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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.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: 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: 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.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 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":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"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. "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: 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.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 |