, and in plays such as the stage adaptation of Sir Walter Scott's The Lady of the Lake.
Presumably, burning a cross in order to stay warm from the heat generated would be lawful, and Justice Thomas in his dissenting opinion endorses Virginia's argument that a burning circle or square would be unlikely to strike terror in anyone other than youngsters studying geometry.

Justice Scalia, who departed from the majority on the presumption issue, in his separate opinion reopens his continuing debate over when it is proper to facially invalidate a law. Justice Scalia also notes that a presumption is far from conclusive and only plays a role in a case in which the opposing party fails to introduce any evidence on the point whatsoever. He writes:
[T]he plurality cannot claim that improper convictions will result from the operation of the prima-facie-evidence provision alone. As the plurality concedes, the only persons who might impermissibly be convicted by reason of that provision are those who adopt a particular trial strategy, to wit, abstaining from the presentation of a defense.
Nevertheless, Justice Scalia ultimately agrees that the Virginia Supreme Court on remand should be given the chance to construe the presumption provision authoritatively.

Justice David H. Souter wrote an opinion concurring in the judgment in part and dissenting in part, and Justices Kennedy and Ginsburg joined in this opinion. Justice Souter argues that the Virginia ban violates the First Amendment by making an unlawful content-based distinction. These three Justices agreed with the majority that the statute's prima facie evidence provision likely was unconstitutional.

In dissent, Clarence Thomas argues that Virginia's ban on cross-burning with the intent to intimidate raises no First Amendment concerns whatsoever because the message involved is not constitutionally protected. He also has no problem with the presumption contained in the statute. Accordingly, Justice Thomas would have voted to uphold the defendants' convictions, and because the Court did not do that, he dissented.

2. In State Farm Mut. Automobile Ins. Co. v. Campbell, No. 01-1289 (U.S. Apr. 7, 2003), the Court has once again demonstrated that it will refuse to allow shockingly large punitive damages awards to stand. According to the Court's recitation of the facts, Curtis Campbell's negligent driving caused the death of one individual and inflicted permanent injuries upon another. Campbell's insurer, State Farm, turned down the opportunity to settle claims against Campbell for under his insurance policy limits, and as a result Campbell was rendered personally liable on an excess verdict. State Farm then refused to post a bond to facilitate appeal of the verdict, causing Campbell to be personally at risk. After the judgment against Campbell was affirmed on appeal, however, State Farm paid the judgment in full, including all excess amounts.

Thereafter, Campbell sued State Farm alleging bad faith, fraud, and intentional infliction of emotional distress. A jury awarded $2.6 million in compensatory damages and $145 million in punitive damages. The trial court reduced those awards to $1 million in compensatory damages and $25 million in punitive damages. On appeal to the Supreme Court of Utah, that appellate court reinstated the jury's award of $145 million in punitive damages but retained the $1 million compensatory damages award. For reasons that defy explanation, the Supreme Court of Utah has refused to allow its opinion issued in 2001 reinstating this whopping punitive damages award to be printed in West's official Pacific reporter.

Today, by a vote of 6-3, the Court ruled that a $145 million punitive damages award on a $1 million compensatory damages award to a plaintiff who barely suffered any tangible injury was unconstitutionally excessive. Justice Anthony M. Kennedy wrote the opinion of the Court, in which the Chief Justice and Justices Stevens, O'Connor, Souter, and Breyer joined. On the issue of the permissible ratio between compensatory and punitive damages, Justice Kennedy writes: "We decline again to impose a bright-line ratio which a punitive damages award cannot exceed. Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process." Later the opinion states:
Nonetheless, because there are no rigid benchmarks that a punitive damages award may not surpass, ratios greater than those we have previously upheld may comport with due process where "a particularly egregious act has resulted in only a small amount of economic damages." The converse is also true, however. When compensatory damages are substantial, then a lesser ratio, perhaps only equal to compensatory damages, can reach the outermost limit of the due process guarantee. The precise award in any case, of course, must be based upon the facts and circumstances of the defendant's conduct and the harm to the plaintiff.
Today's opinion also removes any doubt that state courts now must exercise de novo appellate review when considering a punitive damages award, which is the result I predicted back in the August 2001 installment of my monthly appellate column. On remand, Campbell is likely to recover a punitive damages award in the neighborhood of $1 million. And this huge win by State Farm proves once again that an advocate's performance at oral argument in the U.S. Supreme Court may not be as important as many believe (see the second half of this earlier post for details).

Justices Scalia and Thomas dissented, adhering to their previously expressed positions that the due process clause provides no constraint on punitive damages awards. Justice Ruth Bader Ginsburg also dissented, expressing dissatisfaction with the Court's rigorous scrutiny of punitive damages awards and reviewing the record in detail to argue that this particular award was justified. There will be few insurance companies that fail to breathe a sigh of relief in the aftermath of today's ruling.

3. In today's final decision, Justice Antonin Scalia delivered the opinion for a unanimous Court (with Justice Thomas recused) in PacifiCare Health Systems, Inc. v. Book, No. 02-215 (U.S. Apr. 7, 2003). At issue was whether physicians who have sued managed care providers under the Racketeer Influenced and Corrupt Organizations Act may be required to arbitrate those claims notwithstanding that the parties' arbitration agreements may be construed to limit the arbitrator's authority to award treble damages under that statute. In fact, however, the arbitration agreements in question merely prohibited the award of punitive damages. Both the trial court and the U.S. Court of Appeals for the Eleventh Circuit viewed the arbitration agreements' prohibition of punitive damages awards to prevent awarding treble damages under RICO. Today, in a six-page opinion, the Court explained that because treble damages under RICO may not be punitive damages, and because the language of the arbitration agreement may allow such an award in any event, the arbitrators should be allowed to resolve the dispute in the first instance. If the arbitrators get it egregiously wrong, judicial review will be available thereafter. This represents Justice Scalia's second managed care decision in two weeks, and managed care organizations have won one and lost the other.

The Court is now in recess until Monday, April 21, 2003 so as to allow the Justices to complete their tax returns and spend any refunds received. Opinions are likely to issue again on Tuesday, April 22, 2003.
Posted at 22:30 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "States May Outlaw Cross Burning, Supreme Court Rules" and here that "High Court Puts the Brakes on Large Punitives." Shannon P. Duffy reports that "ACLU Asks 3rd Circuit to Remove Religious Text From Courthouse." From California, Jason Hoppin reports that "Stock-Drop Suits OK in State Court." From Texas comes word that "Firestone Won't Give Up Forum Non Conveniens Fight." And Jonathan Groner reports here (free registration required for this Legal Times article) that "Another Bush Judicial Nominee Faces Fire; 9th Circuit pick Carolyn Kuhl grilled by Judiciary Democrats on abortion rights, her role in controversial Bob Jones case."
Posted at 22:17 by Howard Bashman



"Chesco plaque before U.S. panel": The Philadelphia Inquirer has this wrap-up of today's two-hour Ten Commandments oral argument before a three-judge panel of the U.S. Court of Appeals for the Third Circuit.
Posted at 22:08 by Howard Bashman



"GOP Discussing Owen's Judicial Nomination": The Associated Press reports here that Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit reaches the floor of the U.S. Senate this week. Whether the Democrats will seek to filibuster this nomination -- and that's a distinct possibility -- remains to be seen.
Posted at 22:01 by Howard Bashman



In this week's edition of The National Law Journal: Two essays on the University of Michigan cases -- Professor Amitai Etzioni writes here that "'Diversity' argument fails the smile test" (plus, you can access his blog here); and Law Professor Scott D. Gerber has an essay entitled "A naive notion gone awry." Turning to news coverage, Marcia Coyle has an article entitled "Health Firms Lose a Big Case; Ruling is a boost to state regulation." And in her Voir Dire column, Gail Diane Cox writes of the "First Amendment's woof and warp." Meanwhile, The National Law Journal is about to lose its appellate columnist to a federal district judge vacancy, but I think I know someone willing to take over that assignment.
Posted at 17:03 by Howard Bashman



Congratulations to today's Pulitzer Prize winners: You can access the list of winners here.
Posted at 16:34 by Howard Bashman



Upon further review: Over at "The Volokh Conspiracy," Jacob Levy asks why Justice Clarence Thomas's opinion in today's cross-burning case is identified as a dissenting opinion. I have revised this post from what appeared here earlier now that I have conducted a more detailed review of today's ruling.

Although Justice Thomas agrees with significant aspects of the approach Justice Sandra Day O'Connor takes in her majority/plurality opinion, he was forced to dissent because the Court's judgment held the cross-burning statute unconstitutional in its current form. Justice Thomas, by contrast, would have ruled that the statute was lawful as currently written. And that's why Justice Thomas has dissented.
Posted at 16:30 by Howard Bashman



Over one million served: Moments ago, "How Appealing" experienced its one millionth page view, according to this Web log's Bravenet hit counter. The possibility that threshold might be crossed was the farthest thing from my mind when I started this Web log eleven months and one day ago.
Posted at 16:08 by Howard Bashman



Do the disciplines of forensic fingerprint analysis and forensic handwriting analysis satisfy the criteria for expert opinion testimony under Daubert? One week ago today, the U.S. Court of Appeals for the Fourth Circuit delivered an opinion addressing that question. Circuit Judge M. Blane Michael issued a dissenting opinion that began:
The majority believes that expert testimony about fingerprint and handwriting identification is reliable because the techniques in these fields have been accepted and tested in our adversarial system over time. This belief leads the majority to excuse fingerprint and handwriting analysis from the more careful scrutiny that scientific expert testimony must now withstand under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), before it can be admitted. In Patrick Leroy Crisp's case the government did not prove that its expert identification evidence satisfied the Daubert factors or that it was otherwise reliable. I respectfully dissent for that reason. In dissenting, I am not suggesting that fingerprint and handwriting evidence cannot be shown to satisfy Daubert. I am only making the point that the government did not establish in Crisp's case that this evidence is reliable. The government has had ten years to comply with Daubert. It should not be given a pass in this case.
You can access both the majority and dissenting opinions at this link.
Posted at 16:03 by Howard Bashman



The status of federal appellate court nominees in the 108th Congress as of April 4, 2003: Thanks to the reader who supplied the following information:

Confirmed -- 2: Jay Bybee (9th Nevada); Tim Tymkovich (10th Colorado).

On Executive Calendar -- 6: Miguel Estrada (DC); John Roberts (DC); Priscilla Owen (5th Texas); Ed Prado (5th Texas); Deborah Cook (6th Ohio); Jeff Sutton (6th Ohio).

In Judiciary Committee -- 11: Richard Wesley (2nd New York); Michael Chertoff (3rd New Jersey); Terry Boyle (4th North Carolina); Charles Pickering (5th Mississippi); David McKeague (6th Michigan); Susan Neilson (6th Michigan); Richard Griffin (6th Michigan); Henry Saad (6th Michigan); Steve Colloton (8th Iowa); Consuelo Callahan (9th California); Carolyn Kuhl (9th California).

Current vacancies and publicly announced future retirements without nominees -- 11: D.C. Circuit; D.C. Circuit; 3rd Circuit; 3rd Circuit; 4th Circuit; 4th Circuit; 4th Circuit; 8th Circuit; 9th Circuit; 9th Circuit; 11th Circuit.
Posted at 15:57 by Howard Bashman



United States citizenship for former terrorists? Today the U.S. Court of Appeals for the Ninth Circuit issued an order granting rehearing en banc in a case that presents the question "whether a federal district court may grant citizenship to resident aliens whose applications were rejected by the Immigration and Naturalization Service in part because of their past terrorist activities." You can access the three-judge panel's opinion here and my blog post on that opinion here. (The Ninth Circuit posted its decisions an hour late today, causing me to wonder whether its opinion-posting apparatus has yet sprung forward for Daylight Savings Time.)
Posted at 14:29 by Howard Bashman



Congratulations! The federal government has fixed your salary at $0: Today a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit considered and rejected a convicted criminal defendant's argument that the federal government had an unauthorized attorney conduct the defendant's grand jury proceedings. As the opinion explains:
During [defendant] Smith's grand jury proceedings, the federal government was represented by Special Assistant United States Attorney ("SAUSA") Nelson W. Phillips III. Prior to his appointment as SAUSA in May 2001, Phillips worked for the state of Wisconsin as an Assistant District Attorney for Milwaukee County. One of the conditions of Phillips's appointment stated that he would serve the federal government without federal compensation; instead, Phillips continued to receive an annual salary paid by the state of Wisconsin while reporting to and acting under the direction of the United States Attorney for the Eastern District of Wisconsin. Before trial Smith moved to dismiss the indictment against him on the grounds that Phillips's salary arrangement violated federal law and rendered Phillips an unauthorized government attorney whose appearance before the grand jury violated Fed. R. Crim. P. 6(d).
The defendant argued that the federal government's failure to pay Phillips any salary violated 28 U.S.C. sec. 548. The opinion described the defendant's argument as follows:
* * * 28 U.S.C. sec. 548 requires that the Attorney General "shall fix the annual salaries of . . . attorneys appointed under sec. 543 of this title at rates of compensation not in excess of the rate of basic compensation provided for in Executive Level IV." Herein lies the problem, according to Smith. Although Phillips was duly appointed under sec. 543, his annual salary is not paid by the federal government, but by the state of Wisconsin. Since Phillips receives no federal salary, Smith argues that the Attorney General cannot be said to have "fix[ed] his annual salary" as required by sec. 548, and therefore Phillips's appointment is invalid. If Phillips's appointment under sec. 543 is invalid, then he is not an authorized "attorney for the government" under Fed. R. Crim. P. 6(d)(1) and should not have appeared to represent the government before the grand jury.
The court rejected the defendant's argument in a paragraph that states:
Section 548 states that the United States Attorney General "shall fix the annual salaries" for SAUSAs "at rates of compensation not in excess of the rate of basic compensation provided for in Executive Level IV." Smith argues that since the language "shall fix" is mandatory, the fact that Phillips received no federal salary is a clear violation of the statute. We disagree. Section 548 plainly requires the Attorney General to fix salaries at or below a certain level; this evidences a desire to establish a maximum salary cap for SAUSAs, not a minimum wage. In this case the Attorney General did "fix" Phillips's annual federal salary, at exactly zero dollars ($0). Strange as an annual salary of zero dollars may seem, there is nothing in sec. 548 to prohibit this result. In fact, the absence of language in the statute speaking to the issue of exactly how much government attorneys are paid and by whom indicates that Congress did not intend to specifically regulate this area. Section 548 is a general salary provision awarding the Attorney General some discretion, up to a designated pay ceiling, to determine the salaries of the government attorneys whom he or she supervises. Moreover, there is nothing in sec. 548 that would lead us to conclude that government attorneys, including SAUSAs, are prohibited from receiving income from other sources. This is not to say that a government attorney may accept any amount of compensation from any source without restriction; however, other statutes addressing the topic of a federal employee's receipt of income from outside sources do not cast doubt on the propriety of SAUSA Phillips receiving his salary from the State of Wisconsin in this case.
You can access the opinion at this link.
Posted at 14:03 by Howard Bashman



"Court Sides With Business in Damage Case": Gina Holland of The Associated Press has this report.
Posted at 12:15 by Howard Bashman



James B. Loken is now Chief Judge of the U.S. Court of Appeals for the Eighth Circuit: Footnote one of the opinion noted immediately below states: "The Honorable David R. Hansen stepped down as Chief Judge of the United States Court of Appeals for the Eighth Circuit at the close of business on March 31, 2003. He has been succeeded by the Honorable James B. Loken." Judge Hansen has taken senior status. This move was expected, and President Bush had previously announced a nominee to fill the vacancy just created.
Posted at 12:12 by Howard Bashman



Divided Eighth Circuit panel rejects constitutional challenge to federal law prohibiting bribery of state or local government officials: Today's three-judge panel opinion explains:
[Defendant] Sabri filed a motion to dismiss the indictment on the ground that [18 U.S.C.] sec. 666(a)(2) was facially unconstitutional because it does not require the government to prove a nexus between the offense conduct--the offering of a bribe--and the federal funds. Without such a "jurisdictional hook," that is, a clause that purports to ensure that the law applies only to activity that falls within the federal lawmaking power, Sabri argued that the statute was outside Congress's legislative power. The district court agreed with Sabri's arguments and granted his motion to dismiss the indictment. We agree with the district court that as a matter of statutory construction the government need not prove some nexus between the offense conduct and federal funds. We respectfully disagree that the statute as construed is beyond Congress's power to legislate.
Circuit Judge Kermit E. Bye dissented. You can access both the majority and dissenting opinions at this link.
Posted at 12:00 by Howard Bashman



Reuters is reporting: You can access here an article entitled "Court Overturns State Farm Damages Award" and here an article entitled "Court Rules for Two HMOs on Arbitration."
Posted at 11:19 by Howard Bashman



Today is "20 questions" day here at "How Appealing": Shortly after midnight this morning, I posted online the April 2003 installment of "20 questions for the appellate judge." This month's interviewee is Justice Kay B. Cobb of the Supreme Court of Mississippi. You can access my twenty questions and Justice Cobb's twenty answers either by scrolling down this page a bit or by clicking here to access the "20 questions" sub-blog. Today's installment turned out to be very, very interesting.

Those who have already read today's interview may be interested to learn that the interviewee for May 2003 is a Circuit Judge serving on the U.S. Court of Appeals for the Ninth Circuit. I have already received volunteers for May, June, and July, leaving five interview slots open for the balance of 2003. If you are a federal or state appellate judge who would like to participate in this blog's monthly "20 questions" feature, simply contact me via email.
Posted at 11:02 by Howard Bashman



The Associated Press is reporting from the U.S. Supreme Court: Anne Gearan has a report entitled "Supreme Court Upholds Cross Burning Ban." In other news, you can access here an article entitled "Supreme Court Tosses Disabilities Case" and here an article entitled "Supreme Court Rejects Shrimping Appeal."
Posted at 10:30 by Howard Bashman



"Supreme Court upholds ban on cross-burning." The Associated Press offers this news alert.
Posted at 10:19 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: Some big news today on the opinions front. The Court decided both Virginia v. Black (the cross-burning case; opinion here; oral argument transcript here) and State Farm Mut. Automobile Ins. Co. v. Campbell (this year's "is that huge amount of punitive damages unconstitutionally excessive?" case; opinion here; oral argument transcript here). The third and final case decided today is Pacificare Health Systems, Inc. v. Book (opinion here; oral argument transcript here). Justice Sandra Day O'Connor wrote the opinion in Virginia v. Black (ban on cross-burning carried out with the intent to intimidate upheld), Justice Anthony M. Kennedy wrote the opinion in State Farm (reversed and remanded by a vote of 6-3), and Justice Antonin Scalia wrote the opinion in Pacificare (reversed and remanded, 8-0). As usual, I'll post online sometime tonight a recap of today's rulings.

You can access today's Order List at this link. The Court did not grant review in any cases but it did call for the views of the Solicitor General in one case.
Posted at 10:00 by Howard Bashman



"An Ominous Attack on Judges": Today's edition of The New York Times contains this editorial opposing the so-called Feeney Amendment.
Posted at 09:32 by Howard Bashman



The staff of The Michigan Review takes a road trip to the U.S. Supreme Court: An account of the journey appears here this morning at National Review Online.
Posted at 09:03 by Howard Bashman



"Porn spam--legal minefield for employers": Declan McCullagh of c|net News.Com has this report.
Posted at 08:58 by Howard Bashman



In Monday's newspapers: The Washington Post reports here that "Triggerman Provision Weighed in Sniper Case; State May Not Need To Prove Who Fired." "A Case of Questionable Judgment" is the title of this week's Lawyer's Column, known as "Washington Hearsay." Columnist William Raspberry has an essay entitled "The Reasonableness Test." And letters to the editor run under the heading "Judging the Value of Race-Conscious Policies."

In The Los Angeles Times, David G. Savage reported yesterday that "Ranks of Poor Are Thin at Top Colleges; Report finds diversity goes only so far. Group backs class-based affirmative action." In today's newspaper, you can access here an article entitled "Inmate Population Topped 2 Million in '02, Report Says; U.S. far outpaces states in rate of growth. The disparity is attributed to budget cuts, other issues."

Today's edition of The Boston Globe reports here that "N.H. nears historic abortion bill; Proposal has minors needing parental OK." Columnist Adrian Walker has an essay that begins, "Only a team of lawyers would be capable of concocting the insanity that has overtaken the Suffolk County Sheriff's Department in its effort to dodge its $5 million debt to 1,500 improperly strip-searched women." And Cathy Young has an op-ed entitled "Freedom in a time of terrorism."

The New York Times reports here that "Ex-Insider Becomes an Outsider on Gun Issue." And The Christian Science Monitor contains an editorial entitled "Shuffled Off in Buffalo."
Posted at 08:30 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States will issue orders and one or more opinions. At 1:30 p.m., the U.S. Court of Appeals for the Third Circuit will hear oral argument in the Ceremonial Courtroom at Philadelphia's federal courthouse in an appeal challenging a federal trial court's injunction requiring the removal of a plaque commemorating the Ten Commandments from an outside wall of the county courthouse in West Chester, Pennsylvania. I previously previewed this oral argument in a post you can access here. The three-judge panel scheduled to hear today's oral argument consists of Chief Judge Edward R. Becker, Circuit Judge Maryanne Trump Barry, and Senior Circuit Judge Myron H. Bright, sitting by designation from the Eighth Circuit.
Posted at 06:51 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Virginia Tech Restores Affirmative Action" and here an article entitled "U.S. Prisons, Jails Now Hold 2M Inmates."
Posted at 00:08 by Howard Bashman



20 Questions for Justice Kay B. Cobb of the Supreme Court of Mississippi: "How Appealing" is very pleased that Justice Kay B. Cobb of the Supreme Court of Mississippi has agreed to be the third participant in this Web log's new monthly feature, "20 Questions for the Appellate Judge."

On April 1, 1999, then–Governor Kirk Fordice appointed Justice Cobb to fill a vacancy on the Supreme Court of Mississippi. She won a retention election in 2000 and is now serving an eight-year term that will expire in January 2009. Justice Cobb received her undergraduate degree from the Mississippi University for Women and her law degree from the University of Mississippi School of Law. She resides in Oxford, Mississippi, and the Supreme Court of Mississippi has its headquarters in Jackson, Mississippi.

Questions appear below in italics, and Justice Cobb's responses follow in plain text.

1. What are your most favorite and least favorite aspects of serving as a Justice on the Supreme Court of Mississippi?

Every day brings a new challenge and new knowledge. Whether studying an obscure law or a complex case, or trying to anticipate the interpersonal dynamics of the eclectic group of nine justices known as the Mississippi Supreme Court, there is certainly never a dull moment! Knowing that what we do as a Court is important not only to the individual citizens of our state but also to the State as a whole, is both humbling and energizing.

The least favorite aspect for me is the heavy workload. Our Court is not a discretionary court, so anyone who wishes to challenge a decision of our trial courts is allowed to file an appeal. Although we have authority to deflect cases to the Court of Appeals, which relieves much of the load, the more difficult and complex cases, plus all cases involving constitutional questions, death penalty, first impressions, newly developing law and a whole litany of special subjects (election contests, utility rates, annexations, bar and judicial discipline matters, etc.) are assigned to our Court. In addition, we have the administrative responsibility and rule making authority for the entire state judicial system. The result of all that is a "very full plate." To top it off, we operate under a statutorily imposed mandate to issue a decision in every case within 270 days after the final briefs have been filed with the Court. So there is no rest for the weary . . . and there's often not enough time to prepare the more difficult cases as thoughtfully and thoroughly as I would like.

2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Justice Sandra Day O'Connor is the first name that comes to mind, and after thinking through a number of other possibilities, she remains my first choice. The list of "judicial reasons why" is long: clear and well-reasoned writing; balanced approach to issues; insightful questions at oral argument; judicial restraint; more concerned about reaching the right result than about controversial theories of jurisprudence; strong belief in our federal system of government and respect for the role of the states; moderate to conservative viewpoint; practical application of the law; and many other positive attributes which are well known to the bench and bar.

The list of "personal reasons" is more detailed. Justice O'Connor was appointed to the Supreme Court four years after I graduated from law school, and she instantly became a role model for me and thousands of other women attorneys. Because she was the first woman to serve on the Supreme Court, I have followed her with special interest through the years. Our backgrounds have a number of similarities: we each have served in all three branches of government - the executive, as assistant attorneys general in our respective states; the legislative, as state senators; and the judicial, as appellate justices. For at least part of our appellate careers, we each served as the only woman on a court of nine justices. We each have had long marriages blessed with children and grandchildren. We each have lived on cattle ranches. And we each have fought and won a battle with breast cancer. Thus I can identify with her as well as look up to her as a marvelous representative of women attorneys and judges throughout the nation. Only once have I had an opportunity to meet her personally and then for only a very brief time, but she remains an inspiration and role model, both professionally and personally, for me today.

3. How did you come to be selected to fill a vacancy that existed on the Supreme Court of Mississippi in 1999, and do you think your likelihood of winning the 2000 retention election played any role in Governor Fordice's decision to select you?

First let me correct you in your designation of my election as a retention election. In Mississippi, Supreme Court Justices are elected in popular, district-wide elections. I was elected from the Northern District of Mississippi, which is comprised of 33 counties and covers more than one-third of the state.

There is no question that my likelihood of winning the 2000 election played a major role in Governor Fordice's decision to appoint me. In fact, he had no litmus test regarding issues, and made no inquiry as to my philosophy on any issues. He did, however, ask me one (and only one) question: "Will you run for the office in 2000 if I appoint you?" My affirmative answer, plus the fact that I had twice been elected to the state senate, and had been active several years earlier in my husband's congressional race in the same geographical area, all played a significant role.

How I came to be selected is more difficult to answer. I had not met Governor Fordice until he ran for governor, and won, in 1991. We were from different parts of the state, and although we were in the same political party, our paths had not crossed. He was elected governor and I was elected to the state senate that same year, and because we had similar views on a number of issues, we worked together to accomplish some important fiscally conservative changes in state government. When an abrupt and immediate vacancy occurred on the Supreme Court, my name was already on his "short list" for consideration for appointment to an impending vacancy on the Court of Appeals. Thus, when "the call" came, it was to offer me the position on the Supreme Court. Although it has never been articulated, in retrospect, I believe there are three basic reasons why I was selected: first, not being a lawyer himself, he was comfortable with my style because I was (and am) a rather non-traditional lawyer; second, as a senator I had the reputation of being the one who actually took the time to read and understood the bills that came before us; and third, I stood up for what I discerned was right and best for our entire state, and did not bow to special interest groups, or to powerful local interest groups (which ultimately led to my defeat as senator).

4. In Pennsylvania, as in Mississippi, state appellate court judges are elected, and I'm therefore familiar with many of the criticisms raised against using that method to select judges. Of course, the federal system for selecting and installing appellate judges can present its own difficulties, as we are once again seeing in Washington, D.C. Let's say, hypothetically speaking, that a 51st State is created and you are put in charge of deciding the method for selecting that State's appellate judges. What method would you select, and why?

Well, first let me say that I would hope that the 51st state would not come into being for another several months, maybe even as late as January 1, 2004, because at this moment I am still researching and comparing the various options and have not yet reached a conclusion as to how the ideal system should be structured.

We have informally discussed various options administratively, within our Court, and we have been provided with basic research and materials by our central legal and court administration staff. I lean toward some form of appointment-retention plan, with a very broad-based nominating commission which would screen and recommend the best qualified candidates to the governor (or whoever would make the appointment). To date, I have not seen a model which meets all my criteria. And unless some lawful way can be found to reduce the huge amount of money that is being put into judicial races by special interest groups, I'm not sure it will matter which method is chosen.

5. The U.S. Supreme Court last June issued a ruling in Republican Party of Minnesota v. White, No. 01-521 (U.S. June 27, 2002), that struck down as unconstitutional a judicial campaign restriction intended to prevent candidates for elected judicial offices from announcing views on disputed legal or political issues. As someone who has run as a candidate in a contested judicial election and voted in other such elections, do you view the U.S. Supreme Court's ruling as a positive development, a negative development, or somewhere in between?

On the whole, I view it as much more positive than negative, and I believe it was correctly decided. As a judicial candidate, it was difficult for me, and frustrating to the voters, to be limited to saying only that I would faithfully and impartially perform the duties of my office. The voters felt, and I agreed, that they needed more information in order to cast an informed vote. Any explanation of the limitations imposed by our Code of Judicial Conduct often fell on deaf ears. I think Justice O'Connor was correct, in her concurring opinion, when she said that elections are not the best system, but if we are going to have them, then they must be treated as what they are, elections. It is certainly better to be able to discuss issues than to be restricted to smiling and waving.

6. Why did you decide to attend law school twelve years after finishing college, and when did it first occur to you that serving as a Justice on the Supreme Court of Mississippi was something you would like to do?

My life was fairly predictable for a woman in my generation, until that fateful decision was made: graduated from college; married a great guy I met during college; traveled with him to far away places where he served as an AF fighter pilot; gave birth to two beautiful daughters; and was a stay-at-home mom. His tour of combat duty over North Vietnam was a wake-up call for both of us. We both learned the importance of politics and the need for good citizens to take an active role, even if only in some small way, in the improvement and preservation of our great nation. It was at that point that we decided that knowledge of the law would provide a solid foundation on which to build our future, so we returned to our native Mississippi, and I enrolled in the University of Mississippi School of Law in 1975. (He, at the time, was flying internationally for Braniff Airlines, and was not at all interested in being the one to tackle the books and undertake the rigorous task of law school!)

It was a good decision, although I must confess that being a judge was not one of my goals at the time. I envisioned, at most, being a law professor but thought it best for our family that I simply go into the private practice of law in our small town. The various turns in my career were actually never planned, but occurred as the result of being in the right place at the right time to fill a need and provide a service.

The idea of seeking an appellate judgeship actually first occurred to me in 1995, while I was still in the Senate, when I was advised that I was on the governor's "short list" of potential nominees for an anticipated vacancy on the Supreme Court. I was not the one selected, but the idea was planted in my mind that perhaps I could be a viable candidate in the future. The first realistic opportunity came in 1999, when the pending vacancy in the Court of Appeals was announced, as discussed in question 3, and the rest is history.

7. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven't been?

I look first to an applicant's academic record and LSAT score. There is no doubt that a sharp mind is the solid foundation on which a good law clerk is built. Because analysis and writing is a major part of what we do, I also look for law journal experience, particularly positions which require extensive use of those two skills. Two of my recent clerks had been in charge of the briefing service provided by their law journal, and because they were very familiar with the opinion process, having read all opinions handed down by our appellate courts every week, they were particularly well prepared to be immediately productive clerks. Because we work so closely with our clerks, it is also important that there is some degree of compatibility in personality. Last, but certainly not least, work ethic is extremely important. This is certainly no place for clock-watchers and minimum-effort mentalities.

While there is no particular kind of candidate I'd like to see applying (except more like those described above), there is no doubt that we face tough competition from the firms in our area which offer starting salaries to new lawyers almost double what we are able to pay. That significantly reduces the number of top-notch candidates who apply.

8. In September 2002, I published online a letter from a Mississippi-based reader of my appellate Web log who thought odd the practice of one or more of your colleagues on the Supreme Court of Mississippi to dissent, in whole or in part, without opinion from majority opinions of your court. Why would an appellate judge dissent or dissent in part without providing an explanation, and what are your views of the practice?

Having read that letter, I can sense and appreciate the frustration of the writer, and am glad to have an opportunity to shed some light on this matter. While I wouldn't go so far as to agree that this is a "plague" in our Court, and that it is "intellectual dishonesty," I do agree that it is not at all helpful. I can only speak for myself, and there may be many other reasons which the other justices would give, but in my case it is simply a matter of time constraint. As I explained in my first answer above, we are not a cert court, but rather we must take all appeals filed, and then can deflect cases to the Court of Appeals. However, that still leaves us with a heavy caseload, plus the ever-present 270 day statutory deadline to hand down opinions.

In order to meet the 270 requirement, cases must move rapidly through our system. My first responsibility is to the opinions which are assigned to me to write, so most of my time must be spent on them. Every week we have deadlines for voting on anywhere from 10 to 20 (or more) opinions from other justices. If I disagree with an opinion in circulation, I can vote either to dissent, or dissent in part and concur in part. If I agree with the result but disagree with the application and analysis of the law by which the author reached his conclusion, I can vote concur in result only. The problem is that I have only 3 weeks in which to write that separate opinion. And if, in the same circulation, there are two or three opinions with which I disagree, all of the separate opinions must be completed within that three week period. Depending on the ebb and flow of my other responsibilities here at the Court, I may simply not have time to write one, much less two or three proper separate opinions. If no one else writes a separate opinion that I can comfortably join, I am forced to simply be shown as dissenting (or whatever) without written opinion.

I ordinarily put in 13 hours per day working at the Court (only 10 on Fridays), with lunch at my desk. At night, I take home my "light" reading (all the things which justices should read that are not directly linked to the opinions we write.) I regret that there are not more hours in the day, so that I could always do everything that needs to be done in a timely manner. Since there are not, I hope that your reader who practices in Mississippi will better understand why sometimes even I am shown as dissenting, or concurring in part, without written opinion.

9. I understand that the Supreme Court of Mississippi is divided into three geographic districts -- Northern, Central, and Southern -- and that three Justices serve in each district. Moreover, I note that only voters in the district in which the Justice serves vote to elect Justices who serve in that district. Readers of "How Appealing" would be interested to learn from you about your court, its history, how cases reach it, and whether it always sits en banc or sometimes sits using smaller panels.

Mississippi became a state in 1817, and our constitution established a three member Supreme Court. Through the years the number was expanded to six, and then to nine, which is the number we have today.

As I stated in answer 1 above, all cases in which appeals are filed are assigned to our Court, and we deflect a significant number to the Court of Appeals. We seldom hear oral argument en banc, as most of our work is done by three judge panels. Cases are assigned on a purely random basis, insofar as subject matter is concerned. Every ninth case retained by our Court is assigned to me. There are some equalization factors that come into the assignment equation, for cases with an exceptionally large number of volumes.

All death penalty cases are assigned on a separate rotation, so that I also receive every ninth death penalty case. Initially all cases, even death penalty cases, are reviewed by a three judge panel.

The composition of the three judge panels changes every two months, by a computer-driven random assignment which assures that we seldom serve with the same three justices more than once each year. The writing justice presents a memo or proposed opinion to the panel and those are discussed at panel conferences. If the panel agrees on the disposition of the case, the writing justice finalizes the opinion and it circulates to the entire Court. Any one justice can vote to take any case en banc. If the panel is split, the dissenter may either write immediately and both opinions are circulated together, or the dissenter may wait until the votes are cast in the initial circulation, and then prepare and circulate a separate opinion with the original.

10. What are the three most important suggestions you have for attorneys concerning how they can improve their written work product filed with the Supreme Court of Mississippi?

First, keep it simple. That's hard to do, especially in more complex and difficult cases, but it's worth the effort. Organize it logically, generally with your most favorable and crucial issues addressed first. Spend the time necessary to reduce the key points to simple statements. Remember that you can write a brilliant and scholarly brief, but if it's too difficult to follow, you may lose your reader's attention and focus. Outline your theory clearly and concisely at the beginning, in simple terms.

Second, make it easy to read. We don't have any absolute restrictions (other than number of pages) as to how you present your case on paper, but it's not a good idea to crowd as much as you can onto the allotted number of pages. One of the most effective briefs I've seen was written by a former member of this Court. It was in slightly larger than normal type, using a font with clear, block letters. He used indentions, bold face type, italics, etc. to make his main points stand out. He provided the law, but did not belabor the analysis of the cited cases. What a refreshing change from extra-long sentences filled with too many adverbial phrases, and pronouns which leave you guessing which “him” or “her” is being discussed.

Third, don't be disingenuous with the Court. We do read the briefs, and the cases cited. If counsel stretches the truth, or cites cases for propositions which are simply not to be found in those cases, then his or her credibility is lost. It's hard, then, to take seriously the remainder of the brief, after discovering one or two of those kinds of "mischaracterizations." It certainly can jeopardize your client's case.

11. What are the three most important pieces of advice you have for attorneys concerning how they can improve their performance at oral argument?

First, be prepared. Remember that you should know more about the case than anyone else in the courtroom. If you don't fully understand the law which you are asking us to apply to the case, as well as how it applies to the facts, how can you possibly expect to persuade us that the law is on your side? Some specifics that will be helpful include: (a) give us citations to the record for all key points you make, because all of us will not have read the entire record, and will not have the time to read it before voting on the opinion; and (b) if you don't know the answer to a direct question you are asked, simply say so, and then smoothly carry the discussion back to whatever else you wanted to say.

Second, speak clearly, slowly and loud enough to be easily understood. Repeat key points occasionally. You may know exactly what you're saying and where you're heading, but we may not stay with you if you race through your argument. It's better to clearly state your case, even if you don't have time to put in every detail, than to get it all in, but leave us with a blurred understanding of the points you were trying to make.

Third, don't dwell on the facts, even though a brief recitation of them initially will help set the stage for your arguments on the law. We are there to hear about the law, not the facts.

12. How do you define the term "judicial activism," and isn't it true that Justices serving on courts of last resort sometimes have little other than their own personal preference concerning the result to guide them in deciding cases?

Judicial activism, to me, means making decisions based on personal preference, rather than on the rule of law. Another similar meaning might be making decisions that are legislative in nature and effect. Maybe even simpler put: judicial activism is the opposite of judicial restraint. Again, I can only speak for myself and not for my fellow justices, but I find myself on occasion slipping toward judicial activism without even realizing it, much less intending to do so. Maybe it's the former senator in me; maybe it's because I want to "do good" for society. Whatever the reason, I must always be on guard.

I disagree somewhat with your statement that justices on courts of last resort sometimes have little other than our own personal preferences concerning the result to guide us. Even when there is no precedent in our jurisdiction "on point," there are a number of other places to turn for direction/instruction rather than just saying, "Well, I think this is probably the best or fairest outcome, so I will vote to affirm the trial court." I would hope that we would first exhaustively research the law in our sister states, both state and federal courts. If applicable law is found, then the only "personal preference" might be whether, based on all the knowledge gleaned from my research and analysis, I believe that State A's law on the issue is better than State B's, as applied to the case before us. Only when there is no law found, should I go to the next tier, which would be to make a decision based on public policy. Stated another way, after researching all related law, looking at the impact on the citizens of our state (as opposed to the individual litigants) which would occur if we establish precedent in one direction or the other. Let's face it: this job is much easier when there is a solid case on point that controls. Of course, if that was the usual situation, there would be little need for a Supreme Court, right?

13. I see that before you became a Justice you served in the Mississippi State Senate. How if at all does having served in the legislative branch influence you in your work as a judge?

It helps to have been a part of the law-making process; to have a thorough understanding of that process. It certainly makes it easier to understand why some statutes are so unclear and imprecise. Occasionally I have "flashbacks" to arguments on the floor of the senate when a convoluted bill was passed, and the chairman of a committee would say something to the effect of "don't worry about the details . . . we'll let those lawyers and judges figure them out." However, in the pure sense of the word "influence," I believe that it has very little effect on my work as a judge. Because our state has very scant records of legislative matters, we basically do not get into the discussion of legislative intent in our opinions construing statutes. Having been in that body, and realizing the misinterpretations which could all too easily be made, I am comfortable with our system.

14. On November 26, 2002, the Mississippi State Legislature passed the Mississippi Tort Reform Act, which became effective January 1, 2003. Before this Act became law, some regarded Mississippi as a haven for products-liability plaintiffs who were seeking large damage awards. Do you think that pre-2003 view was accurate or not, and how quickly do you expect judicial challenges to the Act to reach your court?

Much of the publicity was blown out of proportion, but I admit that there are some problem areas in our state. It will be awhile yet before challenges reach our desks, but it is just a matter of time. Both "sides" in the tort reform debate rumbled about the final version being unconstitutional. Because it likely will be tested on interlocutory appeal, which would be assigned initially to a three-judge motion panel, it's hard to predict how soon we will see it.

15. What's the status of the recommendations for judicial salary increases and judicial campaign reforms that the Study Commission on the Mississippi Judicial System provided to Mississippi's Legislature in December 2001?

Our legislature, which adjourns sine die on April 6, has sent to the governor a bill which has a rather modest salary increase for trial and appellate judges, as well as all statewide elected officials. It is seriously anticipated that he will veto it, and it isn't clear whether the votes are there for an override. Other recommended items did not fare so well. The effort to increase terms for trial judges to from four to six years failed. The commission's recommendation that judges and justices appointed to fill an unexpired term should be appointed for the entirety of the remaining term failed, but the amended version did give some relief to the appointed appellate judges and justices in that they will not have to run immediately, but rather will run at the next regular judicial election year. Our Court substantially revised the Code of Judicial Conduct effective April 2002, and addressed some of the campaign issue recommendations by rule. It is interesting to note that, several months before the decision in Republican Party v. White, our Rules Committee (a three-justice committee on which I serve) deleted the “announce” clause in our revision of our Code of Judicial Conduct.

16. What are your views concerning the confirmation battle over Mississippi-based U.S. District Judge Charles W. Pickering, Sr.'s nomination to serve on the U.S. Court of Appeals for the Fifth Circuit?

I have known Judge Pickering and his wonderful family for many, many years, since long before I had even thought of becoming an attorney. Based on my personal knowledge, as well as the enormous amount of testimony and reports from various sources during the many months since his confirmation process began, I cannot think of a single person who is more capable, more qualified, more fair to all people, and more dedicated than Judge Charles Pickering. The political posturing and in-fighting has reached absurd levels with regard to his nomination, to the detriment of the process and the nation.

17. Right now you are the only female serving as a Justice on the Supreme Court of Mississippi. Should voters, Governors, or Presidents consider a judicial candidate's gender in deciding which candidate to vote for or nominate, and why? Also, your court's Gender Fairness Task Force in November 2002 reported that gender bias is not a widespread problem in the Mississippi judicial system. Do you agree with that finding, and have you personally experienced any instances of gender bias during your career as a practicing lawyer?

I strongly believe that voters or appointing authorities should consider gender in deciding which candidate to vote for or to appoint. With regard to the trial bench, I believe that women can do the job as well as, if not better than, men, although possibly in somewhat different style. With regard to the appellate bench, I believe our "feminine traits" are arguably even more important.

Realizing that these are all generalizations, based on my experiences and observations of 60+ years, I offer the following reasons, which come to mind quickly: we bring a different perspective to the bench and to the conference table - men and women simply think differently and approach analysis and problem solving differently; we are more attentive to detail, which is quite important in the work we do; we bring gentility to the debate; we are accustomed to having to work harder just to be equal, thus having established a strong work ethic which is an important asset to the Court; and we tend to try harder to weigh all sides of an issue, and resolve conflicts rather than being combative and hostile.

Although I was not on the Gender Fairness Task Force, I was very interested, and somewhat surprised, at the results found in its report. GFTF surveyed judges, attorneys, court personnel, jurors, and the public, conducted statewide public hearings, and solicited written comments. Its findings are supported by reliable data and represent the product of four years of study and investigation, so I would be citing anecdotal evidence if I personally reached a different conclusion. The GFTF found that there were patterns of gender bias in the judicial system, but they are perceived to be relatively low and non-systemic. It is troublesome, however, that among those who witnessed or heard about incidents of gender bias, most believe that it unfairly influenced the outcome of the case. Although the GFTF concluded that gender bias is not widespread, it did recommend that the lingering perceptions of gender bias be addressed by the Supreme Court as well as other groups such as the Mississippi Bar and the Mississippi Judicial College. Our Court has already taken some specific actions, such as the revision in the Code of Judicial Conduct to require judges themselves, lawyers appearing before them, and all court staff, to refrain from any manifestation of gender (or other) bias.

As to whether I personally have experienced any instances of gender bias during my career as a practicing lawyer, the answer is "yes," but fortunately they were minor, and few and far between. And because they were not unexpected, maybe I was "programmed" to see it more of an inconvenience to work around, rather than a hurdle to leap or a mountain to climb. Although we've come a long way, there still are subtle (and for the most part, I believe, unintended) actions or inactions which indicate that work still needs to be done.

18. Your biography shows that before arriving at the Supreme Court of Mississippi you focused on the issue of illegal drugs, both as a prosecutor and as a legislator. How if at all has your service as an appellate judge changed your views on that difficult issue, and do you believe that lengthy prison sentences for what some see as relatively minor drug offenses are a useful tool in the war against illegal drugs?

First let me clarify that I never have served as a prosecutor myself. In the early 80's I was the director of the Mississippi Prosecutor's College which was an adjunct program at the University of Mississippi Law School, responsible for training, providing research and assistance with legislative matters for the district attorneys and other prosecutors of our state.

I don't think my service as an appellate judge has changed my views on the difficult issue of illegal drugs. If anything, it has just heightened my awareness of the substantial impact which illegal drugs have on our society. Although "minor drug offenses" could be said to be in the eye of the beholder, I agree that lengthy sentences, without treatment and rehabilitation, are a costly and ineffective remedy in the long run.

Our Court has become aware of unique successes which have occurred in special Drug Courts established in some counties in our state in the last year or two. We gave our blessing to the expansion of that project and the 2003 legislature has sent to the governor a bill which provides for the establishment of Drug Courts throughout the state, although state funding is not provided. This program seems to offer the first real hope for breaking the cycle of using, then stealing to buy, then selling, etc. but it can only deal with one life at a time. Notwithstanding the fact that it will require extra time as well as personal involvement by the judges, most who will be adding this special project to their already heavy workload are enthusiastic. I am hopeful.

19. For those of us unfamiliar with Oxford, Mississippi, where you live, and Jackson, Mississippi, where the Supreme Court of Mississippi has its headquarters, would you please recommend a few things that a visitor to those areas should do or see.

Oxford is a beautiful, quiet, safe and friendly small Mississippi town which is absolutely glorious this time of year. The daffodils and other bulbs, as well as the Japanese magnolias, have been in full bloom, and the dogwood and cherry trees are just beginning to blossom. Other indigenous shrubs are also beautiful, and spring is in the air. Oxford is the home of author William Faulkner, and his home, Rowan Oak is a favorite tourist stop. Another famous author, John Grisham, is also from Oxford, and still maintains a home here, but there is nothing yet enshrined for him. The University of Mississippi is the cultural center of the town, and the new Gertrude C. Ford Center for the Performing Arts on campus has just had its inaugural gala this past weekend. It is a beautiful structure, and compares favorably with like facilities in major cities around the country. For the usual concerts, speakers, and theatre events which come to the campus, plus new ones which will be drawn there, attendance at any event at the Ford Center promises to be worth traveling to see and hear. And, of course, there are great SEC athletic events on campus the year around. There are many restaurants here comparable to those found in large cities, with true small town hospitality tossed in for good measure.

Jackson has even more points of interest. Our state capitol building is incredible with its beautiful stain glass windows and marble surroundings. The Mississippi Museum of Art and the Agriculture Museum each display many items of interest every day of the year. Every four years the International Ballet competition is held in Jackson and thus 2006 will bring visitors from all over the world.

20. What do you like to do for fun or relaxation when you are not busy performing your duties as a Justice on Mississippi's highest court?

My family is the most important aspect of my life outside the Court. I spend my weekends with my husband in Oxford, and we try to visit the children and grandchildren often. I have even learned to fly in the past year, so that I can be a "pinch hitter" pilot if needed when my husband flies us to see them. I teach 2 and 3 year old children in Sunday School each week, and they keep me humble. They don't know, of course, that I'm a justice, or anything other than "Miss Kay" who loves to teach and play with them. I truly delight in listening to good symphonies on CD as I commute 3 hours each way on the weekends. Finally, I enjoy aerobics and toning classes and walking each day at the fitness center.
Posted at 00:01 by Howard Bashman



Sunday, April 06, 2003
"Local attorney in federal spotlight; Lawyer Duard Bradshaw is president of Hispanic National Bar Association": Today's edition of The Beacon Journal of Akron, Ohio contains this article.
Posted at 22:00 by Howard Bashman



"So far, Bush can't beat Republican guard in Capitol; His proposals stalled on Hill": Today's edition of The Boston Globe contains this report.
Posted at 21:59 by Howard Bashman



"Judicial wars unending": Denver Post columnist Al Knight has this essay in today's paper. And John Nowacki, Director of Legal Policy at the Free Congress Foundation, had an essay entitled "Senate Democrats Are Taking Judicial Confirmations To New Lows" Friday at Cybercast News Service.
Posted at 20:36 by Howard Bashman



"On Law: A nation in change": Michael Kirkland, UPI Legal Affairs Correspondent, offered these thoughts Friday.
Posted at 20:26 by Howard Bashman



Justice Antonin Scalia's recent speech at Cleveland's City Club: An article from The Cleveland Plain Dealer entitled "Words of wisdom, schmoozing always on tap at the City Club" provides what I assume to be a humorous take on Justice Scalia's recent visit.
Posted at 20:21 by Howard Bashman



"'U' has months to wait before decision": Thursday's edition of The Michigan Daily contained this report. Meanwhile, yesterday's edition of The San Antonio Express-News reported here that "1 justice may be the key to affirmative action." And yesterday's edition of The St. Petersburg Times contained an editorial entitled "The progress defense: As the U.S. Supreme Court searches for middle ground on the issue, public support signals progress for affirmative action."
Posted at 19:41 by Howard Bashman



"Scalia to deliver McClure lecture": Yesterday's edition of The Clarion-Ledger contained an article that begins, "U.S. Supreme Court Justice Antonin Scalia delivers the James McClure Memorial Lecture in Law at the University of Mississippi on Thursday. The free, public address,'Constitutional Interpretation,' begins at 4 p.m. in Fulton Chapel." Thanks to University of Mississippi School of Law student A.R. Seger for his email last Thursday drawing Justice Scalia's visit to my attention.
Posted at 19:35 by Howard Bashman



"Why Justice O'Connor Could Be Affirmative Action's Savior": Adam Cohen offers these thoughts in his Editorial Observer column in today's edition of The New York Times.
Posted at 18:17 by Howard Bashman



Today is the eleven-month anniversary of "How Appealing": The wild celebrations have kept blogging to a minimum this weekend.
Posted at 18:15 by Howard Bashman



Seventh Commandment imperiled: The Associated Press reports here that "Ten Commandments Project Runs Out of Cash."
Posted at 16:51 by Howard Bashman



"Ordinary or odd, last meal can tell inmate's story": Yesterday's edition of The Houston Chronicle contained this report. (Thanks to Jim Dedman for the pointer via email.)
Posted at 14:29 by Howard Bashman



"Michigan's Day in Court: In arguments over affirmative action in admissions, the justices seemed to favor a less than drastic overhaul of the law": The April 14, 2003 issue of Newsweek contains this report.
Posted at 14:24 by Howard Bashman



Elsewhere in Sunday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices Enter the Radio Age." You can access here an article entitled "Pros, Cons and Don't Cares at the University of Michigan." An article about the war on terror reports that "Statute Becomes Justice Department's Weapon of Choice." And Adam Liptak reports that "Scandal Called Threat to Free Worship."

Today's edition of The Los Angeles Times contains an article entitled "A Deadly Serious Border Dispute; There are 51 Mexican nationals on death rows in the U.S. Their cases, and their rights, are at the heart of a widening rift between the nations." From South Africa comes an article entitled "Big Businesses Sued for Apartheid Reparations; Two lawsuits filed in the U.S. claim that South African companies were complicit in the system." And an editorial is entitled "Life, Liberty and Barking."

The Boston Globe reports here that "SJC eyes 'second family' support case; More sought for child born out of wedlock." And golf is on the mind of two columnists: Eileen McNamara has an essay entitled "Playing with a handicap," and Ellen Goodman has an essay entitled "No fair on the fairway."

Speaking of golf, The Washington Times contains an article entitled "All teed off." And Terence P. Jeffrey has an op-ed entitled "Texas law before the bar."
Posted at 09:45 by Howard Bashman



Women rule! (part six): This past week Wisconsin became the latest State in which a majority of the Justices serving on the State's highest court will be women. The Milwaukee Journal Sentinel had this report.

The hard-fought and expensive election battle in Wisconsin had one other very interesting aspect. As this earlier Journal Sentinel article reported:
Friday, Brunner accused Roggensack of being a "stealth" candidate for refusing to take positions on major issues. The election is the first one since the U.S. Supreme Court ruled that judicial candidates could give their views on pending legal issues.

"We don't want to elect someone who is going to be a 'stealth' judge," Brunner said. "You lay out what you stand for. . . . She's not kidding anybody about not talking about the issues. She's trying to have it both ways."

Brunner said he felt he had to tell voters that he backs abortion rights, for example, and opposes Milwaukee's choice program that lets some poor children attend private schools at state expense. "We don't run for judge and automatically lose every opinion we had in our life," he added.

Responding, Roggensack said Brunner took stands on education issues to "pander" for support from the state's largest teachers union, the Wisconsin Education Association Council. To be impartial, judges must not announce their personal feelings on issues that may come before them, Roggensack said.

Because of the stands Brunner has taken, lawyers who argue education-related cases before him "will not think he's fair," Roggensack predicted.
Wisconsin joins New York, Washington, and Ohio as States in which the highest court has a majority of female justices/judges.
Posted at 00:40 by Howard Bashman



In Sunday's newspapers: The Washington Post contains a front page article entitled "From Malvo, Hubris and Contempt; Teen Told of Coldblooded Campaign to Terrorize, Documents Say." Laura K. Donohue writes in the Outlook section that "The British Traded Rights for Security, Too." An article reports that "Tobacco Funds to Va. In Jeopardy; Suit Pinches Finances, Philip Morris Says." Columnist David S. Broder has an essay entitled "Diversity on Campus, And in the Newsroom." An editorial about the asbestos litigation crisis is entitled "Listen to the Court." And in Book World, Edward Countryman reviews "The Minority Rights Revolution" by John D. Skrentny and "Diversity" by Peter Wood.
Posted at 00:12 by Howard Bashman



Saturday, April 05, 2003
Tonight's DVD selection: "Secretary," starring James Spader and Maggie Gyllenhaal (NYTimes review here; Salon review here).
Posted at 22:55 by Howard Bashman



"Diversity Begins at Home: Supreme Court Clerkships and Affirmative Action": Professor Debra M. Strauss has this essay online at Jurist.
Posted at 16:10 by Howard Bashman



Elsewhere in Saturday's newspapers: The Washington Times reports here that "Florida AIDS leaflet draws ire of ACLU." And Thomas Sowell has an op-ed entitled "Another grand fraud."

In The Los Angeles Times, you can access here an article entitled "Judge in Moussaoui Trial 'Disturbed' by Prosecutors' Tactics; Government is reluctant to turn over classified information to the accused Sept. 11 conspirator, who is acting as his own lawyer."
Posted at 15:55 by Howard Bashman



"Death sentence upheld in slaying of witness; Convict had told trial judge he wanted new lawyer": Bob Egelko had this article in yesterday's edition of The San Francisco Chronicle. The article reports on a recent ruling of the Supreme Court of California.
Posted at 15:50 by Howard Bashman



"A bad week to fight positive discrimination affirmative action case; Iraq factor adds weight to military leaders' argument for ethnically selective admission to universities": Today's issue of The Guardian contains this report. In related news, The Associated Press reports here that "Mich. Case May Affect Primary Education."
Posted at 15:45 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Court Upholds Convictions in '93 Trade Center Bombing." An article reports that "Philip Morris to Push Bill in Illinois to Lower Bond." Philip Shenon reports that "Judge Critical of Secrecy in Terror Case Prosecution." In other news from Virginia, "Tapes Hint at Possible Flaws in Sniper Suspect Confession." And an article reports that "Law Firm Accused of Frivolous Suits."

Today's edition of The Washington Post reports here that "Tobacco Firm Asks For Lower Bond; Suit Seeks to Halt Illinois Damages." An article reports that "U.S. Secrecy Criticized By Moussaoui Judge." A report from Washington State is entitled "Ingredients for Unusual Trial: A Triangle and Toxic Ricin." Columnist Colbert I. King has an essay entitled "Scapegoat Syndrome." And letters to the editor run under the heading "Building a Better Student Body."

[More to come!]
Posted at 08:10 by Howard Bashman



Friday, April 04, 2003
Fifth Circuit creates circuit split over whether Castillo v. United States applies retroactively on collateral review: In Castillo, the Supreme Court of the United States ruled that a twenty-five-year sentence enhancement that applied for carrying a machinegun -- instead of an ordinary firearm -- during and in relation to a drug trafficking crime gave rise to a separate, aggravated crime. Accordingly, the indictment had to charge the carrying of a machinegun, and the jury, rather than the trial judge, had to find the existence of that element.

Today the U.S. Court of Appeals for the Fifth Circuit considered a habeas corpus petition filed by a federal prisoner who received a thirty-year sentence for carrying a machinegun in connection with a drug trafficking offense instead of a five-year sentence for carrying an ordinary firearm. In his case, the indictment did not charge that he carried a machinegun, nor did the jury find it as a fact. Instead, the trial judge found the fact in sentencing the defendant. Recognizing that the U.S. Court of Appeals for the Tenth Circuit had recently held that Castillo applies retroactively on collateral review, today the Fifth Circuit, in an opinion by Circuit Judge Jerry E. Smith, arrived at the opposite conclusion. Only time will tell whether this conflict is one that the Supreme Court will view as worthy of resolution.
Posted at 23:53 by Howard Bashman



"Leaks": Law Professor Jeff Cooper offers his thoughts about the topics addressed in my post earlier today on leaks to the press in connection with the still-pending campaign finance reform case.
Posted at 22:44 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Campaign Finance Reform Stuck in Court." Shannon P. Duffy reports here that "3rd Circuit to Hear Ten Commandments Case." An article is entitled "Accommodation Under ADA Not Applicable to Subway Employee." From Georgia comes an article entitled "Federal Judge: 'No Evidence' That Ramseys Killed JonBenet; Judge dismisses a defamation suit against Ramseys, suggests intruder may have slain their daughter." An article reporting news from Texas is entitled "Justice in a Small Town: After three years, lawyers' tenacity may pay off for Tulia defendants." Tony Mauro's other article reports that "Former Judges Do Double Duty as Consultants." The brand new installment of Justice William W. Bedsworth's always very humorous column is entitled "Taking Stock in the Market; How not to drown in the fountain of money." And Ninth Circuit nominee Carolyn B. Kuhl receives a sideways arrow in this week's bar-ometer feature in The Recorder.
Posted at 22:35 by Howard Bashman



Two excellent films, just released on DVD: "Far from Heaven" (Ebert review here) and "Femme Fatale" (Ebert review here). Both films received four out of four stars, and deservedly so.
Posted at 22:11 by Howard Bashman



Best one yet? The answers to April's installment of "20 questions for the appellate judge" have arrived this evening, and this installment may just be the most interesting one yet. See for yourself shortly after midnight on the morning of Monday, April 7, 2003, when those questions and answers are posted online here at "How Appealing."
Posted at 22:00 by Howard Bashman



"Supreme Court Prepares for Terror Cases": Gina Holland of The Associated Press has this report on Justice Stephen G. Breyer's keynote speech today at the 97th Annual Meeting of The American Society of International Law.
Posted at 21:59 by Howard Bashman



"Judge Questions Future of Moussaoui Trial": The Associated Press has this report. The order that U.S. District Court for the Eastern District of Virginia issued today, which gives rise to The AP's report, is accessible here.
Posted at 19:00 by Howard Bashman



For fans of this blog's "20 questions for the appellate judge" feature: The next installment of questions and answers will appear here on Monday, April 7th. You can access the two earlier installments here. Who is this month's participant? I've already given a few hints in the past, but to learn the answer you'll have to check in on Monday.
Posted at 16:15 by Howard Bashman



"50 Million Historical Documents Hit Web": The Associated Press has this report about a new (and free) online service that the National Archives is offering.
Posted at 15:34 by Howard Bashman



"A pox on all their houses!": A concurring opinion issued today by Fifth Circuit Judge Edith H. Jones begins:
A pox on all their houses! The panel's discussion euphemizes what was going on here -- a useless and blatant perversion of bankruptcy.
You can access both the court's opinion and Judge Jones's concurring opinion at this link.
Posted at 14:16 by Howard Bashman



"S.A.'s Prado clears D.C. hurdle": Today's edition of The San Antonio Express-News contains this report.
Posted at 14:04 by Howard Bashman



"Convictions Upheld in '93 WTC Bombing": The Associated Press offers this report.
Posted at 13:57 by Howard Bashman



Access online last night's U.S. Supreme Court order allowing Oklahoma to administer the death penalty to Scott Hain: See page two of this PDF file.
Posted at 13:41 by Howard Bashman



Likelike Highway: Today's edition of The Washington Post contains an article entitled "Judges Struggle on Campaign Finance; Lower Court Delays Imperil Plan for Supreme Court Ruling by 2004 Elections." The article will bring to the attention of more people the information that Nina Totenberg first reported on National Public Radio last Saturday. Of course, "How Appealing" linked to Totenberg's report on Monday, so most of you already knew what The Washington Post reports to the masses today.

In looking at today's article and the transcript of Totenberg's broadcast, a few observations come to mind. First, it seems clear that the source of these unfortunate leaks is not associated with or friendly to D.C. Circuit Judge Karen LeCraft Henderson, because the leaks appear intended to cast her in a negative light.

Second, to the extent that these reports suggest that Judge Henderson is principally to blame for the delay in the decision's issuance, I don't find the leaks to be especially credible. Neither of the other two judges on this special three-judge federal district court panel has anywhere near as much experience as Judge Henderson when it comes to participating in three-judge panels. So, the suggestion that Judge Henderson doesn't play well with others rings hollow. And Judge Henderson previously served for four years as a federal district judge -- the very position her two colleagues on the three-judge panel now occupy -- so the implication that Judge Henderson doesn't understand how judges handle cases at the trial court level strikes me as absurd. Moreover, the specific criticism that Judge Henderson began drafting proposed findings of fact before the panel heard two days of oral argument seems overblown, because the panel was merely hearing oral argument from lawyers, not taking evidence in the form of testimony.

Third, I'm surprised by the suggestion in today's Washington Post article that federal appellate judges are more rapid decisionmakers than federal district judges. The assertion is so absurd as to require little refutation. Judges at all levels decide some cases quickly and other cases slowly. But the need for speed and accuracy remains fully velivolant in both trial and appellate courts. Furthermore, federal district judges on average probably handle more requests for emergency relief than do federal appellate judges.

Although the proposition shocked me the first time I heard a judge say it, I now agree that it is more important to get cases decided promptly than to take forever making sure that every case is decided as correctly as possible. In this regard, it is regrettable that the three-judge district court panel still hasn't ruled.

But even in the absence of the courthouse leaks that have given rise to Totenberg's broadcast and today's Washington Post report, the reasons for no ruling yet are all but self-evident: (1) the case is complicated and the factual record quite large; (2) the decision will be especially lengthy; and/or (3) the judges on the panel are not unanimous as to the outcome of the case. While I don't fault the press for publishing unauthorized leaks that purport to explain the reasons why a decision hasn't yet issued, I do think that it's most unfortunate that anyone connected to the court system has thought it appropriate to reveal the details that have been published when a sufficient explanation already existed, as noted in the preceding sentence. (The title of this post may make sense to those who know the proper pronunciation of the highway in question, which is located on Oahu, Hawaii.)
Posted at 12:30 by Howard Bashman



BREAKING NEWS--Second Circuit affirms Ramzi Yousef's convictions: You can access today's 162-page ruling at this link. In separate trials, Yousef was convicted of conspiracy to bomb United States commercial airliners in Southeast Asia and for his involvement in the February 1993 bombing of the World Trade Center.
Posted at 12:00 by Howard Bashman



Hasn't happened before: The other day I asked whether, since the Evarts Act became law in 1891, a State has been transferred from one preexisting federal appellate court to another, as pending legislation proposes to do with the State of Arizona, moving it from the Ninth Circuit to the Tenth Circuit.

Thanks to those readers who supplied a link to the Federal Judicial Center document entitled "Creating the Federal Judicial System" (PDF). The document confirms that since 1891 a State has never been transferred from one preexisting federal appellate court to another. (After 1891, some territories, upon achieving statehood, did move from one circuit to another, but that was outside the scope of my question.)

Another reader emails to say:
Regarding your article on the proposed split of the 9th Circuit, you may want to inquire whether any (or all) of the current 9th Circuit judges residing in Arizona would elect to stay in the 9th Circuit or relocate to the 10th. I understand that the current proposal would allow Arizona appellate judges the option. This is just speculation, but I'd bet that Chief Judge Schroeder would be unlikely to give up her position as Chief and that other judges who like visiting SF would be unlikely to make the switch.

This seems to present all sorts of interesting logistical issues. Would the judges be forced to relocate their chambers to California or could they continue to work from Arizona? If Schroeder did make the switch, would she have the same seniority/etc. in the 10th? If they elected to stay in the 9th, would that create new openings for Arizona spots in the 10th?
A move to California wouldn't be necessary -- unless the new Ninth Circuit consisted only of California -- but 28 U.S.C. sec. 44(c) does provide that "[e]xcept in the District of Columbia, each circuit judge shall be a resident of the circuit for which appointed at the time of his appointment and thereafter while in active service." On the other hand, if the statute is applied literally and in isolation, it only applies to male federal appellate judges, so Chief Judge Mary M. Schroeder would be exempt from its a requirements.

A very thoughtful reader of this blog who requests anonymity writes:
I think Judge O'Scannlain's answer to your 20 questions last month provides some very good insight. As he said, the worst reason to split the circuit is politics and a dissatisfaction with jurisprudence. The best reason is size, geographical and caseload. The other important reason is unrepresented active judges on en banc panels.

The proposal to make a new Ninth Circuit composed of California and Nevada makes sense geographically but has several problems. First, California is far and away the highest producer of cases by volume in the circuit. And Nevada is higher than Oregon, Idaho, Montana, Alaska and Hawaii. That is only relevant to the extent that you are taking the judges from these Northwest states away from hearing California cases. The case load per judge would be staggering with the split for the new Ninth Circuit while the 12th would be relatively light.

So what do you do? Congress could allow new judgeships in California to remedy the problem, and I'm sure the White House would love to appoint conservative judges to counterbalance the "liberals" out on the left coast. But the problem becomes, if you allow more judges in addition to the 11 active judge with resident chambers in California and two in Nevada, all the sudden you run into the same problems the current 9th Circuit, has too many judges. You'd need at least ten more judges on the new 9th to make the caseload manageable and all the sudden you have a too many judges on the circuit, a lack of consistency in the jurisprudence and unrepresented judges on the en banc panels. You are right back where you started.

Sending Arizona to the 10th doesn't solve many problems either. You split two border states (AZ and CA) who hear the bulk of immigration cases and that will cause more inconsistency in immigration law. Besides, has anyone asked the 10th; I'm not so sure that they want AZ. Oh, and I'm not sure that John McCain would jump behind it; he hasn't in the past and has a good relationship with Chief Judge Schroeder who is anti-split.

One other thought. No matter what happens, Hawaii should stay with California for the simple reason that most of Hawaii state law is based on California's. Lumping Hawaii in with the Northwest wouldn't do anything more then create more work for those judges.

Love your column; it is invaluable. My personal feeling on the split -- it needs to be done, but there is no easy way to do it. Congress shouldn't act based on politics; they should do it only if they can come up with a better idea than what currently exists. I don't think any of the current legislation comes up with a better idea.
Thanks to everyone who took the time to respond to my inquiry.
Posted at 11:46 by Howard Bashman



Today's FindLaw columnist: Vikram David Amar has an essay entitled "A Pending Supreme Court Case Addresses Ex Post Facto Laws: Part One of a Two-Part Series on Unconstitutional Retroactive Criminal Legislation."
Posted at 10:36 by Howard Bashman



In other news: The AP reports here that "Mo. Judge Accused of Bribe, Murder Plot" and here that "Law Gives Time to Prosecute Sex Abuse."
Posted at 07:08 by Howard Bashman



"Man Put to Death After High Court Ruling": This postmortem by Associated Press reporter Gina Holland confirms the point I first noted here last night.
Posted at 07:00 by Howard Bashman



With this Ring, I thee death penalty reexamine: You can access yesterday's ruling of the Supreme Court of Arizona on remand from the U.S. Supreme Court's decision in Ring v. Arizona at this link. My write-up of last Term's ruling in Ring, written on the day that ruling issued, is accessible here.
Posted at 06:53 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Judges Struggle on Campaign Finance; Lower Court Delays Imperil Plan for Supreme Court Ruling by 2004 Elections." The article quotes Law Professor Rick Hasen, whose "Election Law" blog you can access here. An article reports that "Media Challenge Court Secrecy in Terrorism Trial." Here's an article entitled "Case of Senior Partners v. Feeble, Dodder & Gray." An editorial is entitled "No Embeds at the Court." And columnist Donna Britt has an essay entitled "Diversity Benefits All Kinds."

The New York Times reports here that "News Groups Want Terror Case Documents." From Oregon comes news that "Terrorism Task Force Detains an American Without Charges." Read here about "A New Push to Grant Gun Industry Immunity From Suits." Faithful readers of "How Appealing" were among the first to learn yesterday what an article entitled "First Woman Is Appointed as Dean of Harvard Law School" reports. In business news, "Moody's and Fitch May Cut Reynolds Tobacco Credit Rating." Relatedly, an editorial is entitled "Too Costly an Appeal." And letters to the editor run under the heading "Obstacles for All Races."

OpinionJournal today features an essay by Pete du Pont entitled "From Bad to Diverse: The Supreme Court debates whether the 14th Amendment means what it says." And here's an editorial entitled "Wearing o' the Green; Hootie Johnson stands up for the Constitution."

The Los Angeles Times reports here that "Judges Hint at Axing Microsoft Injunction." It seems that some of the questions axed at yesterday's Fourth Circuit oral argument gave that impression. [Ed.: Oh no! Lame attempts a humor have now begun to invade the newspapers feature too.]

The Boston Globe reports here that "Harvard picks first female dean of law."

USA Today reports here that "Fugitive said to be al-Qaeda pilot; U.S. chasing his connection to 'dirty bomb' suspect Padilla." And letters to the editor run under the heading "Affirmative action hurts dignity."

Finally for now, The Christian Science Monitor contains an op-ed by Adam Pertman entitled "Rethinking 'safe havens' for legal desertion of babies."
Posted at 06:10 by Howard Bashman



Thursday, April 03, 2003
Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports that "Supreme Court Expands Right of States to Regulate HMOs; The unanimous ruling upholds willing provider laws, which let a group member go to a physician who is not a part of the network. California is excluded because it doesn't have such a statute." An article reports that "Tobacco Companies Sue State; The firms say the anti-smoking ads vilify them. Gov. Davis sees them as hard-hitting and effective." And in other news from California, "Judge Must Stand Trial in Domestic Violence Case."

The Boston Globe reports here that "Website targets state sex offenders." And Thomas Sowell has an op-ed entitled "The grand fraud" in today's edition of The Washington Times.
Posted at 22:25 by Howard Bashman



"Sentencing injustice": That's the title of Law Professor Jeff Cooper's blog post about the so-called "Feeney Amendment" to The Child Abduction Prevention Act of 2003. A document located on the House of Representatives' Web site provides this description of the amendment:
Places strict limits on departures from federal sentencing guidelines by allowing sentences outside the guideline range only upon grounds specifically enumerated as proper for departure. Requires courts to give specific and written reasons for any departure from federal sentencing guidelines. Changes the standard of review for appellate courts to a de novo review to allow appellate courts to more effectively review illegal and inappropriate downward departures from federal sentencing guidelines. Prevents sentencing courts, upon remand, from imposing the same illegal departure on a different theory. Only allows courts to reduce a person's sentence for "acceptance of responsibility" when the government agrees with that finding. Amends sentencing guidelines with regard to the penalties for possession of child pornography by increasing penalties if the offense involved material that portrays sadistic or masochistic conduct or other depictions of violence and by increasing penalties based on the amount of child pornography involved in the offense.
You can access that description here.
Posted at 22:08 by Howard Bashman



Could these two news reports be related? The Associated Press reports here that "N.D. Law Forbids Unmarried Cohabitation" and here that "Couple Living Together 77 Years Marries."

As to the latter article, pick your favorite rejoinder: I'm sure their parents would be proud; they just wanted to make sure they were compatible; they're about to find out that once you get married, everything changes; who would have expected a shotgun wedding at that age?
Posted at 20:51 by Howard Bashman



Opinion-writing advice: Stuart Buck posts some opinion-writing advice he received several years ago from Michael W. McConnell, who now serves as a Circuit Judge on the U.S. Court of Appeals for the Tenth Circuit.
Posted at 20:45 by Howard Bashman



"Court OKs Execution of Former Teen Killer": The Associated Press has this report on the U.S. Supreme Court's order overturning the Tenth Circuit's stay. Notwithstanding the gist of Gina Holland's article, a reader who should know the facts of this matter emailed me earlier today to say:
For what it is worth the Tenth Circuit did not stay Mr. Hain's execution because of the juvenile question; they had already rejected that issue. Instead the Circuit granted a stay of execution to resolve whether federal funds can be used for state clemency proceedings under Title 21 United States Code sec. 848(q)(8). A reading of that vague statute would seem to allow this expense. The three judge panel held 2-1, that sec. 848 did not provide for lawyers at state clemency hearing of death row inmates. It is a very hot issue with a split in the different circuits. The Tenth Circuit has granted rehearing en banc to be argued in May.
Back on March 26, 2003, I had this post on the Tenth Circuit's 2-1 ruling that day in Hain's appeal on the clemency / right to state-funded counsel issue. If my reader is correct that the Tenth Circuit has since granted rehearing en banc, it appears that the case will soon be moot.
Posted at 20:06 by Howard Bashman



Even more coverage of Intel v. Hamidi: The Sacramento Bee contains an article entitled "Free-speech concerns in e-mail case; The state high court debates Intel's suit against an ex-worker." The Los Angeles Times reports here that "Justices Appear Split Over Intel E-Mail Case; The state high court will decide if a fired worker's mass messages constitute electronic 'trespassing.'" The Metropolitan News-Enterprise reports here that "Lawyers Spar Over Order Barring Ex-Employee From Sending E-Mails; Attorney for Former Intel Worker Says Restriction on Client Is Unconstitutional." And The Register contains an article entitled "Intel v. Hamidi case tests Net freedoms."
Posted at 17:20 by Howard Bashman



Two views: Stanley Kurtz has an essay entitled "Diversity Questions: Its court date" at National Review Online. And Jim Grossfeld has an essay entitled "Unhealthy Choice: Bill Frist's affirmative-action blindspot" at The American Prospect.
Posted at 17:11 by Howard Bashman



"Judge Voices Skepticism on Order Against Microsoft": Reuters has this report on today's Fourth Circuit oral argument.
Posted at 17:07 by Howard Bashman



"Marijuana isn't issue, court says. Justices rule pot use no reason to deny custody; Juvenile Court to decide." Today's edition of The Beacon Journal of Akron, Ohio contains this report. And in other news, you can access here an article entitled "Justices to allow school hearings; Ohio Supreme Court declines to say whether judge has power to act."
Posted at 16:08 by Howard Bashman



The Associated Press is reporting: "Ariz. Court to Review Death Penalty Cases"; "Pa. Won't ID Sites Blocked for Child Porn"; "Miami Jurors Report Illegal Contacts"; "NAACP President Testifies in Gun Lawsuit"; and "Couple Living Together 77 Years Marries."
Posted at 15:45 by Howard Bashman



Rick Klau has a write-up of Seventh Circuit Judge Richard A. Posner's keynote address this morning at the ABA TechShow: You can access Rick's coverage here.

Also, law blogs were on the agenda later in the day, Rick reports here.
Posted at 15:39 by Howard Bashman



New Dean of Harvard Law School thanks the Senate Judiciary Committee: The final two paragraphs of this report from The Associated Press are worth a look.
Posted at 15:36 by Howard Bashman



"Elena Kagan named next dean of Harvard Law School": You can access Harvard's press release here. Ms. Kagan was correctly considered a leading candidate for the post, as this article from the March 13, 2003 edition of The Harvard Crimson demonstrates. (Some will note that this announcement shows that it's not the end of the world to be a D.C. Circuit nominee whom the U.S. Senate never gets around to confirming.)
Posted at 13:49 by Howard Bashman



Sunrise, sunset: Skip Oliva attended today's oral argument before the U.S. Court of Appeals for the Fourth Circuit in Sun Microsystems v. Microsoft Corp., and he provides this detailed report at "The Rule of Reason" blog.
Posted at 13:47 by Howard Bashman



"Unusual diversity enters court; Supreme Court justices and typical audience lacking in integration": Stephen Henderson of the Knight Ridder news service has this report, which mentions that Tuesday's oral arguments "took place in a courtroom whose own lack of diversity reflects the very problem at issue." Henderson goes on to note that "Most days, one doesn't need more than one hand to tally the room's diversity."
Posted at 13:11 by Howard Bashman



At today's Senate Judiciary Committee business meeting: The Committee voted 19-0 to recommend to the full U.S. Senate the confirmation of Fifth Circuit nominee, and current U.S. District Court Judge, Edward C. Prado.
Posted at 12:32 by Howard Bashman



Harvard Law School to announce its selection of a new Dean today? Quite possibly. Stay tuned for details, which may emerge at an all-school meeting scheduled for 1:45 p.m. today.
Posted at 12:02 by Howard Bashman



Today's FindLaw columnist: Edward Lazarus has an essay entitled "Why the Pending Bill That Would Limit Federal Judges' Sentencing Discretion Even More Should Not Be Passed."
Posted at 10:11 by Howard Bashman



"U.S. appeals court halts Oklahoma execution": Reuters offers this report. According to the article, the person who was to have been executed was seventeen years old at the time he committed the murders for which he received the death penalty.
Posted at 10:09 by Howard Bashman



"The Democrats' Big Plan: They don't want to stop a few Bush judges. They want to stop them all." Byron York today has this essay at National Review Online.
Posted at 09:14 by Howard Bashman



At 9:30 a.m. today, the Senate Judiciary Committee is scheduled to hold a business meeting: At the meeting, the committee is scheduled to vote on the nomination of U.S. District Judge Edward C. Prado to serve on the U.S. Court of Appeals for the Fifth Circuit. You can access the complete agenda for today's meeting at this link.
Posted at 09:11 by Howard Bashman



From today's edition of The Detroit Free Press: You can access here an article entitled "Military academy admissions may be key to U-M case"; here, "Firms don't support spreading U-M policy; Many hesitant to prod colleges on diversity"; and here, "Supporting U-M: Ride on bus jogs protest memories; Transport more comfy than in civil rights era."
Posted at 08:17 by Howard Bashman



"Intel e-mail issue divides court; Justices Hear Arguments in Hamidi Case": The Mercury News provides this report. And Wired News has an article entitled "Posted: Keep Off Company Network."
Posted at 06:11 by Howard Bashman



"Calif. Court to Rule if Ex-Worker May Spam Intel": Reuters offers this report.
Posted at 00:25 by Howard Bashman



From Wednesday's White House Press Briefing:
Q Ari, for the fourth time, Senate Republicans have been unable to break the filibuster on Miguel Estrada. In the President's view, what else can be done at this point to break the stalemate?

MR. FLEISCHER: Stand on principle and do the right thing, continue to stand by a good man, Miguel Estrada, for a job that he deserves. That's the President's approach. The President thinks it is a very bad mistake for senators, particularly, at a time when the judicial branch lacks judges, to make the matter -- compound the matter and make it worse by failing to confirm qualified judges. And so the President very much regrets the politically driven tactics of those who are filibustering the nomination of somebody who clearly has the bipartisan support to have a strong majority on the Senate floor. He has 55 votes. That is a sufficient majority to pass. And the President regrets that there is a partisan minority standing in the way of bipartisan progress.

Q In addition to standing on principle, is he actively doing anything to make headway, making phone calls?

MR. FLEISCHER: Sure. We continue to work the issue on the Hill. The President has talked to a number of people. And I think it's just a question of whether or not the Democrats want to keep up their obstructionist tactics for as long as it is necessary, because the President continues to stand by Miguel Estrada and will continue to stand by Miguel Estrada.
You can access the complete transcript here.
Posted at 00:24 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "Supreme Court Sides With States on HMOs; Groups Can Be Opened to All Providers." You can access here an article entitled "Ruling on Endangered Species Upheld; Appeals Court Rejects Request From California Developer." And an article reports that "Va. Lawmakers Uphold Limits on Abortions; Vetoes on Parental Notification, Late-Term Procedure Voided."

In The New York Times, Linda Greenhouse reports that "States Can Force H.M.O.'s to Accept Any Qualified Doctor." A related article is entitled "Industry Says Decision Won't Set Back Managed Care."

In The Wall Street Journal, John Fund's Political Diary is entitled "Not So Affirmative: Is 'diversity' on campus even a goal worth pursuing?"

And The Christian Science Monitor contains an article entitled "Drawing the line between asylum seekers and safety."
Posted at 00:10 by Howard Bashman



Wednesday, April 02, 2003
Available online at law.com: You can access here an article entitled "California Justices Divided Over Approach to Anti-Intel E-Mail." In news from Georgia, "Federal Judge Tosses Race Bias Suit; Nooses didn't prove racial bias, judge says." And finally for now, you can access here an article entitled "Asbestos Claimants Seek Swifter Appointment."
Posted at 23:00 by Howard Bashman



U.S. Supreme Court round-up for Wednesday, April 2, 2003: Volume. Everyone knows that's the key to a successful business endeavor if profit margins are slender. Just ask the good folks at First Citiwide Change Bank (see here and here). Web logs provide another good example -- if your Web log gets enough visitors, it almost makes up for the fact that readers pay no fee.

Health Maintenance Organizations understand that their ability to send physicians a large number of patients allows the HMOs to negotiate exceptionally low-cost deals from physicians who wish to be authorized to treat an HMO's patients. The Commonwealth of Kentucky, however, had a different policy in mind when it came to HMOs. Kentucky enacted an "Any Willing Provider" law, which essentially required HMOs to pay the rates they had negotiated as payment to their in-network medical professionals to any medical professional -- whether in-network or not -- who was willing to accept that payment in exchange for providing the services that the payment entailed. HMOs were understandably concerned that "Any Willing Provider" laws would deprive them of the ability to supply volume to their in-network physicians, which would then drive up the rates for medical services that in-network physicians would demand.

As a result, an organization consisting of HMOs sued Kentucky's Commissioner of Insurance in federal court challenging the "Any Willing Provider" law as an illegal regulation of health plans governed by the Employee Retirement Income Security Act of 1974 (ERISA). As someone who has long believed that ERISA lawyers exist in order to make tax lawyers seem interesting by comparison, I will try to make this write-up as painless as possible so you won't browse away in search of another willing provider of potentially amusing U.S. Supreme Court case summaries.

ERISA prohibits States from enacting laws that relate to employee benefit plans but then carves out from that prohibition those laws that simultaneously regulate insurance. Thus, States remain free to enact laws that relate to employee benefit plans so long as those laws also regulate insurance. Today, in Kentucky Assn. of Health Plans, Inc. v. Miller, No. 00-1471 (U.S. Apr. 2, 2003), it was undisputed that the "Any Willing Provider" law related to employee benefits plans. Thus, the key question was whether the AWP law also regulated insurance. If so, Kentucky could enforce the law; if not, the AWP law would be void, preempted by ERISA.

Justice Antonin Scalia delivered today's opinion on behalf of a unanimous Court, which means that no snide remarks criticizing those Justices who would dare to disagree with him appear in today's opinion. Both the trial court and a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit (see opinion here) ruled that Kentucky's AWP law was not preempted by ERISA because it regulated insurance. And today the Supreme Court affirmed.

Is patient choice anathema to health care cost containment? In the aftermath of today's ruling, we shall see. Stay tuned for the next scheduled U.S. Supreme Court round-up, which is due to appear on Monday, April 7, 2003, when the Court will next issue one or more new opinions.
Posted at 22:10 by Howard Bashman



The view from Michigan: Today's edition of The Michigan Daily reports here that "Supreme Court justices fire tough questions at lawyers"; here that "Justices question application of Bakke in Law School case"; here that "Kennedy calls LSA policy a quota system"; and here that "Hoping to sway court, students convene in D.C. by the busload."

The Detroit Free Press reports here that "Affirmative Action on Trial: Policy Put to the Test; Both sides face pointed questions by court's conflicted justices"; here that ""Area near courthouse packed; Thousands gather from around nation and debate"; and here that "Diversity activists at work on campus; U-M groups continue to pursue the education of their fellow students." Additionally, columnist Brian Dickerson has an essay entitled "Lawsuits hide real threat to education."

The Detroit News reports here that "High court confronts race issue; Justices raise questions about diversity, quotas in debate of U-M admissions cases"; here that "Justices may ask U-M to alter rules; WSU law professor: School might have to set diversity limit"; here that "Military may play crucial role in case; Brief's arguments impress justices, Harvard prof says"; here that "Spectators get creative in effort to hear U-M case"; and here that "Thousands march for affirmative action; U-M hearing attracts politicians, activists." Finally for now, here's an article entitled "Options: End preferences or rewrite admission rules."
Posted at 19:52 by Howard Bashman



"ACLU Concerned With School Pledge Policy": The Associated Press has this report, which picks up on a press release that the Worcester County Chapter of the American Civil Liberties Union of Massachusetts issued this afternoon.
Posted at 19:39 by Howard Bashman



"Intel e-mail case heads to state high court; Ruling could redefine parameters of free speech rights in cyberspace": Today's edition of The San Francisco Chronicle contains this report. And The Mercury News reports here that "Ex-Intel worker's case goes to high court; State Supreme Court to Decide Net Law." Presumably, we will soon be seeing reports on what occurred during today's oral argument before the Supreme Court of California.
Posted at 15:41 by Howard Bashman



Reuters is reporting: You can access here an article entitled "High Court Ruling Gives HMO Patients More Choices" and here an article entitled "Court to Hear Microsoft Bid to Reverse Java Ruling."
Posted at 15:29 by Howard Bashman



"Senate Republicans lose fourth attempt to break filibuster on judicial nominee": The Associated Press offers this report.
Posted at 15:22 by Howard Bashman



On its fourth try, the U.S. Senate has just failed to invoke cloture on the Miguel A. Estrada nomination by a vote of 55-44: Sixty votes are necessary to invoke cloture, and so the Senate has again fallen five votes short. Update: You can now access here the Senate's official roll call tally on this vote.
Posted at 14:26 by Howard Bashman



"Court Upholds Clinton Pardon Data Request": The Associated Press offers this report. That ruling of the U.S. District Court for the District of Columbia doesn't appear to be available online yet, but you can access here a decision that court issued the other day in Linda R. Tripp v. United States. Update: The decision discussed in The AP report is now available online, at this link. Thanks to the reader who took the trouble to unearth that link.
Posted at 14:12 by Howard Bashman



Divided Ninth Circuit panel holds that murder suspect's lawyer doesn't provide ineffective assistance by telling police where to find the dead bodies: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision in a very interesting ineffective assistance of counsel case. Circuit Judge William A. Fletcher, joined by U.S. District Judge George H. King of the Central District of California, issued an opinion that begins:
Oregon state prisoner Robert A. McClure appeals the district court's denial of his 28 U.S.C. sec. 2254 habeas corpus petition challenging his jury trial conviction for three aggravated murders. McClure's original defense attorney, Christopher Mecca, placed an anonymous telephone call to law enforcement officials directing them to the locations of the bodies of two children whom McClure was ultimately convicted of killing. The district court rejected McClure's arguments that the disclosure constituted ineffective assistance of counsel, holding there was no breach of the duty of confidentiality and no actual conflict of interest. We affirm.
Senior Circuit Judge Warren J. Ferguson dissented in an opinion that begins:
I respectfully dissent. The majority erred when it held that the disclosure of the location of two of McClure's victims' bodies by his defense attorney did not constitute deficient performance under Strickland v. Washington, 466 U.S. 668 (1984). McClure's attorney, Christopher Mecca, breached one of the most sacred obligations of the attorney-client relationship, the duty of confidentiality, and in turn violated McClure's Sixth Amendment right to counsel. Based on an utterly unreasonable interpretation of the events surrounding the disclosure at issue in this case, the majority finds that Mecca met an exception to the duty of confidentiality. As a result, the majority holds that it was reasonable for Mecca to believe that two missing children were alive but dying, when he disclosed their location to authorities, without McClure's consent, without asking McClure directly whether he had killed them, and without conducting any investigation to find out.
You can access both the majority and dissenting opinions at this link.
Posted at 13:42 by Howard Bashman



Sorry, no freedom from religion for you: Today a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit announced its decision in Freedom From Religion Foundation, Inc. v. McCallum. Circuit Judge Richard A. Posner's opinion on behalf of a unanimous panel begins:
This is a taxpayer suit to enjoin Wisconsin correctional authorities from funding Faith Works, a halfway house that, like Alcoholics Anonymous, incorporates Christianity into its treatment program. The plaintiffs argue that this funding constitutes an establishment of religion, in violation of the Constitution. The district judge rejected the argument after a bench trial.
And Judge Posner's opinion concludes:
It is a misunderstanding of freedom (another paradox, given the name of the principal plaintiff) to suppose that choice is not free when the objects between which the chooser must choose are not equally attractive to him. It would mean that a person was not exercising his free will when in response to the question whether he preferred vanilla or chocolate ice cream he said vanilla, because it was the only honest answer that he could have given and therefore "he had no choice."

AFFIRMED.
You can access the opinion at this link.
Posted at 13:32 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Prosecutors Won't Retry Drug Convictions" and here an article entitled "Judge Rejects Appeal in Pa. Murder Case."
Posted at 13:11 by Howard Bashman



"Numbers Game? Scalia insists Bollinger is all about quotas. But it's really about merit." Drake Bennett has this essay online today at The American Prospect.
Posted at 12:21 by Howard Bashman



Some news from Philadelphia: Today's edition of The Philadelphia Inquirer reports here that "Court rejects appeal in 1991 slaying of girl; A U.S. district judge said Lisa Michelle Lambert did not prove innocence or prosecutorial misconduct." The Philadelphia Daily news, meanwhile, contains an article entitled "Lisa Lambert's sentence upheld." I provided a link to the ruling in question yesterday, in a post you can access here.
Posted at 12:13 by Howard Bashman



"Court: HMOs Can Be Made to Open Networks": Gina Holland of The Associated Press has this report on today's U.S. Supreme Court ruling.
Posted at 11:17 by Howard Bashman



"Fisher may fill vacancy in U.S. District Court": Today's edition of The Pittsburgh Post-Gazette contains an article that begins: "President Bush is expected to nominate Pennsylvania Attorney General Mike Fisher to a federal judgeship."
Posted at 11:02 by Howard Bashman



Journey down memory lane: Back on January 15, 2003, I posted a link to this transcript of President Bush's remarks made that afternoon concerning the University of Michigan racial preferences in student admissions cases.
Posted at 10:59 by Howard Bashman



Today's U.S. Supreme Court opinion: Today the Supreme Court of the United States issued its decision in Kentucky Assn. of Health Plans, Inc. v. Miller (opinion available here and oral argument transcript available here). Justice Antonin Scalia delivered the opinion for a unanimous Court, and the judgment of the U.S. Court of Appeals for the Sixth Circuit is affirmed. I will be posting a more detailed report on this decision sometime tonight.
Posted at 10:00 by Howard Bashman



Should Arizona be taken from the Ninth Circuit and placed into the Tenth Circuit? One week from today, I am due to submit to my editor at The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, my monthly appellate column for April 2003. The column will appear in print on Monday, April 14, 2003. This month's column takes a look at whether the U.S. Court of Appeals for the Ninth Circuit should be split up.

One proposal now under consideration in Congress (see this news report for details) would move the State of Arizona from the Ninth Circuit into the U.S. Court of Appeals for the Tenth Circuit, construct a new Ninth Circuit consisting of just California and Nevada, and put the remaining States and territories currently in the Ninth Circuit into the newly created U.S. Court of Appeals for the Twelfth Circuit.

That proposal may make sense when you look at the map and when you consider that Arizona, together with California, are two of the fastest-growing States in the Nation. I would be very interested to hear via email from readers who live and/or work in the Ninth and Tenth Circuits about whether this idea is feasible, and why or why not. Additionally, for history experts, I would be very interested to learn whether following enactment of the Evarts Act in 1891 -- the law that established the current system of federal appellate courts -- any State has moved from one preexisting federal appellate circuit into another preexisting federal appellate circuit. To reach me by email, simply click here.
Posted at 09:50 by Howard Bashman



Today's Miguel A. Estrada cloture vote in the U.S. Senate is scheduled to occur at 2 p.m.: The announcement reads: "At 1:30 pm, proceed to Executive Session for 30 minutes debate on the nomination of Miguel Estrada, followed by a vote on the motion to invoke cloture on the nomination."
Posted at 09:46 by Howard Bashman



"Judicial Nominee Distances Herself From Past Positions": New York Times reporter Neil A. Lewis has this article on yesterday's Senate Judiciary Committee hearing. Those who missed yesterday's Judiciary Committee hearing can view it online at this link (Real Player required).
Posted at 09:37 by Howard Bashman



13,162: That's how many page visits "How Appealing" experienced yesterday, setting a new one-day record for this blog.
Posted at 07:00 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States is scheduled to issue one or more opinions. And at some point today, the U.S. Senate is expected to hold what will be the fourth vote attempting to invoke cloture on the debate over Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 06:55 by Howard Bashman



Elsewhere in Wednesday's newspapers: In The Los Angeles Times, David G. Savage reports that "Justices Hear Affirmative Action Cases; Despite a robust challenge, most on the bench signal that they are not ready to ban all use of race as a factor in university admissions." An article reports that "Vote Nearer on L.A. Judge's U.S. Court Nomination; Carolyn B. Kuhl wins backing of some on a Senate panel. Democrats quiz her on conservative record." In news from California, this article reports that "Justices Tackle Budget Issue; The high court considers how state workers should be paid during legislative impasses," while this article reports that "Mistrial Hearing for 'Pot Guru' Put Off." And you can access here an article entitled "Texas Judge Doubts Drug Convictions; The officer responsible for arresting 38 alleged narcotics dealers in '99 is found to be not credible."

In The Washington Times, Frank J. Murray reports that "Race case could affect admissions at schools." A related article is entitled "Affirmative-action supporters rally." You can access here an article that bears the incorrect headline "Panel OKs court nominee despite 'blue slip.'" Ward Connerly has an op-ed entitled "In pursuit of colorblind justice," and Robert A. Levy has an op-ed entitled "Constitutional malpractice."

In USA Today, Joan Biskupic reports that "Affirmative action foes field skeptical queries; Justices hear challenges to Mich. policy." You can access here a feature entitled "Voices inside, outside as court hears case" and here a feature entitled "Past rulings limited preferences."

The Boston Globe reports here that "High court weighs affirmative action" and here that "Many rally to support race-based admissions." In other news, "Church's 1st Amendment appeal denied in sex abuse suits; Bid to dismiss cited separation of church, state."
Posted at 06:40 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, Charles Lane reports here that "O'Connor Questions Foes of U-Michigan Policy; High Court Weighs Affirmative Action." You can access here an article entitled "A Defense Team of Thousands; Diverse Crowd Urges High Court to Protect Affirmative Action," here an article entitled "Old Soldiers Want a Rainbow In the Arsenal," and here an article entitled "An Affirming Action: Students From Black Colleges Rally Outside Supreme Court." Relatedly, an article reports that "Charge of Biased Admissions Stirs School; Thomas Jefferson Discriminates Against White Applicants, Law Professor Says." In other news, "U.S. Tries to Block Access to Witness for Terror Trial; Secret Briefs in Moussaoui Case Say Civilian Courts Must Defer to Military." You can access here an article entitled "U.S. Says Colo. Men Trained in Terrorism: 3 Held on Immigration Charges; Agent Links One to Pakistan Terror Camp." And this article reports that "Texas to Toss Drug Convictions Against 38 People; Prosecutor Concedes 'Travesty of Justice.'"

In The New York Times, Linda Greenhouse reports here that "On Affirmative Action, High Court Seeks Nuance." The newspaper helpfully provides online access to the complete oral argument transcript in Grutter v. Bollinger. An article reports that "Thousands of Students Gather to Support Admission Policies." And an editorial is entitled "Eavesdropping on History." Finally for now, Simon Romero with Adam Liptak have an article entitled "Texas Court Acts to Clear 38, Almost All Black, in Drug Case."
Posted at 00:15 by Howard Bashman



Tuesday, April 01, 2003
Firebombed in the New York City subway system: Yesterday a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit affirmed a trial court's rejection of an Americans with Disabilities Act claim brought by a former employee of the New York City Transit Authority. As the majority opinion written by Chief Judge John M. Walker, Jr. explains:
Denise Felix sued her former employer, the New York City Transit Authority, under the Americans with Disabilities Act, alleging that she was entitled to a position that did not involve working in the subway, which she could not do because of Post-Traumatic Stress Disorder that was interfering with her ability to sleep, a major life activity. * * *

* * *

On November 26, 1995, Felix was assigned as an "extra" Railroad Clerk, relieving Railroad Clerks who were on breaks. While en route to relieve the Railroad Clerk on the northbound platform of the Kingston and Throop Station, Felix was informed that the Railroad Clerk on the southbound platform of that station had been killed in a firebombing incident. Felix saw the smoke-filled platform and was stuck inside the train for some time. Felix was traumatized by the realization that she could have been killed and was taken to the Kings County Hospital's Emergency Room.
Circuit Judge Dennis Jacobs wrote a concurring opinion in which he explained:
The dissenting argument is based on the buried assumption that an employee is disabled (and an employer owes an accommodation) even when the impairment is caused by the particular job and would not exist if the employee did something else. Virtually all ramifications of this assumption (if adopted) would be absurd.

For example, if a nasty supervisor induces a stress level that substantially impairs an employee's sleep (a major life activity), I do not think that the employer is required to accommodate the sleep impairment by a transfer to a boss who is nicer. Similarly, a lifeguard who has had a near-drowning experience cannot demand a desk job on the ground that she would hyperventilate (arguably a substantial impairment of the major life activity of breathing), or suffer insomnia, if she were to go in the water. And a person whose fear of flying impairs his breathing or sleep cannot insist on circus employment as one of the human cannon-balls and compel an accommodation that allows him to sell the tickets.
In dissent, Senior Circuit Judge Pierre N. Leval did not take too kindly to Judge Jacobs's concurring opinion, writing that "In short, the case has nothing to do with human cannonballs who want to sell circus tickets."
Posted at 23:55 by Howard Bashman



Truer words may never have been written: In an opinion issued yesterday, Seventh Circuit Judge Terence T. Evans observed: "And of course the value, generally, of 'Cf.' citations is often only revealed in the eye of the beholder."
Posted at 23:50 by Howard Bashman



Tonight's music selection: "Like A Stone," by Audioslave (Windows Media Player required).
Posted at 23:45 by Howard Bashman



Now and then: The "Power Line" blog has a post-argument interview with Kirk Kolbo, who argued both U.S. Supreme Court cases today on behalf of the students who are challenging the use of racial preferences. That blog also posted comments from Terry Pell, president of the Center for Individual Rights, which is the organization that sponsored both cases against the University of Michigan.

For those who prefer to think about last week's most interesting argued case, University of Chicago student Amanda Butler has two very interesting posts (here and here) describing her trip to see the oral arguments in the case challenging a Texas law that prohibits homosexual sodomy.
Posted at 23:26 by Howard Bashman



Available at National Review Online: Florida Governor Jeb Bush has an essay entitled "You Don't Need Quotas: Expanding opportunity without discrimination." And Roger Clegg has an essay entitled "Debater's Notes: Nobody buys 'diversity' on the affirmative-action circuit."
Posted at 23:15 by Howard Bashman



"Convicted pot guru wants new trial, alleges juror misconduct": David Kravets of The Associated Press has this report. Earlier today, The San Francisco Examiner contained a related article entitled "Rosenthal case shakeup."
Posted at 23:11 by Howard Bashman



Available online at law.com: Tony Mauro provides an amazingly thorough recap of today's U.S. Supreme Court oral arguments in an article entitled "O'Connor Is Swing Vote in Affirmative Action Debate." And you can access here an article entitled "Pillsbury Settles With Frode Jensen."
Posted at 23:00 by Howard Bashman



"Frank Admissions: The Supreme Court finally talks seriously about race." Believe it or not, Dahlia Lithwick has this report over at Slate. Was she there in person or just listening in like most of the rest of us? Some questions are better left unanswered. (P.S. And could it be that the book is finally available for purchase?)
Posted at 21:45 by Howard Bashman



Transcripts of today's two U.S. Supreme Court oral arguments: Courtesy of The Detroit Free Press, you can access here the complete transcript of today's oral argument in Gratz v. Bollinger and here a transcript of today's oral argument in Grutter v. Bollinger.
Posted at 21:34 by Howard Bashman



Available online at The Onion: You can access here an article entitled "Saddam Speech Suspiciously Mentions Nelly Song From Last Summer."
Posted at 21:25 by Howard Bashman



"Moussaoui Wants Access to Jailed al-Qaida": The Associated Press has this report.
Posted at 20:57 by Howard Bashman



In re Sealed Case Involving Our Friends To The North: Yesterday a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued an opinion that explained:
This case presents an issue of first impression for the federal appellate courts. We must ascertain whether this mutual legal assistance treaty between the two countries obligates the United States, at the request of Canada, to issue subpoenas to compel the testimony of witnesses in a criminal investigation prior to the filing of formal charges. Because we construe this Treaty to obligate both countries to execute requests for the issuance of subpoenas for purposes of compelling testimony in criminal investigations and to arrange for the taking of such testimony even prior to the actual initiation of formal charges, we hold that the Canadian request for assistance should have been granted and the subpoenas should not have been quashed by the district court.
You can access the opinion at this link.
Posted at 20:56 by Howard Bashman



"Judge Nominee Says Position Was Wrong": The Associated Press has this tantalizingly-headlined report.

In related news, you can access here the statement of Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) and here the statement of ranking Democratic Senator Patrick J. Leahy (D-VT) from today's Committee hearing. Senator Leahy also made this separate statement today before the full U.S. Senate voted to confirm Timothy M. Tymkovich to serve on the U.S. Court of Appeals for the Tenth Circuit.
Posted at 20:05 by Howard Bashman



The White House has issued a press release commending the U.S. Senate for confirming Tenth Circuit nominee Timothy M. Tymkovich: You can access the press release here.
Posted at 20:04 by Howard Bashman



"Justices debate race, college admissions": Joan Biskupic of USA Today has this report on today's U.S. Supreme Court oral arguments.
Posted at 20:00 by Howard Bashman



Not exactly an octogenarian: Thanks to John Rosenberg of the "Discriminations" blog for drawing to my attention an article entitled "Supreme Court hears argument of 90-year-old," which was published last month in The Birmingham News. The fifth paragraph of the article states:
Robert Esdale Sr., Supreme Court clerk, said the justices were impressed with Markstein. "We don't have any precedent. He's the first octogenarian," Esdale said.
Indeed.
Posted at 17:24 by Howard Bashman



"Supreme Court Hears Arguments in Affirmative Action Case": Linda Greenhouse of The New York Times offers this report.
Posted at 16:30 by Howard Bashman



U.S. District Court for the Eastern District of Pennsylvania today denies habeas corpus petition of Lisa Michelle Lambert: This case has been in the news repeatedly in recent years. Originally, a different federal district judge released Lambert in 1997 upon finding her "factually innocent." The Third Circuit then reversed and remanded for exhaustion of remedies in state court (Third Circuit opinion here and order denying rehearing en banc over published dissent here). Following the exhaustion of state court remedies the same federal district judge again released Lambert from confinement but then later recused himself from the case, and the case was reassigned to the judge who issued today's ruling. You can learn more about this case here, here, and here.
Posted at 16:17 by Howard Bashman



The U.S. Senate is now conducting a roll call vote on Tenth Circuit nominee Timothy M. Tymkovich: Stay tuned for the exact results, which will be confirmation by a narrow margin. Update: The final vote in favor of confirmation was 58-41. You can access the official roll call vote here. With forty-one no votes (and potentially forty-two, as the absent vote belonged to Senator Joe Lieberman (D-CT)), at least Democratic Senators didn't attempt to pursue a filibuster.
Posted at 15:43 by Howard Bashman



Some reader mail: Here's a sampling of the emails that I've received this afternoon concerning today's U.S. Supreme Court oral arguments in the University of Michigan racial preferences in student admissions cases:
Thanks very much for your fantastic work at appellateblog. As a Harvard 2L who spent last summer in an appellate chambers, I can say with confidence that your site has become a critical source of inter-circuit news for judges and clerks everywhere.

I think you're quite right to observe that the undergraduate argument went very badly for the University, which is curious because the law school argument went fairly well. I worked at the U.S. Supreme Court [several years ago], and one of the perks was a seat in the corridor that runs from the courtroom to chambers for all the oral arguments during OT 1999. With all due respect, the undergraduate argument was tactically among the worst I've heard. I think Mr. Payton made the mistake of opening his argument with and focusing it on the supposed distinction between the undergraduate system and Bakke's quota. That’s a bizarre choice, given that the law school’s system has far better facts on which to argue that issue – it does not award “points” to minority applicants as the undergraduate system does. Mr. Payton's time might have been better invested in the compelling-interest prong, don't you think, particularly after Ms. Mahoney did so well with respect to the quota distinction?

I also hoped you could clarify for your readers the procedural issue that Justice O'Connor spent the first few minutes asking about. Why might the undergraduate plaintiff not have standing? I was surprised that this issue occupied so much of her thinking. It's just my speculation, but at least during OT99 I felt that the first questions coming from Justice O'Connor were sometimes indicative of the issues she thought possibly determinative to the case. Is a possible result here a dismissal of certiorari improvidently granted?

If so, that's bad news for the plaintiffs. I'll speculate again and note that aside from the unlimited timeframe over which the program lasts, I got the sense that Justice O'Connor might be ready to narrowly affirm “plus”-factor systems in Grutter. If she can do that and avoid ruling the opposite way in the undergraduate case because it is so clearly a de facto quota by dismissing on jurisdictional grounds -- well, that's just the sort of incremental solution the Justice tends to favor.
Another reader emails in response to this article on The Detroit Free Press's Web site:
Will you post a little post about why Justice Powell's announcement that diversity is a compelling state interest is *not* binding precedent, as the MSU prof seems to assert?
Anyone wishing to better understand that position should read the dissenting opinion of Sixth Circuit Judge Danny J. Boggs in Grutter v. Bollinger.
Posted at 15:43 by Howard Bashman



"38 Texas Drug Rulings May Be Overturned": The Associated Press has this report from Tulia, Texas.
Posted at 15:33 by Howard Bashman



Partial transcript in the Grutter case available online: Here, at the Web site of The Detroit Free Press. The Grutter case challenges the University of Michigan Law School's student admissions policies.

That newspaper also reports here that "Supreme Court hears arguments on U-M's policies"; here that "Thousands gather outside Supreme Court for U-M case arguments"; and here that "MSU expert on Supreme Court predicts university will prevail."
Posted at 15:04 by Howard Bashman



In case you missed it: C-SPAN has made the audiotape of today's U.S. Supreme Court oral arguments in the University of Michigan racial preferences in student admissions cases available online so that you can listen at your convenience. You can access the audiotape at this link (Real Player required).
Posted at 15:02 by Howard Bashman



"Conservatives Need Not Apply": Today's edition of The Wall Street Journal contains this op-ed by John O. McGinnis and Matthew Schwartz.
Posted at 14:35 by Howard Bashman



And that concludes the audio replay: Now we wait for late June 2003 to learn the U.S. Supreme Court's rulings in these cases. Today's oral arguments were very well presented across the board. I have no additional insight about how the Court is likely to rule, because Justice O'Connor's votes in these cases remain impossible to predict.
Posted at 14:25 by Howard Bashman



For what it's worth: Justice Thomas's questions came at the very end of Mr. Payton's argument, after it seemed as though the advocate had all but wrapped-up his presentation. At the close of Mr. Payton's answer to Justice Thomas's second question (which was a lengthy rephrasing of Justice Thomas's first question, which Mr. Payton apparently didn't catch the gist of), the advocate's time had expired.
Posted at 14:25 by Howard Bashman



I can't help but have the feeling that the undergraduate oral argument is going worse for the University of Michigan: It's just a feeling, because after all I don't get a vote. The reason for my feeling is that the school says it has a critical mass number in mind, that it can't produce that number if it applies the same high standards to all students, and thus it must lower its standards applicable to minority students to achieve the necessary critical mass. And now Justice Scalia is again asking why doesn't the university just lower its standards for everyone.
Posted at 14:04 by Howard Bashman



Justice Anthony M. Kennedy asks if the undergraduate admissions system isn't just a "disguised quota": Of course, the university's attorney does not agree.
Posted at 13:58 by Howard Bashman



The "critical mass" theory: John Payton, who is arguing for the University of Michigan in the undergraduate case, has begun his argument by maintaining that enough minorities must be present on campus to make them all feel comfortable being there.
Posted at 13:54 by Howard Bashman



Solicitor General Olson wraps-up his argument in the Gratz case: He says, if I may paraphrase, that the University of Michigan may retain its elitist selection criteria without regard to race or it may adopt race-neutral compromises of its standards to seek a more racially-balanced student body. But the school may not compromise its standards for one race but not for another.
Posted at 13:50 by Howard Bashman



Rise and shine: A reader admitted to practice before the U.S. Supreme Court just emailed to say that he attended today's oral arguments, arrived at the Court at 4:45 a.m., and was twenty-fifth in line for admittance.
Posted at 13:45 by Howard Bashman



And now, on to Gratz v. Bollinger: The audio playback of the today's second oral argument has just gotten underway. This case involves undergraduate admissions at the University of Michigan. And Justice O'Connor happens to ask the first question once again. No, her first question wasn't "Why didn't the Sixth Circuit ever issue its decision in this case?"
Posted at 13:22 by Howard Bashman



"Thousands Rally for Affirmative Action at High Court": The Washington Post has within the hour posted online this report. My favorite passage from the article: "A young man stood with a few others holding a sign reading 'Saddam Must Go.' A young woman nearby looked at the men and said, 'They're at the wrong protest.'"
Posted at 13:19 by Howard Bashman



Justice Clarence Thomas speaks: Not yet on the audiotape playback, but Anne Gearan of The Associated Press reports here that it's on the way.
Posted at 13:14 by Howard Bashman



"Court divided on affirmative action": Michael Kirkland and Mark Benjamin of United Press International provide this report.
Posted at 13:09 by Howard Bashman



No loaded questions: Chief Justice Rehnquist has just asked Ms. Mahoney whether we know what the outcome would be if the law school wasn't using "the quotas." Ms. Mahoney, not surprisingly, didn't accept the premise of that question.
Posted at 13:06 by Howard Bashman



"You're into quota land": Justice Antonin Scalia, who previously brought us the term "Apprendi-land" (see the final words of this concurrence) asks Maureen Mahoney whether the law school hasn't entered into "quota land" by aiming to have a certain percentage of minority students.
Posted at 13:03 by Howard Bashman



Can't believe my ears: Chief Justice William H. Rehnquist asks the University of Michigan Law School's lawyer a question in which he refers to her by her first name, "Maureen." She, wisely, doesn't return the favor.
Posted at 12:59 by Howard Bashman



"High Court to Weigh Racial Preferences Cases": James Vicini of Reuters has this report on today's oral arguments.
Posted at 12:56 by Howard Bashman



The University of Michigan's Law School is too elite: Justice Antonin Scalia asks Maureen Mahoney why the law school doesn't just lower its standards if it wants a diverse student body.
Posted at 12:53 by Howard Bashman



You know you have arrived when ..... : A friend emails to say: "You know you have arrived when any Justice refers to a now famous brief by your name as the author --- 'I would like to hear your response to the argument in the Carter Phillips brief.'"
Posted at 12:43 by Howard Bashman



And now Solicitor General Theodore B. Olson takes the podium: And he begins by stating that the University of Michigan's use of racial preferences fails every test that the U.S. Supreme Court has announced in this area of the law.
Posted at 12:37 by Howard Bashman



Justice Sandra Day O'Connor asks the first question: That's who I was betting on, but then again she was the favorite.
Posted at 12:21 by Howard Bashman



Listen online now: C-SPAN Radio has begun its broadcast of this morning's U.S. Supreme Court oral arguments in the University of Michigan racial preferences in student admissions cases. You can access an online audio feed via this link. The oral arguments lasted approximately two hours.
Posted at 12:18 by Howard Bashman



Here's the first report on today's oral argument in the Grutter case: Anne Gearan of The AP has this early report on today's first U.S. Supreme Court oral argument, which concluded within the past half hour. The Grutter case involves a challenge to the University of Michigan Law School's use of racial preferences in student admissions.
Posted at 11:25 by Howard Bashman



"Hundreds Await Affirmative Action Case": Anne Gearan of The Associated Press has this report.
Posted at 11:14 by Howard Bashman



Listen online to today's U.S. Supreme Court oral arguments in the University of Michigan cases at 12:15 p.m. eastern time: Via C-SPAN Radio.
Posted at 11:04 by Howard Bashman



"E-mail rights case back in court": Tomorrow the Supreme Court of California will hear oral argument in the case of Intel Corp. v. Hamidi. c|net News.Com reports here that "Freedom to e-mail takes the stand." You can access additional information about the case both here (via Harvard Law School's Berkman Center) and here (via the Electronic Frontier Foundation).
Posted at 11:02 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports that "Justices Weigh How the Law Is Enforced; High court debates 2 California cases: sex crimes' prosecution and tribal sovereignty." In other news, you can access here an article entitled "Bush Finds Senate Tough Going; On domestic issues, he has been hampered by the GOP's reluctance to toe the line and by uncharacteristic Democratic unity." An article reports that "White House Pulls Back on Offshore Oil Drilling; The administration will drop a three-year legal dispute over the state's control of leases." And this article reports that "Pfizer Says Denial of Class Action Is Upheld."

The Boston Globe reports here that "Romney compiles names for US judgeship." An editorial is entitled "Affirmative friends." And Harvard Law Professor Charles Ogletree Jr. has an op-ed entitled "Court should stand by Bakke ruling."

Finally for now, USA Today contains an editorial entitled "Challenge of diversity" and an op-ed by DeWayne Wickham entitled "Black college students need to 'make some noise.'"
Posted at 10:40 by Howard Bashman



D.C. Circuit upholds Endangered Species Act against Commerce Clause challenge: You can access today's D.C. Circuit ruling at this link. Last week the U.S. Court of Appeals for the Fifth Circuit reached a similar result, as I previously reported here.
Posted at 10:25 by Howard Bashman



Today's Senate Judiciary Committee is now getting underway: And within moments, Committee Chairman Orrin G. Hatch (R-UT) has called the Ninth Circuit the "most notoriously liberal court in the United States" and then denounced that court's recent child pornography ruling, which I previously reported on here. You can view the hearing now at this link.
Posted at 10:04 by Howard Bashman



In other news: The Associated Press reports here that "Some Sniper Defense Requests Rejected" and here that "Ex-Judge Pleads Guilty to Bribery Charges." Local news coverage of the latter story is available here via The Times-Picayune.
Posted at 09:48 by Howard Bashman



"Affirmative Action Arguments Pile Up": Anne Gearan of The Associated Press has this report.
Posted at 09:34 by Howard Bashman



I kid you not: On Wednesday, April 2, 2003, the U.S. Senate is scheduled to hold what will be its fourth cloture vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the District of Columbia Circuit.
Posted at 09:24 by Howard Bashman



The view from England: Today's edition of The Guardian reports here that "US faces up to university admissions policies."
Posted at 09:21 by Howard Bashman



"Supreme Court declines to hear Angleton case": Today's edition of The Houston Chronicle contains this report. I previously discussed the Fifth Circuit's ruling in this case back in December 2002 in posts you can access here and here.
Posted at 09:11 by Howard Bashman



Today's Pokemon: Hitmonchan.
Posted at 09:00 by Howard Bashman



On the agenda: At 9 a.m. today, the Senate Judiciary Committee will hold a hearing for Ninth Circuit nominee Carolyn B. Kuhl. You can access a live Webcast at this link.

At 10:00 a.m. today, the full U.S. Senate will begin debate on the nomination of Timothy M. Tymkovich to the U.S. Court of Appeals for the Tenth Circuit. A vote to confirm this nominee should occur sometime this afternoon barring any unexpected developments.

And at 10:00 a.m. this morning, the Supreme Court of the United States will begin to hear oral arguments in the two cases that challenge the University of Michigan's use of racial preferences in student admissions. The Court will hear oral argument first in the Grutter case, which involves the University's Law School. Then, at approximately 11 a.m., the Court will hear an hour's worth of oral argument in the Gratz case, which involves undergraduate admissions -- the case upon which the Sixth Circuit miraculously managed never to rule. I'm reliably advised that any day now National Public Radio correspondent Nina Totenberg will air the true, behind-the-scenes story of what happened with the Gratz case at the Sixth Circuit (click here for more details about the type of report to expect, and here for prior NPR coverage of the Michigan cases).

Sometime between noon and 1 p.m. eastern time today, the two-hour oral argument audiotape of today's U.S. Supreme Court oral arguments will be aired, and I believe that C-SPAN and/or NPR are likely to broadcast the audiotape as soon as the Court releases it. I'll have more details as the broadcast time approaches.
Posted at 07:01 by Howard Bashman



"Court needs to erase anti-sodomy law": Yesterday's edition of The Detroit News contained this essay by columnist Deb Price.
Posted at 06:48 by Howard Bashman



In news from Michigan: Today's the day! As The Detroit Free Press reports here, "U-M Case is Today." You can access here an article entitled "High court resisting move to TV coverage; Practice keeps justices in state of anonymity"; here, "People wait at court to get a seat to history; Both sides are eager to watch arguments"; here, "Detroiters rally to the cause"; here, "The attorneys"; and here, "What They are Saying : Affirmative Action on Trial: U-M policy: Save, mend, end." Today's paper also contains an editorial entitled "A Case for Diversity: In an unequal society, U-M policies aim for fairness and should prevail."

The Detroit News reports here that "Thousands trek to D.C. for historic U-M case; Students, activists rally as High Court hears arguments." On Sunday, that newspaper reported here that "Judicial bias alleged in U-M case; Charges swirl over whether system rigged to draw judges who favor affirmative action," and Thomas Bray had an essay entitled "Michigan takes on the American public."

The Michigan Daily reports here that "Plaintiffs discuss goals in bringing their cases before Supreme Court"; here, "Coleman leads 'U' through lawsuits on race, sanctions"; and here, "Lawsuits could conclude history of litigation on race." An editorial is entitled "Moment of truth; Supreme Court should rule in University's favor." And you can access here an op-ed by Peter Cuniffe entitled "Not quite colorblind."
Posted at 06:30 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports here that "At U-Michigan, Minority Students Find Access -- and Sense of Isolation; Affirmative Action Debate Intensifies Emotions on Campus." You can access here an article entitled "Supreme Court Upholds Mississippi Redistricting Plan; State Democratic Leader Charges Federal Judiciary Favors GOP in Replay of 2000 Election Ruling." An article reports that "Calif. Wins Legal Fight To Review Oil Leases; New Drilling on Coast Is Less Likely." And in local news, "Malvo Allegedly Switched Targets; Wife Was Shot Because Man Was Loading Car, Horan Says."

The New York Times contains an article entitled "2 Large Verdicts in New Asbestos Cases." The lead editorial is entitled "Friends of Affirmative Action." And letters to the editor run under the heading "The Use of Race in College Admissions."

Finally for now, The Christian Science Monitor runs an interview with University of Michigan President Mary Sue Coleman entitled "Excerpts from a Monitor breakfast on affirmative action." You can access here a lengthy article entitled "One university's case for race: The Supreme Court today considers the practice of factoring race into college admissions. At issue: Does diversity really make education better? Here's how the debate looks from the University of Virginia." And an editorial is entitled "Partial Leg Up for Minorities."
Posted at 00:30 by Howard Bashman




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Posted at <$MTEntryDate format="%I:%M %p "$> by Howard Bashman




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