How Appealing

Saturday, May 31, 2003
"Colleagues mourn U.S. Judge Waldman; Cancer kills 'effective, thoughtful' jurist": The Philadelphia Daily News today contains this report. And you can access here the obituary that will be published in tomorrow's edition of The Pittsburgh Post-Gazette.
Posted at 22:54 by Howard Bashman



"The Bloody Crossroads of Grammar and Politics": The Week in Review section of tomorrow's edition of The New York Times contains this essay by Stanford linguist Geoffrey Nunberg.
Posted at 22:37 by Howard Bashman



In news and commentary pertaining to pending federal judicial nominations: The Casper Star-Tribune reported here on Thursday that "Myers' judicial nod turns controversial." World magazine contains an article in its June 7, 2003 issue entitled "Tyranny of the minority." And The Catholic News Service offers an article entitled "Law school dean ponders perils for Catholics in public office."
Posted at 19:45 by Howard Bashman



In news and commentary pertaining to the Supreme Court of the United States: The Hartford Courant today contains an article entitled "Highest Court, Higher Stakes; Prospect Of Vacancy Fuels Speculation About Supreme Court's Direction." And Michael Kirkland, UPI Legal Affairs Correspondent, has an essay entitled "It's been a bumpy ride."
Posted at 19:41 by Howard Bashman



"Lawrence and Garner v Texas": Steve Sanders, a student at the University of Michigan Law School, has this article in the current edition of the Michigan Bar Journal.
Posted at 19:28 by Howard Bashman



The Oyez Web site is off-line: Except for the photo of Justices Antonin Scalia and Ruth Bader Ginsburg riding an elephant together, which happens to be one of my favorite parts of Oyez. A message states: "At around 6:30 AM yesterday, the Oyez website suffered a severe hardware failure that had brought the Oyez server down. We have identified the problem and are working with our vendors and partners to correct the problem as soon as possible. We estimate that the site will be up and running again either late Monday or Tuesday." (Thanks to Adam White for the pointer via email.)
Posted at 19:21 by Howard Bashman



"Ashcroft's Statement on Eric Rudolph": Here, via The AP.
Posted at 16:29 by Howard Bashman



"Rehnquist, O'Connor Mull Retirement": Anne Gearan of The Associated Press has this report.
Posted at 16:27 by Howard Bashman



"Why should insurance pay for contraceptives?" Stuart Buck has this op-ed in today's edition of The Dallas Morning News.
Posted at 12:59 by Howard Bashman



This evening on C-SPAN's "America and the Courts": It's U.S. Supreme Court hopefuls week, as two current and one former, successful candidate to serve on the Court are featured: "This week, commencement addresses by White House Counsel Alberto Gonzales & Calif. Supreme Court Justice Janice Rogers Brown. Also, U.S. Supreme Court Justice Stephen Breyer reads Dr. Seuss's 'Oh the Places You'll Go' to 4th-graders in the Supreme Court Library." If you miss the program on TV, you can view it online via this link perhaps as early as tomorrow.
Posted at 11:24 by Howard Bashman



"Guardian is refused for fetus": Today's edition of The Orlando Sentinel contains this report.
Posted at 10:04 by Howard Bashman



"[T]he defendant exposed his '"thong" clad buttocks.'" Yesterday the Supreme Judicial Court of Massachusetts issued a decision in which one of the central questions presented was "did the defendant 'have fair notice that exposure of "thong" clad buttocks could be prosecuted as an open and gross lewdness offense.'" The court's decision explains:
Pointing to the number of people who are seen wearing "thongs" on public beaches, the defendant argues that unless limited to exposure of genitalia, our statute outlawing lewd and lascivious conduct will be cast adrift in the "shifting community notions of good taste." A woman revealing her knees in public in 1890 may have offended the then community notions of good taste. But the issue then, as now, is not whether a defendant's conduct offends "good taste," but whether the conduct is such that it causes alarm or shock. Today, society may tolerate far greater displays of nudity, including the exposure of genitalia on public beaches. But the defendant does not argue that the crime of "open and gross lewd and lascivious behavior" has become obsolete such that all public displays of nudity, no matter how alarming or shocking, must be tolerated. In his view, it is simply a matter of degree: exposure of genitalia, but not breasts or buttocks, may be prosecuted. We see no reason to restrict the definition of open and gross lewdness in the manner he urges, and have no difficulty in concluding that a fact finder could find that the exposure of buttocks may in some circumstances alarm or shock in violation of [the state law in question].
You can access the complete decision at this link.
Posted at 09:55 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Florida Repeals 'Scarlet Letter' Adoption Law." Adam Liptak reports that "Court Upholds Man's Firing in Flag Case." You can access here an article entitled "For Senate Parliamentarian, Great Power but a Sensitive Constituency." An editorial is entitled "Federal Persecution." And Jack Bass has an op-ed entitled "How the G.O.P. Created Affirmative Action."

The Los Angeles Times reports here that "Florida Ends 'Scarlet Letter' Adoption Law; The state had required women putting children up for adoption to publish their sexual histories in newspapers to notify the fathers." An article reports that "Report Expected to Criticize Post-9/11 Treatment of Foreigners." In news from California, "Prosecutors Seek to Block Appeal by Luster; State attorneys say the fugitive, who fled in the midst of his Ventura County date-rape trial, has no right to contest his conviction." An editorial is entitled "Bad Fix for Junk Lawsuits." Michael McGrorty has an op-ed entitled "One Word From Librarians That Speaks Volumes." And letters to the editor run under the headings "Erosion of Civil Liberties in the U.S."; "Making Jury System Work"; and "Copyright Act Revisions."

The Washington Post contains an article entitled "Judge: Iran Behind '83 Beirut Bombing; Ruling Allows Families of U.S. Troops to Collect Damages." An article reports that "Md. Judges May Cut Discretion; Leader Says Panel Would Limit Time to Shorten Sentences." You can access here an article that begins, "People across the Washington region were startled yesterday by the appearance of a glowing orange ball of fire that rose in the eastern sky and moved slowly westward." An editorial asks "Who Can Own Media?" And an op-ed by Jay Mathews is entitled "Sources of Accuracy."

The Washington Times reports here that "Texas school financing under fire." An article reports that "Democrats shunning gun control." And in local news, "Sniper jurors to see shots' effects."

The Boston Globe reports here that "SJC uncovers a legal definition." The article reports on a ruling by the Supreme Judicial Court of Massachusetts in which that court explained, "'we agree with the defendant that he was not provided with fair notice that deliberately exposing his thong-clad buttocks may be illegal." And finally for now, you can access here an article entitled "Federal court ruling alters Maine salmon farming tactics."
Posted at 09:20 by Howard Bashman



"Jay C. Waldman, 58, federal judge": Today's edition of The Philadelphia Inquirer contains this obituary.
Posted at 09:19 by Howard Bashman



"Possible arrest in 1996 Olympic bombing case": CNN.com has this report.
Posted at 08:54 by Howard Bashman



Friday, May 30, 2003
In the days ahead: Word is that my op-ed will be appearing in The Los Angeles Times either on Sunday or Monday. When I know for sure, you will too. Some more details are available here.

In other news, I have received the answers my June 2003 installment of "20 questions for the appellate judge," and once again you have my word that you don't want to miss it. The questions and answers should appear online here just after midnight on the morning of Monday, June 2, 2003.
Posted at 23:47 by Howard Bashman



"Democrats to Court Nominees: Only White Males Need Apply." David Freddoso has this essay in the June 2, 2003 issue of Human Events Online.
Posted at 23:39 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Supreme Court May Take Takings Case." Shannon P. Duffy reports that "Federal Judge Jay C. Waldman Dies." And yesterday Duffy reported that "Creditors' Committees May Pursue Derivative Avoidance Actions; En banc 3rd Circuit panel overturns controversial ruling." In other news, "Judge to Jurors: Thou Shalt Not Consult Scripture; Using Bibles and notes from Leviticus leads to a death sentence reversal." In news from New York, you can access here an article entitled "Court to Consider Lead Paint, Anti-Stalking Laws" and here an article entitled "Judge Orders Hearing on FBI Warrants in Child Porn Case." Finally for now, John Hasnas has a commentary entitled "Too Much Official Power."
Posted at 23:22 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Post-Sept. 11 Detainee Sweep Criticized"; here "Graham Wants Sept. 11 Report More Public"; and here "Justice Backs Plant Workers in Lawsuit."
Posted at 21:02 by Howard Bashman



"U.S. District Judge Jay C. Waldman Dies": The Associated Press has this report, which confirms the sad news that I reported here earlier today.
Posted at 20:55 by Howard Bashman



The Fifth Circuit serves up a double helping of machineguns: Back on April 4, 2003, I wrote in a post you can access here:
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.
In retrospect, perhaps it was foolish of me to gloss over the possibility that the Fifth Circuit might grant rehearing en banc. But, today we learn it wasn't foolish after all, as the Fifth Circuit entered an order denying rehearing en banc over the dissenting votes of six judges.

In a separate ruling also issued today, a three-judge panel examined whether a defendant's "prior conviction for the unlawful possession of a machine gun [qualifies] as a conviction for a 'crime of violence' under sec. 4B1.2(a) of the United States Sentencing Guidelines." The panel's unanimous, per curiam opinion goes on to note:
[T]here is no case law addressing the issue whether the unlawful possession of a machine gun is a "crime of violence" for purposes of determining a base offense level under sec. 4B1.2(a) of the Guidelines. This lacuna contrasts starkly with the jurisprudentially ubiquitous sawed-off shotgun, the unlawful possession of which has been adjudicated by numerous courts as constituting a "crime of violence." Yet, we have located no published court decisions addressing the particular issue raised in this case: Whether a prior conviction for the unlawful possession of a machine gun constitutes a conviction for a "crime of violence," as this term is defined by sec. 4B1.2(a) of the Guidelines.
The panel concluded that the defendant's earlier conviction for unlawful possession of a machinegun did constitute a conviction for a "crime of violence."
Posted at 19:15 by Howard Bashman



"Too much communication for FCC: FCC can't handle the flood of e-mails and phone calls regarding Monday's media ownership vote." CNN.com has this report.
Posted at 19:10 by Howard Bashman



"How I Learned to Love Quotas": Jeffrey Rosen has this article in this upcoming Sunday's issue of The New York Times Magazine. The article begins, "Not long ago, I had an unexpected opportunity to explain to Justice Sandra Day O'Connor why I've changed my mind about affirmative action."
Posted at 17:19 by Howard Bashman



"Dole, Duncan lunch": The third item in this article published in today's issue of The Raleigh News and Observer reports that "U.S. Sen. Elizabeth Dole had lunch Thursday in Raleigh with Allyson Duncan, a lawyer with Kilpatrick Stockton and one of President Bush's two North Carolina nominees to the U.S. 4th Circuit Court of Appeals." The second item also may be of interest, because it seems to say that a member of the U.S. House of Representatives believes that President Bush, by signing an executive order, could overrule a recent decision in which the U.S. Court of Appeals for the Fourth Circuit held that pre-supper prayers at a state university violate the U.S. Constitution.
Posted at 17:09 by Howard Bashman



"Veil of Litigation: A Muslim woman fights the DMV": Eric Peters has this essay today at National Review Online.
Posted at 17:00 by Howard Bashman



Employee fired for flying the flag: The Confederate flag, that is. Today a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a very interesting decision in which the majority's opinion begins:
Matthew Dixon, an employee of Coburg Dairy, Inc., was asked by his employer to remove two Confederate flag stickers from his tool box after an African-American co-worker complained. Dixon refused to remove the stickers, and Coburg, relying on the company's anti-harassment policy, fired Dixon. Dixon then filed suit in South Carolina state court, alleging wrongful discharge and a "Violation of Constitutional Rights." Coburg removed the case to federal court on the ground that Dixon's complaint necessarily depended on the resolution of a substantial question of federal law. Dixon filed a motion to remand, which the district court denied. The district court then granted Coburg's motion for summary judgment and dismissed the case. Dixon appeals both of the district court's rulings. For the reasons discussed below, we affirm in part and reverse in part.
Circuit Judge Roger L. Gregory delivered the majority opinion. The other two judges on the panel were U.S. District Judges sitting by designation. You can access both the majority opinion and the dissenting opinion at this link.
Posted at 15:25 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "High Court Nears Statement on Race Cases." Yes, it's again that time of year when it's appropriate to begin focusing on the finish line, so as a bonus The AP also provides a list of "Major Issues Awaiting Supreme Court." In other news, you can access here an article entitled "Judge Blames Iran for Deadly 1983 Blast" (plus, access the opinion here); here an article entitled "Florida Repeals 'Scarlet Letter Law'"; and here an article entitled "State Nichols Trial to Start March 2004."
Posted at 14:52 by Howard Bashman



Some very sad news from Philadelphia: Federal District Judge Jay C. Waldman of the U.S. District Court for the Eastern District of Pennsylvania has died. President Bush announced just over one month ago that Judge Waldman would be nominated to fill the vacancy created earlier this month on the U.S. Court of Appeals for the Third Circuit when Chief Judge Edward R. Becker took senior status.
Posted at 14:06 by Howard Bashman



"Pickering says his father's fight for post bigger than one person": The Associated Press has this report.
Posted at 13:16 by Howard Bashman



"Today's Senate Confirmation Battles and the Role of the Federal Judiciary": Ninth Circuit Judge Diarmuid F. O'Scannlain delivered this Commencement Address to the Class of 2003 of the Lewis and Clark Law School in Portland, Oregon. (Via "The Volokh Conspiracy.") Judge O'Scannlain discussed some of the same themes in his "20 questions" interview conducted here in March 2003.
Posted at 12:26 by Howard Bashman



"Woman lawyer becomes first Hindu on US religious body": The Daily Times of Pakistan provides this report in its issue of Saturday, May 31, 2003. You can access the Web site of the U.S. Commission on International Religious Freedom at this link.
Posted at 11:57 by Howard Bashman



"Attorney: Woman's Pregnancy Terminated": The Associated Press has this report from Miami.
Posted at 11:40 by Howard Bashman



"Texas Court Revives School Funding Case": The Associated Press has this report. You can access the ruling, which the Supreme Court of Texas issued yesterday, here (majority opinion), here (concurring opinion), and here (dissenting opinion).

In local news coverage of the ruling, The Houston Chronicle reports here that "School finance lawsuit revived; Justices return case to trial court"; The Dallas Morning News reports here that "Court adds pressure on 'Robin Hood'"; The Austin American-Statesman reports here that "School finance lawsuit OK'd"; The Star-Telegram reports here that "Rich districts will get their day in court"; and The Texas City Sun, which has been serving the Galveston County Mainland since 1912, reports here that "Robin Hood sent back to court."
Posted at 10:16 by Howard Bashman



Op-ed update: My op-ed on the subject of "judicial insubordination," a topic that I've touched on from time to time recently here at "How Appealing" beginning with this post from one week ago today, will be appearing someday soon in The Los Angeles Times. When I learn exactly when it is scheduled to be in that newspaper, I'll be sure to let you know.
Posted at 10:10 by Howard Bashman



"20 questions for the appellate judge" update: The next installment of "20 questions for the appellate judge" is due to appear online at "How Appealing" on the morning of Monday, June 2, 2003. The interviewee is a judge serving on the U.S. Court of Appeals for the Ninth Circuit who was nominated to that court by President Clinton. And, if my information is correct, this judge opposes a division of the Ninth Circuit. The interview should make for interesting reading.

Looking ahead, the appellate judges who have agreed to participate in the "20 questions" feature in July, August, and September are all assigned to federal appellate courts located on the east coast. July's interviewee is a senior circuit judge on a court located in the northeast. August's interviewee serves on a federal appellate court in the south. And September's interviewee serves on a court in Washington, DC. As always, you can access all prior installments of the "20 questions" feature at one convenient location, "How Appealing's 20 questions site."
Posted at 09:56 by Howard Bashman



Elsewhere in today's edition of The New York Times: You can access here an article entitled "U.S. Cautiously Begins to Seize Millions in Foreign Banks" and here an article entitled "Lawyers Accuse U.S. of Deceiving Colombians in Extradition." An editorial is entitled "Deportation Behind Closed Doors." Today's installment of Clyde Haberman's NYC column is entitled "Cage-Rattling for Reform of Drug Laws." And Jacob Sullum has an op-ed entitled "When Holding a Party Is a Crime."
Posted at 09:48 by Howard Bashman



"Fulton school case closed; Judge OKs desegregation settlement": This article appears in today's edition of The Atlanta Journal-Constitution.
Posted at 09:43 by Howard Bashman



"Judge holds fate of veil": Today's edition of The Orlando Sentinel contains this report.
Posted at 09:33 by Howard Bashman



Elsewhere in Friday's newspapers: In The Los Angeles Times, Henry Weinstein reports that "Pair Who Claim to Be Spies Can Sue CIA, Court Rules; The unidentified couple say the agency backed out of a deal to support them after they were brought to the U.S. from an Eastern bloc nation." An article from Bloomberg News is entitled "DVD Group Seeks Reversal of Ruling on Decoding Tool; Industry argues posting of decryption program should not be protected by the 1st Amendment." You can access here an article entitled "Suit Targets U.S. Border Vigilantes; Civil rights groups claim illegal immigrants were robbed and assaulted on a Texas ranch. Backers of patrols defend efforts, deny any wrongdoing." From Florida comes a report that "Court Battle Over Veil Pits Religion Against Security; Florida Muslim wants to keep face covered for driver's license photo. State cites public safety." An article reports that "Microsoft and AOL Settle Netscape Suit; The software maker will pay $750 million in an agreement seen as a victory for both sides." Bloomberg News reports that "Aetna Wins Initial OK for Settlement." In op-eds, James D. Zirin writes that "Only Outsiders Can Get the Inside Story"; Marc Cooper has an essay entitled "Stampeding for a 'Connor Peterson Law'; Rights for the unborn require full deliberation"; and Leon E. Wynter has an essay entitled "A No-Win Game of Wannabe: Until they mess up, people like Jayson Blair aren't even seen as 'black.'" And letters to the editor appear under the heading "U.S. Supreme Court Undercuts Miranda Law."

The Washington Times reports here that "Bush appellate judge picks being OK'd at typical pace." In news from the DC-area sniper case, "Death penalty charge upheld." An article reports that "AOL, Microsoft to work together." And in op-eds, Walter Williams has an essay entitled "Affirmative-action grading?"; Diana West has an essay entitled "Unveiling the license to drive"; and Deborah Simmons has an essay entitled "Maryland's dirty little secret."

The Boston Globe reports here that "Sentencing law targets US judges in Massachusetts." An article reports that "Media giants circle: Herald, Channel 7 seen as prey if FCC eases rules." In other local news, you can access here an article entitled "Charitable cap is upheld again"; here "Health fund dispute goes to SJC"; and here "'Per se' law on drunken driving OK'd."

Finally for now, USA Today reports here that "Autopsy information raises questions in Peterson slaying; Some speculate about defense ploy."
Posted at 06:25 by Howard Bashman



Today's FindLaw commentators: Vikram David Amar has an essay entitled "The Missing Piece in the 2002-03 Supreme Court Term: The Forgotten Fourth Amendment, and Why It Will Matter Greatly in the War on Terror." And you can access here Paul Horwitz's review of Seventh Circuit Judge Richard A. Posner's new book, "Law, Pragmatism, and Democracy."
Posted at 06:18 by Howard Bashman



In Friday's newspapers: In The New York Times, Adam Liptak reports here that "Ohio Case Considers Whether Abuse Victim Can Violate Own Protective Order." In news from Los Angeles, "Illegal Immigrants File Suit Against Vigilante Patrols." And in business news, "AOL Time Warner and Microsoft End a Bitter Rivalry."

The Washington Post reports here that "White House Seeks to Curb Rights Cases From Abroad; U.S. Fears Effect On Diplomatic Ties." An article reports that "N.H. Approves Abortion Consent Bill." Of course, by "consent" the headline writer actually means "notification." An article reports that "Muhammad Portrayed As 'Killing Team' Captain; Judge Declines to Dismiss Murder Charge in Sniper Case." In business news, "Microsoft, AOL Deal Sets Up Alliance; Firms to Work on Media Technology." Michael Kinsley has an op-ed entitled "Rehnquist's Surprise" (or access the Slate version, with an image of a pregnant Chief Justice(?!?), here). And Ted Turner has an op-ed entitled "Monopoly or Democracy?"

Finally for now, The Christian Science Monitor contains an article entitled "Are bigger voices better voices? With FCC expected to relax ownership rules Monday, the media industry faces static from a public wary of consolidation."
Posted at 00:06 by Howard Bashman



Thursday, May 29, 2003
"Statement of Chief Justice William H. Rehnquist On Receipt of ABA-FBA White Paper on Judicial Pay": You can access the statement here, via the U.S. Supreme Court's Web site. And you can access my post from yesterday, which provides links to the white paper and to other related items, here.
Posted at 22:44 by Howard Bashman



"Top Calif. Court Reviews DVD Decryption Case": Reuters offers this coverage. You can access additional coverage here from c|net News.com ("Arguments made in DVD-cracking case") and here from The Recorder ("High Court Hears Clash of Speech, Trade Secrets Law").
Posted at 22:14 by Howard Bashman



"Microsoft and AOL Time Warner Settle Antitrust Suit": The New York Times provides this report. Additionally, The Associated Press reports here that "Microsoft, AOL Time Warner Settle Lawsuit"; Reuters reports here that "AOL, Microsoft Settle for $750 Million"; and United Press International reports here that "Microsoft to pay AOL $750 million."
Posted at 22:06 by Howard Bashman



"Microsoft to pay AOL $750 million": c|net News.com has this report.
Posted at 17:34 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "N.H. Abortion Bill Heads Toward Approval" and here an article entitled "Judge Issues Sniper Case Gag Order."
Posted at 17:08 by Howard Bashman



"'American Idol' is the wrong model for picking judges": Yesterday's edition of The Philadelphia Daily News contained this op-ed by two leaders of an organization that has long opposed judicial elections in Pennsylvania.
Posted at 16:47 by Howard Bashman



"4th Circuit balance": Tuesday's edition of The Baltimore Sun contained this editorial, which begins "The Bush administration should withdraw the nomination of Claude A. Allen to the 4th U.S. Circuit Court of Appeals for many reasons...."
Posted at 16:44 by Howard Bashman



Ready for new episodes of "Harvey Birdman, Attorney at Law"? Well, they are ready for you. The Knoxville News-Sentinel has details here ("Verdict: 'Toon attorney appeals") and here ("Obscure superhero courts new fame").

Readers too serious to be interested in a cartoon about a bird/man lawyer are invited to peruse today's en banc ruling of the U.S. Court of Appeals for the Fifth Circuit in a case involving Rule 11 sanctions against an attorney. And the original three-judge panel ruling in that case remains available here.
Posted at 15:40 by Howard Bashman



Spy vs Spy: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision that begins:
Jane and John Doe -- fictitious names, adopted for this litigation for reasons that will appear -- assert that they performed espionage activities on behalf of the United States against a former Eastern bloc country. The Central Intelligence Agency (the "CIA"), they say, assured them that it would provide assistance in resettling in the United States as well as lifetime financial and other support. According to the Does, the CIA has now reneged on its obligation of support.

The United States will neither confirm nor deny the Does' allegations, for reasons of national security. We must decide whether the Does can sue the CIA for the alleged wrongs committed by the Agency, or whether, instead, their action is either appropriate only in the Court of Federal Claims or precluded by the venerable doctrine enunciated in Totten v. United States, 92 U.S. 105 (1875).
By a vote of 2-1, the panel ruled that the case could go forward in a federal district court in Seattle, Washington. You can access the opinion at this link.
Posted at 13:31 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Calif. Ballot Measure Would Bar Race Data"; here "Nebraska Lawmaker Proposes War With Iowa"; here "Ochoa Conviction Gratifies Drug Agents"; here "Suspected Terror Group's Assets Blocked"; and here "Philly Scouts Promise No Discrimination."
Posted at 13:10 by Howard Bashman



"Ambulance Chasers Under Attack; Opening arguments against trial lawyers": Ronald Bailey has this essay online at Reason.
Posted at 13:10 by Howard Bashman



Third Circuit issues eagerly-awaited en banc ruling in Official Committee of Unsecured Creditors of Cybergenics Corp. v. Chinery: The original three-judge panel's ruling, which reportedly caused great upset in the organized bankruptcy bar, has been repudiated by the en banc court in a vote of 7-4. You can access the en banc decision released just moments ago at this link.
Posted at 11:07 by Howard Bashman



Elsewhere in Thursday's newspapers: The Los Angeles Times contains an article entitled "A Historic Church, and Debate Just as Old: U.S. policy is reversed with a decision to use public funds to repair a Boston landmark." And in news pertaining to the University of California, "Ban on Sex With Students Advances."

The Boston Globe contains a blurb from The Associated Press entitled "Judge bars online ID of sex offenders."

Finally, The Washington Times contains an editorial entitled "A deregulated media is better." And Mona Charen has an op-ed about the University of Michigan racial preference in student admissions cases entitled "Sensitive ground at a high cost."
Posted at 10:56 by Howard Bashman



Reuters is reporting: You can access here an article entitled "Oregon Debates Kidney Transplant for Death Row Inmate" and here an article entitled "Pentagon Reports New Guantanamo Suicide Attempts."
Posted at 10:43 by Howard Bashman



"Masters of Obstruction: The Estrada roadblock continues." Mario H. Lopez has this essay today at National Review Online.
Posted at 10:16 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Ex-Providence Mayor Appeals Conviction"; here "Memos: FBI Tried to Avoid Death Hearings"; and here "Colleges Settle Dispute Over 'South' Name."
Posted at 10:16 by Howard Bashman



Oopsy-daisy: Okay, I'll be the first to admit that I really enjoyed reading Ninth Circuit Judge Alex Kozinski's dissent from the denial of rehearing en banc in the in Suzuki Motor Corp. v. Consumers Union product disparagement case. Here's a sample:
Judge Graber also complains that CU said the Samurai rolls over "easily" when, in fact, it had to be "coaxed." Concurrence at 6512. She apparently fears that readers might assume the Samurai rolled over with no "coaxing" at all. But no one could be so misled. Even tremendously unsafe vehicles roll over only in extreme maneuvers. No one reading that the Samurai rolls over "easily" would infer it routinely flops over with no human intervention.

Saying a consumer vehicle rolls over "easily" is like saying a particular NBA player is "terrible." The adjective is inherently relative because the reference group is already extreme. A "terrible" professional athlete is one who's terrible relative to his peers, not relative to the population at large or a class of third-graders. Likewise, the mental image conjured up when one hears the Samurai rolls over "easily" is not of some oopsy-daisy clown car, but a vehicle that rolls over easily relative to other vehicles in its class. And, since all vehicles require some coaxing to roll over, Judge Graber’s fear--that readers might be duped into thinking they'll come out of the supermarket to find that their Samurai had flopped itself over in the middle of the parking lot--is a specter of her own creation. Even ignoring the rollover during break-in and the tip on the long course--not to mention the NHTSA complaint and the media coverage--CU was plainly justified in concluding that, given the alternatives, the Samurai's rollover propensity was more than what safety-conscious consumers should be willing to bear. And that's exactly what any reader would understand it to have said.
You can access all of Judge Kozinski's dissenting opinion at this link. And you can access my earlier coverage of that ruling, and of the denial of rehearing en banc, here and here.
Posted at 10:00 by Howard Bashman



More evidence that librarians love "How Appealing": Thanks to the Internet Home of the Fifth Circuit Library -- yup, the library of the U.S. Court of Appeals for the Fifth Circuit -- for including a link to "How Appealing" on its Web page listing "general legal research sites."
Posted at 09:54 by Howard Bashman



"Lott finds new role and goals in Senate; Former majority leader criticizes GOP tax cut, takes aim at filibusters": Today's edition of The Clarion-Ledger contains this report. Elsewhere, MotherJones.com contains an item entitled "Picking Through Pickering's Past." And Greg Yardley has an essay at FrontPage magazine entitled "Alliance Against Justice."
Posted at 07:01 by Howard Bashman



In Thursday's newspapers: The New York Times contains a news analysis from Linda Greenhouse entitled "Steady Rationale at Court Despite Apparent Bend." You can access here an article entitled "Electronic Order in the Court." From Miami comes news that "Colombian Drug Figure Is Guilty in U.S. Dealing." An article reports that "Utah Officials Look for Firing Squad." In local news, "Let Independent Panels Choose Judges, Mayor Says." And an editorial is entitled "Updating Media Constraints."

Today's edition of The Washington Post contains an article entitled "Federal Judicial Pay Called Too Low; Two Groups Say Erosion Leads To Talent Drain."

In The Christian Science Monitor, an article reports that "Redistricting: the wars get more frequent; States like Texas look to redraw maps every two years instead of every 10." An editorial is entitled "Rehnquist's Power Bar." And an op-ed by Andrew Reding is entitled "Beyond gerrymandering and Texas posses: US electoral reform."
Posted at 06:33 by Howard Bashman



Wednesday, May 28, 2003
U.S. Supreme Court round-up for Tuesday, May 27, 2003: Yesterday was a day that watchers of the Supreme Court of the United States will likely remember for quite some time, and not merely because the U.S. Court of Appeals for the Ninth Circuit managed to gain an affirmance to accompany two reversals. For one thing, we learned that the Court's recent, and quite controversial, Eleventh Amendment jurisprudence has a stopping point. Whether the stopping point is logical or not academics will debate for quite some time. For another thing, yesterday may have marked the first time in the Court's history where the Justice who had the honor of announcing the judgment of the Court in a horribly splintered decision issued an opinion in which a majority of the Court failed to join in any respect, while another Justice issued an opinion in which a single paragraph constituted the "Opinion of the Court." And now, on to the details.

1. Question: What happens when the U.S. Senate decides to confirm one of the principal architects and most successful advocates in support of the U.S. Supreme Court's State's rights jurisprudence to a seat on the U.S. Court of Appeals for the Sixth Circuit? Answer: Chief Justice William H. Rehnquist and Justice Sandra Day O'Connor decide to abandon ship. So, Jeffrey S. Sutton, your presence is already sorely missed by your colleagues in the appellate litigation trenches. And if only you had participated, your opponents could have attacked you as opposed to the concept of family members taking time off to tend to the needs of one another. But perhaps I digress.

Yesterday, the Court delivered its long-awaited ruling in Nevada Dept. of Human Resources v. Hibbs, No. 01-1368 (U.S. May 27, 2003). At issue was whether Congress had the power to abrogate the Eleventh Amendment immunity of States in suits for damages alleging violation of the Family and Medical Leave Act of 1993. For the past several years, any mention of the terms "Eleventh Amendment," "attempted congressional abrogation of immunity from suit," "State's rights," and "damages" in the same paragraph sufficed to cause the Chief Justice and Justices O'Connor, Scalia, Kennedy, and Thomas to join together to strike down the law in question insofar as it sought to infringe on a State's precious sovereignty. But those cases were different, it turns out, because they didn't involve proper legislative efforts to enforce the equal protection clause's prohibition of racial or gender based discrimination.

Chief Justice William H. Rehnquist delivered the opinion of the Court, in which Justices O'Connor, Souter, Ginsburg, and Breyer joined. The Chief explained that traditionally, the burden of being the family caregiver in times of need fell disproportionately on women. As a result, employers would, to the extent they could get away with it, prefer to hire males, who could be counted on to have work as a priority over the needs of family members. By passing the Family and Medical Leave Act, Congress acted to level the playing field to a great extent, allowing both genders the right to take time away from work to care for family members in need. Under this law, a male is just as likely as a female to drop everything to care for a sickly close relative, and thus the incentive an employer might otherwise have to hire males instead of females disappears, lions sleep with lambs, and swords are beaten into plowshares.

In any event, what allowed the Chief Justice and Justice O'Connor to abandon their three, more hard-core usual federalism buddies on the right was the fact that a sex-based classification motivated the FMLA, and thus Congress has more power to abrogate Eleventh Amendment immunity than when it's merely seeking to help out the aged, the infirm, or the disabled. Before wrapping-up the majority opinion, the Chief notes that the only damages available under the FMLA are actual monetary losses, permitting state treasuries to almost breathe a sigh of relief. The Court's ruling was a big win for the Ninth Circuit, whose judgment the Court affirmed. A look at the Ninth Circuit's opinion in the case reveals that Circuit Judge Marsha S. Berzon deserves the credit for anticipating the rationale that proved dispositive yesterday.

Justice David H. Souter wrote a one paragraph concurring opinion, in which Justices Ginsburg and Breyer joined, to remind us that he still feels nothing but total disdain for all of those Eleventh Amendment cases in which he was on the losing end, and he doesn't plan to change his mind about that any time soon. And Justice John Paul Stevens wrote an opinion concurring in the judgment in which he again advanced the bold concept that the Eleventh Amendment should be understood to mean merely what it says, and such an understanding causes it not to apply to this case. Apply the Eleventh Amendment to mean what it says!!! What fun would that be?

The unfortunate task of dissenting from today's decision fell to Justice Anthony M. Kennedy, although true to form Justice Antonin Scalia couldn't resist throwing a few punches in a short separate dissent. Justice Kennedy's dissent, in essence, was the majority opinion we would have seen had the Chief and Justice O'Connor not jumped ship. In Justice Kennedy's view, the evidentiary record before Congress simply didn't justify abrogation of the State's Eleventh Amendment immunity. If anything, a majority of the States deserved praise for voluntarily adopting family leave programs long before the federal government got around to legislating on the subject. And, Justice Kennedy noted in closing, in his view State's would still be required to comply with the FMLA, but individual plaintiffs wouldn't be able to sue States to recover damages for violations of the law. If the decision in Hibbs proves anything, it demonstrates that it will be impossible to replace either the Chief Justice or Justice O'Connor with individuals who will vote precisely like them in every case that the Court will hear.

2. Oliverio Martinez was in an altercation with police from which his bullet-ridden body emerged blinded and paralyzed. While hospital emergency room staff was working to keep him alive, police officer Ben Chavez began conducting a hostile interrogation. Martinez, who did not receive any Miranda warnings, was none too pleased with the questioning, and after surviving the incident brought a federal civil rights suit against Chavez in which Martinez alleged that Chavez's conduct violated Martinez's rights under the Fifth and Fourteenth Amendments. Officer Chavez asked the trial court to dismiss the claims on the basis of qualified immunity, but the trial court refused. Chavez thereafter appealed to the U.S. Court of Appeals for the Ninth Circuit, which affirmed the denial of qualified immunity. The Ninth Circuit ruled that Martinez had valid claims under both the Fifth and Fourteenth Amendments, although that court's Fourteenth Amendment holding was largely dependent on the existence of a valid Fifth Amendment claim.

Yesterday the Supreme Court announced its decision in Chavez v. Martinez, No. 01-1444 (U.S. May 27, 2003), which had been the longest-pending case on the Court's docket. Unfortunately, the case should have been pending a bit longer to allow the Justices to sort out more clearly precisely what the Court's decision happens to be. But, I'll try my best to explain what can be discerned from the six separate opinions in the case, out of which only a single paragraph represents the "Opinion of the Court." Justice Clarence Thomas announced the judgment of the Court and delivered an opinion in which the Chief Justice, Justice O'Connor, and Justice Scalia joined holding that Chavez did not violate Martinez's rights under the Fifth Amendment. In a nutshell, Martinez's Fifth Amendment rights would only have been violated if his unlawfully obtained statements had been used against him in a criminal prosecution. In fact, however, he never was charged with a crime. Justice O'Connor, for reasons unknown, did not join in that portion of Justice Thomas's opinion which concluded that Martinez had no valid, freestanding Fourteenth Amendment claim. Where Justice O'Connor stands on the Fourteenth Amendment claim remains a mystery, although word is she plans to write a book upon retiring from the Court explaining precisely where she stands on the issue and why her vote was lost in the shuffle.

Justice Souter, joined only by Justice Breyer, issued an opinion concurring in the judgment in which he agreed that Martinez's Fifth Amendment claim failed. But then, joined also by Justices Stevens, Kennedy, and Ginsburg, Justice Souter delivered the only paragraph in all the many pages of opinions that constituted a true "Opinion of the Court":
Whether Martinez may pursue a claim of liability for a substantive due process violation is thus an issue that should be addressed on remand, along with the scope and merits of any such action that may be found open to him.
Profound, isn't it?

Justice Scalia issued an opinion concurring in the judgment in part in which he chided Justice Souter for failing to address on the merits the Fourteenth Amendment substantive due process claim, but then agreed with Justice Thomas that the claim is meritless and added his own view that the claim is likely waived as well.

Justice Stevens issued a short opinion in which he disagreed with the dismissal of Martinez's Fifth Amendment claim but agreed with keeping the substantive due process claim alive for further consideration on remand. Justice Anthony M. Kennedy, joined in full by Justice Stevens and in part by Justice Ginsburg, dissented from the Court's dismissal of Martinez's Fifth Amendment claim. Justice Kennedy would have held that a valid Fifth Amendment claim existed, but he ended up voting with the other four Justices to keep the substantive due process claim alive to create a controlling judgment of the Court. Finally, Justice Ruth Bader Ginsburg, no doubt aware that it is the rare case that produces six separate opinions, ensures that this case qualifies by writing a short separate partial concurrence and partial dissent which opines that the Ninth Circuit got the result absolutely right. Hmm, maybe now the Ninth Circuit won't feel so bad about the Opinion of the Court that Justice Ginsburg also delivered yesterday in which she reversed the Ninth Circuit 9-0.

3. Under "the treating physician rule," treating physicians rule. If a disability claimant's own doctor supports the claim of disability, then the party deciding whether to pay disability benefits has to come up with some especially persuasive reasons to turn down the claim. In the absence of such a rule, however, a treating physician's opinion is not necessarily entitled to more weight than the view of any other doctor who has seen the claimant. In social security benefits cases, the treating physician rule applies based on regulations that the Commissioner of Social Security adopted. The question presented in Black & Decker Disability Plan v. Nord, No. 02-469 (U.S. May 27, 2003), was whether the treating physician rule should also apply in ERISA benefits determinations.

The Ninth Circuit, in the case under review, applied an earlier Ninth Circuit ruling that said the treating physician rule should apply. Other circuits had disagreed. Today, in a unanimous opinion by Justice Ruth Bader Ginsburg, the Supreme Court held that those other circuits were right and the Ninth Circuit was, um, wrong. If a treating physician rule should apply in ERISA cases, the Supreme Court explained, it's up to the Secretary of Labor to say so. Because the Secretary of Labor hasn't said so, the rule simply doesn't apply.

4. Greetings, sportsfans. If any one theme can be said to have infused the wonderful Supreme Court Reports that John P. Elwood once wrote while practicing law at Baker and Botts, it was his love of national park lands and his strongly held view that park concessionaires should be governed by a sensible, easily administered dispute resolution mechanism. Thus, it came as no surprise that Elwood, who now works as an Assistant to the Solicitor General, would be selected to argue the government's position in the much-sought-after case of National Park Hospitality Assn. v. Department of Interior, No. 02-196 (U.S. May 27, 2003). John's love of nature and the fact that he had been raised by wolves at Yellowstone placed him in good stead as he faced off at the podium against one of the Nation's most experienced Supreme Court advocates, Kenneth S. Geller.

And how did John P. Elwood fare in yesterday's ruling, the one or two readers to have suffered to the end of this blog post are clamoring to know? Well, the Court dismissed for lack of jurisdiction. But under the theory that any litigator worth his or her salt can transform any conceivable result into a victory, I'm going to count this as a win for John. Justice Clarence Thomas delivered the opinion of the Court, which concluded that Elwood and Geller should return sometime not too soon after the case has properly ripened for judicial resolution. Joining in Justice Thomas's opinion were the Chief Justice and Justices Scalia, Kennedy, Souter, and Ginsburg. Justice John Paul Stevens would have held that the case was ripe but that the concessionaires lacked standing. Justice Stephen G. Breyer -- the Court's resident administrative law guru -- dissented in an opinion in which Justice O'Connor joined. He would have reached the merits of the case and -- get this -- ruled in the government's favor. So, not one Justice disagreed with Elwood's side of the case, and two even agreed with it. It doesn't get much better than that. With the exception of a per curiam reversal I shall turn to momentarily, that's today's baseball. Drive around. No deposit, no return. Yada, yada, yada. [Yes, a poor imitation of John P. Elwood wrote this case summary.]

5. In the early morning hours one day back in April 1986, Clyde Timothy Bunkley burglarized a closed, unoccupied Western Sizzlin' Restaurant. He was arrested shortly thereafter, and police discovered a small pocketknife -- where else -- in Bunkley's pocket. No evidence exists that the pocketknife was used in the burglary. Under Florida law, someone who commits burglary while armed with a dangerous weapon can be sentenced to life imprisonment, while someone who commits burglary without being armed with a dangerous weapon faces only a maximum of five years in prison. Bunkley, it almost goes without saying, was sentenced to life behind bars.

In 1997, the Supreme Court of Florida ruled that the type of knife Bunkley had in his trousers did not qualify as a dangerous weapon. But Florida state courts follow an incredibly wacky principle of jurisprudence whereby judicial decisions are not applied retroactively unless the decisions result in a "jurisprudential upheaval" constituting "a major constitutional change." Thus, because the decision that Bunkley's knife wasn't a dangerous weapon was simply a refinement of existing law, the Florida courts held that Bunkley could have the pleasure of continuing to spend the rest of his days on earth as the guest of a Florida penitentiary.

Yesterday, however, the U.S. Supreme Court told Florida "wait just one minute." In Bunkley v. Florida, No. 02-8636 (U.S. May 27, 2003) (per curiam), the Court summarily granted certiorari and vacated the Florida Supreme Court's judgment to require the Florida court to decide whether the statute that that court construed in 1997 meant the same thing back in 1986. And if the Florida court answers "yes," then Bunkley will be a free man.

Chief Justice Rehnquist, joined by Justices Kennedy and Thomas, dissented. The Florida court's 1997 ruling already explained that that decision was a change in the law, and that would seem to compel a negative answer to the question whether the law meant the same thing back in 1986. On the bright side, the dissenters did not remark that Bunkley should be thankful, this being Florida and all, that he received only a life sentence, instead of the death penalty, for burglarizing a closed Western Sizzlin' Restaurant with a pocketknife in his trousers.

* * * * * * * * * *

The Court will next issue opinions and orders on Monday, June 2, 2003.
Posted at 22:31 by Howard Bashman



"Prelude: Bakke Revisited": R. Lawrence Purdy, whose op-ed addressing issues relating to the University of Michigan cases National Review Online published today, has a much more detailed law review article about the Grutter v. Bollinger case in the Spring 2003 issue of the Texas Review of Law & Politics.
Posted at 22:28 by Howard Bashman



Available online at law.com: Jonathan Ringel reports here that "11th Circuit Extends Baseball Antitrust Shield." And Jason Hoppin has an article entitled "Facing a Fraud Judgment? Bankruptcy Court Can Help."
Posted at 22:20 by Howard Bashman



"A court of civility and controversial conservatism; The Fourth Circuit's rulings cast a wide influence": Tomorrow's edition of The Christian Science Monitor will contain this article.
Posted at 22:11 by Howard Bashman



Still to come: Tonight's round-up of yesterday's U.S. Supreme Court decisions.
Posted at 20:53 by Howard Bashman



Op-ed update: I'm very pleased to report that my op-ed on the subject of "judicial insubordination" has been accepted for publication by a major media outlet. It should be available in print throughout much of the United States and online everywhere the Internet reaches in just a few days from now. More precise details concerning when and where the piece will appear will follow once it is appropriate for me to disclose them here.
Posted at 19:29 by Howard Bashman



"Justices Seek Lower Court Judge Raises": Gina Holland of The Associated Press has this report. The American Bar Association provides additional information here (press release issued today) and here (detailed report issued today; PDF document).
Posted at 19:21 by Howard Bashman



"High Court OKs Family Leave Act, Coercive Interrogations": Nina Totenberg today had this report on NPR's Morning Edition (Real Player required; 7 minutes and 18 seconds).
Posted at 16:43 by Howard Bashman



"Police Cannot Be Sued for Coercive Questioning, Supreme Court Rules": The Metropolitan News-Enterprise offers this report.
Posted at 16:17 by Howard Bashman



Money wins cases: Today the U.S. Court of Appeals for the Third Circuit ruled against the federal government in the case of United States v. $8,221,877.16 in United States Currency.
Posted at 15:10 by Howard Bashman



Face veil vs. driver's license photo ID: As much as I enjoy seeing what Eugene Volokh has to say on this topic, it's at least equally fascinating to read the coverage this issue has been receiving from the blog "The Niqabi Paralegal," which describes itself as the "blog of a Muslim paralegal student." You can view the relevant posts at this link.
Posted at 14:58 by Howard Bashman



"Feinstein Is Key Vote for Judge Nominees": The Associated Press has this report.
Posted at 14:45 by Howard Bashman



Is qualified immunity available for the language police? Reuters reports here that "Language Police Bar 'Old,' 'Blind' in Textbooks."
Posted at 14:40 by Howard Bashman



"Online Divorce Growing in Popularity": The Associated Press provides this report.
Posted at 14:28 by Howard Bashman



InstaPundit's down? Then InstaBackup's up. (And by "up," of course, I mean as functional as any Blogger/Blog*Spot site with lots of traffic tends to be.)
Posted at 12:36 by Howard Bashman



"Soldier Guilty for Refusing Anthrax Shot": The Associated Press has this report.
Posted at 12:07 by Howard Bashman



"Operation Racial Preferences: What the U.S. military doesn't need." R. Lawrence Purdy today has this essay at National Review Online.
Posted at 11:24 by Howard Bashman



"Federalism wins"? The New York Law Journal's round-up of legal news today contains, above its second item, the headline "Federalism Wins in Medical Leave Act Ruling."
Posted at 09:42 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Texas Gov. OKs 'Defense of Marriage Act'"; here "Judge Denies Motions in Anthrax Case"; here "Reptiles in Jail Until Aquarium Opens"; here "Closing Arguments Begin in Fla. Drug Case"; here "FCC Decision on Media Ownership Nears"; and here "Calif. Striptease Museum Faces Cash Woes."
Posted at 09:38 by Howard Bashman



"Pickering vows to push diversity; But report that dad's judicial successor already selected denied": Today's edition of The Clarion-Ledger contains this article.
Posted at 06:56 by Howard Bashman



"Court won't hear appeal in drug case; 76-year-old is facing 7 years for cocaine sales": Today's edition of The Detroit Free Press contains this report.
Posted at 06:53 by Howard Bashman



Elsewhere in Wednesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Broader Take Upheld on Family Leave Law; The high court sides with a federal statute governing time off for workers, including state employees, to tend to seriously ill relatives"; here that "Court Gives Leeway to Interrogate; Justices deal a blow to Miranda right, say a person can be forced to talk in bid for evidence"; and here that "Hearings to Remain Secret." An article reports that "U.S. Supreme Court Lets Stand Rulings Backing ATM Charges; Justices refuse to hear an appeal from cities that want to bar banks from imposing fees on customers of other financial institutions." An article from Bloomberg News is entitled "Black & Decker Wins Ruling on Disability Benefits." You can access here an article entitled "It's 'Just Wrong,' Says the Plaintiff; Oliverio Martinez is blind and paralyzed, and lives in a cramped trailer. He attributes his problems to his shooting by Oxnard police." A related editorial is entitled "Justice Takes a Beating." In business news, "Jury Awards Inventor in Suit Against EBay." You can access here an article entitled "Pro-Constitution, anti-Patriot; Arcata's defiance of an anti-terrorism law -- led by a freshman councilman -- is at the forefront of a trend." And letters to the editor run under the headings "Close the Loopholes on 'Legal' Extortion" and "For Now, Lawyers Are Consumers' Only Hope."

In The Boston Globe, Lyle Denniston reports here that "Court sides with Congress over states on family leave" and here that "Justices won't review secret deportation hearings; Refusal to hear case leaves issue in limbo." In local news, you can access here an article entitled "Facing US aid cut, Mass. lawmakers weigh 'per se' law." In op-eds, columnist Eileen McNamara has an essay entitled "Time to seek a 2d opinion" and Robert Kuttner has an essay entitled "Diversity is squashed in FCC rules change."

In USA Today, Joan Biskupic reports here that "Justices affirm family leave act; State workers can sue under '93 law" and here that "Rehnquist surprises some with ruling; Justice has history of backing states, but this time, court supports federal law."

Finally for now, in The Washington Times, Frank J. Murray reports here that "High court voids states' immunity" and here that "Court allows muzzle on deportation cases."
Posted at 06:20 by Howard Bashman



Today's FindLaw columnists: Law Professor Michael C. Dorf has an essay entitled "How Abortion Politics Impedes Clear Thinking on Other Issues Involving Fetuses." And guest columnists Dick Thornburgh and David R. Fine have an essay entitled "A Recent Supreme Court Punitive Damages Decision Unites Usually-Opposed Justices On the Need for More Guidance In This Area."
Posted at 06:16 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Neil A. Lewis has an article entitled "A Judge, a Renomination and the Cross-Burning Case Without End." Linda Greenhouse reports here that "Police Questioning Allowed to the Point of Coercion." An editorial is entitled "Upholding Family Leave." And in business news, an article reports that "Pressure Increases for Tighter Limits on Injury Lawsuits."

The Washington Post reports here that "Justices Extend Leave Act's Reach; Putting States Under Law Counters Trend" and here that "Court Stays Out of Secrecy Fray; Dispute Centers on Closed Deportation Hearings for Hundreds Detained After 9/11." In other news, "Reprieve Stands For Va. Inmate; High Court Allows Halt to Execution." In tech news, an article reports that "Jury Rules Against EBay in Patent Suit; Online Firm Protests $35 Million Award." And an editorial is entitled "States' Rights Muddle."

Finally for now, The Christian Science Monitor contains an editorial entitled "Gun Loopholes and Terror."
Posted at 00:00 by Howard Bashman



Tuesday, May 27, 2003
"Book Review: An injudicious life": Peter Roff, UPI National Political Analyst, reviews Bruce Allen Murphy's book "Wild Bill: The Legend and Life of William O. Douglas."
Posted at 23:54 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Supremes Give State Workers an FMLA Win." An article reports that "California Justices Question 'Closed-Door' Utility Deal." And in news from New York, you can access here an article entitled "Judge's Power to Review $625M Tobacco Fee Award Challenged" and here an article entitled "N.Y. Judges Allow Illegals to Maintain Claims for Lost Earnings."
Posted at 23:32 by Howard Bashman



Programming note: The Supreme Court of the United States today issued four decisions in argued cases and one per curiam summary reversal that, in combination, total nearly 140 pages. As a result, my summary of today's decisions won't be appearing online here until tomorrow. I'm four-fifths of the way through the decisions, having just completed my review of Chavez v. Martinez.

And my head is still spinning from the opinions issued in Chavez. Justice Clarence Thomas announced the judgment of the Court but did not garner a majority for any portion of his decision. Justice David H. Souter did garner a majority for a single paragraph of his separate opinion. And, by the way, that single paragraph is contrary to the "judgment" that Justice Thomas has announced -- a point that seems to afford Justice Antonin Scalia endless glee in his separate opinion. Does anyone remember any previous instance when the Justice who announced the judgment of the Court issued an opinion in which a majority failed to join in any respect, while some other Justice's opinion was joined in (at least in part) by a majority of the Court? The whole decision seems so messed up -- the judgment that Justice Thomas has announced says "reversed" and that the defendants are entitled to qualified immunity, while a majority of Justices appears to hold that one of the two "reversed" claims can proceed forward on remand -- that it really makes me wonder why the Court, with one month still to go in the Term, didn't take even more time to try to sort out further these obvious inconsistencies.
Posted at 23:16 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Won't Consider Clubs' Ban on Women" and here an article entitled "Muslim Woman Sues to Wear Veil for License."
Posted at 23:15 by Howard Bashman



"Judge Bucks Third-Strike Rules: Ninth Circuit's Pregerson says he can't 'go along' in non-violent cases": Jason Hoppin of The Recorder has this report. In the article, Hoppin writes: "Since judges are not normally free to ignore Supreme Court rulings, Pregerson's stare-down with stare decisis is remarkable." I have written an op-ed on this topic, and once I know where and when it will be appearing, I'll be sure to let you know.
Posted at 21:48 by Howard Bashman



From Wednesday's edition of The New York Times: Linda Greenhouse reports here that "Justices Say Workers Can Sue Over Right to Family Leave." And R. W. Apple Jr. goes on a culinary tour of some of Philadelphia's best, if least pretentious, eateries and reports on the results in an article entitled "In Hoagieland, They Accept No Substitutes."
Posted at 21:37 by Howard Bashman



What settlement offer should a defendant make on a claim worth twelve cents? Reuters reports here from Beijing that "Chinese basketball player Yao Ming is suing Coca-Cola for one yuan -- the equivalent of 12 cents -- accusing the soft drinks giant of using his image improperly, officials and state media said on Tuesday."
Posted at 21:21 by Howard Bashman



Party kills parents, then throws self on mercy of court as an orphan: Well, that's not precisely the fact scenario that the U.S. Court of Appeals for the Ninth Circuit confronted last week when it decided the case of an INS detainee who sought release from the INS's custody on the ground that his detention was indefinite in nature. The Ninth Circuit rejected the argument, noting that "Petitioner's detention in this case is indefinite only because he refuses to cooperate with the Immigration and Naturalization Service's ('INS') efforts to remove him."
Posted at 19:42 by Howard Bashman



"Senate Confirms Consuelo Maria Callahan to Serve on Court of Appeals": The U.S. Court of Appeals for the Ninth Circuit today issued this press release.
Posted at 19:41 by Howard Bashman



Pulling no punches: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued an opinion that concludes:
As Judge Jones noted in her dissent from the panel majority decision in Williamson: "To stage an accident for insurance tribute is reprehensible. But it's also hard to see what good, or what collectable money judgment, may come of a RICO suit against these pathetic plaintiffs. This litigation . . . should end!" We wholeheartedly agree. If it were not for our obligation to abide by the law of the case doctrine, we would gladly bury this blackflag pettifoggery, born and nurtured as it was of the parties' amalgam of lawsuits and counter-lawsuits filed and prosecuted over the past thirteen years.

Regrettably, however, we are constrained from playing Hercules to this juridical Hydra: Lest anyone forget, we function under the stricture of federalism and the principle of comity that is exemplified in the Anti-Injunction Act. Thus, our decision to affirm the district court should not be seen in anyway as an imprimatur of what has occurred here. Simply put, the time has long since passed for this litigation to end, but the hemlock is not ours to administer: At this juncture, only the courts of Louisiana can euthanize this unseemly saga. We remain nonetheless confident that, even absent the mandate of a federal injunction, the Louisiana courts will timely drive a stake through the heart of this heretofore immortal vampire when the Williamsons further seek to prefect and enforce their ill-practices default judgment in the nullification suit. [footnotes omitted]
You can access the complete opinion at this link.
Posted at 19:37 by Howard Bashman



"Judicial candidates must draw their own lines on free speech": The Associated Press yesterday had this article about the forthcoming general election to fill a vacancy on the Supreme Court of Pennsylvania.
Posted at 19:33 by Howard Bashman



The wire services are reporting: The Associated Press reports here that "Companies Win Ruling on Disability Case."

Reuters reports here that "US Court to Decide Airline Secondhand Smoke Death" and here that "California Cities Lose Bid to Outlaw ATM Fees."

Finally, United Press International reports here that "Court: States liable under leave act"; here "Court divided in Miranda rights case"; here "Ashcroft hails Supreme Court action"; here "Court rejects detainee hearing challenge"; here "Court throws out Fla. pocketknife ruling"; and here "Court to hear second-hand smoke case."
Posted at 19:15 by Howard Bashman



Say hello to "The 10b-5 Daily" blog: It's described as "News and events related to securities class action litigation. Containing all facts, with particularity, and an occasional dose of commentary." There might just be a securities law pun somewhere in that description. The blog's author is Lyle Roberts, a partner with Wilson Sonsini Goodrich and Rosati's securities litigation group in its Reston, Virginia office.
Posted at 17:24 by Howard Bashman



Well, there's always spring training: Will the State of Florida be able to retain a Major League Baseball team? Today the U.S. Court of Appeals for the Eleventh Circuit considered whether the Attorney General of Florida could properly impose impediments to MLB's plans to reduce the number of teams insofar as those plans involved Florida. Today's unanimous ruling concludes:
[W]e believe that a good faith reading of Supreme Court precedent leaves us no choice but to reach the following conclusions: First, contraction is a matter that falls within the "business of baseball" and therefore cannot be the subject of a prosecution based upon federal antitrust law. Second, when the business-of-baseball exemption is triggered, baseball clubs are equally immune from prosecution under state antitrust law. Finally, because the act of contraction (or an agreement to contract) cannot possibly violate state or federal antitrust laws, an investigation based solely upon contraction is baseless and therefore violates the Fourth Amendment and Florida law -- both of which limit the scope of the Attorney General's authority to issue investigative subpoenas. It is up to the Supreme Court or Congress to overrule Flood outright, or perhaps devise a more cabined exemption. As an intermediate appellate court, we have no choice but to hold that the district court was correct in granting judgment in favor of the plaintiffs.
In sum, a big win for Major League Baseball. You can access the complete ruling at this link.
Posted at 16:45 by Howard Bashman



Access online Justice Stephen G. Breyer's Boston College Law School Commencement Remarks: Here, via the U.S. Supreme Court's Web site.
Posted at 16:18 by Howard Bashman



Depends on what your definition of "group blog" is: Denise Howell of the "Bag and Baggage" blog announces the very happy news that she's "been blogging for two."
Posted at 16:15 by Howard Bashman



Also available at National Review Online: Robert P. George has an essay entitled "Rick Santorum Is Right: Where will the Court go after marriage?" and Roger Clegg has an essay entitled "'Okay You Caught Me': Getting schools to change their race-exclusivity policies."
Posted at 15:53 by Howard Bashman



What qualifies as "apparatus intended for the recreation of children"? Federal criminal law provides for greater punishment where illegal drugs are possessed or sold within 1000 feet of a "playground." A federal statute defines "playground" as "any outdoor facility * * * containing three or more separate apparatus intended for the recreation of children including, but not limited to, sliding boards, swingsets, and teeterboards."

Today the U.S. Court of Appeals for the Ninth Circuit issued a decision resolving whether "basketball courts, softball fields, and skating rinks" qualify as "apparatus intended for the recreation of children." You can access the ruling at this link.
Posted at 15:21 by Howard Bashman



Awakening from a lengthy slumber: "The Fourteenth Circuit" blog awoke from a lengthy slumber to denounce the U.S. Supreme Court's ruling today in Nevada Dept. of Human Resources v. Hibbs. Meanwhile, an email correspondent hypothesizes that the Chief Justice voted with Justice Sandra Day O'Connor in Hibbs in order to retain her vote in the University of Michigan cases. But we know that sort of thing never happens, right?
Posted at 14:51 by Howard Bashman



"Senators give nod to nominee; Dole and Edwards signal support for judgeship hopeful": Today's edition of The Charlotte Observer contains this report.
Posted at 14:08 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Court Rules for Police in Miranda Case" and here that "Life Term in Pocketknife Case May Be Cut." Anne Gearan reports here that "Court Won't Review Deportation Hearings." And in other news, "Media Seek Papers in Laci Peterson Case" and "U.S. Decides Against Microsoft Filing."
Posted at 13:32 by Howard Bashman



"Judicial Selection Wars: How A Truce Could Be Fashioned." Stuart Taylor Jr. has this essay today at National Journal.
Posted at 11:18 by Howard Bashman



"Schumer v. Bush: battle for the courts": Today's edition of The Buffalo News contains this report.
Posted at 11:12 by Howard Bashman



Avoiding the problem of no controlling judgment of the Court: Justice Anthony M. Kennedy's opinion today concurring in part and dissenting in part in Chavez v. Martinez closes with the statement:
Accordingly, I would affirm the decision of the Court of Appeals that a cause of action under sec. 1983 has been stated. The other opinions filed today, however, reach different conclusions as to the correct disposition of the case. Were JUSTICE STEVENS, JUSTICE GINSBURG, and I to adhere to our position, there would be no controlling judgment of the Court. In these circumstances, and because a ruling on substantive due process in this case could provide much of the essential protection the Self-Incrimination Clause secures, I join Part II of JUSTICE SOUTER's opinion and would remand the case for further consideration.
Similarly, Justice Ruth Bader Ginsburg's opinion concurring in part and dissenting in part concludes:
Convinced that Chavez's conduct violated Martinez's right to be spared from self-incriminating interrogation, I would affirm the judgment of the Court of Appeals. To assure a controlling judgment of the Court, however, see ante, at 11 (KENNEDY, J., concurring in part and dissenting in part), I join Part II of JUSTICE SOUTER's opinion.
This decision should make for some interesting reading.
Posted at 11:06 by Howard Bashman



Today's summary reversal, issued over the dissents of three Justices: The U.S. Supreme Court today summarily reversed the judgment of the Supreme Court of Florida in Clyde Timothy Bunkley v. Florida, No. 02-8636 (opinion here; docket entries here). The Chief Justice, joined by Justices Anthony M. Kennedy and Clarence Thomas, dissented from the Court's ruling.
Posted at 10:51 by Howard Bashman



Reuters is reporting: James Vicini reports here that "Supreme Court Upholds Reach of Family Leave Law " and here that "High Court Won't Review Secret Deportation Hearings."
Posted at 10:45 by Howard Bashman



The Associated Press is reporting from the U.S. Supreme Court: Anne Gearan reports here that "State Workers Win Right to Family Leave" and here that "Court Rejects Post-9/11 Deportation Case." In other news, "Supreme Court to Rule on Airline Death."
Posted at 10:35 by Howard Bashman



"EU convention to unveil charter of rights": The Guardian has this report.
Posted at 10:30 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: The Supreme Court of the United States today issued four opinions in argued cases. Justice Ruth Bader Ginsburg delivered the unanimous opinion of the Court in Black and Decker Disability Plan v. Nord (oral argument transcript here), and the judgment under review was vacated and remanded. Justice Clarence Thomas announced the judgment of the Court in Chavez v. Martinez (oral argument transcript here), and the judgment under review was reversed. Justice Thomas also delivered the opinion of the Court in National Park Hospitality Assn. v. Department of Interior (oral argument transcript here), and the judgment under review was vacated and remanded. Chief Justice William H. Rehnquist delivered the opinion of the Court in Nevada Dept. of Human Resources v. Hibbs (oral argument transcript here), and the judgment under review was affirmed.

You can access today's Order List at this link. The Court granted review in three cases. Finally, the Court has announced that it will next issue opinions and orders on Monday, June 2, 2003.
Posted at 10:00 by Howard Bashman



"Capital Popularity: Americans increasingly support the death penalty." Byron York has this essay today at National Review Online.
Posted at 09:49 by Howard Bashman



"House votes to define embryo as a person; Bill, which aims to make harming an unborn child a crime, decrees life begins at fertilization": Today's edition of The Austin American-Statesman contains this report.
Posted at 09:40 by Howard Bashman



What's a judge to do when "the law" mandates a result that he or she personally believes to be unconscionable? My three earlier posts on this topic (see here, here, and here) have produced some very thoughtful emails from this blog's readership, and I hope to have the chance to post some of those before the end of the day tomorrow.

Several readers from California have written of a judicial misconduct investigation against California Court of Appeal Presiding Justice J. Anthony Kline after Justice Kline refused, as a matter of conscience, to follow directly-applicable precedent of the Supreme Court of California. You can access many more details about the Justice Kline matter here, via The Metropolitan News-Enterprise. Although I'm no expert on the Kline matter, it appears to be arguably distinguishable, because the soundness of the directly-applicable precedent at issue there was called into question by an intervening ruling of the U.S. Supreme Court that might have given the Supreme Court of California reason to reconsider the precedent with which Justice Kline disagreed.

The author of "The Curmudgeonly Clerk" blog examines the question of what's a judge to do when "the law" mandates a result that he or she personally believes to be unconscionable in a post you can access here. And the blogger at "Notes from Ground Level" addresses the question here, albeit in a manner that I find to be superficial.
Posted at 06:50 by Howard Bashman



On today's agenda: The Supreme Court of the United States is scheduled to issue opinions and orders this morning at 10 a.m.
Posted at 06:46 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Boston Globe reports here that "Some doubt strength of US terrorism cases; Government says it is targeting cells."

The Los Angeles Times reports here that "Prosecutors Seek Fewer 3rd Strikes; Since the peak in 1996, D.A.s, including L.A. County's Cooley, have been more selective in pursuing life sentences for three-time felons." An article from Bloomberg News reports that "Justice Dept. Will Stay Out of States' Microsoft Appeal; Bush administration decides not to file a brief in West Virginia and Massachusetts' case." You can access here an article entitled "Chasing Cash to Prove Point: Vietnamese who lost their deposits in U.S. and other foreign banks when Saigon fell 28 years ago are trying to get it back through the courts." Law Professor Cass R. Sunstein has an op-ed entitled "FDR's Wise Take on U.S. Security." And letters to the editor appear under the heading "Abortion Counseling for Women in Texas."

The Washington Times reports here that "Islamic Jihad suspect seeks to represent self." In other news, "Legislation to move anti-medicinal pot funds turned back." An editorial is entitled "A strike against traffic cameras." And Thomas Sowell has an op-ed entitled "Unabated fraud"; William Murchison has an op-ed entitled "Lawyers who make you sick"; Amy Ridenour has an op-ed entitled "Striking a deal"; Paul Rosenzweig has an op-ed entitled "Balancing liberty and security"; and Debra J. Saunders has an op-ed entitled "Dead on arrival."

USA Today contains an editorial about free speech zones entitled "Restrictions overreach." An op-ed by Robert J. Scott on that same topic is entitled "Reasonable limits are good." And a letter to the editor appears under the heading "Patriot Act threatens basic freedoms."

Finally for now, The San Francisco Chronicle reports here that "Lawyers turn to pro bono work; Nonprofits get more free help in lean times."
Posted at 06:30 by Howard Bashman



Today's FindLaw columnist: Anthony J. Sebok has an essay entitled "A Florida Appeals Decision That Zeroed Out the Largest Tort Judgment Ever: Why It Was Rendered, and What It Means."
Posted at 06:15 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports in a front page article that "Moussaoui Is Spinning A Legal Web; Motions and Machinations Delay Terror Prosecution." An article reports that "Democratic Officials Seek Accountability in 'Texasgate'; Lieberman, Others Want to Know if Federal Resources Aided GOP Lawmakers in Partisan Dispute." You can access here an editorial entitled "Stop This Execution." Judge James Robertson of the U.S. District Court for the District of Columbia has an op-ed entitled "A Cure for What Ails the Judiciary." And Alan P. Zelicoff has an op-ed entitled "Polygraphs: Worse Than Worthless."

The New York Times reports here that "Easier Rules May Not Mean More Newspaper-TV Deals." And Adam Cohen has an Editorial Observer column entitled "For Partisan Gain, Republicans Decide Rules Were Meant to Be Broken."

The Christian Science Monitor contains an article entitled "Are schools more afraid of lawsuits than they should be? An education-law expert says the perception that schools are under siege from courts isn't the case." An article reports that "'Lone wolves' pose explosive terror threat; Man arrested last week allegedly sought bombmaking material." And Ed Goodpaster has an op-ed entitled "Journalism's weakest link."

Finally for now, at OpinionJournal Brendan Miniter has an essay entitled "Wellington's Beef: Denver's mayor takes a stand against gun rights."
Posted at 00:00 by Howard Bashman



Monday, May 26, 2003
"Judge's Fate Could Turn On 1994 Case; Pickering Fought to Reduce Sentence for Cross-Burning": Tomorrow's edition of The Washington Post will contain this front page article.
Posted at 23:01 by Howard Bashman



In the May 26, 2003 issue of The National Law Journal: You can access here an article entitled "Big victory for big tobacco: A huge win for the companies, but the impact is debated." And Michael Greve has an op-ed entitled "Full Faith and Credit: Eulogy for a lost clause."
Posted at 21:44 by Howard Bashman



"Yale Tightens Security for Commencement": The Associated Press has this report. And you can access Dean Anthony Kronman's 2003 Commencement Address at this link.
Posted at 17:34 by Howard Bashman



In Monday's newspapers: The New York Times reports here that "Firefighters File Lawsuit Over Chaplains in Their Ranks." The suit is pending in a federal district court in California, which means that it is governed by the rulings of the U.S. Court of Appeals for the Ninth Circuit.

The Washington Times reports here that "Bill to define marriage tried again in House as 2 states mull cases." Nat Hentoff has an op-ed entitled "Dissent and division on campuses," and Mona Charen has an op-ed entitled "Multiple Blair choices."

The Los Angeles Times reports here that "Navajo Sue for River Water; Legal move asserts tribal rights and seeks to set aside federal guidelines in allotting Colorado surplus to agencies in the Southwest." You can access here an article entitled "The Merry Pranksters of the Air: Some radio deejays will do almost anything to stand out from the crowd. But not everyone is laughing as hoaxes and stunts backfire." And an op-ed by Alexander Cockburn is entitled "No. 1 on the Martyrs List in California's Marijuana Rebellion."

At OpinionJournal, you can access here an editorial entitled "Backfire: Democrats discover that gun control doesn't win elections" and here an op-ed by Kendall Coffey entitled "The Case for Military Tribunals: Don't force courts to choose between the Constitution and American lives."

Finally, The Boston Globe contains an op-ed by Cathy Young entitled "Facing up to the race issue in the Jayson Blair debate."
Posted at 09:55 by Howard Bashman



"Supreme Court ruling on the Paiute-Shoshone case": Saturday's edition of Indian Country Today contained this report.
Posted at 09:41 by Howard Bashman



Justice Ruth Bader Ginsburg said to be among those receiving honorary degrees at today's Yale Law School graduation: See the tenth paragraph of this article that The Hartford Courant published last week.

In today's news, The Courant contains an article entitled "High Spirits At Yale Class Day; Journalist Advises Grads To Thrive, Not Just Survive." In The New Haven Register, you can access here an article entitled "Pomp, circumstance, peace for commencement" and here an article entitled "Be a 'thriver,' columnist advises; Times writer Friedman advocates optimism."
Posted at 09:31 by Howard Bashman



Sunday, May 25, 2003
"Push to Cut Lawyer Contingency Fees": Adam Liptak has this report in Monday's edition of The New York Times.
Posted at 22:18 by Howard Bashman



Senate Majority Leader Bill Frist (R-TN) discusses filibusters of judicial nominees on Fox News Sunday: Perhaps the most revealing passage is this:
SNOW: Can you guarantee that Miguel Estrada and Priscilla Owen will get their votes on the Senate floor?

FRIST: No, I can't guarantee. I can say that it is inexcusable to have this unprecedented filibuster of these judicial nominees, unprecedented in the history of the country, and that as majority leader I will fight each and every day in order to get a simple up-or- down vote on Miguel Estrada, Priscilla Owen.

And it looks like the Democrats are going to filibuster a whole series of judges coming through. And they may be just be trying to get ready for the Supreme Court nominee. I don't know that yet.
You can access the entire transcript -- which includes more filibuster-related questions and answers -- at this link.
Posted at 21:01 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "O'Connor Urges Law Grads to Volunteer." And you can access here an article entitled "Tight Security Shadows Yale Commencement."
Posted at 20:51 by Howard Bashman



"Ninth Circuit's 'conscience'": Timothy Sandefur, over at the blog "Freespace," has some very interesting thoughts about what could be regarded as judicial insubordination -- when a lower federal court judge asserts that his or her conscience prevents him or her from applying directly on point authority from a higher court.

I think that Tim has settled on an appropriate analogy: a federal district court judge or federal court of appeals judge who personally believes that abortion is murder and who therefore would refuse to strike down a state law banning all abortions, notwithstanding directly on point U.S. Supreme Court precedent requiring the invalidation of the state law in question. What should such a lower court judge do in those circumstances? Some possible answers are: (a) voluntary recusal from hearing such cases; (b) resignation from the bench; or (c) impeachment from office. Impeachment would only be appropriate, if at all, where the judge willingly participated in cases governed by clearly applicable precedent with which he or she disagreed and the judge purposefully refused to follow that precedent.

Readers who find this topic as fascinating as I do are invited to share their views via email concerning the options confronting a lower federal court judge whose conscience prevents him or her from applying directly on point authority from a higher court. And you can access my two earlier posts that spawned Tim Sandefur's remarks here and here.
Posted at 17:21 by Howard Bashman



"Her Majesty: A review of Sandra Day O'Connor's The Majesty of the Law." Lincoln Caplan has this book review in the current issue of The Washington Monthly.
Posted at 16:39 by Howard Bashman



"Falls of Justice: What happens when a biographer attacks his subject--and gets his facts wrong?" Charles Lane, who covers the U.S. Supreme Court for The Washington Post, had this review of Bruce Allen Murphy's book "Wild Bill: The Legend and Life of William O. Douglas" in last month's issue of The Washington Monthly.
Posted at 16:17 by Howard Bashman



"Proposed Changes to Media Ownership Rules": The Associated Press has this report.
Posted at 16:15 by Howard Bashman



In Sunday's newspapers: The Los Angeles Times reports here that "GOP Will Need Democrats' Help on Rest of Agenda; Republicans control the Senate by a tight margin and face divisions among themselves." An article reports that "Workers' Comp Crisis Worsens; The California system's soaring costs place a staggering burden on employers, workers and the economy. Some predict a meltdown." You can access here the first in a weekly installment of profiles of the Democratic candidates for president; this week's profile is entitled "John Edwards: Millionaire lawyer and senator hopes to turn his humble beginnings and brief political career into selling points." And you can access here a "Q & A With Sen. John Edwards." An article reports that "Halfway Houses Less of an Option in White-Collar Crime; The Justice Department has slashed access to the alternative penal facilities, causing dozens of people to serve rest of their terms in prison." You can access here an article entitled "Verdict is in on mural in courthouse." Alexander Keyssar reviews the books "Courting Disaster: The Supreme Court and the Unmaking of American Law," by Martin Garbus, and "Overruling Democracy: The Supreme Court vs. the American People," by Jamin B. Raskin. An editorial is entitled "Power, Ever More Power." And Macarena Hernandez has an essay entitled "He Stole a Lot More Than My Words."

The Washington Post reports here that "Lawyers Appeal for Life of Condemned Va. Man; Killer's Mental Illness Cited in Pleas to Governor, Supreme Court Over Execution Scheduled This Week." And Warren Getler has an op-ed entitled "Civil War Rules for the Terror War."

The New York Times contains an article entitled "Drawing a Line, and Defending It." And in other news, "Court Ruling Broadens Co-op Power."

In The Boston Globe, you can access here an editorial entitled "A boost for Maine's health" and here an editorial entitled "Judging judges." Jeff Jacoby has an op-ed entitled "Preferences, based on legacy." And columnist Ellen Goodman has an op-ed entitled "Lost ironies of Florida fetus fight."
Posted at 13:40 by Howard Bashman



Today's round-up of news relating to the Yale Law School bombing: The Hartford Courant contains an article entitled "Boola, Boola, What Bomb? Yale Moves On To Diploma Fest." The New Haven Register contains an article entitled "Wary, But Ready to Party; Yale University graduation weekend." And The Yale Daily News reports here that "Bomb investigators find firearms in student dorm room."
Posted at 13:28 by Howard Bashman



And down the stretch they go! With approximately one month remaining in the U.S. Supreme Court's October Term, 2002 for the announcement of opinions in argued cases, you can see which 26 argued cases remain to be decided via this very helpful document prepared by the kind folks at Mayer, Brown, Rowe and Maw.
Posted at 12:10 by Howard Bashman



"U.S. Terror Tribunals: Fair Trial or Kangaroo Court": Reuters offers this article.
Posted at 11:56 by Howard Bashman



"Local company loses battle of bad teeth; Bubba's fake ivories violate copyright of Billy-Bob's, say judges, citing Austin Powers." The Associated Press provides this report. You can access my earlier coverage of the ruling at this link.
Posted at 08:59 by Howard Bashman



"Court Nears A Crossroad: Conservative Justices Rehnquist And O'Connor May Step Down Soon To Make Room For Bush Appointees -- Opening The Door For A Conservative Court Led By Scalia Or Thomas." Today's edition of The Day contains this report.
Posted at 08:56 by Howard Bashman



Saturday, May 24, 2003
"Abu-Jamal Attorneys Claim 'Sabotage'": The Associated Press has this report.
Posted at 22:51 by Howard Bashman



"Judicial nominee a conservative true believer": Tomorrow's edition of The Atlanta Journal-Constitution contains this lengthy profile of Eleventh Circuit nominee William H. Pryor, Jr. A second, related article is entitled "Pryor has personal distaste for abortion." (Link to first article via "Southern Appeal.")
Posted at 20:48 by Howard Bashman



Take that, Blog*Spot: "The Volokh Conspiracy" has moved from Blog*Spot to a new address, http://volokh.com. Meanwhile, the Blogger status page reports here:
BlogSpot has been especially sluggish recently and we are working hard to improve the situation. We sincerely apologize that the problem has taken longer to resolve than expected and for the frustration of having poor performance from the servers.
Well, at least the folks in charge of the service are on the case, working to improve things.
Posted at 19:38 by Howard Bashman



Today's round-up of judicial nomination and confirmation news and commentary: Tomorrow's edition of The Atlanta Journal-Constitution will contain an op-ed by Sarah A. Binder and Steven S. Smith entitled "Filibusters a great American tradition."

Today's edition of The Newark Star-Ledger reports here that "Chertoff nomination to bench unaffected by allegations; Skeptical Senate panel will hear claims about FBI misuse of informant." And The Providence Journal contains an editorial entitled "Time for a floor vote."

Yesterday, The Clarion-Ledger reported here that "Lott aims to change filibuster rules; Senator says stalling of Pickering's nomination, others 'cannot stand.'" The Austin Chronicle contained an article entitled "Texans vs. Priscilla Owen." And United Press International offered an essay by Peter Roff entitled "Leave or lead."
Posted at 19:21 by Howard Bashman



"Prospecting for Gold Among the Photo Blogs": Sunday's edition of The New York Times contains this report.
Posted at 19:12 by Howard Bashman



Elsewhere in Saturday's newspapers: The Boston Globe reports here that "SJC urges limits on juror rejections." In other news, "30 senators back Maine drug plan." And from New Haven comes a report that "Police search dorm in Yale bomb probe."

The Los Angeles Times reports here that "Smuggling-Ring Survivors Adrift Legally; Some are likely to avoid deportation while they are needed to testify in federal and Texas cases." In other news, "Judge Refuses to Void Verdict Against Def Jam." An obituary is entitled "David Eagleson, 78; Justice Brought Practical, Professional Approach to State High Court." Media correspondent Tim Rutten has an essay entitled "Hard to find truth in a story of lies." And an editorial is entitled "Everyone Into the Jury Box."

Finally for now, The Washington Times contains an op-ed by Terence P. Jeffrey entitled "Sending courts a message."
Posted at 14:08 by Howard Bashman



Not another filibuster-related editorial cartoon: Who said filibuster-related humor ain't easy? I did. If further proof is necessary, check out R.J. Matson's editorial cartoon that ran in Roll Call this past week. (Thanks to Rick Hasen for the pointer via email.)
Posted at 14:05 by Howard Bashman



An update concerning what may have been the most interesting post yesterday at "How Appealing": Yesterday at 2:44 p.m., I added a post entitled "Certain judges serving on the Ninth Circuit appear none too happy with the U.S. Supreme Court's three-strikes rulings." The post mentioned that the information contained therein came from "a previously reliable source" and that I had no reason to doubt the information that had been communicated to me.

Today I'm pleased to report that no one has any reason to doubt that information, because three such unpublished memorandum dispositions from the Ninth Circuit panel of "PREGERSON, REINHARDT, and GRABER, Circuit Judges" are available for viewing on Westlaw.

Thus, if you have access to Westlaw, you can confirm the information contained in my post from yesterday by accessing the Ninth Circuit's decisions in the following three cases: Rico v. Terhune, No. 01-56692, 2003 WL 21186323 (9th Cir. May 19, 2003); Wallace v. Castro, No. 00-16993, 2003 WL 21186336 (9th Cir. May 19, 2003); and Turner v. Candelaria, No. 00-15606, 2003 WL 21186338 (9th Cir. May 19, 2003). My source further advises that many more similar orders have been entered by the same three-judge panel, but my research reveals that those other orders are not yet accessible via Westlaw.

Finally, I am advised that both members of the press and staffers with the Senate Judiciary Committee are hot on the trail of this story, which could make for some interesting additional reading in the days and weeks ahead. This story is just one more item of interesting appellate news that the public learned about first here at "How Appealing."
Posted at 13:31 by Howard Bashman



The latest on the Yale Law School bombing investigation: The Hartford Courant reports here that "Bomb Jitters Shake Ivy: Security Tight For Yale Commencement; Guns Found In Dorm Room." The Courant's article reports the name of the student who possessed the guns and states that "authorities don't consider him a suspect in the bombing." The New Haven Register, meanwhile, reports here that "Officials question law student."
Posted at 11:59 by Howard Bashman



"Generic Drugs OK to Look Like Originals": The Associated Press has this report. And you can access yesterday's ruling of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 11:53 by Howard Bashman



In Sunday's edition of The New York Times Magazine: You can access here an article entitled "The Young Hipublicans" and here an article entitled "The Black White Supremacist."
Posted at 00:59 by Howard Bashman



In Saturday's newspapers: In The New York Times, an article entitled "How Nobility of Purpose Can Square With Meanness and Lies" begins, "The life of Justice William O. Douglas reads like a novel." The article contains quotes from an interview with Seventh Circuit Judge Richard A. Posner. In other news, you can access here an article entitled "Bush's Heaviest Hitters to Be Called Rangers." And an editorial is entitled "Demanding Discounts on Drugs."

The only news of relevance located so far in Saturday's edition of The Washington Post happens to refer to The New York Times. Howard Kurtz reports here that "Blair Book Proposal Lashes Out at Paper" and here that "N.Y. Times Suspends Reporter; Pulitzer Winner Failed to Give Freelancer Credit."
Posted at 00:07 by Howard Bashman



Friday, May 23, 2003
When it comes to which President placed how many Justices on the U.S. Supreme Court, even United Press International isn't immune from error: Earlier today, I linked to a report from United Press International's U.S. Supreme Court correspondent, Michael Kirkland, about the possibility of upcoming vacancies on the Court. In the report, Kirkland writes:
Assuming O'Connor and Rehnquist step down, and Bush is re-elected, and looking at the ages of those who remain on the court, the president might get a chance to name about four justices over the course of his two terms.

That would mean the chance to pick more high court nominees than any chief executive since President Franklin D. Roosevelt, who named eight justices.
As one of my readers has emailed to note, Kirkland is incorrect in asserting that naming four Justices to the Court would put President Bush in second place behind F.D.R.

Why? President Dwight D. Eisenhower, you see, placed five Justices on the Court. They were Earl Warren, John Marshall Harlan, William J. Brennan, Jr., Charles E. Whittaker, and Potter Stewart.
Posted at 23:13 by Howard Bashman



"Justice O'Connor Defends Bush-Gore Decision": FOXNews has this report on its exclusive interview with Justice Sandra Day O'Connor.
Posted at 22:55 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Jury Rules New York Times Libeled Judge"; here "Jury Awards More Than $19M in Tobacco Suit"; here "Judge Denies Attempt to Derail RICO Suit" against the tobacco companies; here "Experts Seek Clues at Yale Bombing Site"; here "Mass. Court Orders New Trial Due to Jury"; here "No Conflict Seen in Sniper Suspect Charges"; here "Transferred New York Officers Win Ruling"; here "Colorado Judge Throws Out Death Sentence"; and here "Judge Lets Widow, Son Move to N. Carolina."
Posted at 22:44 by Howard Bashman



In other three-strikes news from California: The Metropolitan News-Enterprise reports here that "The California Supreme Court has agreed to decide whether a trial judge's decision to sentence a defendant under the Three Strikes Law, rather than to dismiss one or more 'strikes' and impose a lesser sentence, may be overturned on appeal as an abuse of discretion."
Posted at 22:41 by Howard Bashman



"Appealing Price: A tobacco case shows the cost of justice can be prohibitive." Jacob Sullum today has this essay online at Reason.
Posted at 19:31 by Howard Bashman



"Supreme Court Justice Stephen Breyer Urges Boston College Law Graduates to Embrace Public Service": AScribe has this report.
Posted at 19:15 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Court Leaves Campaign Finance Law As Is." In other news, you can access here an article entitled "Federal Judges Rule on Ohio Redistricting" and here an article entitled "Terrorism Jury Breaks With No Verdict."
Posted at 19:10 by Howard Bashman



"To reach the heights": Michael Kirkland, UPI Legal Affairs Correspondent, has an essay that begins, "If President George W. Bush gets the chance this summer to fill vacancies at the Supreme Court, where will he turn?"
Posted at 16:35 by Howard Bashman



Elsewhere in Friday's newspapers: The Washington Post reports here that "Both Sides Say Tribunals Will Be Fair Trials."

USA Today reports here that "Attitudes ease toward medical marijuana; Trend may be against anti-drug stance of Bush administration."

Finally for now, The Washington Times reports here that "Malvo's venue request derided." And Jonah Goldberg has an op-ed entitled "Defenders of racial preferences want double standard."
Posted at 16:03 by Howard Bashman



In news from Alabama: The Mobile Register reports here that "Johnstone set to retire in 2004; Lone Democrat on state high court says he won't seek re-election." And The Birmingham News reports here that "Justice Johnstone won't run in 2004."
Posted at 15:40 by Howard Bashman



Latest news on the search for the Yale Law School bomber: The Hartford Courant reports here that "Weapons Found In Yale Student's Dorm Room." (Perhaps the student was merely endeavoring to become a Second Amendment scholar.) And you can access here a report entitled "Bomb-Proofing Yale's Image."
Posted at 15:13 by Howard Bashman



Certain judges serving on the Ninth Circuit appear none too happy with the U.S. Supreme Court's three-strikes rulings: A reader emails:
Remember Lockyer v. Andrade, and Ewing v. California, in which SCOTUS upheld California's Three Strikes Law against an Eighth Amendment challenge? At least one 9th Circuit judge is publicly declaring his refusal to obey the Supreme Court's decisions.

The California AG filed a host of motions for summary disposition in the 9th Circuit cases with Three Strikes issues pending when Andrade and Ewing came down. The 9th Circuit motions panel for May consists of Harry Pregerson, Stephen Reinhardt, and Susan Graber. Here is one of the typical orders the California AG is receiving in response to the motion:
Before: PREGERSON, REINHARDT, and GRABER, Circuit Judges:

Appellant's motion for summary disposition is granted. We summarily reverse the district court's judgment and remand for further proceedings. See Lockyer v. Andrade, 123 S. Ct. 1166 (2003); Ewing v. California, 123 S. Ct. 1179 (2003). All other pending motions are denied as moot.

REVERSED and REMANDED.

REINHARDT, Circuit Judge, specially concurring. I concur only under compulsion of the Supreme Court decision in Andrade. I believe the sentence is both unconscionable and unconstitutional.

PREGERSON, Circuit Judge, writing separately. In good conscience, I can't vote to go along with the sentence imposed in this case.
Wow! If this is what's happening (which I have no reason to doubt, because this email comes from a previously reliable source, and these orders, while unpublished, are public records that can be obtained from the Ninth Circuit's Clerk's Office), then perhaps some press coverage would be in order.
Posted at 14:44 by Howard Bashman



Some "wild and crazy" prison litigation: Prisoner Steve Martin brought a federal civil rights action against prison authorities for having delayed his marriage for a year as a disciplinary sanction after Martin "fondled [the] buttocks" of his wife-to-be during her visit to the prison. Today a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Frank H. Easterbrook, affirmed the trial court's dismissal of the suit, although on grounds different from those on which the trial court had relied.
Posted at 13:52 by Howard Bashman



"Court: Neglect Laws Don't Apply to Fetus": The Associated Press has this report. And you can access yesterday's ruling of the Colorado Court of Appeals at this link (Microsoft Word document).
Posted at 11:57 by Howard Bashman



Seventh Circuit Judge John L. Coffey to take senior status: Today's edition of The Milwaukee Journal Sentinel reports here that "U.S. appeals judge cutting back; parties clashing over seat." Currently, the U.S. Court of Appeals for the Seventh Circuit has no vacancies.
Posted at 11:43 by Howard Bashman



"Wesley sails through U.S. Court of Appeals confirmation hearing": Today's edition of The Democrat and Chronicle contains this report. And law.com New York has a blurb entitled "Wesley Nomination Passes Committee Scrutiny."
Posted at 08:53 by Howard Bashman



On the agenda: Justice Stephen G. Breyer will be delivering a speech today at the Boston College Law School's commencement ceremony. Chances are that the text of Justice Breyer's remarks will be posted to this page of the U.S. Supreme Court's Web site in the not too distant future.
Posted at 08:50 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "Panel Clears 3 Bush Nominees for Senate Vote." An article reports that "Sketch of Man Is Shown in Yale University Explosion." An article entitled "U.S. Seeking Guantanamo Defense Staff" begins, "Have a law degree? Willing to work for low pay in an exotic locale? Then Uncle Sam wants you." In business news, "Aetna Agreement With Doctors Envisions Altered Managed Care." Elsewhere, "Bar Suspends 3 Lawyers in California Over Lawsuits." You can access here an article entitled "Absolution for a Martyr to the Profane." And an editorial is entitled "In the Aftermath of Sept. 11."

The Washington Post reports here that "Case for Moving Malvo Trial Disparaged; Horan Calls Argument That Entire Fairfax Jury Pool Is Biased 'Preposterous.'" In business news, "Aetna Gives Doctors Wider Latitude; Settlement in Lawsuit Called 'Truce.'" You can access here an article entitled "A Medical Marijuana Break; Use Will Remain Illegal, but Bill Signed by Ehrlich Cuts Patients' Penalties." An editorial is entitled "Questions in Texas." And columnist George F. Will has an op-ed entitled "The States' Tobacco Dilemma."

Today's edition of The Christian Science Monitor contains an article entitled "Lessons in US terror cases."

And at OpinionJournal, Walter Olson has an op-ed entitled "Trial Lawyers Get Spanked: A court strikes down racial demagoguery against tobacco companies" and John H. Fund has an essay entitled "Nerd Nirvana: Students are to the right of the faculty even at the U of Chicago."
Posted at 08:04 by Howard Bashman



"Ohio Supreme Court justice wants $15 million from Times and reporter": The Associated Press has a report that begins, "A federal court jury is being asked to decide if a New York Times reporter libeled an Ohio Supreme Court justice who wants $15 million in damages." One cannot help but think that this week isn't the best time for that newspaper to be facing a jury in this sort of a lawsuit.
Posted at 08:00 by Howard Bashman



Today's news coverage of the Yale Law School bombing: Today's edition of The Hartford Courant reports here that "FBI Hones Bomb Probe; Focus Is On Rejected Applicants, Man Who Left Before Yale Blast."

The New Haven Register provides comprehensive coverage in today's issue. You can access here an article entitled "Bomber likely an amateur, not a terrorist, experts say"; here "Old Blues shocked by law school attack"; here "Skilled conservators have a job ahead of them"; here "Campuses tighten security for graduation ceremonies"; here "Incident rekindles memories of May 1970"; and here "School offers extensions on class work." Also, Randall Beach has an essay entitled "Life will return to normal in Elm City, despite destructive disruption."

Finally, The Yale Daily News yesterday issued a report entitled "Investigators scour Law School for clues following bombing; FBI seeks man who was in vicinity at time of incident."
Posted at 07:46 by Howard Bashman



"Jacko's Legal Sickout": E! Online News has this report. Locally, The Post-Tribune reports here that "Jackson faces hefty fine for being Indy no-show," while The Indianapolis Star reports here that "Michael Jackson to return to Indy in next 3 weeks."
Posted at 07:43 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Police: Yale Bomb Was Meant As Message" and here an article entitled "Hatch Introduces Asbestos Legislation."
Posted at 07:00 by Howard Bashman



Today's FindLaw columnist: John W. Dean, Former Counsel to the President of the United States, has an essay entitled "The Ongoing Controversy Over Judicial Nominees: What Will It Mean if the GOP 'Goes Nuclear' On The Filibuster Rules?"
Posted at 06:57 by Howard Bashman



Thursday, May 22, 2003
Judicial nomination and confirmation news and commentary from here and there: Today's edition of The Las Vegas Review-Journal reports here that "Ensign's nominees rejected; White House doesn't want Reid's son included on list." The News-Sentinel contains an editorial entitled "Of Supreme importance: What the court does matters long after president is gone." Columnist Steve Chapman has an op-ed entitled "Making a radical break with tradition" in The Chicago Tribune. And Doug Patton has an op-ed entitled "Liberals 'Bork' Estrada to preserve Roe" in Hernando Today.
Posted at 23:10 by Howard Bashman



Available online at law.com: Tony Mauro has an article entitled "Another Step Closer to Citing Unpublished Opinions." The final paragraph of the article will remind all who favor the proposed rule change why Eighth Circuit Senior Judge Richard S. Arnold is a hero of this movement:
Asked if he was affirming the fears of opponents such as Kozinski that the rule change would create a slippery slope toward the widespread use of unpublished opinions, Arnold said, "Yes, and I hope the slope is very steep and very slippery." He added, "I don't know what judges are afraid of."
Jonathan Ringel has an article entitled "Justice Thomas Stirs Debate at Meeting of Federal Judges, Lawyers." You can access here an article entitled "Mississippi Brainiacs." And Cameron Stracher reviews the book "Overruling Democracy: The Supreme Court vs. The American People," by Jamin B. Raskin.
Posted at 22:57 by Howard Bashman



Elsewhere in Thursday's newspapers: The Los Angeles Times reports here that "Court Throws Out $144.8-Billion Award Against Tobacco Industry." An article reports that "Explosion Jolts Yale Law School; A device is thought to cause the blast, hitting classroom and lounge, injuring no one." You can access here an article entitled "Texas OKs Disputed Abortion Legislation." In other news, "Miss. Told to Fix Conditions on Death Row; Poor state of prison is 'cruel' and offends current concepts of decency, judge says." In business news, "Aetna Expected to End Dispute With Doctors; Sources say insurer will break ranks with other managed-care firms by agreeing to change how it pays physicians and views their decisions." An article reports that "Lackawanna Case Reopened as U.S. Seeks New Suspect; Co-conspirator is charged after six members of N.Y. terror cell all plead guilty." In local news, "3 Lawyers Suspended Over Flood of Suits; State Bar ruling follows allegations that the firm abused consumer law to target small businesses." Law Professor Jonathan Turley has an op-ed entitled "Innocence Doesn't Pay Either." And a letter to the editor runs under the heading "Well-Kept Prisoners."

The Boston Globe reports here that "Bomb shakes Yale Law School; No injuries reported; terrorism tie unknown." And an article reports that "Worker vengeance makes its way online."

The Washington Times reports here that "Blast rips Yale's law school." In other news, "U.S. names 7th figure in Buffalo terror cell." And an editorial is entitled "Tort reform, R.I.P."
Posted at 22:32 by Howard Bashman



On the syllabus: This is too cool! "How Appealing" is included on the syllabus of this Law and Economics course given during the Spring Quarter, 2003 at The Ohio State University. I've always been a big fan of that academic discipline, and it's nice to see that perhaps the feeling is mutual.
Posted at 22:26 by Howard Bashman



"Ninth Circuit Judicial Conference Heads for Hawai'i": The U.S. Court of Appeals for the Ninth Circuit has issued this press release. Hey, I'm a member of the Ninth Circuit's bar -- perhaps I should attend?
Posted at 22:18 by Howard Bashman



U.S. Senate confirms Consuelo Maria Callahan to serve on U.S. Court of Appeals for the Ninth Circuit by a vote of 99-0: You can access the official roll call vote here. The Ninth Circuit -- with 28 authorized active judgeships -- now only has two vacancies.
Posted at 22:10 by Howard Bashman



Party asks U.S. Supreme Court to stay lower court's stay of campaign finance law ruling: Stay tuned to Law Professor Rick Hasen's "Election Law" blog for all stay-related details.
Posted at 19:48 by Howard Bashman



Another instance of unusual election-related litigation from Florida: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the dismissal for lack of standing of a claim that the court described in the following manner:
Despite his Republican Party affiliation, Appellant asserts he has standing to challenge the Florida Democratic Party's loyalty oath because it allegedly restricts the kind of candidates he will have the opportunity to vote for in the general election. Appellant complains that the oath effectively limits the slate of candidates in the general election to "party loyalists" only, while he desires the opportunity to vote for "free-thinking mavericks, like Senators McCain of Arizona and Miller of Georgia."
You can access the complete opinion at this link.
Posted at 19:43 by Howard Bashman



"Man in Yale sketch identified; Source: Pipe bomb used in Yale blast": CNN.com provides this report. The Hartford Courant reports here that "Motive Sought In Yale Bombing." That article begins, "Yale University has given investigators probing Wednesday's law school bombing a list of people who were notified last week that they were rejected by the law school, The Hartford Courant has learned." The New Haven Advocate reports here that "Yale law students remained in their rooms after Wednesday's bombing, unaware, because alarms didn't go off." And The Associated Press reports here that "Pipe bomb thought to be a strong possibility in Yale blast." The AP article begins, "FBI agents on Thursday identified a man seen leaving an empty Yale University law school classroom just before a bomb exploded."
Posted at 19:13 by Howard Bashman



"Senate Panel Approves Nominee, and a Probe": Reuters has this report on today's Senate Judiciary Committee business meeting. The Associated Press reports here that "Panel Backs Chertoff Judicial Nomination." The AP article also reports that "the committee approved legislation that would give federal judges a 16.6 per cent pay raise, an average of $25,000 a year." And the organization Judicial Watch has issued a press release entitled "Senate Judiciary Committee Launches Joint Investigation of Nominee Michael Chertoff and Alleged Justice Department Misuse of Organized Crime Operative."
Posted at 17:40 by Howard Bashman



When will the longest existing judgeship vacancy in the federal district court system be filled? Since December 7, 1997, a vacancy has existed on the U.S. District Court for the Eastern District of North Carolina. Currently, that vacancy is the longest existing federal district judgeship vacancy in the Nation (see the list of all vacancies here). On May 22, 2002, President Bush nominated attorney James C. Dever, III to fill that vacancy.

Yesterday's edition of The News & Observer of Raleigh, North Carolina contained a report (see the third and final item) that the State's Republican chairman had called on U.S. Senator John Edwards (D-NC) to return the blue slip approving Dever's nomination, which has its one-year anniversary today. According to the news report, the Senator's spokesman said "He's still taking a look at it. * * * We're being very careful."
Posted at 16:27 by Howard Bashman



"Man Sought In Yale Bombing": The Hartford Courant has this report. And The Associated Press reports here that "FBI Shows Sketch of Man at Yale Classroom."
Posted at 15:58 by Howard Bashman



"S.C. Jury Awards $9 Million in Libel Case": The Associated Press provides this report.
Posted at 15:08 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Virginia Plans Controversial Execution" and here an article entitled "Utah Readies Two Firing-Squad Executions."
Posted at 13:49 by Howard Bashman



Ninth Circuit again examines boundary between protected free speech and impermissible government endorsement of religion: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a unanimous per curiam opinion that begins:
In this case, we again confront the often confusing intersection of First Amendment rights and the delicate balance which must be struck by our public schools in insuring the right to Free Speech but avoiding endorsement of religion in violation of the Establishment Clause. Striking this balance has never been easy and this appeal demonstrates just how difficult it can be.

Joseph Hills appeals the district court's grant of summary judgment to defendant Scottsdale Unified School District (the "District"). The District permits nonprofit organizations to distribute literature through its schools, promoting events and activities of interest to students, but prohibits any flyers of a "commercial, political or religious nature." After some back and forth, the District ultimately refused to distribute Hills's brochure for a summer camp that included, among nineteen course offerings, two classes on "Bible Heroes" and "Bible Tales." Application of Supreme Court precedent requires the conclusion that the District discriminated against Hills on the basis of his religious viewpoint, and requires us to hold that the District violated Hills's First Amendment rights by denying him equal access to the District's schools.
You can access the complete decision at this link.
Posted at 13:27 by Howard Bashman



"Aetna Reaches $100 Mln Deal with Doctors": Reuters provides this report.
Posted at 13:12 by Howard Bashman



"Source: Pipe bomb used in Yale blast": CNN.com offers this report.
Posted at 13:09 by Howard Bashman



Plagiarism isn't all bad, Judge Richard A. Posner contends: In Sunday's edition of Newsday, Seventh Circuit Judge Richard A. Posner had an op-ed entitled "The Truth About Plagiarism: It's usually a minor offense and can have social value." You can also access the op-ed here via the University of Chicago Law School's Web site. (Original pointer to op-ed via the "Legal Theory Blog.")
Posted at 12:44 by Howard Bashman



Who says what? Over at the Harvard Federalist Society blog "Ex Parte," Adam White has a question of his own about Jeffrey Toobin's article in the current issue of The New Yorker.
Posted at 12:37 by Howard Bashman



D.C. federal district court rejects on the merits a challenge to streamlined administrative appellate process for INS immigration adjudications: You can access yesterday's ruling of the U.S. District Court for the District of Columbia at this link.
Posted at 10:51 by Howard Bashman



"Poll shows Santorum's popularity not hurt by remarks about gays": The Associated Press has this news from Pennsylvania. You can access the poll results directly at this link.
Posted at 10:30 by Howard Bashman



"Dispute in Hiring of Administrative Law Judges May Not Be Over": Today's edition of The Washington Post contains this report.
Posted at 09:51 by Howard Bashman



Blog*Spot-dot-sucks: A reader who works for the U.S. Courts in Maryland emails:
I'm having a bit of a problem with How Appealing loading on my browser; sometimes it loads very slowly, but often it doesn't load at all. A number of others around the country have confirmed that they too are experiencing trouble receiving the very latest in the activities of America's appellate courts.

I don't know if this is because you're running out of bandwidth due to the popularity of your blog, or if something else is afoot, but I thought it should be brought to your attention.

And thank you for maintaining such an excellent resource.
All Blog*Spot-hosted sites have been plagued by this problem this week, although today things seem to be working appreciably better. Readers of "How Appealing" should rest assured that during this time of crisis I've been doing everything within my power -- which conveniently for me happens to be nothing -- to have this problem remedied.

OK, there is one more thing I could do, which would be to leave Blog*Spot/Blogger, learn some other, more complicated, blogging software, and purchase a domain name and pay for a private hosting service. Notwithstanding those readers who email from time to time to encourage me to accept donations of money here, I fear that making such an additional investment in time and money would make blogging less "fun."

So, instead of doing that, I'll happily continue to subsist on all the very kind emails of praise from this blog's readers, the very kind coverage "How Appealing" receives from time to time in the major media, the complimentary review copies of books and other publications I receive, and the occasional bobblehead figurines depicting individuals serving on the Nation's highest court.
Posted at 09:35 by Howard Bashman



For those who need one more reason not to pet a killer whale: The Associated Press this morning reports here that "Woman Is Fined $74 for Petting Whale." For those desiring more coverage, Reuters reports here that "Canadian woman nets fine for petting killer whale." Yesterday's edition of The Province provided this coverage, while CBC News British Columbia offered this report, containing plentiful additional links of interest.
Posted at 09:20 by Howard Bashman



"This Is Maine On Drugs; If you loved rent control, you'll die for drug price controls": Ronald Bailey has this essay online at Reason.
Posted at 08:59 by Howard Bashman



On the agenda: The Senate Judiciary Committee has quite the busy day planned. At 9:30 a.m., the committee is scheduled to hold an executive business meeting at which a vote on the nomination of Michael Chertoff to serve on the U.S. Court of Appeals for the Third Circuit is scheduled to occur. Chertoff's nomination is the subject of an article entitled "Dispute Over Legal Advice Costs a Job and Snarls a Nomination" in today's edition of The New York Times. After the committee votes to recommend the approval of a nominee to the federal judiciary, the nomination is then sent to the full U.S. Senate for an up-or-down vote. Several interesting items of legislation, including the law to raise the salaries of federal judges, are also scheduled to be considered at this morning's business meeting.

Then, at 2:30 p.m. today, the Judiciary Committee is scheduled to reconvene to hold a hearing to consider various federal court nominees. Among the nominees scheduled to testify are Richard C. Wesley, nominated to serve on the Second Circuit, and Mark R. Kravitz, nominated to serve on the U.S. District Court for the District of Connecticut. The judiciary committee is planning to broadcast this hearing over the Web, and you should be able to access the audio/video feed at this link once the hearing gets underway.
Posted at 08:30 by Howard Bashman



"Campus ponders affirmative action; As Supreme Court decision looms, Yale looks at admissions process." The Yale Herald offers this report.
Posted at 08:29 by Howard Bashman



A round-up of local newspaper coverage of the Yale Law School bombing: The New Haven Register reports here that "Blast goes off at law school classroom; no injuries"; here that "Ball of fire shot out door, witness says"; and here (via The Associated Press) that "Conn. Police Treat Yale Blast As Crime."

The Hartford Courant reports here that "Blast Startles Yale; Bomb In Empty Law School Classroom Stokes Fears; Motive Not Yet Known." You can access a series of photographs relating to the incident via this link.

The Yale Daily News reports here that "Bomb damages rooms at Law School," and The Yale Herald reports that "Bomb rocks Yale law school, no injuries reported."

Finally for now, the law school's Web site is back online at its usual address, although for quite understandable reasons the Web site doesn't yet offer its usual broad range of content.
Posted at 08:15 by Howard Bashman



"Aetna Settles With Doctors; Insurer Would Make $470 Million Worth Of Payments, Changes": Today's edition of The Hartford Courant contains this report. And The New York Times reports here that "Aetna to Settle Suit With Doctors Over Payments."
Posted at 08:10 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "Huge Award for Smokers Is Voided by Appeals Court." You can access here an article entitled "Snags Reported in Negotiations Seeking to Settle Asbestos Cases." In news pertaining to the Second Circuit (see the opinion here), "Fitch Rating Service Is Denied Journalistic Privilege in a Suit." An article reports that "Amid Criticism, Connecticut Judges Say They'll No Longer Allow Secret Legal Filings." And in other local news, you can access here an article entitled "Appeals Court Allows a Shelter For Homeless Men in Brooklyn" and here an article entitled "Judge's Offhanded Terrorism Remarks Angers Arab-American."

The Washington Post reports here that "$145 Billion Award in Tobacco Case Voided; Florida Appeals Court Calls Figure 'Grossly Excessive.'" An article reports that "Muhammad Called Instigator In Va. Shooting; Death Penalty Doesn't Require Pulling Trigger, Prosecutors Say." And in other local news, "Twice-Convicted Va. Killer Wants to Tell His Side of Story."

The Christian Science Monitor contains an article entitled "A silent mother, a fetus, and a state's prerogative: Gov. Jeb Bush's call to name a guardian for a fetus could test the legal definition of when human life begins." And you can access here an article entitled "Leaky law enforcement: When journalists report leaks, damage outweighs benefits, many lawyers say."
Posted at 00:03 by Howard Bashman



Wednesday, May 21, 2003
Elsewhere in Wednesday's newspapers: The Los Angeles Times today contains a front page article entitled "Army to Deserters: So Long! Prosecution and prison time for going AWOL are rare today. 'If folks don't want to stay around, we don't want them,' an official says." An article reports that "Supreme Court denies prayer case; Appellate ruling barring sectarian invocations at Burbank City Council meetings will stand." A report from The Associated Press is entitled "Disney, Pooh Case Moves Closer to Trial." In other news, "Detroit Jury to Decide Whether Defendants Are Terrorists; Prosecutors say the four scouted targets. Men say they were 'in the wrong place at the wrong time.'" And letters to the editor appear under the heading "Judicial Appointments Should Gain Consensus."

The Boston Globe reports here that "US uses terrorism law in other crime probes; Report bolsters stand of civil liberties groups." An article reports that "Activists found guilty of trespassing; Group of 18 says it won't appeal; $900 fine levied." And columnist Eileen McNamara has an essay entitled "The lessons in Lopez."

USA Today reports here that "Justice Dept. reveals tactics used in fight against terror." And The Washington Times contains an article entitled "Mandatory anthrax vaccine for troops challenged in court."
Posted at 23:08 by Howard Bashman



Texas is on the verge of adopting waiting period and "informed consent" requirement for women seeking an abortion: Today's edition of The San Antonio Express-News reports here that "Abortion waiting-period to governor." The El Paso Times reports here that "Senate approves abortion waiting period." And The Los Angeles Times is previewing an article, due to run in tomorrow's paper, entitled "Texas OKs Warning Law Linking Abortion, Breast Cancer."
Posted at 23:02 by Howard Bashman



"Bomb Is Suspected in Explosion in an Empty Yale Classroom": The New York Times offers this report, while The Los Angeles Times reports here that "Explosion Damages Classrooms at Yale Law School."
Posted at 22:54 by Howard Bashman



"Dispute Over Legal Advice Costs a Job and Snarls a Nomination": Thursday's edition of The New York Times contains this article by Eric Lichtblau. The "snarled nomination" in question, according to the article, is that of Third Circuit nominee Michael Chertoff. The Senate Judiciary Committee is scheduled to vote tomorrow on Chertoff's nomination, and the nomination has been expected to receive strong support across party lines.
Posted at 22:47 by Howard Bashman



"Scruggs paid off 2000 campaign loan for Diaz; Lawyer has cases pending before state's high court": The Sun Herald today contains this article regarding a controversy that continues to swirl in Mississippi.
Posted at 22:32 by Howard Bashman



"Bill would create asbestos fund": Today's edition of The Chicago Sun-Times contains this report.
Posted at 22:24 by Howard Bashman



More news from Yale Law School: A reader emails:
I'm a 2L at Yale and a devoted fan of your blog...

Basically, the news accounts have covered most everything, though there was not an exam being administered in Room 120 (where the explosion was) immediately prior to the incident; rather, there was an exam there this morning, but it ended much earlier in the day.

It sounds like we lucked out -- the adjacent room, the Alumni Reading Room -- usually has a number of students in there studying, but no one was, so no one was injured when the wall collapsed... the closest students, in the next adjacent room -- the Student Lounge -- got out safely, though they, like all of us, were quite rattled.
Additionally, "How Appealing" reader Tim Schnabel was in the Student Lounge at the time of the blast and has this report.

The law school has arranged for a new Web site because its usual site remains off-line. A message from the law school's Dean appears at the new site. And Yale University has issued this statement about the incident.

I guess this will answer once and for all the accusation that the Yale Law School experience is "too theoretical."
Posted at 22:19 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Blast in Yale Law School Classroom Probed"; here "Judge Rips Interior Dept. on Indian Suit"; and here "Judge Orders Mississippi Death Row Reforms."
Posted at 22:12 by Howard Bashman



You've never seen a federal district judge seething with anger toward the executive branch of government? Then you haven't yet read this opinion that U.S. District Judge Royce C. Lamberth issued today in the very contentious Indian Trust litigation. Judge Lamberth's opinion also didn't have anything nice to say about the legislative branch, either. In all, it makes for a must-read decision. And you can learn more about the Indian Trust litigation here and here.
Posted at 20:36 by Howard Bashman



Update on the bomb explosion at the Yale Law School: I'll say this about the power of Web logs -- my reader in New Haven who emailed news of the explosion to me made sure that "How Appealing" was one of the very first online sources to mention the bombing. Fortunately, some three hours later, no injuries have been reported, and it now appears that the bomb exploded in an empty classroom. Yale Law Professor Jack M. Balkin was in the vicinity at the time and has this blog post on the explosion. According to this MSNBC report, "law students had filed out of the classroom [where the explosion occurred] after finishing final exams only 10 minutes before the bomb exploded, at about 4:50 p.m." CNN.com provides this report, and NBC30 has additional coverage.

Finally, the author of JURIST's Paper Chase blog seems to be in the midst of scouring the Web and linking to any and all blog posts about the bombing written by students, faculty members, and others affiliated with the Yale Law School.
Posted at 19:45 by Howard Bashman



A correspondent reports an explosion in the vicinity of Yale Law School: A reader based in New Haven emails:
I'm not sure if this is the kind of thing you want to report on your blog (forgive me if it is not), but an explosion just went off next to Yale Law School. While the police have shut down the streets around it, you can see that glass has been shattered.

The New Haven Register and CTNow websites have yet to post anything, but they probably soon will. Also, Local Channel 8 is on the scene.
Here's a link to a news story on the explosion from the News Channel 8 Web site.

Update: The latest news as of 5:25 p.m. is that the explosion may have happened in the mail room at the law school, that a floor may have partially collapsed, and that members of the FBI's Joint Terrorism Task Force have been dispatched to the scene. Also, The Associated Press now has this report. The New Haven Register's Web site can be accessed here, and The Hartford Courant's Web site here.

Second update: It's now 6:05 p.m. Reuters has just issued an article entitled "'Explosive Device' Rocks Yale University - FBI." Also, MSNBC is [make that was] offering live online coverage, which you can access via this link. (Thanks to the reader who drew this to my attention.)
Posted at 17:13 by Howard Bashman



"Judge's Jaguar rental costs Atlanta": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 17:07 by Howard Bashman



Federal judicial nomination and confirmation news and commentary from here and there: Today's edition of The Pittsburgh Post-Gazette contains an editorial entitled "Busting a filibuster: Don't change the rules; cast a wider net for judges." The Mercury News contains an editorial entitled "Coup in the courts." The Mobile Register contains an editorial entitled "Constitution isn't a wish list." And The Grand Island Independent contains an editorial entitled "All citizens must work to protect U.S. democracy."

And on Monday, Senate Democratic Leader Tom Daschle (D-SD) had an op-ed entitled "Senate has important things yet to do" in The Rapid City Journal.
Posted at 16:51 by Howard Bashman



Second-hand thanks from The New Yorker: A federal judicial law clerk whose friend works on the editorial staff of The New Yorker alerted that friend to the wide variety of errors (see earlier blog posts here, here, here, and here) that I and various readers of "How Appealing" have found in Jeffrey Toobin's article, entitled "Advice and Dissent: The fight over the President's judicial nominations," contained in this week's issue of that magazine. According to an email from this law clerk, the friend was "thankful for the vigilance of you and your readers." As for the adjective that the friend used to describe the errors, I'll leave that to your imagination.
Posted at 16:10 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "FBI Charges 7th N.Y. Terror Cell Suspect"; here "State Constitutions Become Gender-Neutral"; here "Texas Court Upholds Mom's Murder Verdict"; here "'Railroad Killer's' Conviction Upheld"; and here "Texas Agents Destroy Rebellion Records."
Posted at 15:54 by Howard Bashman



What would you expect of an appellate decision captioned Billy-Bob Teeth, Inc. v. Novelty, Inc.? Today Circuit Judge Terence T. Evans, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, issued an opinion that begins:
EVANS, Circuit Judge. When "International Man of Mystery" Austin Powers gazes at the comely British agent Kensington and purrs "groovy Baby" or "oh behave!" he always smiles, exposing a set of teeth that the best orthodontist in the world could not improve. They are ugly, and therein lies their beauty, at least from a financial point of view. This copyright/trade dress infringement case involves "novelty" teeth--oversized, crooked, and chipped teeth that fit over a person's real teeth. People wear them to get a laugh. Actor Mike Myers wore them when, as Austin Powers, he foiled the diabolical plans of Dr. Evil to achieve world domination. So where did this all begin? To answer that question we go back 10 years when a dental student named Rich Bailey, for a gag, created a set of novelty teeth.
As you might imagine, the rest of the story makes for quite an interesting read, too. You can access the entire opinion at this link.
Posted at 13:33 by Howard Bashman



"Florida Court Discards $145B Verdict for Smokers": The Associated Press has this report. And Reuters reports here that "Fla. Court Overturns $145 Bln Anti-Tobacco Ruling." You can access today's ruling of the District Court of Appeal of Florida, Third District, at this link.
Posted at 13:20 by Howard Bashman



"Diversi-Lies II: Responsibility-free mendacity." Peter Wood has this essay today at National Review Online.
Posted at 12:48 by Howard Bashman



Pushing a pie into the face of a Minnesota state senator is not protected First Amendment speech: The U.S. Court of Appeals for the Eighth Circuit today issued this non-precedential decision.
Posted at 12:18 by Howard Bashman



"Dumbest Lawsuit Ever": That's how Robert Alt describes the lawsuit that Judicial Watch filed last week to challenge the filibustering of federal judicial nominees. For me, deciding what qualifies as the "dumbest lawsuit ever" is as difficult as selecting my favorite blog post ever, and for much the same reason -- there are far too many possibilities from which to choose.
Posted at 10:36 by Howard Bashman



P.T. Barnum was (or was not) right: Today's edition of The Los Angeles Times reports here that "Man Guilty in Toe Sucking; Former Newport Beach recreation aide could end up in prison for the rest of his life. One juror blames outcome on a law he considers vague."
Posted at 10:14 by Howard Bashman



"Jayson Blair Talks: 'So Jayson Blair Could Live, The Journalist Had to Die'": The New York Observer today contains this article by Sridhar Pappu.
Posted at 09:58 by Howard Bashman



"Baer to face Melvin in Supreme Court race": Today's edition of The Pittsburgh Post-Gazette has this report on the results of yesterday's state-wide judicial primary elections in Pennsylvania.
Posted at 08:26 by Howard Bashman



In today's edition of The Hill: You can access here an article entitled "White House sends back nomination of Reid's son" and here an article entitled "Lott's new goal: Changing some Senate rules." And Byron York has an essay entitled "As Americans worry, support for death penalty goes up."
Posted at 08:05 by Howard Bashman



"Democrats court women voters on abortion rights": This article appears in today's edition of The Atlanta Journal-Constitution.
Posted at 08:00 by Howard Bashman



"Blanton attorney: Secret tape made bomb trial unfair": Today's edition of The Birmingham News contains this report.
Posted at 07:59 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Jury Gets First U.S. 'Sleeper Cell' Case"; here "Nichols' Lawyers Want 18 Mo. to Prepare"; and here "Law Bans Selling Violent Games to Kids."
Posted at 07:55 by Howard Bashman



"Adoption reversed, mom wins boy back; Michigan's top court admits case was tough": Today's edition of The Detroit Free Press contains this report.
Posted at 07:50 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Adam Liptak reports that "Appeals Court Allows Trial in Auto Review." In other news, "Justice Dept. Lists Use of New Power to Fight Terror." An article reports that "Suit Charges Bias at Rally for Black Bikers." And a letter to the editor appears under the heading "Crown Hts. Case: A Juror's Misstep."

The Washington Post reports here that "Bush's Rights Record Assailed; Democratic Hopefuls Tailor Message to Feminist Audience." A front page article reports that "Study Warns of Rising Tide of Released Inmates." In other news, "Rights Coalition Files Suit Over Colo. Vouchers Law." An editorial is entitled "Nuclear War on the Hill." And Harold Meyerson has an op-ed entitled "GOP Gamesmanship."

Finally for now, The Christian Science Monitor reports here that "Congress watches its power ebb."
Posted at 00:02 by Howard Bashman



Tuesday, May 20, 2003
"How Appealing" is mentioned, and its author quoted, in article now available online at Salon.com: Farhad Manjoo has an article online at Salon.com entitled "Can the Web beat Big Media? FCC czar Michael Powell says new technologies will let diversity flourish even as giant corporations consolidate their control over TV and newspapers. Dream on."

I'm quoted a bunch toward the end of the article, which is currently the lead story at the Salon.com site. If you're not a subscriber to Salon -- and I know this first-hand, because I'm not either -- you can still access the article by following the instructions to receive a "free day pass."
Posted at 23:43 by Howard Bashman



Law Professor Lawrence Solum continues his debate with Law Professor Jack M. Balkin over how judges should go about deciding cases: You can access Larry's most recent post (which links to both participants' earlier posts) at this link.
Posted at 23:29 by Howard Bashman



"Unpublished, But Not Uncitable": Law Professor Jeff Cooper, who has written at length on the functioning of this Nation's U.S. Courts of Appeals, joins me in congratulating the Advisory Committee on Appellate Rules for approving a new Federal Rule of Appellate Procedure that -- once it wends its way through the rest of the rule approval process -- will allow citation to decisions designated as "unpublished" and/or "non-precedential." You can access my earlier post on this subject here.
Posted at 23:21 by Howard Bashman



"Scalia hosted by group whose founder is suing city over same-sex partnerships": The Associated Press has this report from Philadelphia.
Posted at 21:56 by Howard Bashman



Available online at law.com: You can access here an article entitled "$3M Award for Libel on Internet Upheld; A student's Web site raises jurisdictional issues in a state appeal." You can view the Supreme Court of North Dakota's ruling in the matter at this link. And does the Supreme Court of North Dakota get credit for having a blog-like home page, or what?

In other news, "2nd Circuit Rules ERISA Remedies Are Exclusive." Finally for now, an article reports that "Woman Videotaped in Shower Room Loses Suit."
Posted at 21:41 by Howard Bashman



"Supreme Court to hear state religious rights case": Today's edition of The Seattle Times contains this report.
Posted at 21:23 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Drug Price Breaks Upheld; The Supreme Court, ruling on a Maine law, clears the way for states to require drug makers to discount medicines for all consumers"; here that "High Court Takes on Church-State Case"; and here that "Court Sides With City on Hearings Over Towed Vehicles." An article reports that "Supreme Court stays art case." You can access here an article entitled "States See Maine Drug Plan as a Remedy for Budget Ills; Legislatures expected to craft similar programs. The White House says the law goes 'too far.'" In other news, "Ban on 'Soft Money' Stands." From Buffalo comes word that "Last 'Lackawanna Six' Defendant Pleads Guilty; A New York man who provided 'material support' to terrorists by attending an Al Qaeda training camp will cooperate with officials." As if getting run over wasn't bad enough, an article reports that "Doctor Tied to Anthrax Probe Ticketed in Incident." And in news pertaining to California's highest state court, "Court Upholds Convictions of 2 Gang Members; Justices overturn a lower court ruling that would have freed killers over disallowed testimony."

In The Boston Globe, Lyle Denniston reports here that "Court clears way for Maine Rx plan; But program still open to challenge"; here that "Justices deny appeal over Guantanamo"; and here that "Court restores campaign finance law." You can access here an article entitled "Lopez resigns, denies misdeeds; Says accepting findings goes against principles" and here a related article entitled "Lack of apology called crucial to fall." And in other local news, "US contests suit vs. draft; Argues against including women."

In USA Today, Joan Biskupic reports here that "Justices approve subsidies for drugs; Maine can begin using Medicaid to lower costs" and here that "Supreme Court will hear case on using public vouchers for religious education." In other news, "Campuses on opposite end of free-speech struggles; Student's lawsuit targets restrictions." And an editorial is entitled "States fight high drug costs."

Finally for now, The Washington Times reports here that "Special court reinstates campaign finance law."
Posted at 21:01 by Howard Bashman



In news from Maine: Today's edition of The Portland Press Herald reports here that "High court allows start of Maine Rx"; here that "Incremental start likely for Maine Rx"; and here that "Seniors hope and wonder if Maine Rx can prevail." The newspaper also contains an editorial entitled "Maine Rx still needs advocates to survive."
Posted at 20:12 by Howard Bashman



In news from Colorado: The Associated Press reports here that "A coalition of education and religious groups today challenged the legality of the first school voucher program enacted since a U.S. Supreme Court ruling upheld one such program as constitutional."
Posted at 20:07 by Howard Bashman



Access a transcript of CNN anchor Judy Woodruff's interview today with Justice Sandra Day O'Connor: The transcript is available here.
Posted at 19:45 by Howard Bashman



One more Toobin error: Another reader with a strong grasp of history emails:
There is yet another error of note in Jeffrey Toobin's article. He states that "F.D.R. got to appoint all nine Justices in less than six years--the number of years that George W. Bush may remain in office." Wrong. As a preliminary matter, the statement is questionable given that F.D.R. did not appoint Harlan Fiske Stone to the Court (President Coolidge did in 1925), but only elevated him to Chief Justice in 1941.

But even if we concede this point to him, Toobin is wrong in stating that F.D.R. got to appoint "all nine justices," which obviously implies that, at one point in time, all nine Justices of the Court were F.D.R. appointees. Justice Owen J. Roberts, who made the famous "switch in time to save nine" in N.L.R.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1 (1937), was appointed by President Hoover in 1930, and served on the Court for the duration of F.D.R.'s tenure as President. Justice Roberts retired from the Court on July 31, 1945, more than three months after F.D.R.'s death on April 12, 1945, and his replacement (Justice Harold Burton) was appointed by President Truman. (Roberts, by the way, had a distinguished career after leaving the Court, serving as President of the American Philosophical Society and as Dean of the University of Pennsylvania Law School from 1948 through 1951).

I think Toobin's confusion stems from the fact that F.D.R. did get to appoint eight Associate Justices to the Court between 1937 and 1943. But one of those appointments, Justices James F. Byrnes, resigned in 1942 and was replaced by another, Justice Wiley Rutledge. Hence, at no time were "all nine Justices" of the Court F.D.R. appointees.

Finally, I think your earlier reader is being too generous in stating that Toobin's confusion of Article II and Article III is not that blatant. A first-year con law student would likely be marked down a full grade for stating that Article II defines the powers of the judiciary.
You can access The New Yorker article in question at this link, and you can access my earlier blog posts pointing out other errors here, here, and here.
Posted at 17:37 by Howard Bashman



Access online the text of Justice Stephen G. Breyer's speech yesterday at the University of Pennsylvania Law School's graduation ceremony: The text is available here, via the U.S. Supreme Court's Web site.
Posted at 17:27 by Howard Bashman



"Court Sidesteps Airport Screeners Case": The Associated Press has this report. You can access today's order of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 17:05 by Howard Bashman



U.S. Department of Justice defeats American Civil Liberties Union in Freedom of Information Act dispute involving USA PATRIOT Act: You can access yesterday's ruling of the U.S. District Court for the District of Columbia at this link. At issue was whether the ACLU was entitled to information "concern[ing] the number of times DOJ has used the particular surveillance and investigatory tools authorized by the Patriot Act since the statute took effect."
Posted at 15:49 by Howard Bashman



Dead dog: Plaintiffs who owned dogs that were shot and killed by animal control officers in High Point, North Carolina brought a federal civil rights action against the city and several individuals. Today a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision in which the majority opinion explains at its outset:
Th[is] appeal presents a question of first impression in this circuit, namely, whether a privately owned dog falls within one of the classes of property protected by the Fourth Amendment against unreasonable search and seizure. This issue, while ostensibly peripheral as a constitutional matter, is nevertheless of significant importance, and we consider it in depth. As we explain more fully below, we conclude that the dogs at issue in this case do qualify as property protected by the Fourth Amendment and that the officers seized that property. However, because in each instance the seizure involved was reasonable, we conclude that the officers did not violate the plaintiffs' Fourth Amendment rights.
Circuit Judge Roger L. Gregory issued an opinion that dissented from the majority's conclusion that the seizures were reasonable. Circuit Judge J. Michael Luttig wrote the majority opinion, in which Circuit Judge Karen J. Williams joined.
Posted at 15:30 by Howard Bashman



"Breyer urges Penn law grads to embrace public service jobs": The Associated Press had this report on Justice Stephen G. Breyer's graduation speech yesterday at the University of Pennsylvania Law School.
Posted at 15:13 by Howard Bashman



View online Justice Clarence Thomas's question and answer session today with high school students in Washington, DC: You can view the session at this link (Real Player required). The session was another part of the Students and Leaders program co-sponsored by C-SPAN and Comcast.
Posted at 15:08 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Justice Thomas Defends Views on Diversity." And in other news, "Democrats Warn Women on Bush Judge Picks"; "Detroit Terrorism Trial Heading for Jury"; and "Ex-Klansman Appeals Church Bomb Verdict."
Posted at 14:43 by Howard Bashman



What, even more Toobin errors? 'Fraid so. A reader emails:
An error I spotted in Toobin's article on Bush's judicial nominees:

"[T]he right has concerns about [Alberto Gonzales], mostly because he wrote an opinion in the Texas court that could be interpreted as pro-choice. In that case, the court approved a process allowing minors to obtain abortions by getting the permission of a judge instead of a parent" (emphasis added).

Actually, Texas has a parental notification statute [see here and here for some background]. The statute's main provision states that a physician may not perform an abortion on a minor girl unless: 1) notice (48 hours) is given to a parent (or legal guardian or court-appointed conservator); or 2) the minor obtains a court order authorizing a bypass of the notification requirement.
Another reader emails:
Not as blatant as some of the others perhaps, but wrong nonetheless. Toobin writes: "The final version of Article II, which defined the powers of the judiciary, stated that the President 'shall nominate, and by and with the Advice and Consent of the Senate, shall appoint' members of the federal judiciary." (Emphasis added.) While the nomination power is contained in Article II, it is simply not correct to describe this article (or even this provision of the article) as defining the powers of the judiciary. That is the business of Article III. Article II, in contrast, defines the powers of the President.

I really was surprised that Toobin's piece was so slapdash and uninspired. Perhaps there's not much more to be said about the judicial confirmation flapdoodle, but a magazine like The New Yorker should at least be able to get its facts right.
Finally for now, a third reader emails:
What is particularly egregious about saying Estrada was nominated on September 9, 2001, is that September 9 was a Sunday -- as anyone who remembers what happened two days later on Tuesday morning should have no trouble recalling.
You can access The New Yorker article in question at this link, and you can access my earlier blog posts pointing out other errors here and here.
Posted at 14:41 by Howard Bashman



Ninth Circuit holds that brief, inadvertent display of gun during bank robbery does not permit defendant to be convicted for armed bank robbery: You can access today's unanimous ruling of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 13:27 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "States Ready to Seek Lower Drug Prices" and here an article entitled "Innocent Plea Entered in Okla. Bomb Case."
Posted at 13:25 by Howard Bashman



Federal judicial nomination news and commentary from here and there: Today's edition of The Rapid City Journal contains an editorial entitled "Pirates of the Senate." Law Professor Robert W. Bennett has an op-ed entitled "Crying 'crisis' when there isn't one: Rhetoric decrying the judicial filibuster ignores history" in today's edition of The Chicago Tribune. Today's edition of The Charleston Gazette contains an editorial entitled "Far-right: Unsuitable appointees." In today's edition of The Mobile Register, Ralph G. Neas has an op-ed entitled "Harmful 'states' rights' advocate," while Willie J. Huntley Jr. has an op-ed entitled "Civil rights guardian, outstanding nominee." And today's edition of The Free Lance-Star contains an editorial entitled "Supreme filibuster: The high court meets low politics."

Yesterday's edition of The Selma Times-Journal contained an essay entitled "Pryor nomination hot potato." The Post and Courier contained an editorial entitled "Let's have a real filibuster." The High Point Enterprise contained an editorial entitled "Next high court vacancy promises political battle." Yesterday's edition of The Newark Star-Ledger contained an article entitled "Filibuster fight rains on Bush court parade." And Paul Greenberg had an essay entitled "How to Bork a nominee."

This past Sunday, The Hattiesburg American published an op-ed by Senator Trent Lott (R-MS) entitled "Give nominees up/down vote." And The Buffalo News ran an editorial entitled "Judging judges: Filibusters and rancor define an effort to pack the judiciary."

Last Friday, The Pittsburgh Business Times published an op-ed by Jon Delano entitled "Despite Bush's protests, court vacancies are down." And The Hispanic Link News Service recently published competing op-eds on the subject of Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit. Senate Democratic Leader Tom Daschle (D-SD) had an op-ed entitled "Judicial Philosophy Matters," while Senator Rick Santorum (R-PA) had an op-ed entitled "Appointment Earned on Merit."
Posted at 12:26 by Howard Bashman



"One or two justices may resign this summer": Today's edition of The Atlanta Journal-Constitution contains this report. And Jewish World Review has an article entitled "Justices mum, but retirement's all the talk."
Posted at 11:19 by Howard Bashman



"Deciding the Future of Choice: Supreme Court set to issue a landmark ruling for religious schools." Law Professor Rick Garnett has this essay today at National Review Online.
Posted at 11:18 by Howard Bashman



"Court again rules Suzuki can sue Consumer Reports": Reuters offers this report. And the Silicon Valley/San Jose Business Journal reports here that "Consumers Union says it will appeal to the U.S. Supreme Court a ruling Monday by the Ninth U.S. Circuit Court of Appeals in San Francisco that Suzuki Motor Corp. can sue the non-profit organization for an article it published in the 1980s."
Posted at 09:59 by Howard Bashman



"Days appear numbered for spurned spouses' legal recourse": Today's edition of The Kansas City Star contains this report.
Posted at 09:46 by Howard Bashman



"Big Ford award too high for justices; Court orders review of $290 million in crash": Today's edition of The Detroit Free Press contains this report. Meanwhile, The Detroit News reports here that "Giant jury payouts in jeopardy: U.S. Supreme Court tosses out $290 million award against Ford."
Posted at 09:43 by Howard Bashman



From today's edition of The Hill: You can access here an article entitled "Judicial suit could cause Senate procedural row" and here an article entitled "Court stays its campaign reform decision for now."
Posted at 09:40 by Howard Bashman



"Judge Won't Immediately Appoint Guardian": The Associated Press has this report. Relatedly, The Orlando Sentinel contains an article entitled "Judge: DCF failed victim."
Posted at 09:37 by Howard Bashman



"Dying Cause: Assisted Suicide is losing support." Wesley J. Smith has this guest commentary today at National Review Online.
Posted at 09:27 by Howard Bashman



Today's FindLaw columnist: Joanna Grossman has an essay entitled "Vermont Civil Unions: Will Sister States Recognize Them? An Early Status Report."
Posted at 06:50 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices Allow Drug-Cost Plan to Go Forward." Related articles appear under the headlines "Ruling May Embolden Other States to Act" and "Opposing a 'Formulary' List." Ms. Greenhouse also has an article entitled "Court to Decide if Constitution May Sometimes Require Taxpayer Subsidies to Religion." You can access here an article entitled "Court Stays Its Ruling on Financing Campaigns." In news from Detroit, "Final Arguments Start in Trial of 4 Arabs in Terrorism Case." In local news, you can access here an article entitled "DNA Clears Rape Convict After 12 Years" and here an article entitled "Stumbles by New Jersey's Governor Raise Questions." And an editorial is entitled "Reaffirming Miranda."

In The Washington Post, Charles Lane reports here that "Maine Wins Right to Seek Drug Discounts; Supreme Court Sees No Conflict With Medicaid" and here that "High Court to Review Religious College Case; Wash. State Aid to Ministry Student at Issue." In other news, "High Court Rejects Punitive Awards; Justices Order Reconsideration of Big Penalties Against Ford." A front page article reports that "Panel Stays Campaign Finance Ruling; McCain-Feingold Law Restored Until Decision By Supreme Court." A related editorial is entitled "A Necessary Stay." An article reports that "Energy Policy Spurs Affirmative Action Debate." And in business news, "Unlikely Alliances Forged in Fight Over Media Rules."

The Christian Science Monitor contains an article entitled "Religion-free zone? America's public schools are in a bind. A new law requires them to allow 'religious expression' on school grounds - or risk losing federal funds. But they risk a lawsuit if they do." And OpinionJournal offers an op-ed by Julia Gorin entitled "900 Left Feet: Why 'diversity' trips up the Democrats."
Posted at 00:17 by Howard Bashman



More Toobin errors: A reader emails what is now my favorite error so far from Jeffrey Toobin's article entitled "Advice and Dissent: The fight over the President's judicial nominations," appearing in the May 26, 2003 issue of The New Yorker:
I missed the mistakes you pointed out when I read Toobin's essay today, but I did catch a different error. At the end of the article, Toobin says that President William Henry Harrison was able to appoint four Supreme Court Justices during his term in office. Obviously, he meant Benjamin Harrison, who appointed Justices Brewer, Brown, Shiras, and H. Jackson. I know the judicial confirmation process used to move a lot faster, but it would have been quite a feat to get four nominees through the Senate during William Henry Harrison's brief tenure.
And another reader emails:
Mr. Toobin's date error [which "How Appealing" previously noted here] affects his analysis. He states, "When Estrada was nominated to the D.C. Circuit, Democrats still controlled the Senate, and Patrick Leahy, then the chairman of the Judiciary Committee, showed no hurry to move the nomination along." This is wrong. The Senate did not change hands until a few weeks *after* May 9 -- on May 24, 2001.
Thanks so much for sending these along!
Posted at 00:00 by Howard Bashman



Monday, May 19, 2003
U.S. Supreme Court round-up for Monday, May 19, 2003: The Supreme Court of the United States today issued four opinions in argued cases, one summary reversal of the Ninth Circuit, and a decree that brings to an end an original action. Of the four opinions in argued cases, two were unanimous while a third was unanimous as to result but 8-1 as to the reasoning. These three decisions are in the running for the distinction of the easiest-to-decide case of the year. The fourth ruling was much less straightforward -- coming in the very complex Maine Rx case -- and yet may ultimately prove to be of limited effect if in fact the federal government ends up putting the kibosh on Maine's program as the federal government has apparently threatened to do.

1. Breuer v. Jim's Concrete of Brevard, Inc., No. 02-337 (U.S. May 19, 2003), presented the question whether a state court suit filed under the Fair Labor Standards Act was subject to removal to federal court by the defendant. The FLSA provides, in pertinent part, that an action under that federal statute "may be maintained . . . in any Federal or State court of competent jurisdiction." And the relevant federal removal statute provides that "[e]xcept as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the [federal] district courts * * * have original jurisdiction, may be removed by the defendant" to federal court. Thus, the question before the Court was whether Congress's use of the word "maintained" in the FLSA simply means "brought and pursued" or "retained in state court notwithstanding the defendant's desire to remove the case to federal court." Today the Court ruled, in a unanimous opinion by Justice David H. Souter, that while the latter meaning is plausible, the word "maintained" is at best ambiguous, and therefore does not constitute an express prohibition on removal. The Court also recognized that Congress has shown itself able to invoke non-ambiguous express prohibitions on removal in other federal statutes, and that construing the FLSA to contain an express prohibition on removal would cause zany results when it came time to construe other similar statutes. Somehow Justice Souter was able to include a footnote discussing legislative history as though it were relevant without triggering objection from either Justices Antonin Scalia or Clarence Thomas. The Court's ruling today affirmed the judgment of the U.S. Court of Appeals for the Eleventh Circuit and overturned a conflicting Eighth Circuit ruling from 1947. Presumably the Eighth Circuit judges who participated in that ruling from 1947 won't react too strongly to news of today's overruling.

2. Inyo County v. Paiute-Shoshone Indians of Bishop Community of Bishop Colony, No. 02-281 (U.S. May 19, 2003), presented the question whether an Indian Tribe may bring a claim as plaintiff under the federal civil rights act, 42 U.S.C. sec. 1983. Inyo County -- under the misapprehension that its name had been changed to In-Yo-Face County, decided to send its law enforcement personnel onto sovereign Indian land to execute a search warrant for official records of employment. The county -- after refusing the Tribe's offer of cooperation and threatening to subject the Tribe to another search warrant execution -- found itself subject to a lawsuit brought by the Indian Tribe in federal court under Section 1983 and various other theories. The trial court dismissed the Indian Tribe's lawsuit. The Ninth Circuit reversed and held, among other things, that the Tribe could as plaintiff bring a civil action pursuant to Section 1983. Today, the U.S. Supreme Court concluded that the Ninth Circuit erred in so holding. Justice Ruth Bader Ginsburg wrote the majority opinion, in which all Members of the Court other than Justice John Paul Stevens joined. Justice Ginsburg's opinion noted that an Indian Tribe cannot be sued under Section 1983 so it shouldn't be doing the suing either. Plus, all indications were that the law was intended to protect private rights against government encroachment, not a sovereign's right to withhold evidence sought by another sovereign. Justice Stevens concurred in the judgment. He would have held that Indian Tribes can bring Section 1983 claims as plaintiffs but would have tossed out this particular Section 1983 claim for lack of merit. Given how much the Court enjoys reversing the Ninth Circuit, the Court decided to remand the case back to the Nation's largest U.S. Court of Appeals for a determination whether any other basis for federal court jurisdiction exists, thus creating the possibility that this most unusual of cases could produce two Ninth Circuit reversals before outlasting its welcome.

3. "Get it in writing" is the lesson the criminal defendant learned today in Price v. Vincent, No. 02-524 (U.S. May 19, 2003). And one hopes that the Sixth Circuit learned that when the Supreme Court of the United States announces rules intended to govern habeas corpus actions seeking review of state court decisions, those rules really, truly deserve to be followed. Duyonn Andre Vincent was charged with murder following a shooting death outside of a high school in Michigan. After the prosecution rested its case at trial, Vincent's attorney asked the trial court to direct a verdict of acquittal as to first-degree murder. The trial judge stated on the record that he thought that the prosecution had failed to show premeditation and that, therefore, the case was one in which only a second-degree murder conviction could be sought. The prosecutor asked for the right to address the issue further the next morning, and the trial judge agreed. The next morning, defense counsel objected, claiming that the trial judge had already granted a directed verdict dismissing the first-degree murder charge. The trial judge disagreed, and ultimately the trial judge decided to submit the first-degree murder charge to the jury, which convicted the defendant of first-degree murder.

The Supreme Court of Michigan ultimately ruled on appeal that the trial judge had not directed a verdict in favor of the defendant because the trial judge had neither issued a written ruling nor told the jury that the first-degree murder charge was no longer pending. When Vincent filed a habeas petition in federal court, both the federal district court and the Sixth Circuit held that, in light of the trial judge's comments, Vincent's conviction on a first-degree murder charge constituted a double jeopardy violation. Today a unanimous Supreme Court reversed in an opinion by Chief Justice William H. Rehnquist. The Court chided the Sixth Circuit for failing to enquire whether the Michigan Supreme Court's decision was either contrary to or an unreasonable application of U.S. Supreme Court precedents. Performing that enquiry, the Court concluded as a matter of law that federal habeas relief was not available. [Readers are invited to make up their own Vincent Price puns in the nature of my Jim Breuer comment from earlier today.]

4. "Timing is everything" would appear to be the lesson to draw from today's final opinion in an argued case, which issued in Pharmaceutical Research and Mfrs. of America v. Walsh, No. 01-188 (U.S. May 19, 2003). The State of Maine -- seeking to lower the cost of prescription drugs to itself and its citizens -- adopted a program known as Maine Rx. Before the program was scheduled to take effect, an association of out-of-state drug manufacturers challenged the program as pre-empted by the federal Medicaid Act and in violation of the negative Commerce Clause. A federal trial court in Maine agreed that federal law pre-empted the program and issued a preliminary injunction. The First Circuit reversed and would have allowed the program to take effect. Today the U.S. Supreme Court affirmed, by a most tentative vote of 6-3.

Justice Stevens wrote an opinion announcing the judgment of the Court. His opinion expressed serious doubts about whether the law violates the Medicaid Act and whether federal officials will even allow the Maine Rx program to go into effect. But Justice Stevens, joined by Justices Souter and Ginsburg, concluded that the drug manufacturers had failed to establish that a preliminary injunction was appropriate. Justice Steven G. Breyer issued an opinion concurring in the judgment in which he suggested that the district court should be guided by the views of the Secretary of Health and Human Services concerning whether the Maine Rx plan is legal. Justice Scalia wins the award for terseness, writing that the Medicaid Act gives the drug companies a remedy other than injunctive relief and reminding us that he's no fan of the negative Commerce Clause. Justice Thomas, also no fan of the negative Commerce Clause, wrote an opinion that contained the only real good news for supporters of the Maine Rx program, because he seems to be the only Member of the Court who believes that program could survive a legal challenge on the merits. Justice Sandra Day O'Connor issued an opinion joined by the Chief Justice and Justice Anthony M. Kennedy in which she explains that she would have affirmed the trial court's preliminary injunction.

* * * * * * * * * *

I have earlier today, in posts that appear somewhere below this one, provided links to today's summary reversal of the Ninth Circuit and decree in an original action. The Court is next scheduled to issue opinions and orders on Tuesday, May 27, 2003. Why Tuesday, you ask. Because Monday is Memorial Day, the unofficial start of summer. The official start of summer will come toward the end of June, which will also be when the Court issues its final opinions and we learn which Justice(s) will be saying farewell.
Posted at 22:34 by Howard Bashman



Here's the David Gossett photo everyone's been clamoring to see: If this doesn't get me my own Chief Justice William H. Rehnquist bobblehead doll (and a complimentary Green Bag subscription wouldn't hurt either), then I don't know what will.
Posted at 21:21 by Howard Bashman



Available online at law.com: Tony Mauro reports that "High Court to Hear Church-State Battle, Rules on Drug Plan." An article reports that "U.S. Deported Suspected Terrorists Whose Trials Could Jeopardize Probes."

In Legal Times (free registration required), Tony Mauro has an article entitled "Weighing Security Against Public Access; Justices to consider newspapers' petition challenging closed deportation hearings for 'special interest' aliens." And Alan B. Morrison has an op-ed entitled "Your Money or Your Life; The Supreme Court places more value on the purse than on personal freedom."
Posted at 21:10 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Court Extends Review of Miranda Warning." And in other news, you can access here an article entitled "Court Rules on Indian Tribal Searches" and here a round-up entitled "Actions of the Supreme Court."
Posted at 20:09 by Howard Bashman



So much for those vaunted fact-checkers: The New Yorker has -- dare I admit it? -- long been one of my favorite magazines. And one of the things it's famous for is having excellent fact-checkers. But maybe that reputation has outlived its usefulness. Riding home on the train this evening, I was reading Jeffrey Toobin's article entitled "Advice and Dissent: The fight over the President's judicial nominations," which appears in the May 26, 2003 issue.

First, the article repeatedly misspells the last name of White House Counsel Alberto R. Gonzales as ending with a "z" when in fact it ends with an "s." Second, the article states:
In the universe of the Alliance for Justice (liberal), the Committee for Justice (conservative), and the Institute for Justice (libertarian), September 9, 2001, marked an important date in the Bush Presidency. That was the day Miguel Estrada was nominated to serve as a judge on the United States Court of Appeals for the D.C. Circuit, which is generally regarded as the second most important court in the nation, after the Supreme Court.
In fact, Miguel A. Estrada was first nominated to serve on the D.C. Circuit on May 9, 2001, and ten days ago marked the second anniversary of that nomination, an anniversary commemorated by a speech by President Bush at the White House and a number of related articles and commentaries in the press.

Sure, these are just two small factual errors in the article, but they are errors that could have easily been discovered and corrected using the Internet, as I have shown. It makes one wonder what other errors the article may contain.
Posted at 19:41 by Howard Bashman



"Ban lawsuits that hurt legal gun industry": Dave Kopel has this op-ed in today's edition of The Philadelphia Inquirer. (Via "InstaPundit.")
Posted at 17:08 by Howard Bashman



"Maine Wins High Court Approval to Seek Lower Drug Prices": Linda Greenhouse has this report at the New York Times Web site. And you can watch Chuck Lane of The Washington Post talk about the ruling on camera at this link.
Posted at 17:06 by Howard Bashman



In federal appellate courts, the prohibition on citing to non-precedential opinions is one step closer to the dustbin of history: Last week, the Advisory Committee on Appellate Rules governing procedure in this nation's federal appellate courts approved, by a vote of 7-1, a proposed rule that will allow any judicial disposition -- whether published or unpublished, precedential or non-precedential -- to be cited in proceedings pending before any federal appellate court. This is excellent news!

Next, after receiving the permission of the committee that heads the rule revision effort for all federal courts, the proposed amendment will be published to allow for public comment. Typically, a six-month public comment period begins after official publication of the proposed amendment. (Thanks to attorney David Fine for advising me of last week's developments.)
Posted at 15:39 by Howard Bashman



Fourth Circuit issues 62-page Lanham Act and Anticybersquatting Act decision: Almost half of the ruling consists of a dissenting opinion, and the majority opinion also uses up a good deal of ink responding to that dissent.
Posted at 15:02 by Howard Bashman



An email from someone who attended the University of Georgia School of Law's graduation Saturday: I received the following email earlier this afternoon:
I read your blog regularly and just saw the article you posted by Elaine Cassel and wanted to drop you an email about Justice Thomas' speech. I am the proud spouse of a member of UGA's 2003 law school class and attended the graduation on Saturday. For the record, I'm basically a center-left blue-dog democrat. I thought Justice Thomas' speech was fantastic and very apropos for the experience of many of those in UGA's class that do not have jobs yet. While he did recount the difficulties he faced when he graduated from Yale, it did not come across as whining (at least to me). His message was to stay strong and resist buying into the culture of victimization in our country. To that end, he recounted his experience of wanting to be a lawyer in private practice in Georgia, but being rejected by many leading firms in the state. However, he went on to talk about how he swallowed his pride and accepted the only job he could find even though it meant going to a town where he knew no one and had no roots.

To me, his speech was inspiring and did not come across as whining at all. In fact, my mother, who also was in attendance and was formerly a speechwriter for a U.S. Senator (who voted against Thomas' confirmation incidentally), was so moved by his speech that she asked him for a copy of it. A number of my yellow-dog democrat friends view his speech as Elaine Cassel did, but most went into the graduation with fairly strong pre-conceived notions about Justice Thomas. In my opinion, those that are criticizing Thomas' speech as hypocritical are allowing their biases to color their objectivity.

As a final note, I have been to many graduations, but can honestly say that Justice Thomas is the only person I have ever seen on a commencement stage that really appeared to be enjoying himself. He stopped and chatted with a large number of graduates as they accepted their diplomas. He was constantly smiling and laughing.
Thanks so very much for writing to offer those first-hand observations.
Posted at 14:33 by Howard Bashman



"Interior Department Solicitor Nominated to Ninth Circuit Court of Appeals": The U.S. Court of Appeals for the Ninth Circuit has issued this press release.
Posted at 14:04 by Howard Bashman



Eleven judges on the Ninth Circuit dissent from denial of rehearing en banc in Suzuki Motor Corp. v. Consumers Union product disparagement case: You can access the lengthy opinion of Circuit Judge Alex Kozinski dissenting from the denial of rehearing en banc, in which ten of his colleagues on the Ninth Circuit have joined, at this link. Attached to Judge Kozinski's dissent are amended opinions that two members of the original three-judge panel issued today. Circuit Judge Susan P. Graber, who had joined the original majority opinion in full, today issued an opinion concurring in part.

You can access my report on the panel's original ruling, written on the day that ruling issued, at this link. Depending on whether both of the Ninth Circuit's newest judges were entitled to vote on the rehearing petition, either twelve or thirteen votes were required to grant rehearing en banc.

Joining in Judge Kozinski's dissent were Circuit Judges Harry Pregerson, Stephen Reinhardt, Thomas G. Nelson, Michael Daly Hawkins, Sidney R. Thomas, M. Margaret McKeown, Kim McLane Wardlaw, William A. Fletcher, Raymond C. Fisher, and Marsha S. Berzon.

Because someone is bound to ask, let me point out that while Senior Ninth Circuit Judge Warren J. Ferguson dissented from today's ruling (and from the original ruling of the three-judge panel), as a senior circuit judge he does not possess a vote on the question whether rehearing en banc should be granted.
Posted at 13:26 by Howard Bashman



Today's U.S. Supreme Court opinions, decree, and order list have finally become available online: See the appropriate posts below for the links.
Posted at 13:08 by Howard Bashman



"Fieger continues his war on judiciary": Detroit News columnist Thomas Bray had this op-ed last week. (Via "The LitiGator.")
Posted at 12:55 by Howard Bashman



"U.S. Court Stays Campaign Finance Ruling": The Associated Press has this report. You can access the trial court's rulings on the post-judgment motions via this link.
Posted at 12:51 by Howard Bashman



"The Bitter Tears of Clarence Thomas: Still Whining After All These Years": Elaine Cassel has this essay today at the Web site of the publication CounterPunch.
Posted at 12:47 by Howard Bashman



"Supreme Court Refuses Redneck Shirt Case": Gina Holland of The Associated Press has this report.
Posted at 12:06 by Howard Bashman



While we await the U.S. Supreme Court's posting of today's opinions online: Let me be among the first to observe that, as best as anyone can tell, the Court's ruling today in Breuer v. Jim's Concrete of Brevard has absolutely nothing to do with comedian Jim Breuer, who once was a cast member on Saturday Night Live.
Posted at 11:50 by Howard Bashman



"Roe v. Wade and Bush v. Gore: Making judicial activism 'mainstream.'" Nelson Lund has this essay today at National Review Online.
Posted at 11:29 by Howard Bashman



Let's not overlook today's summary reversal of the Ninth Circuit: Today the Supreme Court of the United States summarily reversed the Ninth Circuit's ruling in David v. City of Los Angeles. As soon as the Supreme Court gets around to posting today's decisions online, I'll provide a link to this unanimous summary reversal. Update: You can access the summary reversal at this link.
Posted at 11:10 by Howard Bashman



"Court Sets Aside Record Award vs. Ford": James Vicini of Reuters has this report.
Posted at 10:50 by Howard Bashman



"Maine Wins Case Over Prescription Drugs": Anne Gearan of The Associated Press provides this report.
Posted at 10:43 by Howard Bashman



And in other news from the U.S. Supreme Court: Gina Holland reports that "Supreme Court Rules for Ford in SUV Case." And Anne Gearan reports that "High Court Declines Terror Detainee Case."
Posted at 10:37 by Howard Bashman



"Court to Decide Religious Education Case": Gina Holland of The Associated Press has this report. You can access my coverage of the Ninth Circuit's ruling in this case, from the day the ruling issued, at this link.
Posted at 10:25 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: The Supreme Court of the United States today issued a total of four opinions. The Court announced decisions in Price v. Vincent (opinion here; oral argument transcript here), in which the judgment under review was reversed in an opinion by the Chief Justice; Pharmaceutical Research and Mfrs. of America v. Walsh (opinion here; oral argument transcript here), in which the judgment under review was affirmed in an opinion by Justice John Paul Stevens; Breuer v. Jim's Concrete of Brevard (opinion here; oral argument transcript here), in which the judgment under review was affirmed in an opinion by Justice David H. Souter; and Inyo County v. Paiute-Shoshone Indians of Bishop Community of Bishop Colony (opinion here; oral argument transcript here), in which the judgment under review was vacated and remanded in an opinion by Justice Ruth Bader Ginsburg. Additionally, a decree issued in a case pending in the Court's original jurisdiction. For more details, please see the "SCOTUS Original Jurisdiction Blog" (forthcoming).

You can access today's order list at this link. The Court granted review in three cases and GVR'd in two punitive damages cases for further review in light of the Court's recent punitive damages decision.

The Court has announced that it will next issue opinions and orders on Tuesday, May 27, 2003.
Posted at 10:00 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "GOP eyes defying tradition for judicial pick." In other news, "Democrat ploy kills 400 bills in Texas." An editorial is entitled "Junk science and the NAACP." And in op-eds, Terry Eastland has an essay entitled "Rules change holding pattern"; James L. Huffman has an essay entitled "Consent or not"; Nat Hentoff has an essay entitled "The Patriot Act takes a beating"; and Roger Clegg has an essay entitled "Disappointing legislation."

In The Los Angeles Times, David G. Savage reports that "Justices Again Asked to Draw Church-State Line; If government aid goes to private education, it must also go to religious schools, activists say." You can access here an article entitled "On the trail of tainted art; A historian is in increasing demand to establish the ownership of valuable works stolen during the Holocaust." An article reports that "Subjects Seem Unfazed by a Reporter's Misdeeds; Many people quoted by a New York Times writer accepted his fiction as a fact of life." In local news, you can access here an article entitled "Stakes High for Accused Dissident; Zhang Hongbao, who won asylum two years go, is charged in assault. Deportation could turn it into a capital case" and here an article entitled "For Victims' Families, a Death Sentence Won't Erase the Pain; Triple killer Alfred Flores hears his fate today. 'I understand why they want him dead,' his sister says." An editorial is entitled "An Energized NRA." Earlier this morning I linked to two op-eds from today's newspaper on the subject of judicial nominees and filibusters. And letters to the editor appear under the headings "America's Prisoners at Guantanamo Bay" and "Racial Stereotypes in New York Times Case."
Posted at 09:05 by Howard Bashman



"Time to Vote, Senators": White House Counsel Alberto R. Gonzales has this op-ed in today's edition of The Wall Street Journal.
Posted at 08:56 by Howard Bashman



Today's FindLaw columnists: Anthony J. Sebok and John C.P. Goldberg are co-authors of an essay entitled "The Coming Tort Reform Juggernaut: Are There Constitutional Limits on How Much the President and Congress Can Do In This Area?"
Posted at 08:53 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue opinions and orders at 10 a.m. today. According to the "Status of Cases Argued Before the United States Supreme Court October Term, 2002" (accessible here) prepared by the fine folks at Mayer, Brown, Rowe & Maw, 30 cases remain undecided as of this moment. From now through the end of this Term (scheduled to occur in late June 2003), the Court will issue opinions at least once -- and sometimes more often -- each week.

On Thursday, May 22, 2003, the Senate Judiciary Committee will hold a hearing on judicial nominations. Second Circuit nominee Richard C. Wesley is scheduled to testify, as is Mark R. Kravitz, nominated for a judgeship on the U.S. District Court for the District of Connecticut.
Posted at 08:25 by Howard Bashman



From the May 26, 2003 issue of The New Yorker: Jeffrey Toobin has an article entitled "Advice and Dissent: The fight over the President's judicial nominations." And Hendrik Hertzberg considers "L'Affaire Blair."
Posted at 06:25 by Howard Bashman



In today's edition of The Los Angeles Times: Douglas W. Kmiec has an op-ed entitled "A Catch in Senate Clogs Judicial Pipeline," and Nan Aron has an op-ed entitled "You Too Can Be a Judge: If you get the nod from Bush, just follow one of the right -- far right -- roads to confirmation."
Posted at 06:14 by Howard Bashman



In Monday's newspapers: The Washington Post contains a profile of White House Counsel Alberto R. Gonzales entitled "Counsel to Assertive Presidency." And a front page article is entitled "Diversity Or Division On Campus? Minority Graduation Galas Highlight a Timely Issue."

In The New York Times, Adam Liptak reports that "Lenders to Those Who Sue Are Challenged on Rates in Ohio Case." You can access here an article entitled "Morning-After Pill May Go Over the Counter." An article entitled "Those Are Definitely Not Angels in the Outfield" begins, "Murder was committed in the exercise yard today. The San Quentin Giants pounded the Oakland Oaks 10 runs to 1." A report on the White House Web site is entitled "Bush Online: Smiles, Spin and a Dog as Tour Guide." An editorial is entitled "Judicial Nominees and Gay Rights." And columnist Bob Herbert has an op-ed entitled "Truth, Lies and Subtext."
Posted at 00:01 by Howard Bashman



Sunday, May 18, 2003
The Associated Press is reporting: Anne Gearan reports here that "Bobblehead Doll Honors Justice Rehnquist." And in other news, "GOP Invokes Laci Case to Push Fetus Bill" and "Protesters Walk Out on Santorum Speech."
Posted at 22:05 by Howard Bashman



Advice for anonymous bloggers who treasure their anonymity: Don't send emails via seemingly "anonymous" services such as Hotmail or Yahoo from your place of work or from home. Let me explain why. Even such "anonymous" emails transmit an Internet Protocol address that will reveal from whence your email has originated. Revelations of this nature may enable the recipients of your emails to learn your place of employment and perhaps even your identity; but don't worry, your secrets remain safe with me.
Posted at 21:40 by Howard Bashman



Law Professor Lawrence Solum explains how judges should approach questions of law: I find his description to be a pretty accurate account of the philosophy of judging to which I subscribe. Of course, this isn't news to those who have read my monthly appellate column from December 2002 entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?" and my Slate essay entitled "Poll-Tergeist: Why the Supreme Court shouldn't care what you think."
Posted at 21:26 by Howard Bashman



Available online at law.com: You can access here Tony Mauro's article entitled "Supreme Court Solicitations; High court asks more often for government's views" and here his article entitled "High Court Farewell: The Supreme Court's most prolific arguer during the 20th century reminisces about ways the institution has changed." And Jonathan Ringel reports that "Incendiary High Court Brief Began in Georgia; George Weaver helped draft controversial document."

In other news, Marcia Coyle reports here that "Bill Targets Class Action Lawyer Fees; Sparked by ire over tobacco money" and here that "EEOC shift debated on arbitration; A policy collides with new case law."

In news from New York, you can access here an article entitled "Murder Conviction Reinstated by Panel; 'Depraved Indifference' statute not vague"; here "Federal Advisory Jury Declines to Find Gun Industry Liable"; here "'Times' Reporter Creates Liability Issues"; and here "Detainment at Gunpoint Is Ruled Not an Arrest."

In news from Connecticut, "Secret Files Abolished by Judges; Financial affidavit protections also adopted after lengthy debate."

In the category of commentary, Spencer Overton has an essay entitled "Lost in Law: A vague Supreme Court doctrine set off the paper avalanche of the McCain-Feingold decision" (free registration required). Victor E. Schwartz has an essay entitled "Double Trouble: End punishment bounty." And David Brown tells the Supreme Court of California that "[i]t's time to stop allowing judges to belong to nonprofit youth organizations that discriminate against gays -- most notably the Boy Scouts of America."
Posted at 20:37 by Howard Bashman



In news from Mississippi: Today's edition of The Clarion-Ledger contains an article entitled "Judges: Lobbyist vital to pay raise; State rep. says increase goes against state Constitution."
Posted at 20:36 by Howard Bashman



On newsstands tomorrow: The May 26, 2003 issue of Time magazine contains an article entitled "Bush's Supreme Challenge: With a court retirement likely, Al Gonzales is a Bush favorite. But is that enough?" And in Newsweek, Seth Mnookin has the cover story, which is entitled "Times Bomb: An ambitious reporter with a troubled relationship to the truth meets an aggressive editor eager to mint new stars. Inside journalism's perfect storm."
Posted at 16:48 by Howard Bashman



In Sunday's newspapers: The Washington Post reports here that "Mississippi Trial Lawyers Under Inquiry; U.S. Attorney Probes Loans, Fundraising." You can access here an article entitled "Changing Tack in the Winds of Politics; Critics Accuse Specter of Tilting to Right to Thwart Challenge to Senator's Reelection." From Iowa comes a report that "Democrats Criticize President on Economy, Security; Candidates Focus on Bush's Policies Rather Than Intraparty Differences." And in news from the DC-area sniper prosecutions, "Change-of-Venue Motion Claims Surprising Theory."

The New York Times reports here that "Institute for State Judges Opens at Pace Law School." In other local news, you can access here an article entitled "His Excuse for Tickets? Ground Zero"; here an article entitled "Posthumous Pardon Asked for Lenny Bruce"; here an article entitled "A Sign May Cast a Somber Shadow Over a Memorial"; and here an article entitled "Rehashing the Verdicts in a Synagogue Incident." Lastly, a letter to the editor runs under the heading "A Florida Rape Victim."

The Los Angeles Times contains an article entitled "Trying Their Case in Congress; Businesses are seeking to limit awards in liability lawsuits. A measure involving the fuel additive MTBE highlights the efforts." You can access here an article entitled "He May Shy From Tanks but Not the Massed Media Forces; One lawyer helped a file-sharing network beat the entertainment industry. Now he seeks new battles." A book review is entitled "Don't tread on the NRA." And an editorial is entitled "A Painful Judicial Decision."

In The Boston Globe, columnist Thomas Oliphant has an op-ed entitled "Gephardt's prochoice contradiction."

Finally for now, The Washington Times contains an op-ed by Thomas Sowell entitled "Unfit to print" and an op-ed by Cal Thomas entitled "Deep in the heart of -- Oklahoma?"
Posted at 14:31 by Howard Bashman



Members of the Houston Bar Association rate the judges: Yesterday's edition of The Houston Chronicle reported here that "Poll names Stricklin top judge; 65% in annual Houston Bar survey give her 'outstanding' rating." The newspaper also provided a list entitled "Houston Bar Association judges overall ratings." The bar association's Web site provides this press release and a 58-page PDF document containing all the rankings. Some may be interested to see what rankings Fifth Circuit nominee Priscilla R. Owen received, while others may be interested to read the results for federal district, magistrate, and bankruptcy judges based in Houston. (Thanks to Jim Dedman for emailing a link to the Chronicle's list of poll results.)
Posted at 12:39 by Howard Bashman



"Privacy Pleas: Why Congress Is Brave, And The Courts Aren't." Jeffrey Rosen has this essay in the May 26, 2003 issue of The New Republic.
Posted at 11:08 by Howard Bashman



"Judicial Integrity, Legal Realism, and the Second Amendment: A Commentary on Lazarus and Kozinski": Don't miss Law Professor Lawrence Solum's very interesting commentary here, at his "Legal Theory Blog." Law Professor Jack M. Balkin responds to Solum's post here, and philosophy student Matthew Yglesias offers his views here.
Posted at 10:57 by Howard Bashman



"Judicial candidates no longer hearing abortion permission cases; Experts question court's decision": Yesterday's edition of The Pittsburgh Post-Gazette contained this report.
Posted at 10:23 by Howard Bashman



U.S. Supreme Court news and commentary from here and there: Today's edition of Newsday contains an article entitled "Supreme Court Seat Shuffle? Judges' retirements would spark first shift in decades." William O'Rourke has an essay in today's edition of The Chicago Sun-Times entitled "Hazarding a safe guess on the Supreme Court."

Today's edition of The Athens Banner-Herald contains an article entitled "Need heroes, Thomas says; Law graduation send-off from Supreme Court justice" and an article entitled "Some on campus raise voices in protest." You can also access photos of the graduation ceremony here and here.

Yesterday's edition of The Erie Times-News reported here that "Rehnquist helps dedicate center," while The Associated Press reported here that "Rehnquist dedicates center to his mentor who prosecuted Nuremberg war criminals." You can access a transcript of the Chief Justice's remarks Friday at that event here, via the Web site of the U.S. Supreme Court.

The Courier-Journal on Thursday published an article entitled "O'Connor relishes trailblazer role; High court's first woman speaks at author forum."

Columnist George F. Will, in the May 26, 2003 issue of Newsweek, has an essay entitled "High Noon for 'Diversity'; The fate of racial preferences in higher education may depend on Justice O'Connor's assessment of what her friend Lewis Powell did." Columnist Robert Novak asks, "Could Times scandal sway court?" And Denver Post columnist Diane Carman today has an essay entitled "Miles to go and promises to keep ..."

Finally, an article entitled "What Becomes A 'Goddess' Most; Met Exhibit Traces How Greek Attire Became Mod Fashion," which appeared in yesterday's edition of The Washington Post, mentions Justice Ruth Bader Ginsburg.
Posted at 09:55 by Howard Bashman



"Justice Cook moves forward; Colleagues offer praise for conservative jurist headed to federal court": Yesterday's edition of The Beacon Journal contained this report.
Posted at 09:54 by Howard Bashman



Saturday, May 17, 2003
"Two Jewish organizations oppose Pryor": Today's edition of The Birmingham News offers this report.
Posted at 23:08 by Howard Bashman



In the Week in Review section of tomorrow's edition of The New York Times: You can access here an article entitled "Big Brother Is Tracking You; Without a Warrant" and here an article entitled "As Google Goes, So Goes the Nation."
Posted at 23:04 by Howard Bashman



From yesterday's White House press briefing: During yesterday's White House press briefing, Ari Fleischer addressed questions about the confirmation of judges and affirmative action.
Posted at 20:12 by Howard Bashman



"Bush Judicial Candidate Shows How Things Change": Bloomberg News columnist Ann Woolner has written this essay. (Via "Southern Appeal.")
Posted at 20:09 by Howard Bashman



In news from Georgia: The Atlanta Journal-Constitution offers an article entitled "Be heroes, not victims, Thomas tells UGA grads," while the Knight Ridder news service reports that "Clarence Thomas urges graduates to persevere."
Posted at 20:00 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times reports here that "Highest court could hear Burbank case; City officials hopeful justices will overturn decision to ban certain types of prayers at council meetings." An article reports that "Retrial Order for Callahan Is Appealed; The attorney general's office asks a court to uphold the murder conviction." In other news, "Council OKs Slave Clause; An ordinance will require companies doing business with the city to disclose whether they ever profited from servitude." An article reports that "Victim's Family to Get Millions; Jurors grant award in the death of a Mexican farmhand. He was shot by a Huntington Beach officer in a case of mistaken identity." You can access here an article entitled "Democrats Return to Texas; The state legislators had spent five days holed up in an Oklahoma hotel to foil GOP plans to redraw congressional districts." And in news pertaining to The New York Times, you can access here a column by Tim Rutten entitled "Editor caught up in Blair storm" and here an article entitled "All the jokes fit to tell: Experts say there's not much the New York Times can do as comedians take their best shots."

The Washington Times -- sporting an attractively redesigned Web site -- reports here that "Texas Democrats return to fray." And an op-ed by Clarence Page is entitled "Diversity on trial."
Posted at 15:16 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Media Denied Wider Access in Nichols Case"; here "Sniper Suspect's Attorneys Seek Evidence"; here "Judge Rules on Muslim Driver's License"; here "Trials Delayed in FBI Document Case"; here "Term 'lynching' has twisted history"; here "Woman Sues to Stop Elephant Transfer"; here Gina Holland reports that "Police Now Using 'Person of Interest'"; and here "Calif. Town Rebels Against Patriot Act."
Posted at 15:10 by Howard Bashman



Geitner Simmons reports on the status of legal challenge pending before the Eighth Circuit to a federal affirmative action program for highway contracting in Nebraska: You can access Geitner's post here, at his blog "Regions of Mind."
Posted at 15:08 by Howard Bashman



"President Nominates Interior Department Official for Ninth U.S. Circuit Court of Appeals": Yesterday's edition of The Metropolitan News-Enterprise contained this report.
Posted at 15:03 by Howard Bashman



"Clarence Thomas offers a glimpse of his thoughts; He regrets the controversy over his confirmation hearings." The Philadelphia Inquirer earlier this week offered this report on an interview that one of its reporters recently conducted with Justice Clarence Thomas.
Posted at 14:58 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Study Finds No Sign That Testing Deters Students' Drug Use." A related chart can be accessed here. An article reports that "A Ruling Makes E-Mail Evidence More Accessible." In local news, you can access here an article entitled "Juror Explains Mixed Verdict on Stabbing in Crown Heights" and here an article entitled "Ruling Supports Parents' Rights to Decide on Child's Life Support." An editorial is entitled "A Texas-Size Power Grab." And columnist Bill Keller has an op-ed entitled "God and George W. Bush."

In The Washington Post, a front page article is entitled "Escape 'The Matrix,' Go Directly to Jail; Some Defendants in Slaying Cases Make Reference to Hit Movie." You can access here an article entitled "A Texas-Sized Brawl Over Redistricting; Fleet-Footed Democrats Win Key Battle, But War Is Just Beginning." In news relating to campaign finance, "Old Memos Detail Link of Money to Influence." In local news, "Muhammad Seeks Prosecutors' Information." Finally, letters to the editor run under the headings "Solid Evidence of the Need for Reform" and "Giver Beware."
Posted at 10:30 by Howard Bashman



"UGA awaits speech by high court justice": Today's edition of The Augusta Chronicle contains this report.
Posted at 10:25 by Howard Bashman



In Sunday's edition of The New York Times: You can access here an article entitled "A New York State of Blog" and here an article entitled "Dating a Blogger, Reading All About It."
Posted at 10:10 by Howard Bashman



Friday, May 16, 2003
Watch online the video of today's question and answer session between high school students and Justice Stephen G. Breyer: You can access the video at this link (Real Player required).
Posted at 21:00 by Howard Bashman



The Associated Press is reporting: You can access here Gina Holland's article entitled "Supreme Court Justice Backs Drug Testing" and here an article entitled "Judge May Release Moussaui Case Papers."
Posted at 19:23 by Howard Bashman



"Bush could reshape Supreme Court": Michael Kirkland, who serves as Legal Affairs Correspondent for United Press International, has this report.
Posted at 19:17 by Howard Bashman



"First among equals: Just how do the justices wield influence on the Supreme Court? Two new books come to a surprising conclusion." The current issue of The Economist contains this interesting article discussing the "stark contrast" between Justices William O. Douglas and Sandra Day O'Connor. (Via "SCOTUSblog.")
Posted at 17:19 by Howard Bashman



What quantum of evidence is required to recover damages under the Foreign Sovereign Immunities Act? The U.S. Court of Appeals for the D.C. Circuit today issued a decision in a case against the Republic of Iraq and Saddam Hussein (remember them) resolving that particular damages-related question, which amazingly no federal appellate court has heretofore addressed.
Posted at 16:52 by Howard Bashman



You're unbelievable: Yesterday, a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit ruled that a federal judge presiding over a jury trial could not exclude non-expert evidence based solely on the trial judge's belief that the evidence lacks persuasive force. Rather, in such circumstances it remains within the province of the jury to determine whether the evidence is unbelievable. You can access the opinion here.

And speaking of unbelievable, the opinion was written by Circuit Judge Bruce M. Selya, but none of the words sent me on a mad search for an unabridged dictionary. Apparently Judge Selya, for at least this one decision, decided to eschew his usual fusillade of obscurities. (This post's title pays homage to EMF's fine tune "Unbelievable.")
Posted at 16:25 by Howard Bashman



Justice Stephen G. Breyer just wrapped up an appearance on C-SPAN answering the questions of high school students: The program is scheduled to be replayed this evening on C-SPAN3 (which is one more C-SPAN than my local cable operator is willing to offer), and will also be shown on tomorrow night's edition of "America and the Courts."
Posted at 15:38 by Howard Bashman



"Court Upholds Legality of Malpractice Cap": The Associated Press offers this report from Nebraska.
Posted at 14:38 by Howard Bashman



Who is that masked man, and why is he seeking to draw us into an inconsequential Second Amendment quagmire? Sure, everyone's heard of Posner, Easterbrook, and Kozinski. But Seventh Circuit Judge Terence T. Evans is perhaps less well known, although his writing style is certainly deserving of all the acclaim I can seek to heap upon it. Today he has issued an opinion for a unanimous three-judge panel that begins:
EVANS, Circuit Judge. You just know there's going to be a whole lot of trouble when a man, wearing a ski mask over his face, enters a bank on a hot August afternoon.
It just so happens, of course, that the masked man is now quite a fan of the individual rights model of the Second Amendment, which, masked man contends, requires the invalidation of the federal criminal statute that prevents convicted felons from possessing firearms. In responding to the argument, Judge Evans first notes that Seventh Circuit precedent has squarely rejected the proposition. Next, he writes:
But, Price argues, a recent decision of the Court of Appeals for the Fifth Circuit--United States v. Emerson, 270 F.3d 203 (2001)--and a recent letter written by Attorney General John Ashcroft to the National Rifle Association provide us with reason to reexamine our position. We don't think so.

We, of course, would not be obliged to follow Emerson, even were it to lead to the conclusion Price urges. It is true that Emerson rejects what are known as the "collective rights" and "sophisticated collective rights" models for interpreting the Second Amendment. In short, it adopts the individual rights model, which says that the amendment protects "individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms, such as the pistol involved here . . . ." At 260. In contrast, in our decision in Gillespie, we said that the rights under the Second Amendment inure "not to the individual but to the people collectively, its reach extending so far as is necessary to protect their common interest in protection by a militia." 185 [F.3d] at 710. But even were we inclined to, there is no need for us to wade into that Second Amendment quagmire because, although it espouses an individual rights approach to the Second Amendment, the Emerson court agrees with our conclusion that rights under the amendment can be restricted. Specifically, the court found that 18 U.S.C. sec. 922(g)(8) did not infringe Emerson's rights: "[I]t is clear that felons, infants and those of unsound mind may be prohibited from possessing firearms." At 261.

Like the Court of Appeals for the Fifth Circuit, the Attorney General subscribes to an individual rights interpretation of the Second Amendment. In his letter to the executive director of the NRA, he says "[L]et me state unequivocally my view that the text and the original intent of the Second Amendment clearly protect the right of individuals to keep and bear firearms." He says "clearly," though his view, as the need for such a lengthy discussion in Emerson reveals, is also pretty clearly not self-evident. But even given his interpretation, Mr. Ashcroft also acknowledges in a footnote, as it would be hard responsibly to deny, that "[o]f course, the individual rights view of the Second Amendment dos [sic] not prohibit Congress from enacting laws restricting firearms ownership for compelling state interests, such as prohibiting firearms ownership by convicted felons . . . ." At least for the moment, sec. 922(g) is safe with us and, in fact, is safe with the Attorney General and the Court of Appeals for the Fifth Circuit.
You can access the complete opinion at this link.
Posted at 14:17 by Howard Bashman



Every lawyer's fantasy?
In this case, social security lawyer David Lowry tries to live out what must be every lawyer's fantasy by suing the judge who ruled against him one time too many.
So begins an opinion written by Circuit Judge Alex Kozinski that the U.S. Court of Appeals for the Ninth Circuit issued today. And while Lowry doesn't in fact get to live out that "fantasy" by prevailing in his lawsuit against the judge, he does at least get to recover some damages from his opposing party, the federal government, which the three-judge panel penalizes for having violated an important procedural rule on appeal.
Posted at 13:32 by Howard Bashman



In news from Colorado: Today's edition of The Denver Post reports here that "Remap headed to judges; State high court will hear petition from AG to scuttle redistrict plan."
Posted at 13:32 by Howard Bashman



"After years of scholarly legal arguments, the Utah Supreme Court has ruled that cats are not dogs." Earlier in the week, The Dayton Daily News published this commentary by D.L. Stewart. You can access the ruling in question of the Supreme Court of Utah, from earlier this month, at this link.
Posted at 12:50 by Howard Bashman



"Necessary checks": Today's edition of The Stanford Daily contains this filibuster-related editorial.
Posted at 12:45 by Howard Bashman



"Liberals For Leon Holmes": The Arkansas News Bureau issued this column by John Brummett yesterday.
Posted at 12:21 by Howard Bashman



Divided Supreme Court of Nebraska upholds constitutionality of cap on medical malpractice damages: This morning, a divided Supreme Court of Nebraska has upheld the constitutionality of Nebraska's cap on medical malpractice damages. You can access the opinion here. As the reader who so kindly informed me of this ruling writes: "Note that two of the Supreme Court justices were recused, and replaced by two Court of Appeals judges, sitting by designation. This means that next time the issue is presented in Nebraska, the lineup will have changed in potentially significant ways."
Posted at 11:35 by Howard Bashman



Chief Justice William H. Rehnquist's speech is about to begin: You can view it live online via this link.
Posted at 11:21 by Howard Bashman



Results from yesterday's Senate Judiciary Committee business meeting: Yesterday the Senate Judiciary Committee held a business meeting, and you can access the agenda here.

The only federal appellate court nominee scheduled to receive a vote was Third Circuit nominee Michael Chertoff. Senator Edward M. Kennedy (D-MA) objected to a vote on Chertoff's nomination (according to one of my correspondents, "Kennedy says [Chertoff] has some 'splaining to do over Gitmo"), and therefore Chertoff's nomination won't be voted on until next week's business meeting, which probably will postpone his confirmation until after Memorial Day.

The agenda reflects that a vote was also scheduled to occur on "S. 1023, A bill to increase the annual salaries of justices and judges of the United States." Again, the vote was postponed until next week, and expectations are that Ranking Democratic Member Patrick J. Leahy (D-VT) will be offering his own bill that ties a judicial pay raise to a law preventing judges from accepting expenses to attend private educational seminars. (You can access here my September 2002 appellate column, entitled "Privately-Sponsored Educational Junkets For Federal Judges -- Should They Be A Cause For Concern?")

In other news from yesterday's meeting, a judgeships bill was voted out favorably. It creates about a dozen new district court judgeships, along with more than 30 bankruptcy judgeships.
Posted at 10:14 by Howard Bashman



On today's agenda: At 10:45 a.m. eastern daylight time today, you can watch a live Webcast of "the dedication of the Robert H. Jackson Center for Justice by Justice William H. Rehnquist, Chief Justice of the United States." Links to that Webcast can be accessed here. You can learn more about the The Robert H. Jackson Center at this link.
Posted at 10:05 by Howard Bashman



A report on last night's meeting of the American Academy of Arts and Sciences: According to the group's Web site:
1870th Stated Meeting. at the Library of Congress, Washington, DC - May 15, 2003

Judith Resnick (Yale University School of Law), Danny J. Boggs (Judge, U. S. Court of Appeals, Sixth Circuit), F. James Sensenbrenner (US House of Representatives Committee on the Judiciary), and Abner J. Mikva (University of Chicago School of Law) will discuss "Congress and the Courts: Independence of the Federal Judiciary." A panel discussion will follow. The event will take place at the Library of Congress in Washington, D.C.
"How Appealing" reader Allison Hayward was there, and she graciously provides this report:
I am writing to report on the panel held last evening by the American Academy of Arts and Sciences titled "Congress and the Courts: Independence of the Federal Judiciary" (Actually we were informed that this was the 1870th Stated Meeting of the AAAS. I wouldn't want to be their recording secretary!) It featured Judith Resnick of Yale, Judge Danny J. Boggs of the 6th Circuit, and Rep. Howard Berman, and was moderated by Abner Mikva.

In a nutshell, Prof. Resnick thinks that judicial independence is threatened because our "conversation" about judging is getting worse, or something like that. The one substantive thing I took away from her talk was that non-life tenured judges don't get enough respect.

I also learned that Judge Boggs was employed once at Mikva's firm, where he worked on preserving the right of Playboy Enterprises to shine the "Bunny Beacon" on the John Hancock building. Judge Boggs delivered this information in his usual droll and deadpan manner, and I thought Mikva was going to bust a gasket, as it were. In his substantive remarks, Boggs cautioned that judiciary-watchers shouldn't confuse things judges happen to not like (protesters, for instance) with threats to the independence of the judiciary, which he believed at this point were few.

Howard Berman noted a threat to the judiciary's independence from interference from legislation - i.e. taking away discretion via mandatory minimums.

Justices David Souter and Ruth Bader Ginsburg were among those in attendance, as well as the ever-dapper Chief Judge Douglas H. Ginsburg.
Thanks so much, Allison!
Posted at 10:00 by Howard Bashman



"Weak Link: New grounds for skepticism about secondhand smoke claims": Jacob Sullum has this essay online today at Reason.
Posted at 09:47 by Howard Bashman



"The Judiciary Wars": Jack Newfield has this essay in the June 2, 2003 edition of The Nation.
Posted at 09:40 by Howard Bashman



Some news regarding "20 questions for the appellate judge": This morning, my latest installment of "20 questions for the appellate judge" will be wending its way through cyberspace to the chambers of June's interviewee, who happens to be located at a certain Ninth Circuit hot-spot. The questions and answers are due to appear online here on Monday, June 2, 2003. Also, the "20 questions" blog now contains links in the left-hand column to each month's interview, so that someone looking to access an earlier month's interview won't need to spend a whole bunch of time trying to find it.
Posted at 09:30 by Howard Bashman



Today's FindLaw columnist: Vikram David Amar has an essay entitled "Regarding Child Pornography Extends the Supreme Court's Federalism Cases" [Attention PSAT test-makers: is that headline grammatically correct?].
Posted at 06:50 by Howard Bashman



In Friday's newspapers: In USA Today, Joan Biskupic has an article entitled "Lawyers emerge as Supreme Court specialists; Some attorneys have become repeat performers -- and they are helping shape U.S. law." An article reports that "Moussaoui judge rejects proposal by prosecutors." And an op-ed by Joy Thompson is entitled "Diversity programs merely open doors."

The Washington Times reports here that "Senate GOP to resurrect Pickering nomination." And an op-ed by Diana West is entitled "Skin-deep diversity."

The Washington Post reports here that "Judge Rejects Bid to Block Access to Sept. 11 Planner." You can access here an article entitled "Indictments Flawed, Muhammad Claims; Lawyers Seek Reduction of Charges." A front page article reports that "Sniper Attack Stole One Life, Gave Focus to Another; Daughter Honors Victim's Dream, Gets Degree." In other news, "Hastert, DeLay Disagree on Assault Weapons Vote." An article reports that "FCC Sees Local Gain to Age of Max Media." An editorial is entitled "Immigration Folly." In op-eds, columnist George F. Will has an essay entitled "Haunting Specter," while columnist Donna Britt has an essay entitled "The Pundits' Mistaken Recipe."

Today's edition of The New York Times contains an article entitled "Mothball the Fusty Legal Regalia? Britons to Judge." And in local news, "Rare Glimpse of Disorder in the Court"; "Transit Agency to Appeal Judge's Order to Roll Back Fares"; and "Another Lesson for Life: Buy Lottery Tickets Alone."

The Boston Globe contains an article entitled "Don't challenge SJC over ruling, friends told Lopez." An article reports that "Literary groups decry Patriot Act as invasion of privacy." And columnist Brian McGrory has an essay entitled "Times must come clean."

The Los Angeles Times reports here that "Suit Against Oreo Cookies Crumbles." An article reports that "Even Judges Heed the Call to Jury Duty; When summoned to serve, officers of the court are required to show up, set an example." You can access here an article entitled "Feds Added to Texas Brawl; GOP misused U.S. resources in hunt for rebellious lawmakers, Democrats charge." An article reports that "Judge May Ban Copying Software." In local news, you can access here an article entitled "Trigger-Happy Traffic Camera to Cost County $500,000; A crusader against the red-light devices discovers timing error. Judge orders refunds"; here an article entitled "Council to Vote on Slavery Disclosure Law; Measure would require firms doing business with the city to report any historical links"; and here an article entitled "Topless Club Loses Liquor Sales License; Investigators saw dancers at Canoga Park establishment exposing themselves below the waist, a violation of California law." In other news, "The right to write; Student journalists in the southern part of the Chaffey district seek the same treatment as their counterparts to the north." An editorial is entitled "Update FCC Media Rules." And letters to the editor appear under the heading "The Lone Star State's Rambling Democrats."

Today's edition of The Christian Science Monitor contains an article entitled "Beyond Jayson: It's little errors that hurt media." And in op-eds, Daniel Schorr has an essay entitled "The worst subversion of journalism," while Ron Charles asks "NYT: Do you now, or have you ever, existed?"

Finally for now, OpinionJournal offers commentary from Chetly Zarko entitled "The Evidence of Things Not Seen: A study that supposedly validates 'diversity' may do just the opposite."
Posted at 06:00 by Howard Bashman



Thursday, May 15, 2003
Eclipse blogging, part two: Well, there are just enough breaks in the clouds to allow the eclipse to be viewed from time to time. As of this moment only a sliver of the moon remains visible on the way to a total eclipse. Darkness appeared at the bottom of the moon and has progressively spread toward the top. In ten minutes or so, a total lunar eclipse should be in full swing.
Posted at 22:50 by Howard Bashman



"Reports of terror crimes inflated": Today's edition of The Philadelphia Inquirer contains this report.
Posted at 22:44 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Official: Put Class-Actions in U.S. Court"; here "Judge: Moussaoui Can Interview Witness"; here "Lawyers for Sniper Suspect Seek Dismissal"; here "Self-Exiled Democrats to Return to Texas"; here "Documents Show Rift in Crown Heights Jury"; here "Ex-Lawmaker Wants Sentence Thrown Out"; here "Judge Freezes Collection Agency's Assets"; and here "N.Y. Jury Awards $5.27M to Fired Worker."
Posted at 22:36 by Howard Bashman



Relaxing: Does the existence of this blog, and others covering different topics of interest, demonstrate that the Federal Communication Commission has good reason to prevail in its efforts to relax media ownership rules? (Learn more about this controversy here and here.) A reporter for a legitimate national press outlet wants to interview me on this topic tomorrow. Should you have something worthwhile to say on this subject, your views are welcome via email.
Posted at 22:29 by Howard Bashman



Eclipse blogging: My plans to blog the stuffing out of tonight's lunar eclipse have been foiled by the very heavy cloud cover present in the Philadelphia region. Looks like I'll have to stick to this blog's regular subject matter. On the bright side, at least I'm not tornado-blogging.
Posted at 22:04 by Howard Bashman



"Raw Deal: Why Bush is behaving like FDR, and why he needs to be stopped": Law Professor Bruce Ackerman has this essay online at The American Prospect.
Posted at 20:58 by Howard Bashman



With apologies to my readers in Arizona: The Phillies won the baseball game I attended this afternoon. Details are available here.
Posted at 20:54 by Howard Bashman



President Bush nominates William Gerry Myers III of Idaho to fill forthcoming Ninth Circuit vacancy: On November 14, 2003, Ninth Circuit Judge Thomas G. Nelson will take senior status. Today the White House nominated William Gerry Myers III of Idaho to fill that forthcoming vacancy. You can view the official announcement here. It appears that Myers currently serves as Solicitor for the Department of the Interior. You can learn more about him here, here, and here.
Posted at 20:12 by Howard Bashman



"Group Sues Senate Over Filibuster": Jesse J. Holland of The Associated Press has this report. Judicial Watch, the group that filed the suit, has issued this press release. And you can access Judicial Watch's complaint, which initiates the suit, at this link. If this lawsuit accomplishes anything other than publicity, many who follow the law closely will be quite surprised.
Posted at 18:29 by Howard Bashman



"Senators headed straight for judicial N-war": Yesterday's edition of The Deseret News contained this column by Lee Davidson, who serves as Washington Correspondent for the newspaper.
Posted at 14:15 by Howard Bashman



Some news and commentary regarding the judicial nomination and confirmation process: The Economist contains an article entitled "George Bush and the social conservatives: A troubled marriage." And The Forward contains an article entitled "Groups Aim To Torpedo President's Judge Pick; Pryor Opposed On Church-State" and also contains an editorial on its home page opposing the confirmation of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 13:09 by Howard Bashman



"Assistant Attorney General Viet Dinh to Step Down": You can access yesterday's official U.S. Department of Justice press release at this link.
Posted at 11:33 by Howard Bashman



Elsewhere in Thursday's newspapers: The Boston Globe reports here that "Friends say Lopez will quit bench; Reportedly fears harsh scrutiny in SJC review." You can access here an article entitled "Gun safety group cites lag in US prosecutions; Asserts dealers bypassed in focus on street crime." In local news, "UMass won't retire Minuteman mascot." And columnist Ellen Goodman has an op-ed entitled "The war over the judiciary."

The Washington Times reports here that "Colorado sues self over redistricting." You can access here an article entitled "GOP leaders warned to shun agenda of gays." An article reports that "Agency lists top criminal aliens." In other news, "Blair case roils N.Y. Times." And in local news, "Moose files suit against county."

The Los Angeles Times reports here that "In Emerging Nations, a California Firm Takes Up Task of Ensuring Rule of Law." An article reports that "Case of Man Accused of Sucking Boys' Toes Tests Definition of Molestation." You can access here an article entitled "Guilty Verdict in Stabbing Retrial; Jury finds Lemrick Nelson Jr. violated the civil rights but did not cause death of Hasidic scholar during 1991 Brooklyn riots." In other news from New York, "As N.Y. Times Struggles With Scandal, Editor Insists He'll Stay." An article reports that "Elusive Immigrant Criminals Target of U.S. Dragnet." An article from The Associated Press is entitled "Bid to Deny Porn Access on Professors' PCs Fails; A Cal Poly SLO faculty panel rejects an effort to bar instructors from using state computers to view Internet sex sites." An editorial is entitled "Writing Real Good: High school English teachers just don't get it no more." And a letter to the editor appears under the heading "Protect Religious Rights in the Workplace."

Finally for now, USA Today contains an editorial entitled "Segregated expectations."
Posted at 11:06 by Howard Bashman



Available at National Review Online: Byron York has an essay entitled "Nuclear Option, No. Nuclear Response, Yes. Republicans lay the groundwork for breaking Democratic filibusters." And Law Professor John C. Eastman has an essay entitled "Filibuster Preservation: Does the Senate filibuster need reform?"
Posted at 10:59 by Howard Bashman



Divided Federal Circuit panel holds that search of car belonging to Federal Bureau of Prisons employee violated Fourth Amendment: You can access Monday's ruling of the U.S. Court of Appeals for the Federal Circuit at this link. The ruling also sheds some light on the commonly asked question: What is it that the Merit Systems Protection Board does, anyway?
Posted at 10:30 by Howard Bashman



Available online from c|net News.com: You can access here an article entitled "Napster killer takes on DVD copying" and here a related article entitled "DVD-copying case heads to court." And Doug Isenberg has an essay entitled "The wrong answer to child porn on the Net."
Posted at 10:23 by Howard Bashman



In news from Texas: Today's edition of The Austin American-Statesman reports here that "Decision: Ads need not tell who paid; Court voids law requiring political messages to disclose sponsors." And The Associated Press has an article entitled "Ban on anonymous political ads is unconstitutional, court rules." I first reported on and linked to that ruling last night, in a post you can access here. Law Professor Rick Hasen, at his "Election Law" blog, offers his thoughts on the ruling.
Posted at 09:37 by Howard Bashman



On the agenda: The Senate Judiciary Committee has a business meeting scheduled to begin at 9:30 a.m. today. Third Circuit nominee Michael Chertoff is the only candidate for a federal appellate judgeship who is scheduled to receive a vote at the meeting. Also scheduled for consideration at the meeting is "S. 1023, A bill to increase the annual salaries of justices and judges of the United States."

Also this morning, the University of Pennsylvania Law School and the National Constitution Center will be holding a symposium entitled "McConnell v. FEC: Understanding the Decision and Its Implications." The Webcast of this symposium won't be getting underway until 10:30 a.m. eastern daylight time. You should be able to access a link to the Webcast via this page at that time.

Finally, in honor of those many people who prefer Major League Baseball to the law, I'm scheduled to attend this afternoon's contest between the Philadelphia Phillies and the Arizona Diamondbacks.
Posted at 07:03 by Howard Bashman



Bountiful crop of newly-discovered law blogs: Denise Howell persists in her praiseworthy effort to identify the newest law blogs to enter this already overcrowded market. She has so many new entrants that it took her two posts to list them (see here and here), and she's promising to bring even more to light soon.
Posted at 07:02 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "Jury Says Gunmakers Not Liable for Violence." In news from Florida, "Gov. Jeb Bush to Seek Guardian for Fetus of Rape Victim." You can access here an article entitled "Mixed Verdict Delivered in Crown Heights Case" and here a news analysis entitled "Jury Finds What Many Already Knew." An article reports that "Parole Denied a Second Time for Former Radical in Killings." The NYTimes has made all of Jayson Blair's articles since late October 2002 freely-available, and an article reports that " Editor of Times Tells Staff He Accepts Blame for Fraud." And an editorial is entitled "The Guantanamo Scandal."

The Washington Post reports here that "Malvo's Attorneys Want Change Of Venue." In somewhat related news, "Moose Appeals County's Book Ban; Ethics Panel Ruling Called Violation Of First Amendment." An article reports that "Grandmother's Sentence Awaited; Court Weighs Woman's Role in Daughter's Custody Feud." In other news, "Number Portability Pits Cell-Phone Users vs. Industry." An editorial is entitled "Phantom Justice." And a letter to the editor appears under the heading "Juvenile Justice and the Malvo Case."

Today's edition of The Christian Science Monitor contains an article entitled "A Texas standoff that's crossed state lines; Squirreled away in Oklahoma, Democrats buck the House - and Texas political culture." And an editorial is entitled "Hold the Phone Fraud."
Posted at 06:42 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Cookie suit crumbles; was grab for publicity"; here "Thief Disses Judge in Court, Gets Max"; here "Texas Dems Hold Legislature by Fleeing"; here "Rodney King Charged With DUI, PCP Use"; and here "Commencement Speeches Glance" (which, oddly enough, lists U.S. Supreme Court Justices as members of President Bush's administration).
Posted at 06:30 by Howard Bashman



Today's FindLaw columnists: Edward Lazarus has an essay entitled "A Recent Dissent By Federal Appellate Judge Alex Kozinski Offers Rare Candor About the Political Nature of the Judicial Process," and D. Mark Jackson has an essay entitled "Why A Recent Supreme Court Decision Erroneously Abridges Immigrants' Rights, And Warns of Dangers to Civil Liberty Arising Out of the War on Terrorism."
Posted at 06:18 by Howard Bashman



"How Microsoft Warded Off Rival": Today's edition of The International Herald Tribune contains this report.
Posted at 00:03 by Howard Bashman



Wednesday, May 14, 2003
Texas Court of Criminal Appeals declares unconstitutional state law requiring political flyer to contain name and address of person who published it: The Court of Criminal Appeals is the highest court in Texas in criminal matters. You can access the court's majority opinion here, a concurring opinion here, and a dissenting opinion here. The prevailing party, John Doe, was out celebrating his victory and thus could not be reached for comment. (Thanks to Jim Dedman for the pointer via email.)
Posted at 21:38 by Howard Bashman



NPR's Nina Totenberg interviews Justice Sandra Day O'Connor: You can access today's All Things Considered segment at this link (Real Player required) and an extended version of the interview (51-plus minutes long), which was conducted yesterday, at this link (same).
Posted at 21:23 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Nichols Faces State Trial in Okla. Blast" and here an article entitled "N.Y. Times Apologizes in Blair Case."

The Oklahoma City bombing article begins:
Terry Nichols, awaiting trial on 160 first-degree murder counts for the Oklahoma City bombing, was charged Wednesday with two more counts for two fetuses whose mothers died in the blast.

State District Judge Allen McCall authorized the charges after Oklahoma's chief medical examiner, Dr. Fred Jordan, testified that the fetuses could have survived outside the womb.
In response to this news, the author of the blog "TalkLeft" states "We hope abortion rights supporters jump all over this as it's surely another sign of the attempt to overturn Roe v. Wade" and "If you care about this issue, urge the Democrats in the Senate to keep filibustering."
Posted at 21:17 by Howard Bashman



"Landmark 1954 Desegregation Case Heralded": The Associated Press offers this report.
Posted at 19:32 by Howard Bashman



And in news from Bermuda: Today's edition of The Royal Gazette reports here that "Attorney General denies she threatened judges."
Posted at 17:36 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Jury: Gun Industry Not Cause of Violence"; here "Man Convicted in Brooklyn Riot Slaying"; here "Viet Dinh Leaving the Justice Department"; here "Fla. Appellate Court Upholds Conviction" of teenager Nathaniel Brazill in the shooting of his English teacher; and here "Bogus Marcos Son Sentenced to 12 Years."
Posted at 17:28 by Howard Bashman



In today's edition of The Metropolitan News-Enterprise: You can access here an article entitled "Retailer's Revised Arbitration Pact Still Unconscionable--Court" and here an article entitled "High Court to Mull Suit Brought by Late JDL Leader Over Burbank City Council Invocation." And on Monday of this week, an article appeared under the headline "C.A. Rejects Challenge by 'Swingers' to Liquor Control Regulations."
Posted at 17:24 by Howard Bashman



Holding prisoners in solitary confinement for thirty years may constitute clearly established cruel and unusual punishment even in the Fifth Circuit: Sure, some commentators criticize or admire the U.S. Court of Appeals for the Fifth Circuit for being tough on crime. But even the Fifth Circuit's toughness has its limits, as this ruling issued today demonstrates.
Posted at 17:18 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Principal Criticized for School Prayer"; here "Sept. 11 Commission Member Joins Law Firm"; here "Texas House Democrats Remain Holed Up"; and here "Md. Police Chief Sues County Over Ruling."
Posted at 14:08 by Howard Bashman



Just one more reason why the Log Lady from "Twin Peaks" doesn't live in Los Angeles: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins:
Petitioner Pamelyn Vlasak seeks habeas relief from her conviction for violating a Los Angeles ordinance prohibiting the possession, during demonstrations, of wooden objects exceeding a certain thickness. Vlasak argues that the ordinance is unconstitutional, both on its face and as applied to her, because it infringes on the First Amendment right to freedom of speech. The district court denied the petition and held that the state court reasonably determined that the ordinance was constitutional. We agree and affirm.
You can access the complete opinion at this link.
Posted at 13:50 by Howard Bashman



Today's must-read opinion from Seventh Circuit Judge Frank H. Easterbrook: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion by Circuit Judge Frank H. Easterbrook that begins:
Indicted for selling marijuana and possessing a gun in connection with that crime, Frederick James offered the "defense" that his ancestors came from Africa, that he is therefore a Moorish national, and that as a result he need obey only those laws mentioned in an ancient treaty between the United States and Morocco. This view of legal obligations is espoused by many adherents to the Moorish Science Temple, which was founded in 1913 by prophet Noble Drew Ali. Moorish Science is a heterodox Islamic sect based on teachings of Drew and his "Seven Circle Koran." It is a tenet of Moorish Science that any adherent may adopt any title, and issue any documents, he pleases. Drew told his followers that they are not U.S. citizens and distributed "Moorish Passports." Some members of this sect hand out what they call "security agreements" that purport to oblige strangers to pay hefty sums for using the members' names, which they deem copyrighted under their private legal system. James is among those who claim a right to compensation for every mention of his name. James demanded that the prosecutor, witnesses, and judge enter into compensation contracts before James would acknowledge the court's authority.

Needless to say, the combination of a wacky "defense" with the demand for payment every time James's name was spoken diverted attention from the criminal charges (which may have been his object).
You can (and definitely should) access the entire opinion at this link.
Posted at 13:36 by Howard Bashman



In news from North Carolina: Today's edition of The Charlotte Observer reports here that "Senators OK action on judge; U.S. appeals court lacks N.C. member." For those who suspect that this means good news for the Fourth Circuit's longest-waiting nominee, guess again.
Posted at 13:00 by Howard Bashman



You can now access my May 2003 appellate column online: This month's column is entitled "Wisconsin's Voters Show That They Prefer The 'Stealth' Candidate For Judicial Office," and you can access it online here.
Posted at 12:50 by Howard Bashman



Mural depicting African-American struggles proves controversial at Milwaukee courthouse: Saturday's edition of The Milwaukee Journal-Sentinel contained this report. And in today's edition of that newspaper, you can access here an article entitled "Mural means to convey hope, artist says; Piece moved to less visible spot in Courthouse after complaints that it carries anti-authority tone" and here an op-ed by columnist Jim Stingl entitled "Walker goes for courthouse encore."
Posted at 11:43 by Howard Bashman



Elsewhere in Wednesday's newspapers: In The Boston Globe, Lyle Denniston reports that "Court gets week to delay ad ruling." And in local news, you can access here an article entitled "Judge says class not tied to OK on bail" and here an article entitled "Decrying wolf: UMass Minuteman is defended."

The Washington Times reports here that "GOP eyes 'nuclear' end to filibuster." You can access here an article entitled "Democrats eye filibuster on gun bill." An article reports that "Texas Democrats stay on the lam." In local news, "Malvo's lawyers file for dismissal." And The Associated Press reports here that "Public defender team forms in N. Virginia."

USA Today reports here that "Moussaoui prosecutors wary of tribunal." In other news, "Standoff brings Austin to standstill." An editorial is entitled "Fatty-food suits mislead," and a related op-ed by Ben Kelley and Richard Daynard is entitled "Stop blaming the customer."

Today's edition of The Los Angeles Times reports here that "Ayes of Texas Are Still on Hold; Democrats hunker in an Oklahoma hotel, leaving lawmaking next door at a standstill. The tactic is derided by the GOP but is praised by others." An article reports that "Lack of Detainee Hearings Under Fire." In coverage of the Jayson Blair scandal, you can access here an analysis entitled "New York Times looks inward as its probe continues." Meanwhile, columnist Steve Lopez predicts his own firing for duplicity. Finally, an op-ed by legal ethics expert Stephen Gillers is entitled "Court-Sanctioned Secrets Can Kill: Settlements that muffle plaintiffs should be drastically curtailed."
Posted at 10:31 by Howard Bashman



"Pickering Won't Show For His Day in Court": Today's edition of Roll Call contains an article that begins, "Setting the stage for what could become the most heated nomination fight to date, Senate Republicans have decided to move ahead with a hearing on Charles Pickering's circuit court bid, but the U.S. district court judge is not expected to attend the hearing himself." (Thanks to Rick Hasen for the pointer.)
Posted at 10:27 by Howard Bashman



"Pirates We Be": Law Professor and Federalist Society co-founder Stephen G. Calabresi has this filibuster-related op-ed in today's edition of The Wall Street Journal.
Posted at 10:20 by Howard Bashman



From today's edition of The Hill: You can access here an article entitled "GOP splits over tough tactics on Bush judges" and here an article entitled "Life after McCain-Feingold: Scrambling for money in a tough fundraising climate." And Byron York's column this week is entitled "What you haven't heard about campaign reform."
Posted at 09:59 by Howard Bashman



"In the Northwest: Bush working to tilt federal bench toward the right": Today's edition of The Seattle Post-Intelligencer contains this op-ed by columnist Joel Connelly. (Thanks to the author of "Balasubramania's Mania" for the pointer via email.)
Posted at 09:58 by Howard Bashman



"Governor orders a guardian for fetus; The ACLU argues that the Florida Supreme Court said in a 1989 case that guardians cannot be appointed to represent fetuses." Today's edition of The St. Petersburg Times contains an article that begins, "In a decision that has rekindled the abortion debate, Gov. Jeb Bush announced Tuesday he will seek a guardian for an unborn child being carried by a 22-year-old rape victim who is mentally disabled."
Posted at 09:56 by Howard Bashman



"Lawyer attacks US cookie": BBC News offers this report.
Posted at 09:51 by Howard Bashman



"Justice Thomas' UGA appearance under fire": Today's edition of The Atlanta Journal-Constitution contains this report from The Associated Press.
Posted at 09:49 by Howard Bashman



According to published report, Assistant Attorney General Viet D. Dinh to announce his resignation today, effective May 31, 2003: Today's edition of The Los Angeles Times reports here that "Chief Architect of Patriot Act to Quit; Viet Dinh's work gave law enforcement more power against terrorists. He plans to teach." Dinh heads the U.S. Department of Justice's Office of Legal Policy, which, among other things, assists the Bush Administration in its efforts to select and confirm federal judicial nominees. May 31, 2003 will mark Dinh's second anniversary in his current position.
Posted at 09:43 by Howard Bashman



In newz from New Zealand: Today's edition of The New Zealand Herald contains an editorial entitled "Vote essential on replacing Privy Council," and yesterday's edition contained an article entitled "Law Society attacks supreme court plan." (News article via "Kiwi Pundit.")
Posted at 07:01 by Howard Bashman



Today's FindLaw columnist: Law Professor Michael C. Dorf has an essay entitled "The Real Threat to Second Amendment Values Isn't the Assault Weapon Ban: It's Rumsfeld's Standing Army."
Posted at 06:56 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports here that "Moussaoui Says He Was to Aid Later Attack; Defense Filing Claims Sept. 11 Innocence, Outlines Alleged Role in al Qaeda." You can access here a front page article entitled "GOP Will Let Gun Ban Expire; House Won't Act on Assault Weapons." In news from Virginia, "Malvo Attorneys Challenge Murder Charges; Under Va. Law, Initial Federal Action Bars Prosecution by State, Defense Says." And an article reports that "'Missing' Democrats Found in Oklahoma; Texas Legislators Protest Redistricting."

The New York Times reports here that "In Shift, Appeals Court Opens Hearing on a 9/11 Suspect." You can access here an article entitled "Justice Dept. Plans to Step Up Gun-Crime Prosecutions." In case you've been living under a rock, an article in the Food section reports that "A Suit Seeks to Bar Oreos as a Health Risk." In local news, you can access here an article entitled "Co-ops Win Right to Evict Tenants Without First Taking Court Action" and here an article entitled "Crown Heights Jury Says It Is Deadlocked but Will Continue." In news from Georgia, "College President's Resume Fails Student Exam." And Norman Ornstein has an op-ed entitled "The Debate to End All Debate."

Finally for now, Jason L. Riley has an essay at OpinionJournal entitled "Diversity's Stigma: Jayson Blair and the cost of racial preferences."
Posted at 06:31 by Howard Bashman



"Taco Bell talking Chihuahua trial starts in federal court; 2 men say chain stole idea for ad character": Today's edition of The Detroit Free Press contains this report.
Posted at 06:26 by Howard Bashman



Tuesday, May 13, 2003
Elsewhere in Tuesday's newspapers: In The Washington Times, Frank J. Murray reports here that "Judges rap court on gun-rights case" (hey, better late than never) and co-authors an article entitled "NRA asks high court to block ruling." Articles from The Associated Press report here that "Kilgore requests reversal on VMI ruling" and here that "UMd. will review work for news service." You can access here an article entitled "Race seen as factor in reporting scandal." In other news, "Democrats close Texas House with a walkout." An editorial is entitled "Daschle remembers to forget." Paul Craig Roberts has an op-ed entitled "Everyone a criminal," while John R. Lott Jr. has an op-ed entitled "The gun control debate."

In The Boston Globe, Lyle Denniston reports that "Attack-ad ban makes strange bedfellows; NRA, ACLU call for postponement." An article reports that "Provision would end a tax on lawyer fees; Attorney, plaintiff both required to pay." And in local news, "Travaglini says Senate won't OK closing of courts" and "Joint session would keep same-sex marriage ban afloat; Meeting set for tomorrow."

USA Today contains a filibuster-related editorial cartoon.

In The Los Angeles Times, you can access here an article entitled "Outgunned, Texas Democrats Vamoose; With rangers on their trail, 53 lawmakers vanish from Austin to derail GOP's agenda." In other news, "Fifth 'Lackawanna Six' Suspect Pleads Guilty; Only one member of an alleged N.Y. cell remains charged with aiding the Al Qaeda terror group." From Bloomberg News comes word that "Philip Morris Appeals $10.1-Billion Verdict." An op-ed by Pamela Fitzsimmons is entitled "Living and Dying Along Class Lines: If Atty. Gen. Ashcroft has his way, only America's well-to-do will have access to death with dignity." And letters to the editor appear under the headings "Lewinsky Addresses Child-Parent Privilege" and "FBI's Authority to See What Americans Read."
Posted at 22:04 by Howard Bashman



Some very sad news for victims of "Nigerian advance fee fraud": Next to the emails promising to provide me with larger breasts, I most enjoy receiving messages at my Web log's email address from Nigerians who seek my assistance in providing them with a place to stash their fortunes that happen to be currently trapped at the Bank of Nigeria or some such place. To learn more about this particular email scam, click here, here, or here.

Amazingly, however, plenty of people who receive these emails take them at face value and thereby allow themselves to be defrauded out of their own hard-earned money. Today, victims of such fraud received unwelcome news from the U.S. Court of Appeals for the Tenth Circuit. That court has ruled that neither the Government of Nigeria nor the Central Bank of Nigeria has perpetrated the fraud, and therefore they cannot be sued in federal court by victims of the fraud who are seeking to be made whole. You can access today's opinion at this link.
Posted at 20:49 by Howard Bashman



Filibuster buster: Terry Eastland has an essay at The Weekly Standard entitled "Are Senate Filibusters Warranted?" And Washington Post correspondent Chuck Lane visited with Brit Hume on Friday to discuss "Does the Judicial Filibuster Violate the Constitution?" You can access a partial transcript here.
Posted at 20:25 by Howard Bashman



Second Circuit reverses federal district court decision that had declared New York State's second degree murder statute unconstitutionally vague: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link. Interestingly, the Second Circuit doesn't hold that New York State's second degree murder statute is not unconstitutionally vague, but only that the trial court was wrong to address the issue on the merits.
Posted at 20:08 by Howard Bashman



Another reason why the federal judiciary is so very overworked: Today's edition of The Asheville Citizen-Times reports here that "Judge to rule on woman's dance moves."
Posted at 20:02 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "High Court Puts Hold on Nazi Art Case" and here an article entitled "Jurors Struggling in Crown Heights Case."
Posted at 19:57 by Howard Bashman



Judicial confirmation commentary from here and there: In today's edition of The Washington Times, Bruce Fein has an op-ed entitled "Strategy to break the bench logjam" in which he suggests that "Mr. Bush and the Senate Republican leadership * * * should agree to fill 10-20 percent of the next 50 judicial vacancies with Clinton nominees who failed to obtain a Senate vote." The Clarion-Ledger opposes a change in the U.S. Senate's filibuster rules in an editorial you can access here. The Sun-Sentinel of Ft. Lauderdale, Florida contains an editorial entitled "End improper delaying tactic." The Gadsden Times contains an editorial entitled "Changing Senate rules; Proposal could make filling judgeships more efficient." Finally, The Post and Courier of Charleston, South Carolina contains an op-ed by Bradley D. Churdar entitled "Estrada deserves up-or-down vote."
Posted at 17:21 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Justices' Campaign Finance Ruling Sought." And you can access here an article that begins, "Terry Nichols, the Oklahoma City bombing conspirator who is already serving life in federal prison, will stand trial in state court on 160 counts of first-degree murder that could bring the death penalty, a judge ruled Tuesday."
Posted at 17:13 by Howard Bashman



Fourth Circuit to hold part of Moussaoui oral argument in public, and the rest behind closed doors: A three-judge panel of the U.S. Court of Appeals for the Fourth Circuit today issued a 19-page decision in which the court ruled, among other things, that part of the upcoming appellate oral argument will be held in public and part in private, with the private segment to be followed by the issuance of a public transcript from which all classified information has been redacted.
Posted at 16:57 by Howard Bashman



In today's issue of The Hill: You can access here an article entitled "Reid's son to become latest chip in Judiciary standoff." And here's another editorial cartoon on the filibuster issue.
Posted at 16:44 by Howard Bashman



Uh oh! Look what I've started. The Harvard Federalist Society blog is already poking fun at the American Constitution Society blog.
Posted at 16:30 by Howard Bashman



No Klingon translator necessary: In today's news from Canada, "Some 20,000 Canadians worship at the altar of Yoda." Next thing you know, our neighbor to the north will outlaw having fun at the expense of accurate census information.
Posted at 16:01 by Howard Bashman



Now available at National Review Online: Deroy Murdock has an essay entitled "To Prison, for What? Right or wrong, we should be free." And Roger Clegg has an essay entitled "The Gray Lady and the Black Reporter: The scandal behind the scandal."
Posted at 15:21 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "States Cut Prison Food to Save Cash" (prepare for claims of cruel and unusual calorie deprivation); here "Witness Hints McVeigh Manipulated Nichols"; and here "Man Gets New Sexual Assault Trial in Wis."
Posted at 15:19 by Howard Bashman



"Cooped Up" celebrates its first birthday: Congratulations to Law Professor Jeff Cooper on this momentous occasion. To celebrate, Jeff unveils a discovery that links Dr. Seuss to blogging.
Posted at 14:43 by Howard Bashman



This three-judge Ninth Circuit panel doesn't seem to fancy employer-employee arbitration agreements: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion stating:
Thus, we conclude that, under California law, a contract to arbitrate between an employer and an employee, such as the one we evaluate in this case, raises a rebuttable presumption of substantive unconscionability. Unless the employer can demonstrate that the effect of a contract to arbitrate is bilateral -- as is required under California law -- with respect to a particular employee, courts should presume such contracts substantively unconscionable.
As a result of today's ruling, many large employers doing business in the State of California will no longer be able to enforce arbitration agreements in which employees have agreed to resolve all employment-related legal claims through arbitration.
Posted at 13:34 by Howard Bashman



How did I ever miss that? Friday's edition of The New York Times contained an editorial entitled "Federal Judges Deserve a Pay Raise."
Posted at 13:25 by Howard Bashman



Who's wiretapping whom? Orin Kerr has another very interesting post over at "The Volokh Conspiracy" about the First Circuit's recent Internet wiretapping decision, which I noted here on the day of its issuance. And yesterday, c|net News.com had an article about the ruling entitled "Court draws a line for online privacy."
Posted at 12:37 by Howard Bashman



"Justices Not Ruling on Campaign Finance": Anne Gearan of The Associated Press has this report. And Rick Hasen is remaining on top of the situation at his "Election Law" blog.
Posted at 12:28 by Howard Bashman



Cato Institute issues policy analysis entitled "A Grand Facade: How the Grand Jury Was Captured by Government": You can access the executive summary here (in HTML) and the full report here (in PDF). (Thanks to Radley Balko, of "The Agitator" blog, for the pointer via email.)
Posted at 11:15 by Howard Bashman



"Profits at the top 50 US law firms rise 8 percent": Yesterday's edition of The Financial Times contained this report.
Posted at 10:59 by Howard Bashman



Reuters is reporting: You can access here an article entitled "Philip Morris Asks Court for Bond Limits" and here an article entitled "Lawsuit Seeks Ban on Beloved Oreo Cookies."
Posted at 10:49 by Howard Bashman



In last night's email: If you're one of the approximately 500 people who have signed-up to receive my monthly appellate column via email on the day of its publication on the second Monday of each month in The Legal Intelligencer, then you received a copy of my column yesterday morning. If you haven't signed-up, you should be able to access the column online via this page sometime tomorrow.

Last night I received an email entitled "A Wisconsin perspective on today's (5-12) Appellate Column":
Kudos on the above. I have been a devoted reader of "How Appealing" for the last 9 months, and it remains one of my most visited bookmarks (at least once per day). Your coverage of the federal judicial nomination process has become a sine qua non. I have no doubt we will see you sitting on the 3rd Circuit one day!

As a sitting trial court judge in Wisconsin, and quite familiar with each of the candidates in the recent Sup. Ct. of Wis. race, I submit to you that the Roggensack vs. Brunner race you mention in today's column is one of many data points on what will be an illustrative, although not straight line. I agree with you as to the lesson learned. I do not know about the next sentence: that judges will not be required to speak out on political issues.

Judge Brunner campaigned "judicially." He did not trumpet his positions, but he did answer direct questions on political questions. Judge Roggensack adhered to the Wisconsin rules of judicial ethics pre-White. Roggensack could have "fought fire with fire" and come out, for example, in favor of school choice (she had written the intermediate appellate court decision upholding it, and was affirmed by the Sup. Ct. of Wis.). She fought the temptation, adhered to the rules, and won, albeit barely (52-48%?). If Judge Brunner had campaigned less "judicially," or had more money to spend (Roggensack greatly outspent him), she may have had to let her positions be known to win. While not any great surprise what those might have been, as a sitting supreme court justice, she could have been "precommitted," a larger problem than White seems to let on.

Moreover, Judge Brunner was supported by the more "liberal" interest groups, including the teacher's union. Judge Roggensack was supported by the more "conservative" interest groups. "Conservative" judges have won all but one of the last 5 supreme court seats in Wisconsin over the last decade (with the exception of Chief Justice Abrahamson), notwithstanding WI leaning liberal (went for Gore by 5,000 votes in 2000). So Roggensack also had that going for her.

State supreme court races, with the big money, strong political interests, etc. are the toughest nut to crack on the issues raised in White. I humbly submit that it comes down to the quality of the candidates -- in WI we had two rather respectful ones, which made it an interesting data point (and certainly worth the informative analysis in your column), although not necessarily illustrative of what could occur in other states. You are especially right to contrast it to the Estrada case.

Feel free to use these thoughts, if they are helpful, although please refer to me just as a "state judge from Wisconsin." Thanks.

It must feel good that thousands of lawyers across this country, with the greatest legal system in the world, rely on you for your research, thoughts, etc. Keep up the great work.
Thanks much to the author of this email for taking time out of a busy schedule to write such a thoughtful message.
Posted at 10:22 by Howard Bashman



Charts and graphs: Law Professor Lawrence Solum has a characteristically thoughtful, data-intensive post that offers a hypothesis to predict what sort of federal appellate court nominees won't achieve confirmation in the current political climate. I for one am unsure there's any logical way to explain which judges are gaining confirmation other than that the Democratic leadership in the U.S. Senate is opportunistically blocking some, but far from all, of the judicial nominees viewed as objectionable.

The one way to tell if the nominees being or likely to be filibustered -- Miguel A. Estrada; Priscilla R. Owen; Charles W. Pickering, Sr.; Carolyn B. Kuhl; William H. Pryor, Jr. -- are more "objectionable" from a liberal, Democratic perspective than the judges being or soon to be confirmed -- John G. Roberts, Jr.; D. Brooks Smith; Michael Chertoff; Dennis W. Shedd; Deborah L. Cook; Jeffrey S. Sutton; Jay S. Bybee; Michael W. McConnell -- would be to confirm them all and, ten years from now, look back at the results. But even that data, which I doubt will ever be available for harvesting, will still depend both on what cases are randomly assigned to these judges and how the other judges also randomly assigned to the cases end up voting.

I admire Professor Solum's effort to explain the "logic" behind the judicial confirmation imbroglio. But I cannot view as logical a system in which the Democratic leadership allows the confirmation of a Jeffrey S. Sutton or Michael W. McConnell but would unquestionably block the confirmation of "stealth nominee" David H. Souter, about whom preciously little was known and who resolutely refused at his U.S. Supreme Court confirmation hearing to answer questions designed to uncover his views on controversial issues.

All that being said, my current predictions for whom the Bush Administration will appoint to fill vacancies on the U.S. Supreme Court are as follows: Fourth Circuit Judge J. Harvie Wilkinson III to become Chief Justice; California Supreme Court Justice Janice Rogers Brown to replace Sandra Day O'Connor; and White House Counsel Alberto R. Gonzales to replace John Paul Stevens. With one or more of these vacancies expected to open in just the next few months, it should make for quite an interesting summer.
Posted at 09:46 by Howard Bashman



In Florida, legal guardian won't be sought for fetus: Today's edition of The Orlando Sentinel contains this report.
Posted at 09:41 by Howard Bashman



"Filibuster Again! And Again!" The May 19, 2003 issue of The Weekly Standard contains this editorial.
Posted at 09:38 by Howard Bashman



"Eyes in the Sky: Technology and Privacy, fighting it out": Brian Doherty has this essay online at Reason.
Posted at 09:36 by Howard Bashman



"Gun Fight: Libertarians vs. the NRA." Ramesh Ponnuru has this essay today at National Review Online.
Posted at 09:31 by Howard Bashman



The American Constitution Society has a blog: ACS, the left's answer to The Federalist Society, now has a blog, which you can access here. (Via "Legal Theory Blog.") So far the ACS's blog is a content-free zone, but someday . . . .

Although I religiously post announcements of upcoming ACS events whenever anyone emails to ask that I do so, at this moment a link to "How Appealing" is conspicuously absent from the ACS blog. Well cry me a river.
Posted at 07:33 by Howard Bashman



"Judging politics and his principle; Court nominee's fitness debated": Yesterday's edition of The Richmond Times-Dispatch contained this report concerning one of the two most recent nominees to the U.S. Court of Appeals for the Fourth Circuit. (Via "CrimLaw.")
Posted at 07:19 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports that "NRA Asks Rehnquist to Allow Ads; Gun Lobby Says Campaign Finance Ruling Acts as 'Gag.'" In news from the D.C. Circuit, "Iran Hostages Seek Suit's Reinstatement; Case Reflects Hill-White House Divide." An article reports that "Muhammad's Lawyers Zero In On Malvo's Claim; Admission in Gas Station Slaying Should Eliminate Capital Charge, Motions Argue." In other news, "Poor Va. Clients In Capital Cases Get New Team Of Legal Advisers." And a front page article reports that "GOP Plan Prompts A Texas Exodus; Democrats Stall State Legislature's Redistricting Vote."

Today's edition of The Wall Street Journal contains an editorial entitled "The Politics of Filibusters: Republicans figure out that confirming judges is a political process."

Today's edition of The Christian Science Monitor contains an article entitled "On parole? Then stay out of this neighborhood." And you can access here an article entitled "Do you blog? Everything from gossip to homework shows up onscreen in these cyber diaries."

The New York Times reports here that "Ex-Professor at Yale Wins Resentencing in Pornography." In local news, "Jury Again Has Questions in Retrial of '91 Case." And an editorial is entitled "The Domestic Spying Trap."
Posted at 07:00 by Howard Bashman



Neal Pollack's humorous take on the Jayson Blair scandal and its consequences for racial preferences in society: See this post at Neal's blog, "The Maelstrom." (Via "Eschaton.")
Posted at 06:53 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Ohio Justice Sues N.Y. Times Over Story"; here "Bush Putting Trial Lawyers on Defensive"; here "Schools Assure U.S. They Allow Prayer"; here "Sniper Suspect's Lawyers Cite Confession"; here "RNC Seeks to Uphold 'Soft Money' Ruling"; here "Vouchers' Death in La. Blamed on Election"; here "Texas Dems Hiding in Okla. Amid Tensions"; here "Troopers Sent to Find Texas Dems in Okla."; and here "Search for Klingon Interpreter Called Off."
Posted at 06:41 by Howard Bashman



Welcome back to the Fifth Circuit, Thomas Joe Miller-El: Back on February 25, 2003, the Supreme Court of the United States ruled, in Miller-El v. Cockrell, that the U.S. Court of Appeals for the Fifth Circuit had employed too rigorous of a standard in deciding whether to issue a certificate of appealability to a habeas corpus petitioner challenging his conviction for murder and resulting sentence of death. You can access the Fifth Circuit's original ruling here and my write-up of the Supreme Court's decision here. Yesterday the Fifth Circuit issued an opinion in Miller-El's case officially granting the certificate of appealability and setting an expedited briefing schedule in which the parties are to address four issues identified by that court. One of the judges on the Fifth Circuit's original three-judge panel -- Robert M. Parker -- has since resigned his position on the court, and the Fifth Circuit has selected Circuit Judge W. Eugene Davis to replace Parker on that three-judge panel.
Posted at 06:29 by Howard Bashman



Monday, May 12, 2003
"Instead of following a straight path our decisions on contribution in admiralty cases having lurched back and forth like a drunken sailor." So writes Eleventh Circuit Judge Edward E. Carnes in a unanimous three-judge panel ruling issued last Friday.
Posted at 22:01 by Howard Bashman



"Appeals Court Lets Rosa Parks Challenge Rap Group": Reuters provides this report.
Posted at 21:54 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Appeals Court Reinstates Parks' Lawsuit"; here "Senate Snag Delays Debate Over Tax Cuts"; and here "Texas House Seeks Arrest of Truant Dems."
Posted at 20:26 by Howard Bashman



"Bush loses patience with Democrat tactics": Today's edition of The Financial Times contains this report.
Posted at 18:27 by Howard Bashman



"The racist skeletons in Charles Pickering's closet": Sean Wilentz has this essay online today at Salon.com. You'll have to undergo the great inconvenience of getting a free "day pass" to view the article, but I've almost motivated myself to do just that. Longtime readers of "How Appealing" may recall (see my earlier post, here) that Wilentz came in for some criticism of his own last July after he wrote an op-ed in The New York Times vilifying Justice Antonin Scalia.
Posted at 16:51 by Howard Bashman



Refreshing: I may not know very much, but sometimes that's just enough. Today I received the following email from an attorney who practices law in Los Angeles:
When I direct my browser to your Appellate Web log at http://appellateblog.blogspot.com/ I access a screen for your March 20, 2003 writing which I first viewed on March 20th. I used to access your blog on a daily basis. But since March I have not been able to do so. For a while I found you on some European site? However, that only lasted for a week or so. This morning I received and accessed your May 12, 2003 article from The Legal Intelligencer, which contained a reference to the above blog site. I thought that I would be able to access your current blog, however, when I tried that blog I obtained the March 20th report and could not find an access to your current blog. If you are still writing it I would like to view it. How do I do so?

Thank you.

P.S. I practice Employment and Labor Law in Los Angeles and find your blog to be very helpful with respect to current developments. I hope that you are keeping up the excellent service that you provided and that I am again able to read it.
My response to that email stated, in relevant part:
Wow, you're the first person I've heard of who has been plagued by this problem. The solution should be simply as easy as hitting the "refresh" button on your browser to access the current entries.
To which I received the following reply:
Thanks, it worked!! I never had to do that before.
All this serves to remind me of my favorite "lawyer doesn't know how to use the Internet" story, related to me by an acquaintance. Lawyer says to acquaintance, "I've typed in the Web site's address but nothing is happening." Acquaintance says to lawyer, "You have to hit the 'Enter' key before anything will happen." This apparently was a problem for enough users of the Internet that Microsoft included a "Go" button next to the browser's address line in the current release of Internet Explorer.
Posted at 16:25 by Howard Bashman



More reasons not to step away from the computer monitor: On Thursday, May 15, 2003, the University of Pennsylvania Law School and the National Constitution Center (which I recently became a member of) will be holding a symposium entitled "McConnell v. FEC: Understanding the Decision and Its Implications." According to a write-up on the law school's Web site:
Penn Law and the National Constitution Center will be hosting a symposium featuring national experts on campaign finance as well as attorneys and experts involved in the constitutional challenges to the McCain-Feingold campaign finance law: "The Bipartisan Campaigning Reform Act."

This symposium will bring to the attention of the media and to all those interested in the campaign finance debate expert analysis of the district court's recently released 1600 page opinion. There will be three panels of lawyers, law professors and political scientists will discuss the court's decision and its implications
Assuming no lunch break, the six hours provided for the program will require that four and a half pages of the ruling be covered per minute. The program can be viewed live online starting at 10 a.m. on May 15th via this link, which won't work until then. I hope to tune in, to learn whether I'm correct in my understanding that soft money means bank notes and hard money means coins.

And if that's not enough excitement for one week, on Friday, May 16, 2003, you can watch a live Webcast of "the dedication of the Robert H. Jackson Center for Justice by Justice William H. Rehnquist, Chief Justice of the United States." Links to that Webcast can be accessed here, and that broadcast is scheduled to get underway at 10:45 a.m. this Friday. You can learn more about the The Robert H. Jackson Center at this link.
Posted at 16:00 by Howard Bashman



"RNC Seeks to Uphold 'Soft Money' Ruling": The Associated Press has this report.
Posted at 15:45 by Howard Bashman



California's judicial system still won't show non-precedential opinions any love: Denise Howell provides the details here.
Posted at 15:32 by Howard Bashman



"Suit Seeks to Ban Kids From Eating Oreos": The Associated Press offers this report. I first saw the story in today's edition of The San Francisco Chronicle, which contains an article entitled "Lawsuit seeks to ban sale of Oreos to children in California; Nabisco taken to task over trans fat's effects." Now if only a way can be found to make Uh-Oh! Oreos both healthy and delicious instead of merely the latter.
Posted at 15:29 by Howard Bashman



This federal appellate court nominee generates enough press coverage to merit a blog devoted just to him: As the blog "Southern Appeal" continues to demonstrate, press coverage of William H. Pryor, Jr.'s nomination to the U.S. Court of Appeals for the Eleventh Circuit is sufficiently voluminous to merit a Web log of its own. Today brings both an NPR Morning Edition profile (click here to listen using Real Player) and an editorial in The Mobile Register entitled "The truth about Pryor is, he's well qualified."
Posted at 14:32 by Howard Bashman



In news from Ohio: The Associated Press reports here that "Cleveland Judge Named To Ohio Supreme Court." This appointment fills the vacancy created one week ago today when the U.S. Senate confirmed Deborah L. Cook to serve on the U.S. Court of Appeals for the Sixth Circuit.
Posted at 14:04 by Howard Bashman



"NRA to Seek Stay of Campaign Law Ruling": The Associated Press provides this report.
Posted at 12:10 by Howard Bashman



In the news from San Antonio: Yesterday's edition of The San Antonio Express-News contained an article entitled "Prisoner's writing has him doing longer time." And in unrelated news, you can access here an article from yesterday entitled "Judge's outburst debated" (plus transcript excerpts are available here).
Posted at 11:39 by Howard Bashman



In today's mail: A review copy of Law Professor Eugene Volokh's new book, "Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers." Where and when will my review appear? Stay tuned for details. For now, I'll simply congratulate the author and publisher on their use of the serial comma in the book's title.
Posted at 11:02 by Howard Bashman



Today's FindLaw columnists: Julie Hilden has an essay (which at present appears entirely in bold type) entitled "To Make His Defense, Should Zacarias Moussaoui Have Access To Alleged Al Qaeda Members Detained by the Government?" And Jonna M. Spilbor has an essay entitled "The Recent, Mistaken Ruling in the 'Beltway Sniper' Case: Why Lee Boyd Malvo's Confession Should Have Been Suppressed."
Posted at 10:41 by Howard Bashman



"Indiana Displays Tennessee Constitution": The Associated Press has this report.
Posted at 09:56 by Howard Bashman



This morning in the U.S. Court of Appeals for the Sixth Circuit, Rosa Parks and Johnnie L. Cochran, Jr. win an appeal (in part): The court's opinion begins:
This is a dispute over the name of a song. Rosa Parks is a civil rights icon who first gained prominence during the Montgomery, Alabama bus boycott in 1955. She brings suit against LaFace Records, a record producer, and OutKast, a "rap" (or "hip-hop") music duo, as well as several other named affiliates, for using her name as the title of their song, Rosa Parks. Parks contends that Defendants' use of her name constitutes false advertising under sec. 43(a) of the Lanham Act, 15 U.S.C. sec. 1125(a), and intrudes on her common law right of publicity under Michigan state law. Defendants argue that they are entitled to summary judgment because Parks has failed to show any violation of the Lanham Act or her right of publicity. Defendants further argue that, even if she has shown such a violation, their First Amendment freedom of artistic expression should be a defense as a matter of law to each of these claims. Parks also contends that Defendants' conduct renders them liable under Michigan law for defamation and tortious interference with a business relationship; Defendants have also denied liability with respect to these claims.

Parks brought this action in a Michigan state court. Defendants subsequently removed the case to the District Court for the Eastern District of Michigan. Following cross-motions for summary judgment, the district court denied Parks' motion for summary judgment and granted summary judgment for Defendants. Parks now appeals the grant of summary judgment for Defendants.

For the reasons hereafter set forth, we believe that, with respect to Rosa Parks' claims under the Lanham Act and under the common law right of publicity, "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). We therefore conclude that the district court erred in granting Defendants' motion for summary judgment on those claims. We conclude, however, that the district court properly granted summary judgment in favor of Defendants on Rosa Parks' state law claims of defamation and tortious interference with a business relationship.
You can access the opinion at this link.
Posted at 09:39 by Howard Bashman



In Monday's newspapers: In today's edition of The Washington Times, Frank J. Murray reports that "High court completing weighty session." You can access here an article entitled "No Patriot Act excess, but critics unpersuaded." Nat Hentoff has an op-ed entitled "Judicial selection gone awry"; Tom Bray has an op-ed entitled "Politicizing the judiciary"; and former U.S. Senator Larry Pressler has an op-ed entitled "Sen. Frist needs a break."

The Washington Post contains an article entitled "Budget and Flag Amendments' No Surprise Return." And an article reports that "Consumer Agency Drops Plan to Regulate Lawyers; Target Was Unethical Conduct in Safety Cases."

On the front page of today's edition of USA Today, access here an article entitled "Prison time gets harder for white-collar crooks; Justice, lawmakers toughen up sentences" and here an article entitled "Laws tighten on sex offenders; Schools, other areas declared off-limits." Relatedly, this article reports that "Albuquerque's targeting of sex offenders challenged," and here's a list entitled "'Child safety zones' vary in seven states." An editorial is entitled "As surveillance powers grow accountability languishes" (plus access here a related list entitled "The government overreaches"), while U.S. Senator and Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) responds with an op-ed entitled "Law provides needed tools."

Today's edition of The Wall Street Journal contains an editorial entitled "A Deal Is Hatched."

In today's edition of The Los Angeles Times, Law Professor Jonathan Turley has an op-ed entitled "A See-No-Evil Parole System." And letters to the editor appear under the heading "Parsing the Meaning of the 2nd Amendment."

Finally, The Boston Globe reports here that "Doubts raised on Globe work of reporter Times accused."
Posted at 08:56 by Howard Bashman



"Gideon's legacy is eroding": Pam Adams has this op-ed in today's edition of The Canton Republic.
Posted at 08:52 by Howard Bashman



"Black colleges drawn into fight over affirmative-action policies; Foes cite schools' success to bolster their arguments": This article appears in today's edition of The Baltimore Sun.
Posted at 08:50 by Howard Bashman



"Police 'tracking' debated; State Supreme Court will decide if warrant is needed to use GPS device": Today's edition of The Seattle Post-Intelligencer contains this report. (Thanks to the author of "Balasubramania's Mania" for the pointer via email.)
Posted at 08:47 by Howard Bashman



"Hitting right note on cites": Attorney David R. Fine has an excellent essay, which appears in the brand new issue of National Law Journal, urging the adoption of a uniform rule allowing lawyers to cite non-precedential U.S. Court of Appeals decisions. As fans of my monthly appellate column are aware, I have long urged the abolition of the existing no-citation rules.
Posted at 08:42 by Howard Bashman



"Three Judges, Four Opinions, 1,638 Pages, And One Good Idea": Stuart Taylor Jr. has this essay in today's edition of National Journal.
Posted at 08:32 by Howard Bashman



Sunday, May 11, 2003
"Judges Beyond the Pale": Monday's edition of The New York Times contains this op-ed by columnist Bob Herbert.
Posted at 23:59 by Howard Bashman



Congratulations! To Adam Bonin and his even more famous wife on the birth of their daughter, Lucy Jane.
Posted at 23:18 by Howard Bashman



In other news of interest: United Press International reporter Michael Kirkland had an article Friday entitled "On Law: Hail to the chief (justice)." Today's edition of The Courier-Journal contains an article entitled "Justice served: O'Connor has lived women's movement." On Friday, The Associated Press reported here that "Akin wants to bar court review of Pledge of Allegiance." Finally, today's edition of The Atlanta Journal-Constitution contains a profile of Teresa Wynn Roseborough entitled "Practice of law isn't all a world of close combat."
Posted at 23:09 by Howard Bashman



"I hear he throws down hella Originalist stylezz": Lane's been hangin' with Justice Antonin Scalia in Alaska. For details, see here and here. And speaking of that great State, I'm reliably advised that a forthcoming issue of The Alaska Bar Rag -- the official newsletter of the Alaska Bar Association -- will mention your humble appellate blogger. Seems that publication's editors greatly enjoyed the most recent installment of this blog's "20 questions for the appellate judge."

For news coverage of Justice Scalia's visit to Fairbanks, The Fairbanks Daily News-Miner contains an article entitled "Scalia: Politics play role in judiciary." And The Associated Press reports here that "Supreme Court justice says appointments becoming more political."
Posted at 22:49 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "High Court Speakers Spark Commencement Controversy" and here that "Campaign Finance Ruling Gives No Satisfaction." Jonathan Ringel reports that "Georgia High Court to Take Stand on Expert Witnesses; Plaintiffs' lawyers fear possibility of stricter standards." You can access here an article entitled "Federal Court in Florida Hides Cases From Public." An article reports that "2nd Circuit Finds 'Apprendi' Not Retroactive for Habeas Relief; High court ruling requires juries to find facts affecting sentences." And from New York comes news that "Ruling Puts Conduct Code Back in Force."
Posted at 22:11 by Howard Bashman



"Judicial nominee logjam? Change the rules. Republican leaders want to make it harder to block nominations by filibuster." Tomorrow's edition of The Christian Science Monitor will contain this report.

Elsewhere, today's edition of Newsday contains a report entitled "Courting Controversy: Bush's judicial nominees face hurdles." And today's edition of The Hattiesburg American contains an editorial entitled "Pickering is good man, fine jurist" that begins, "Give Judge Charles Pickering a fair hearing. This is our plea to members of the U.S. Senate Judiciary Committee."
Posted at 17:42 by Howard Bashman



"Daschle: Not All Judge Picks Merit Vote": The Associated Press provides this report.
Posted at 17:40 by Howard Bashman



In next week's news magazines: In the May 19, 2003 issue of Newsweek, Eleanor Clift has a short article entitled "The Courts: The Waiting Game; The filibuster is here to stay." And you can access here an article entitled "A Journalist's Hard Fall: The New York Times confronts an embarrassing trail of deceit--and difficult questions about its own culture."

In U.S. News and World Report, an article is entitled "The 'Darth Vader' of reform: Mitch McConnell's stands aren't always popular, but he doesn't really mind." And John Leo has an essay entitled "Trouble at the Times."
Posted at 16:59 by Howard Bashman



Welcome to the blogosphere: Associate Professor David E. Bernstein of the George Mason University School of Law now has a blog. (Via "InstaPundit.")
Posted at 10:59 by Howard Bashman



In Sunday's newspapers: In The Washington Times, Gregory Page has an op-ed entitled "Solving the judicial appointment crisis." David Davenport has an op-ed entitled "Post-war lawsuit ambush." An article reports that "Teen pregnancies, abortions lowest in years." And in news from California, "Penn can sue for loss of film role."

The New York Times reports here that "Strong-Arm Shaking of Charities Raises Ethics Qualms." Jennifer 8. Lee reports that "American Will Advise Iraqis on Writing New Constitution." A book review is entitled "'Taking Liberties': The Rights Stuff." And a letter to the editor of the Book Review section responds to James Ryerson's review of Bruce Allen Murphy's biography of William O. Douglas, ''Wild Bill.''

The Boston Globe reports here that "US is seeking new riches with claims to ocean floor." An article from The Associated Press is entitled "Trial groundwork laid for Guantanamo detainees; Few of 650 suspects expected to be tried." In local news, you can access here an article entitled "Conn. compromises with Jenny's Law" and here an article entitled "School-funding lawsuit renews fight for fairness." And columnist Thomas Oliphant has an op-ed entitled "Patriot Act imperils upright immigrants."

The Los Angeles Times reports here that "Property Owners Fight to Keep Their Land; Bitter disputes play out nationwide as cities seeking to improve their economies condemn homes and businesses for private development." In other news, "Reporter Fabricated, Plagiarized Stories, N.Y. Times Says; Jayson Blair's work is a 'huge black eye' and an 'abrogation of trust,' the paper's publisher says." From Los Angeles comes a report that "Abortion Foes Protest Over Grad Speakers; Reps. Loretta and Linda Sanchez and Catholic Mount St. Mary's draw fire for appearance." Monica S. Lewinsky has an op-ed entitled "Tell Mama All About It? Not Without a Lawyer. Parents and children shouldn't be required to testify against each other." Edward Lazarus, everyone's favorite U.S. Supreme Court law clerk, reviews the books "The Case Against Lawyers," by Catherine Crier, and "A Lawyer's Life," by Johnnie Cochran with David Fisher. And letters to the editor run under the heading "Valedictorian Says a Legal Farewell."

Finally for now, Howie Kurtz of The Washington Post has a front page article entitled "N.Y. Times Uncovers Dozens Of Faked Stories by Reporter."
Posted at 08:51 by Howard Bashman



Saturday, May 10, 2003
Additional judicial nomination and confirmation news and commentary from here and there: Sunday's edition of The Washington Post contains an article entitled "Polarized Politics, Confirmation Chaos: Retribution Appears Evident in Nominations Since the Late 1980s." Sunday's edition of The Atlanta Journal-Constitution contains an editorial entitled "No room on bench for rigid ideologues," while under the heading "equal time" it runs an op-ed by John Nowacki entitled "No way Democrats can justify strategy."

In news from North Carolina, The Charlotte Observer reports here that "GOP senators try to free jam of judge nominees; Bush, Dole have had enough of what they see as stalling tactics." The Winston-Salem Journal reports here that "Dole, Edwards at odds over judge nomination." The News & Observer reports here that "Dole highlights Edwards' block of judicial nominee." And The Associated Press has reported that "Dole, Edwards feuding over judicial nominees."

The Chicago Sun-Times reports here that "GOP leader seeks Senate rules change on judicial nominees." The Financial Times reports here that "Bush in drive to overhaul judicial confirmation process." The Dallas Morning News reports here that "Bush blasts Democrats' delay; Daschle defends Senate filibusters on 2 court nominees." Newsday reports here that "Angry GOP Wants to Change the Rules; Would make it harder to block nominations." The Clarion-Ledger reports here that "GOP: Change filibuster rules in Senate; Republicans call for reform as Democrats block judicial nominees." And Eleanor Clift, in an online exclusive at Newsweek.com, has an essay entitled "Off Message Again: The Democrats should be bashing Bush over what matters--judicial nominees, not photo ops on aircraft carriers."

In other news, The Newark Star-Ledger on Thursday contained an article entitled "Former U.S. attorney says he'll be a neutral judge; Appellate nominee Chertoff also tells senators that profiling doesn't work." And this article reports that a Pennsylvania state court trial judge passed over for a vacancy that had existed on the Third Circuit may be in contention to fill the next vacancy to arise on the U.S. Court of Appeals for the Federal Circuit.
Posted at 23:26 by Howard Bashman



"Filibuster has everyone talking": Todd J. Gillman has this report in tomorrow's edition of The Dallas Morning News.
Posted at 21:02 by Howard Bashman



"Miguel Estrada Wants Name Withdrawn From Nomination, CNBC Says": Bloomberg News has this report. And you can access the CNBC report in question, which issued yesterday, at this link.
Posted at 20:59 by Howard Bashman



Blair, which projects does your former employer claim to have been plagued by journalistic improprieties? From Sunday's edition of The New York Times: "Times Reporter Who Resigned Leaves Long Trail of Deception"; "Witnesses and Documents Unveil Deceptions in a Reporter's Work"; and "Editors' Note."
Posted at 20:11 by Howard Bashman



"The Reality of the Judicial 'Crisis'": Sunday's edition of The New York Times contains this lead editorial.
Posted at 20:10 by Howard Bashman



Yesterday's proposal in the U.S. Senate to amend the rules governing judicial nomination filibusters and reaction to the proposal: To access the proposal, click here, then select item number six on the list (entitled "Amending Senate Rules"), and then on the resulting page click on the link for "printer friendly display." To access reaction to the proposal, click here, then select item eight or ten from the list (both entitled "Judicial Nominations"), and then on the resulting page in each instance click on the link for "printer friendly display."
Posted at 14:49 by Howard Bashman



Republican leaders speak on the judicial nomination process: You can watch here (Real Player required), via C-SPAN.
Posted at 14:41 by Howard Bashman



On this evening's installment of C-SPAN's fine program "America and the Courts": According to the program's description: "Senate Judiciary Cmte. confirmation hearing from Wednesday, May 7: Consuelo Maria Callahan to be U.S. Circuit Judge for the Ninth Circuit; Michael Chertoff to be U.S. Circuit Judge for the Third Circuit; L. Scott Coogler to be U.S. District Judge for the Northern District of Alabama." If you miss this program on television this evening, you can watch it online during the next several weeks via this link. And you can watch the full hearing online at any time by clicking here.
Posted at 14:32 by Howard Bashman



"The Democrats' Preemptive War: Bush's Supreme Court nominees are under attack before they've even been named." James L. Swanson has this essay in the May 19, 2003 issue of The Weekly Standard. The essay focuses on the Democratic National Committee's new Web site, "Supreme Court Countdown."
Posted at 14:09 by Howard Bashman



In Saturday's newspapers: The Washington Times reports here that "O'Connor tapped for law reform." And you can access here an article entitled "Judicial filibuster rule change faces high hurdle in Senate."

The Washington Post reports here that "President Criticizes Filibusters; Senate Majority Leader Offers Plan to Get Judges Confirmed." An article reports that "Panel Backs End to 'Double Taxation' on Jury Awards; Current Law Requires Plaintiffs in Some Cases to Pay IRS on Full Amounts, Including Legal Fees." And an editorial on campaign finance is entitled "Once More Into the Swamp."

In The New York Times, Neil A. Lewis reports that "G.O.P. Seeks to Ease Rules on Filibusters of Judgeships." In news from Buffalo, "Abortion Foe Who Killed Doctor Is Sentenced to 25 Years to Life." In local news, you can access here an article entitled "Man's Case in 9/11 Inquiry May Be Moved to Illinois" and here an article entitled "Jury's Query Heartens Defense in Crown Heights Stabbing Trial." And a letter to the editor runs under the heading "Electing State Judges."

In The Los Angeles Times, David G. Savage reports that "GOP Leader Seeks Senate Rule Change; With Democrats blocking key judicial nominations, Frist proposes that only a majority be required to end filibusters." You can access here an article entitled "Judge Finalizes Ruling on Pooh; Disney to Appeal." In other news, "Grounds for Suit Over a Cross; Terms of a 1918 deed may block Ventura's plan to sell the land under the controversial city landmark." An article reports that "Few Are Blind to Justice's Virtues; Even those who have lost in her courtroom praise Judge Florence-Marie Cooper, who handed down two important decisions this week." An op-ed by Michael S. Klein is entitled "Nothing to Smile About With These Cameras." And in letters to the editor, "Killers on the Loose" and "Declawing Ban Only Scratches the Surface."

Finally for now, The Boston Globe reports here that "Ottawa's marijuana plan irks US." And in local news relating to the First Circuit, "Ex-agent's racketeering unproven, lawyer says."
Posted at 08:40 by Howard Bashman



Today's Robert Novak column mentions the effort to end the filibusters: See the third item, here.
Posted at 08:40 by Howard Bashman



Friday, May 09, 2003
In today's news from Oregon: The Oregonian reports here that "Mosman selected for federal judgeship." The Statesman Journal reports here that "Bush backs Mosman for federal judgeship" and here that "Oregon NARAL to remain neutral." Finally, The World reports here that "Mosman is nominated as federal judge."
Posted at 23:35 by Howard Bashman



Yesterday's FindLaw columnist: Law Professor Marci Hamilton yesterday had an essay entitled "The D.C. District Court's Recent Campaign Finance Opinions: The Fourteen-Pound Tome Underscores the Policy, As Well as Legal, Problems with the Act."
Posted at 23:26 by Howard Bashman



Law Professor Eugene Volokh jumps on the bad judicial fashion bandwagon: See his blog post from earlier today. And you can access here my post from August 2002 that got it all started. Last but not least, you can access the post in which I declared the winner of the U.S. Supreme Court skullcap contest at this link.
Posted at 23:22 by Howard Bashman



Elsewhere in Friday's newspapers: In The Los Angeles Times, David G. Savage reports that "Judicial Nominee Faces Specter Factor; Senate panel narrowly backs Carolyn Kuhl, but a key GOP lawmaker says he could defect to 'no' side because of her handling of a case." An article asks "Are TV Chases a Pursuit of Justice or Ratings? News directors say policy on airing them hasn't changed, despite officials' request that live coverage be stopped." In other news, "Top Student Wins Temporary Ban on Split Honor; Judge bars a New Jersey school from naming more than one class of 2003 valedictorian." And an article from The Associated Press is entitled "Trial in Excessive Force Suit Halted."

The Washington Times reports here that "Frist to seek rules change to end filibusters on judges." You can access here an article entitled "Bush, NRA at odds on weapons ban." In other news, "Pennsylvania teacher's aide suspended for cross." And in local news, "Judge returns killer to death row." Finally, an editorial is entitled "Playing by the many rules."
Posted at 22:51 by Howard Bashman



U.S. Senate Majority Leader Bill Frist (R-TN) is on the cover of Sunday's New York Times Magazine: The article is available online now here.
Posted at 22:28 by Howard Bashman



Two press releases from Patrick J. Leahy (D-VT), the ranking Democratic member on the Senate Judiciary Committee: Today Senator Leahy issued a press release entitled "Leahy Hits White House Bid To Undermine Independence Of The Senate And The Judiciary." And yesterday Senator Leahy's spokesman issued a memorandum entitled "A Reality Check On GOP Whining About Judicial Nominations."
Posted at 20:38 by Howard Bashman



More, more, more: You can access here the text of the Executive Order that President Bush signed today entitled "Facilitating the Administration of Justice in the Federal Courts." It is intended to lead to the confirmation of more judges more quickly. And in this Statement issued today, President Bush endorses well-deserved salary increases for the federal judiciary.
Posted at 20:31 by Howard Bashman



"This case raises important questions about the scope of privacy protection afforded internet users under the Electronic Communications Privacy Act of 1986": So begins this opinion that the U.S. Court of Appeals for the First Circuit issued today. Update: Over at "The Volokh Conspiracy," Orin Kerr offers a summary and critique of the ruling here.
Posted at 17:08 by Howard Bashman



"Senate panel OKs controversial nomination; Liberals oppose L.A. judge for federal appeals bench": This article appears in today's edition of The San Francisco Chronicle.
Posted at 16:29 by Howard Bashman



"Bush, Dems spar over judicial nominees": United Press International provides this report.
Posted at 16:27 by Howard Bashman



Reuters is reporting: You can access here an article entitled "Frist Proposes Rule Change on Stalled Nominees" and here an article entitled "US Asks Court to Stay Its Campaign Finance Ruling." Plus, by popular demand, "British Lawyers Ponder a Wigless Future."
Posted at 15:39 by Howard Bashman



The Second Circuit's annoying pop-up window is history: See for yourself. I hear users of the Second Circuit's Web site rejoicing throughout the land, while looking forward to the day when the names of newly issued opinions are listed on the Web site next to the docket numbers.
Posted at 15:05 by Howard Bashman



"Campaign Finance Sponsors Ask for Hold": The Associated Press has this report. As usual, more details and analysis can be found at the "Election Law" blog.
Posted at 14:05 by Howard Bashman



How is "winning" the diversity visa lottery the same as a Publishers Clearinghouse Prize Patrol solicitation? Seventh Circuit Judge Diane P. Wood explains in this unanimous opinion issued today.
Posted at 14:01 by Howard Bashman



Unanimous eleven-judge en banc Ninth Circuit panel holds that magistrate judge may accept a guilty plea in a felony case with the defendant's consent: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. The en banc decision reaches essentially the same result that a unanimous three-judge panel reached back on June 28, 2002. I noted the grant of rehearing en banc on the day it occurred -- last New Year's Eve -- in a post you can access here.
Posted at 13:37 by Howard Bashman



"Typing Monkeys Don't Write Shakespeare": So much for my hopes of early retirement. The Associated Press has this report, and you can access additional information about the experiment here. (Via "The Corner.")
Posted at 12:46 by Howard Bashman



"Court Hears Arguments in FCC Cable Internet Case": Reuters has this news from the Ninth Circuit.
Posted at 12:43 by Howard Bashman



"President Calls for Judicial Reform: Remarks by the President on Judicial Independence and the Judicial Confirmation Process": The transcript of President Bush's speech this morning, shown live on CNN, MSNBC, and FOXNews (the speech that is, not the transcript), can be viewed here.
Posted at 12:42 by Howard Bashman



"Panel narrowly backs Kuhl for judge": Today's edition of The Sacramento Bee contains this article, which also notes that "In other action, the judiciary panel unanimously approved the nomination of Sacramento-area jurist Consuelo Maria Callahan to the 9th Circuit."
Posted at 12:26 by Howard Bashman



"Sen. Frist Proposes Filibuster Reforms": The Associated Press has this report.
Posted at 12:18 by Howard Bashman



President Bush to discuss judicial independence at 10:30 a.m. today: The White House Web site will provide a live Webcast, and I'll link to a transcript of the President's remarks when one becomes available.
Posted at 09:48 by Howard Bashman



"Breyer brothers recount San Francisco childhood": David Kravets of The Associated Press -- who has been covering federal and state courts, like, forever -- has this report. (Via "SCOTUSblog," where the question of the day is why isn't Marty asleep at 3:24 a.m.?)
Posted at 09:44 by Howard Bashman



Now it can be told: The provisional title of my May 2003 monthly appellate column, to be published in The Legal Intelligencer on Monday, May 12, 2003, is "Wisconsin's Voters Show That They Prefer The 'Stealth' Candidate For Judicial Office." The final segment of this month's column contains some words of praise honoring Senior Circuit Judge Edward R. Becker's recently-completed, distinguished tenure as Chief Judge of the U.S. Court of Appeals for the Third Circuit. Anyone who wishes to receive my monthly appellate column in PDF format by email on the day of its publication on the second Monday of each month can complete a free and easy sign-up available here.
Posted at 09:26 by Howard Bashman



"Politics and Justice": Yesterday's edition of The NewsHour with Jim Lehrer contained a segment described as follows: "As the Senate remains deadlocked over two judicial nominations, two key players on the Senate Judiciary Committee discuss efforts to improve the nomination process." You can view the transcript here.
Posted at 08:53 by Howard Bashman



"Bethesda man confirmed for U.S. appeals judgeship. Senate OKs Roberts; Democrats block others": Today's edition of The Baltimore Sun contains this report.
Posted at 08:52 by Howard Bashman



"Justice Held Hostage: On the anniversary of Bush nominations, Republicans search for a way to break the deadlock." Byron York has this essay just posted at National Review Online.
Posted at 08:46 by Howard Bashman



"U.S. 6th Circuit Court: Stalemate keeps key bench cold": Today's edition of The Detroit Free Press contains this report.
Posted at 07:10 by Howard Bashman



Flying under the radar: It's hard to believe that the confirmation of a federal appellate court nominee who waited one day shy of two years to receive approval from the U.S. Senate can be considered not newsworthy. And wouldn't you expect that a nominee's confirmation to the U.S. Court of Appeals for the D.C. Circuit -- the Nation's "second highest" court -- would be big news? Perhaps no one notices when the confirmation occurs due to unanimous consent. Whatever the reason, the U.S. Senate's confirmation of John G. Roberts, Jr. to serve on the D.C. Circuit, which occurred early yesterday evening, has so far received no press coverage other than mention here and the consequent short blurb over at law.com.
Posted at 07:07 by Howard Bashman



Available at Reason online: Jacob Sullum has an essay entitled "Ban Aid: The real point of the 'assault weapon' law." Sara Rimensnyder's essay is entitled "Don't Mess With the Best: High school noodge wants to stand alone." Brian Doherty considers "Reforming Campaign Finance: Last week's decision is just a start in restoring political liberty." Leigh Jenco writes of "Property Wrongs: Can property exist without the state?" And Tim Cavanaugh has an essay entitled "Laci Nation: Don't be ashamed; the Peterson case is good for you!"
Posted at 06:55 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Frist Seeks to End Nominees Impasse; Majority Leader's Plan Would Limit Tactics Used in Senate to Block Judicial Picks." Charles Lane has a news analysis entitled "Filibusters: Whose Rule, and Whose to Change?" A related editorial is entitled "Stoking the Fire." And Columnist E.J. Dionne Jr. has an essay entitled "Order and the Courts."

In The New York Times, Neil A. Lewis reports that "Judge Wins Committee Vote, but Confirmation Is Uncertain." In a letter to the editor, Viet D. Dinh, Assistant Attorney General for Legal Policy, U.S. Department of Justice, defends the record of Fifth Circuit nominee Priscilla R. Owen. In other news, an article reports that "Election Law's Sponsors Seek Stay on All of Ruling." In news from New York, you can access here an article entitled "Judge Dismisses 3 Cases Against 9/11 Fund's Special Master"; here "State's Highest Court Hears Case on Financing of Schools"; and here "N.A.A.C.P. Suit Against Gun Makers Goes to Jury in Brooklyn." And Emily Bazelon has an op-ed entitled "After Exoneration, Then What?"

Today's edition of The Christian Science Monitor contains an article entitled "Eminent domain and private gain; A report claims that 10,000 properties have been seized by cities for private developers." And OpinionJournal has a short blurb about the Green Bay Packers fan living in Minnesota Vikings territory whose appeal the Eighth Circuit recently decided (see here for my earlier write-up).
Posted at 06:30 by Howard Bashman



"Gays and the law in Nebraska": Geitner Simmons, an editorial writer with the Omaha World-Herald, has this to say over at his blog, "Regions of Mind."
Posted at 00:01 by Howard Bashman



Thursday, May 08, 2003
Access online the witness statements from this Tuesday's Senate Judiciary Committee subcommittee hearing entitled "Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent": Links to the witness statements are available here.
Posted at 23:59 by Howard Bashman



"Statement Of Attorney General Bill Pryor Regarding His Record On Racial Fairness": Eleventh Circuit nominee William H. Pryor, Jr. issued this press release today. (Via "Southern Appeal," which has been providing the Web's most comprehensive pro-Pryor coverage.)
Posted at 23:50 by Howard Bashman



Available online at law.com: Tony Mauro writes of "Getting Personal" at the U.S. Supreme Court's podium. In news from New York, you can access here an article entitled "Credit Card Giants Ask 2nd Circuit to Reject Antitrust Ruling"; here "Suit Challenging 9/11 Victims' Fund Dismissed; Special Master Feinberg can consider financial need, resources of families"; and here "Court Strikes Another Blow to Firefighter's Rule." In news from California, "Jury Awards $51M in Accidental Shooting." And finally, this article is entitled "Material Support Law: Weapon in War on Terror; The United States has charged more than 30 people with aiding terrorists. A roundup of where the cases stand."
Posted at 22:31 by Howard Bashman



Mud wrestling to break the judicial filibuster stalemate? You can access the full transcript of today's "Ask the White House" online chat with Counsel to the President Alberto Gonzales at this link. The last question is a doozy, but in answer thereto Judge Gonzales stated, "Everyone should watch the President's speech tomorrow on judicial independence and the confirmation process at 10:30 a.m. ET. It will be web cast on WhiteHouse.Gov." Tomorrow, of course, is the two-year anniversary of President Bush's first crop of judicial nominations.
Posted at 22:26 by Howard Bashman



President Bush nominates Michael W. Mosman to be United States District Judge for the District of Oregon: You can access today's official announcement here. Recently this nomination seemed like it would be controversial, but not any more.
Posted at 22:18 by Howard Bashman



From today's White House press briefing by Ari Fleischer: "Two questions" about the judicial nomination and confirmation process:
Q Two questions about the President's judicial nominations. To what degree do you think people in America, citizens, are following the to-and-fro over this issue between Republicans and Democrats at the Capitol?

MR. FLEISCHER: I think, like a lot of issues that come before Washington -- issues, obviously, like the war I think the entire country pays attention to. But there's a whole series of issues that slices of America pay attention to. And I think when it comes to judicial issues, there are, indeed, a lot of Americans, a fairly large slice, who have a care about our constitutional system and about the judiciary being filled, because many people depend on courts for justice, and when they go to court they want to know that they won't have interminable delays as a result of a lack of judges sitting in the chairs, and too high a vacancy rate, which is the present condition, particularly in the circuit court.

So I do think this is one of those issues that many people do pay attention to. It's a good government issue. Failure by the Senate to ratify judges, to engage in filibuster against judges who have been nominated for more than two years, is just a failure to engage in a good government process. Every judicial nominee, in the President's judgment, deserves an up or down vote.
Where's the second question? Beats me. You can access the complete transcript here.
Posted at 22:11 by Howard Bashman



Access the White House's response to Senator Schumer's proposal to change the judicial nomination process: You can access the proposal of Senator Charles E. Schumer (D-NY) at this link. You can access the White House's response to it here.
Posted at 21:00 by Howard Bashman



Access today's "Statement by the President on Judicial Nominees": It is available online here.
Posted at 20:59 by Howard Bashman



"Republicans Seek Rule Change on Bush Nominees": Reuters provides this article.
Posted at 20:48 by Howard Bashman



"Party Line Vote Sends Disputed Bush Nomination to Senate": Neil A. Lewis of The New York Times has this report, which states that "Senator Arlen Specter, a Pennsylvania Republican, said he had not yet decided if he would vote for her confirmation when her nomination comes to the floor because he was troubled by her record." And The Associated Press reports here that "Judicial Nominee Carolyn Kuhl Advances."
Posted at 18:52 by Howard Bashman



By unanimous consent, the U.S. Senate has confirmed John G. Roberts, Jr. to serve on the D.C. Circuit: Congratulations to John G. Roberts, Jr., whom I referred to the other day as "one of the most highly qualified candidates imaginable to join the U.S. Court of Appeals for the D.C. Circuit." It's heartening to see that 100 high-powered Washingtonians have agreed. Tomorrow marks the two-year anniversary of President Bush's first crop of judicial nominations, and Roberts was a part of that group. Finally, thanks to everyone who took the time to email news of this development.
Posted at 18:44 by Howard Bashman



The Cleveland Plain Dealer is reporting: You can access here an article entitled "Ex-judge tops list for high court" and here an article entitled "An eye on affirmative action."
Posted at 17:31 by Howard Bashman



You can watch the "Ask the White House" event about judicial nomination filibusters live online now: Simply click here to do so.
Posted at 17:12 by Howard Bashman



The American Center for Law and Justice, Inc. presents: You can access here a document entitled "An End to Nomination Filibusters and the Need for Cloture Motions: Terminating Debate on Confirmation of Judicial Nominees by the Vote of a Simple Majority."
Posted at 17:09 by Howard Bashman



The Second Circuit's Web site now has a new pop-up window: Sad to say, it's even peskier than before, and also more technologically complex, because it uses JavaScript. That'll teach me to complain.
Posted at 17:05 by Howard Bashman



A lengthy and extraordinarily complex complaint does not always produce a valid cause of action: Today Seventh Circuit Judge Frank H. Easterbrook issued an opinion that's so quintessentially well done that I can't do it justice by quoting simply a portion. Click here to read it for yourself (and it's just seven pages long). (P.S. to law.com: Remember, the author of this decision is not Sixth Circuit Judge Gregg Easterbrook.)
Posted at 17:00 by Howard Bashman



"2 GOP senators consider lawsuit to break filibuster; Debate blocks Bush judicial picks": Today's edition of The Atlanta Journal-Constitution contains this article. (Via "Southern Appeal.")
Posted at 16:44 by Howard Bashman



"Democrats Demand Judicial Nominees Meet Qualifying Times in Obstacle Course": The Lemon offers this report.
Posted at 16:14 by Howard Bashman



You might expect that editorial writers for The Los Angeles Times would know Priscilla R. Owen's first name: But, you'd be mistaken. On the bright side, at least the editorial spells Justice Owen's last name correctly.
Posted at 16:08 by Howard Bashman



For those readers who demand results: Here they are. The sixth attempt to invoke cloture to end the filibuster against Miguel A. Estrada failed by a vote of 54 for, 43 against. Sixty votes for are needed to invoke cloture. Also, you can access here the official vote tally on the Priscilla R. Owen cloture motion (the second attempt to invoke cloture on her nomination), which failed by a vote of 52 for, 45 against. The same three Senators were absent for both votes.

In news from the Senate Judiciary Committee's business meeting today, the committee voted 10-9, along party lines, to recommend Ninth Circuit nominee Carolyn B. Kuhl to the full U.S. Senate, where that nomination may face a Democratic filibuster. And, as previously, the nomination of John G. Roberts, Jr. to serve on the D.C. Circuit was approved in committee by a landslide.
Posted at 15:19 by Howard Bashman



"Campaign Finance Sponsors Seek Stay": The Associated Press has this report.
Posted at 15:04 by Howard Bashman



"Judges speak out at campaign debate: Would-be high court justices took part. Until last fall, judge candidates in Pa. could not air political views." Today's edition of The Philadelphia Inquirer contains this report.
Posted at 15:01 by Howard Bashman



"Zephyrhills greets another celebrity: Clarence Thomas": Yesterday's edition of the St. Petersburg Times contained this report.
Posted at 14:57 by Howard Bashman



The U.S. Senate's second effort to invoke cloture on the nomination of Priscilla R. Owen to the Fifth Circuit fails by a vote of 52 for, 45 against: Sixty votes for cloture are required to invoke it.
Posted at 14:37 by Howard Bashman



"Compassionless conservatism" no more: Back on February 14, 2003, I reported here on a dissenting opinion that Ninth Circuit Judge Stephen Reinhardt issued that day which began, "This case exemplifies compassionless conservatism." Today the Ninth Circuit entered an order noting that the parties had stipulated to the dismissal of the case, presumably because it has settled. Accordingly, the earlier decision, which triggered Judge Reinhardt's passionate dissent, has been withdrawn.
Posted at 14:19 by Howard Bashman



A campaign finance ruling from the Ninth Circuit: Today the U.S. Court of Appeals for the Ninth Circuit issued a campaign finance ruling that considers the legality of a California law. The decision begins:
In California, when a certain amount of money is spent for the purpose of defeating or passing a voter-decided proposition, state law requires the source and amount of that contribution or expenditure to be disclosed for public scrutiny. Such disclosure is needed, California argues, to fully inform the electorate and inhibit improper election practices. See Cal. Govt. Code sec. 81002(a).

California Pro-Life Council (CPLC), a non-profit corporation that frequently takes a position on California propositions relating to abortion and assisted suicide, challenges the constitutionality of California's campaign finance disclosure laws. CPLC's attack is two-fold. First, CPLC contends that California ambiguously defines which political communications are subject to regulation. According to CPLC, this vague definition violates the bright-line rule of Buckley v. Valeo, 424 U.S. 1 (1976), that only communications containing express words of advocacy may be subject to governmental regulation. Second, CPLC argues that California may not regulate ballot-measure advocacy. The argument goes that California may not, under any circumstance, compel disclosure of the source and amount of campaign contributions and expenditures made for the purpose of defeating or passing a voter-decided proposition.

We reject CPLC's first claim and hold that California's definition of "independent expenditure" is not unconstitutionally vague. We also disagree with CPLC's second argument and hold that California may regulate express ballot-measure advocacy. However, we do not determine whether California has shown a compelling interest in informing its voters of the source and amount of funds expended on express ballot-measure advocacy, or whether its scheme is narrowly enough tailored. We leave these issues to the district court on remand.
You can access the complete decision at this link. (Update: The "Election Law" blog cogitates on the ruling here.)

And in news on a related topic, Law Professor Rick Hasen is reporting that "[t]he district court hearing the BCRA case has issued an order requiring that all requests for a stay be filed in the court by tomorrow." Update: The order itself is accessible here.
Posted at 14:02 by Howard Bashman



Lawsuits against September 11th special master dismissed by federal district court in New York City: The ruling concludes:
The extraordinary events of September 11, 2001 changed all of our lives, but none more than the lives of everyone who was a child, spouse, parent, or close friend of those who died. To those who loved or depended on the victims of the terrorist attacks, no monetary remedy can be adequate; only an aching void remains to be filled.

In enacting the Victim Compensation Fund, Congress and the President sought to provide some measure of recompense for the irreparable loss of the thousands who died and were injured. They granted to the Department of Justice and the Special Master the authority to promulgate regulations, exercise wise discretion in justly and efficiently administering the Fund, and the ability to craft and implement policies and instructions with respect to that administration. After thorough review, I have found that the regulations, duly promulgated as required by law, reasonably and properly implement the provisions of the Act. Similarly, the interpretive methodologies and policies of the Special Master are reasonable and proper implementations of the Act and regulations. The duty of a judge is to give deference to the Department of Justice's regulations and respect to the Special Master's policies to the extent that they are rooted in law. I hold that the regulations and policies are lawful and valid.

For the reasons stated, I grant defendants' motions for judgment dismissing the complaints and I deny plaintiffs' motions for summary judgment.

The Clerk of the Court shall mark these three cases closed.
You can access the complete ruling at this link. And The Associated Press reports here that "Judge Upholds Sept. 11 Compensation Fund."
Posted at 13:49 by Howard Bashman



This morning's email from The Federalist Society: It begins:
Tomorrow, May 9, marks the two-year anniversary of President Bush's first batch of judicial nominees. No one expected on that day what was to come: the unprecedented filibuster of two nominees. What follows is an analysis of what kinds of Senate responses to this situation would be appropriate or inappropriate. Our two authors present some fascinating and thought-provoking disagreements.
Stephen B. Presser, the Raoul Berger Professor of Legal History at Northwestern University School of Law, a Professor of Business Law at Northwestern's Kellogg Graduate School of Management, and an Associate Research Fellow at the University of London's Institute of United State's Studies, has an essay entitled "The Role of the Senate in Judicial Confirmations." Michael B. Rappaport, University Professor at the University of San Diego School of Law, has an essay entitled "Judicial Appointments: A Constitutional Analysis." You can access both essays in a single, eleven-page PDF document at this link.
Posted at 11:47 by Howard Bashman



At the risk of belaboring the obvious: Individuals confirmed to serve on federal appellate courts -- especially those not now serving as judges -- are usually scrambling to find highly talented law clerks to hire once Senate confirmation occurs. And not just clerks who are able to start work immediately, but also those looking to begin work in the fall or one year out into the future. So, if you're looking for a clerkship and think you qualify, or if you're about to wrap-up one clerkship and might like to begin another, don't delay in sending out your applications.
Posted at 11:38 by Howard Bashman



This evening's installment of "Ask the White House" to focus on judicial nominations: According to the White House Web site, "Counsel to the President Judge Alberto Gonzales will host the next 'Ask the White House' to discuss the President's judicial nominees and the nominating process on the White House web site (www.whitehouse.gov) on Thursday, May 8 at 5 p.m. ET." And this page advises that "You can submit questions to Judge Gonzales beginning at 3pm today." I hope that those readers of "How Appealing" who regularly ask me difficult questions decrying or supporting the current state of the federal judicial nomination and confirmation process will take the time to submit their questions to Judge Gonzales.
Posted at 11:26 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage and Henry Weinstein have a front page article entitled "Nominee Motivates Foes, Allies; A conservative L.A. Superior Court judge who is in line to sit on the Court of Appeals is latest lightning rod in the federal judicial war." The newspaper also publishes an editorial entitled "Haunted by Her Record" that begins, "Carolyn Kuhl is a smart, capable judge on the Los Angeles Superior Court and that's where she should stay." You can access here an article entitled "Clash in Court Over Oregon's Law on Suicide; U.S. argues it has the right to stop physicians from letting the terminally ill have lethal doses of controlled drugs." An article reports that "State Court Seems Set to Uphold Gay Adoptions." In news from Santa Barbara, "City to Appeal Police Sex-Harassment Verdict." An article reports that "Student Sues to Be a Sole Valedictorian; Her GPA is best, but school says she had an advantage because she was tutored at home." U.S. Congressman Bernie Sanders (I-VT) has an op-ed entitled "Pulling FBI's Nose Out of Your Books," while Norah Vincent addresses "Is the Real Sin Outlawing Life's Harmless Gambols? You Bet; Conservatives are glimpsing the virtues of privacy in Bennett's case."

Today's edition of The Washington Times reports here that "GOP decries abortion 'litmus test' for judges." You can access here an article entitled "Laci Peterson's kin back fetal protection." In other news, "Two 9/11 families get damages against Iraq." And a letter to the editor is entitled "Constitutionally breaking gridlock."

In USA Today, Joan Biskupic reports that "Bush unwavering in push for conservative bench; White House gets its way on many judgeships." In other news, "Lawsuit ruling finds Iraq partly responsible for 9/11." An article reports that "Judge rejects federal plan to save salmon." And letters to the editor appear under the heading "'Under God' is part of country's fabric."

In The Boston Globe, Lyle Denniston reports that "NRA asks federal court to delay campaign ruling." And an article reports that "US quietly eases rules for faith-based groups."

Finally for now, Bob Egelko reports here in today's edition of The San Francisco Chronicle that "Court hears suicide-law case; Appellate judges grill federal lawyer over strategy in Oregon."
Posted at 10:27 by Howard Bashman



The Associated Press is reporting: An article reports "Challenge to Same-Sex Unions Ban Tossed," and despite possibilities to the contrary, that article is entirely unrelated to the report that "Philly Nude Models May Wear Union Label." In other news, "Jury Awards $51M in Accidental Shooting"; "Families OK'd to Witness Ga. Executions"; "Nichols' Wife Testifies About McVeigh"; and "Judge Rules Salmon Plan in Ore. Faulty."
Posted at 10:10 by Howard Bashman



"Pickering strategies eyed; GOP plots 2nd push for nominee": Today's edition of The Clarion-Ledger offers this report. Yesterday, that newspaper contained an article entitled "Pickering support a surprise; Legislator's change of heart criticized by member of caucus," which spawned an AP article entitled "Caucus Head No Longer Against Pickering." Fifth Circuit nominee Charles W. Pickering, Sr. is expected to receive his second Senate Judiciary Committee hearing on Wednesday, May 14, 2003.
Posted at 10:05 by Howard Bashman



"Judges quiz attorneys on Oregon suicide law": Today's edition of The Oregonian contains this report.
Posted at 10:00 by Howard Bashman



"Will the GOP 'Go Nuclear' Over Judges? Don't bet on it." Byron York has this essay today at National Review Online. And Law Professor Lawrence Solum has posted part two of his reflections on Tuesday's Senate Judiciary Committee subcommittee hearing.
Posted at 09:48 by Howard Bashman



On today's agenda: Momentarily, the Senate Judiciary Committee will begin a business meeting at which the nominations of Carolyn B. Kuhl to be U.S. Circuit Judge for the Ninth Circuit and John G. Roberts, Jr. to be U.S. Circuit Judge for the District of Columbia Circuit are scheduled to received committee votes. Back on Thursday, February 27, 2003, the Judiciary Committee voted 14-3 to recommend Roberts's confirmation. As to Kuhl, today's vote is likely to produce an outcome divided along party lines, and both of California's Senators have announced their opposition to Kuhl's confirmation.

Today at 12:15 p.m., the full U.S. Senate is scheduled to vote for the sixth time concerning whether to invoke cloture on the debate over Miguel A. Estrada's nomination to serve on the D.C. Circuit. Thereafter, the full Senate will vote for the second time concerning whether to invoke cloture on the debate over Priscilla R. Owen's nomination to serve on the Fifth Circuit. (See page two of this PDF document for details.)
Posted at 09:30 by Howard Bashman



"GOP Shifts Tactics on Judges; Weighs lawsuit, rule change to break nominee stalemate": Today's edition of Newsday contains this article.
Posted at 07:40 by Howard Bashman



"Oregon, U.S. Battle in Court Over Assisted Suicide": Reuters provides this report.
Posted at 06:42 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "N.R.A., Citing Free Speech, Asks Stay of Campaign Ruling." You can access here an article entitled "$50 Million Award in a California Gun Liability Case." In business news, "Asbestos Verdict in California Case Worries Insurers." An article reports that "Immigrant Is Found Guilty of Elaborate Identity Fraud." And an editorial is entitled "Shutting Down the 'Iron Pipeline.'"

The Washington Post reports here that "Terror Trial Witness Lied, Defense Says." Columnist George F. Will has an op-ed entitled "1,600 Pages of Confusion." And a letter to the editor runs under the heading "Free to Pray at VMI."
Posted at 06:25 by Howard Bashman



Thanks to "Ernie the Attorney," "Pejmanesque," and "TalkLeft": More kind words commemorating the first anniversary of "How Appealing."
Posted at 06:21 by Howard Bashman



Wednesday, May 07, 2003
Elsewhere in Wednesday's newspapers: In The Los Angeles Times, Henry Weinstein reports that "Court Reaffirms Ruling That Gun Ownership Is Not a Right; Appeals panel rejects request for a rehearing on a decision that California's gun control law does not violate the 2nd Amendment." An article reports that "Jury to Hear Sniper Suspect." In business news, "Jury Rules Against Asbestos Insurers; Firms must pay a trust fund upfront to cover future claims, verdict says. Decision could create huge liabilities." And an article reports that "GM Paid $495 Million in Suits; The automaker settled 297 cases involving fiery pickup crashes, a court document reveals." In other news, "Appetite for Laci's Story Endures; In Modesto and elsewhere, interest in the murder case is high. The tragedy especially resonates with women." And an op-ed by Hans Allhoff is entitled "She's Almost Too Good to Be True, and to Prove It She's Going to Sue; Asked to share her valedictorian honors, a New Jersey teenager files a $2.7-million lawsuit."

In today's edition of The San Francisco Chronicle, Bob Egelko reports that "Stage set for high court gunfight; S.F. panel lets ruling upholding assault weapons ban stand." And yesterday Egelko reported that "Democrats threaten filibuster over judge; Bush picked L.A. woman for seat on federal bench."

Today's edition of The Boston Globe reports here that "Latest Calif. initiative on race brews; Measure would ban state from asking about ethnicity." You can access here an article entitled "Some see Jewish shift toward GOP." And in the category of sad but predictable, an article reports that "Landmark kiosk trims its news fare, citing Web."
Posted at 22:45 by Howard Bashman



Available online at law.com: My law school classmate and buddy James Cooper -- with whom I shared a two-bedroom apartment the final year of law school -- is on the cover of the May 2003 issue of The American Lawyer. You can read the article about him at this link. And you can access here an article entitled "Sept. 11 Plaintiffs Win Case Against Iraq."
Posted at 22:32 by Howard Bashman



Access today's Supreme Court of Connecticut ruling which holds that fetus is a body part: You can access the majority opinion here and a concurring opinion here.
Posted at 22:27 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Rejection urged of Bush appellate court nominee"; here an article entitled "Court Hears Case Over Airport Screeners"; here an article entitled "Judge: Moussaoui Has to Give Up Notes"; here an article entitled "Conn. Supreme Court: Fetus Is Body Part"; and here an article entitled "Court: Fletcher Can Stay on Ky. Ballot."
Posted at 22:15 by Howard Bashman



"Ninth Circuit Denies En Banc Review of Assault Weapons Ruling; Dissenters Reject Panel's 'Collective Rights' View as Challengers' Lawyer Says He Will Seek Review In Supreme Court": Today's edition of the Metropolitan News-Enterprise contains this report.
Posted at 20:42 by Howard Bashman



The AP is reporting: You can access here an article entitled "NRA Seeks Stay on Ad Restrictions Ruling" and here an article entitled "Philly Nude Models May Wear Union Label."

Update: Law Professor Rick Hasen, at his "Election Law" blog, provides a link to the stay request and to the other documents filed in the BCRA appeals. Rick, however, does not provide a link to unionized nude models from Philadelphia.
Posted at 17:33 by Howard Bashman



"Oregon Defends Assisted Suicide Law": The Associated Press offers this report on today's Ninth Circuit oral argument.
Posted at 17:07 by Howard Bashman



"Error on bar exam means 29 may not become lawyers": Today's edition of The Cleveland Plain Dealer contains this report. (Via "InstaPundit.") This reminds me of the truism that "No one will ever ask you by what margin did you pass the bar exam." Ironically, others who received news that they had failed the exam may in fact have passed. So, do not despair, the ability to be represented by an attorney who barely passed the bar exam still exists.
Posted at 16:06 by Howard Bashman



"The big picture: understanding the lower court's opinion in the McCain-Feingold (BCRA) litigation": Law Professor Rick Hasen offers these thoughts at his blog, "Election Law."
Posted at 15:53 by Howard Bashman



From the May 19, 2003 edition of The Nation: Richard Kim has an essay entitled "Sodomy for Some," while Jonah Engle presents "Freedom of Choice Talking Points."
Posted at 15:52 by Howard Bashman



"Off Target: In his sniper coverage, former New York Times reporter Jayson Blair appeared to be embarrassing the Washington Post. Actually, he was embarrassing the New York Times." This blog has linked to enough coverage of the DC-area sniper case to make this article, from the current edition of the Washington City Paper, of interest.
Posted at 15:48 by Howard Bashman



"Civil rights veterans denounce Pryor": Today's edition of The Montgomery Advertiser contains this report. (Via Sam Heldman.)
Posted at 15:20 by Howard Bashman



"Bush Judicial Pick Faces Tough Questions": The Associated Press reports here that "Michael Chertoff, the government's chief criminal prosecutor, received broad support but also some pointed questions about counterterrorism at his confirmation hearing Wednesday for a federal judgeship."
Posted at 14:35 by Howard Bashman



"Judge Awards $104 Million in 9-11 Case": The Associated Press has this report.
Posted at 14:00 by Howard Bashman



Today's FindLaw columnist: Sherry F. Colb has an essay entitled "Will the Apple Fall Far From the Tree?: The Supreme Court Takes a Case About Miranda 'Fruits.'" It's almost that time of year when Miranda fruits are at their ripest and most flavorful, so be on the lookout at your grocer's market.
Posted at 13:59 by Howard Bashman



On Friday, May 2, 2003, the Department of Defense issued its military commission instructions: The instructions are intended to "facilitate the conduct of possible future military commissions." You can access them via this press release. And you can access here the transcript of the "Background Briefing on the Release of Military Commission Instructions."
Posted at 13:52 by Howard Bashman



Today's Senate Judiciary Committee confirmation hearing has just concluded: It appears that all three nominees considered at today's hearing (see the agenda here) will receive broad, bipartisan support from the full U.S. Senate. And that will be very good news for both the Third and Ninth Circuits.
Posted at 11:53 by Howard Bashman



Shrinkwrap licenses vs. fair use defense: Via "Copyfight" comes word that a petition for writ of certiorari has been filed in "the closely watched case that pits so-called shrinkwrap licenses against fair use." The cert. petition, to which "Copyfight" links here, presents the following question:
Does the Copyright Act preempt a state law claim for breach of a standard form "shrinkwrap" license clause prohibiting reverse engineering of computer software and thus protect the public's right to discover and build upon that software's unprotected ideas and processes?
You can access the Federal Circuit's ruling in the case at this link.
Posted at 11:29 by Howard Bashman



Some judicial confirmation-related commentary: Monday's edition of The Spokesman-Review contained an op-ed by Tom Teepen entitled "Federal courts misused to establish extreme agenda." And yesterday's edition of The Tampa Tribune contained an editorial entitled "Schumer's Latest Bit Of Trickery."
Posted at 11:05 by Howard Bashman



News from the Ninth Circuit: Today's edition of The Oregonian reports here that "Suicide law argued today." According to the article, the three-judge panel of the Ninth Circuit that will be hearing the oral argument today consists of "Clifford J. Wallace, a San Diego-based senior judge appointed by President Nixon in 1972; Donald P. Lay, a St. Paul, Minn.-based senior judge from the 8th U.S. Circuit Court of Appeals appointed by President Johnson in 1966; and Richard Tallman, a Seattle-based judge appointed by President Clinton in 2000." I think the newspaper means Senior Circuit Judge J. Clifford Wallace. The Associated Press, meanwhile, reports that "Ashcroft still seen as threat to suicide law." Be on the lookout for what is sure to be another very interesting and perhaps very controversial Ninth Circuit ruling in this case some months from now.
Posted at 11:00 by Howard Bashman



Scheduled to receive votes at tomorrow's Senate Judiciary Committee business hearing: Carolyn B. Kuhl to be U.S. Circuit Judge for the Ninth Circuit, and John G. Roberts, Jr. to be U.S. Circuit Judge for the District of Columbia Circuit. See the full agenda here. After the Judiciary Committee recommends confirmation of those nominees to the full U.S. Senate, confirmation votes will be scheduled. Roberts is expected to win confirmation, while Democrats have threatened to filibuster Kuhl's nomination.
Posted at 10:35 by Howard Bashman



"Governor, AG take power fight to court": This article appears in today's edition of The Atlanta Journal-Constitution.
Posted at 09:48 by Howard Bashman



"Michigan Republicans are blue over blue slips": Today's edition of The Hill contains this report.
Posted at 09:38 by Howard Bashman



On the agenda: At 9:30 a.m., the Senate Judiciary Committee will hold a hearing to consider the nominations of two individuals to serve on federal appellate courts: Consuelo Maria Callahan to the Ninth Circuit, and Michael Chertoff to the Third Circuit. You can watch the hearing online via this link (video) or this link (audio only). It also appears (see page two of this PDF document) that new cloture motions were filed yesterday in another attempt to end the debates over D.C. Circuit nominee Miguel A. Estrada and Fifth Circuit nominee Priscilla R. Owen.
Posted at 09:26 by Howard Bashman



"Hatch group may go 'nuclear' on judges; Plan would limit use of Rule XXII in Dem filibusters": Today's edition of The Hill contains this report. Relatedly, The Washington Times today reports that "GOP senators keep 'nuclear option' in reserve for judges." And you can access here a press release issued yesterday by The American Center for Law and Justice entitled "ACLJ Report: U.S. Senate Can Assert Simple Majority and Immediately End Filibusters of President Bush's Judicial Nominees."
Posted at 07:42 by Howard Bashman



Poetry by Alice W. of "a mad tea-party": It's entitled "On Anniversary the First of How Appealing," and you can access it here. Thanks, Alice!
Posted at 06:46 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports here that "Senate Filibuster Hearing Stalls; Little Headway Made in Altering How Judges Are Nominated." You can access here an article entitled "An Absence of Judicial Restraint? Unusually Angry Bickering Marks Decision on Campaign Finance Law." An article reports that "Democrats Initiate New 'Soft Money' Campaign." In other news, "Malvo Statements Ruled Admissible; Judge Rejects Claim That Teen Sniper Suspect Was Illegally Manipulated." And an op-ed by David Cole is entitled "'Not Too Much for An Alien.'"

In The New York Times, Neil A. Lewis reports that "Judge Allows Most of Sniper Suspect's Confession in Court." You can access here an article entitled "U.S. Approves Force in Detaining Possible SARS Carriers." An article reports that "Suspected Terrorist Questions a Witness." In local news, you can access here an article entitled "More Brooklyn Officials Calling for Changes in Selecting Judges" and here an article entitled "Crown Hts. Retrial Comes Down to 'Why?' Summations by Both Sides." And a letter to the editor appears under the heading "Integrity in Elections."

Finally for now, OpinionJournal contains an item entitled "Stop or Owl Sue: Hooters goes to court to protect its intellectual property."
Posted at 06:30 by Howard Bashman



"Senate Panel Examines 'Broken' Judicial Process": Reuters offers this report.
Posted at 00:20 by Howard Bashman



"Blogging from the Senate Judiciary Hearing Room": Law Professor Lawrence Solum was present to observe Tuesday's hearing, and he offers this detailed report at his "Legal Theory" blog.
Posted at 00:11 by Howard Bashman



Tuesday, May 06, 2003
Where to begin: One year ago today marked the beginning of "How Appealing," the Web log devoted to appellate litigation that you're reading right now. I wish I could accurately say that I had given this endeavor much thought in advance of that date, or that I had even the slightest clue that "How Appealing" might become a popular destination on the Web. But neither would be true. I can assure you that no one is more amazed at the success this Web log has met with in just one year than I am. And to further prove the point, today "How Appealing" has experienced the second largest number of page views in its existence, more than 12,700. As of this moment, this blog's hit counter stands at 1,195,455 since May 7, 2002, the date on which the hit counter was installed.

When I sat down at my computer a little over one year ago and typed into a search engine the terms "appellate lawyer Web log," I was taken to Denise Howell's blog known as "Bag and Baggage." And while she's an appellate lawyer who has a Web log, I was relieved to see that hers did not focus principally on appellate litigation. So, I figured, I could offer a blog devoted to a topic that no other blog had chosen to focus on. And the rest, as they say, is history. Since then, I've had the pleasure of trading numerous emails and having several phone conversations with Denise, and I have also gotten to know many, many other wonderful individuals -- lawyers, judges, journalists, fellow bloggers, and readers of "How Appealing" -- whom I'd never have interacted with were it not for this site. Notwithstanding the ability of the Internet to foster acrimony and misunderstanding, I'm pleased to say that my experiences with this Web log have been uniformly positive. Indeed, there are few places in the United States, and perhaps throughout the world, where readers of this blog wouldn't seize the opportunity to meet me for dinner or a drink if I happened to be passing through town. Yet in the real world, my anonymity remains intact, which is also quite nice.

Over the past year, thanks largely to sites like Denise's, "Ernie the Attorney," "The Volokh Conspiracy," "InstaPundit" of course, and perhaps even "How Appealing," new blogs focusing on legal subjects and law school (a topic for which "Sua Sponte" was at the forefront) have sprouted like flowers in the springtime. To the extent that I played any role in that continuing law-driven Internet revolution, I couldn't be more pleased.

Today, and over the past few days, many other bloggers have posted to their sites kind words in honor of my blog-o-versary today. So, in closing, let me extend my thanks for the kind words found at "InstaPundit," "The Academy," "Throwing Things," "Bag and Baggage," "SCOTUSblog," "Cooped Up," "Election Law," "Legal Theory," "Southern Appeal," "Balasubramania's Mania," "GreenGourd's Garden," and any other sites I have inadvertently overlooked. Your kind words and congratulations are most appreciated!
Posted at 23:15 by Howard Bashman



"SF-based federal court says individuals have no right to bear arms": David Kravets of The Associated Press has this report.
Posted at 23:12 by Howard Bashman



"GOP Leaders Try to Create Constitutional Cover for Illegitimate Power Play": People For the American Way today issued this press release. (Thanks to Rick Hasen for the pointer.)
Posted at 23:09 by Howard Bashman



President Bush's federal appellate court nominees are so conservative they can't be expected to apply the law fairly in favor of the little guy or gal: Yes, I've heard that argument made repeatedly. But here's one more example of why I've never believed it. Today a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit, in an opinion written by Circuit Judge Michael W. McConnell, confronted the question "whether an ERISA plan administrator's denial of disability benefits is entitled to deference when the administrator failed to render a decision within the time limits and the claim was 'deemed denied' by operation of law." If the denial is entitled to deference, then the employee is more likely to lose her challenge to the determination. If the denial is subject to de novo review, the employee's chances of victory increase greatly. As it turns out, other federal appellate courts have sharply divided over this issue. Today the Tenth Circuit ruled that the denial is not entitled to deference, a decision that can only be viewed as pro-employee. If this doesn't establish that conservative Bush nominees endeavor to apply the law fairly regardless of the result, I'm not sure what will.
Posted at 23:00 by Howard Bashman



New Jersey's Democratic Governor reappoints Republican Chief Justice to new term: In a word, tradition. The Newark Star-Ledger last week reported that "McGreevey wants Poritz to keep post; Ringing endorsement ends a long debate over what to do with Republican appointee."
Posted at 22:58 by Howard Bashman



In news from Mississippi: The Clarion-Ledger yesterday reported that "History of high court justices in Miss. reveals tradition of impropriety." A related article was entitled "State's chief justice calls for court reforms; Miss. Supreme Court leader plans changes in wake of federal probe." And last Friday the newspaper ran articles entitled "Judicial probe intensifying; Federal grand jury investigating Diaz, others to meet this month" (accessible here) and "Underdog strategy a possibility; Experts cite U.S. Chamber of Commerce's role in Miss. elections" (accessible here).
Posted at 22:55 by Howard Bashman



Available online at law.com: Jason Hoppin has an article entitled "9th Circuit Skirmish Over Second Amendment: Despite sniping by six colleagues, Reinhardt's gun ruling stands." Hoppin's article states, "Since Reinhardt's opinion came in a challenge to California's assault-weapons ban, overruling it would require the high court to strike down the law, something Volokh doubts the court would do." I don't accept the proposition on which that sentence is based. The U.S. Supreme Court could reverse the Ninth Circuit's ruling because it improperly rejected the individual rights view of the Second Amendment and then remand the case for further consideration concerning whether the assault weapons ban can withstand scrutiny under the law as properly understood. Stated simply, overruling the Ninth Circuit's interpretation of the Second Amendment would not require invalidation of the California law at issue in the Ninth Circuit case.

Jonathan Ringel reports that "Georgia Justices Hear Governor and AG Pitch for Power; Questions from bench leave lawyers on the defensive." You can now freely access online the article whose headline I found so very funny yesterday (and today as well), "Texas Court Upholds Butt Search for Crack." An article reports that "Pretrial Rulings Pushed Dial to Settle; Soap maker feared being in court for years." And finally, does having expert witnesses testify defeat the purpose of claim that relies on the doctrine of "res ipsa loquitur" -- Latin for "the thing speaks for itself"? New York State's highest court has answered no, this article reports (and you can access the ruling here).
Posted at 22:27 by Howard Bashman



Wait and see: It will be interesting to see whether the Solicitor General of the United States, on behalf of a U.S. Department of Justice whose view of the Second Amendment is much closer to the Fifth Circuit's (see this decision) than the Ninth Circuit's (see this decision), will file an amicus brief at the petition for certiorari stage supporting review by the Supreme Court of the United States of the decision in which the Ninth Circuit today denied rehearing en banc. And I see that I'm not the only one who found Circuit Judge Alex Kozinski's dissent (which starts at page 2 of this PDF document) to be powerfully poetic and devastatingly convincing.
Posted at 20:52 by Howard Bashman



Today's FindLaw columnists (and one from yesterday, too): Loyal "How Appealing" reader Brian Lehman has an essay entitled "Abusing the Material Witness Statute: Why Detaining Grand Jury Witnesses Violates The Fourth Amendment." (And yes, I do claim credit for the final sentence now present on the Second Circuit Web site's pesky pop-up window, a change that seems to have come in response to this earlier post. Next on the agenda -- having the Second Circuit realize that there are better, and far less annoying ways, to deliver information than through pop-up windows. And, while they're at it, how about providing the names of cases on the new opinion page, instead of just the docket number. But, I digress.)

Joanna Grossman has an essay entitled "A New Lawsuit by a Female Athlete Tests Title IX's Protection Against Pregnancy Discrimination." And yesterday Anthony J. Sebok had an essay entitled "A Recent Hearing on September 11 Tort Cases Raises Difficult Questions of Who Owed a Duty to Whom."
Posted at 20:04 by Howard Bashman



"Right-wing zealot is unfit to judge": That's the title of an editorial in today's edition of The Atlanta Journal-Constitution about Eleventh Circuit nominee William H. Pryor, Jr. In the category of "equal time," the newspaper also published an op-ed by Quin Hillyer, an editorial writer for The Mobile Register, entitled "Alabamans give Pryor rave reviews." (Via "Southern Appeal.")
Posted at 19:53 by Howard Bashman



From today's White House press briefing: The following passage is an excerpt from today's White House press briefing by Ari Fleischer:
Q Yes, Ari, two questions: The first one, it seems like the last vote the Senate has just taken on Miguel Estrada in the last few hours, again, the Republican majority was not able to muster the 60 votes. I think the vote was 52 for, 39 against. Is the President still holding steady on Miguel Estrada?

MR. FLEISCHER: Absolutely, he is. The President continues to regret the fact that the Democrats continue to engage in obstructionist tactics, not only against Miguel Estrada, but against Priscilla Owen, also a very qualified nominee.

Q And what can the President do?

MR. FLEISCHER: Well, he will continue to make the case to the American people. He will continue to stand shoulder-to-shoulder with his nominees. But in the end, it's up to the Democrats to decide if they want the hallmark of their time in the minority to be obstructionists. And that's a message that they will have to bear the consequences for being obstructionists when it comes to filling vacancies on our circuit courts.
You can access the complete transcript here.
Posted at 19:47 by Howard Bashman



"Groups Say Ruling OKs Lawmaker Mentions": The Associated Press has this report.
Posted at 17:40 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports here that "Supreme Court Rules Charity May Be Charged With Fraud" and here that "Texas Court Rebuked on Illegal Arrest." An unsigned article reports that "Justices Get Appeals of Campaign Ruling." A related editorial is entitled "An Urgent Task for the Court." Adam Clymer reports that "Campaign Finance Muddle Recalls Election of '76." And in local news, you can access here an article entitled "Crown Hts. Prosecutors Told Not to Talk of Former Defense" and here an article entitled "A Mystery of Disputed Identity."

In The Washington Post, Charles Lane reports here that "High Court: States Can Sue Charities for Fraud; Ruling Targets Misleading Statements to Donors" and here that "McCain-Feingold Decision Appealed; Sen. McConnell Challenges Lower Court Ruling on Campaign Finance Law." An article reports that "Trade Groups Turn to Individual Campaign Donors; Uncertain Legal Status of 'Soft Money' Has Fundraisers Asking PACs to Mobilize Their Members." Relatedly, columnist E.J. Dionne Jr. has an op-ed entitled "A Clear (if Confusing) Case for Reform." And in news from the Tenth Circuit, "Mining Firm Wins a Ruling, but Loses a Town: As 12-Year-Old Colo. Case Over Toxic Runoff Is Sent Back to Trial Judge, Opposition to Waste Plan Grows."

In The Boston Globe, Lyle Denniston reports here that "Court deals blow to fund-raisers; Gives greater power to states to crack down on deceptive solicitors" and here that "High court battle seen for campaign law."

In The Los Angeles Times, David G. Savage reports here that "Telemarketers Who Lie Can Be Prosecuted; If solicitors deceive contributors about how much of their donation will go to charity, fraud charges are allowed, the high court rules" and here that "Justices to Rule in Death Photos Case; The release of pictures of Clinton friend and aide Vincent Foster is being contested by the U.S." In other news, "Disney Seeks to Reverse Pooh Ruling; Firm tries to convince judge that author's heir is entitled to reclaim merchandising rights." You can access here an article entitled "Where Six-Packs Still Ride Shotgun; For many in Montana, the right to drink and drive is central to their way of life. The latest attempt to outlaw the practice is voted down." An article reports that "Peterson Lawyer Says Police May Have Used 'Voodoo' Tactics; He cites psychics as a possible example. A court rules that search warrants stay sealed." An editorial is entitled "A Menace No More." Letters to the editor appear under the headings "Bill of Rights Refers to People, Not Citizens" and "Democrats Providing Checks and Balances," the latter of which responds to this recent editorial cartoon by Michael Ramirez.

In The Washington Times, Frank J. Murray reports that "Court rules lying about funds is key to telemarketing fraud." You can access here an article entitled "Campaign law's critics will appeal panel's ruling." An article reports that "Cook wins Senate confirmation." And Jacob Sullum has an op-ed entitled "Eminent domain abuses."

In USA Today, Joan Biskupic reports that "Court: States can sue telemarketers; First Amendment does not protect misleading fundraisers, justices rule." And an article reports that "New leads against Moussaoui reported; Interrogations raise possibility of plan for 5th hijacking."

Finally for now, The Christian Science Monitor contains an article entitled "A large-scale battle over a small cross; Court case tests whether a cross in the Mojave National Preserve breaches the church-state wall." And you can access here an editorial entitled "Clean Politics, in 1,600 Pages."
Posted at 17:05 by Howard Bashman



The trial court's suppression ruling in the Lee Boyd Malvo DC-area sniper case is available online: You can access it here, via FindLaw. Be forewarned, however, that the document is a large, slow-loading, 24-page PDF file.
Posted at 16:19 by Howard Bashman



Justice Antonin Scalia spoke today at the University of Chicago Law School: Will Baude was there and has this report at his newly renamed blog, "Crescat Sententia."
Posted at 15:38 by Howard Bashman



"The Constitution and the Judiciary: Where's the check on Senate filibusters?" U.S. Senator John Cornyn (R-TX) has this op-ed today at OpinionJournal.
Posted at 14:58 by Howard Bashman



Law Professor Lawrence Solum will be attending today's Senate Judiciary Committee subcommittee hearing on filibustering judicial nominees: Plus, he has sent a letter to the subcommittee. You can listen to the hearing live online now at this link (Real Player required).
Posted at 14:50 by Howard Bashman



"Students object to Thomas as speaker": This past Friday's edition of The Red and Black, the University of Georgia's student newspaper, contained this report. (Via "JURIST's Paper Chase.") Over at "How Appealing Extra," I previously published two letters relating to this controversy, and you can access them here and here.
Posted at 14:24 by Howard Bashman



Access online the text of yesterday's remarks by Chief Justice William H. Rehnquist to the Federal Judges Association Board of Directors Meeting: Available here. The Chief Justice's remarks begin: "I thought I would speak today about two topics that are of great concern to federal judges around the country. The first, of course, is the perennial topic of judicial pay. The second is the issue of Congressional concern about sentencing in the federal courts of the federal judiciary."
Posted at 14:20 by Howard Bashman



Over the dissenting votes of six judges, the Ninth Circuit today denies rehearing en banc of controversial Second Amendment decision: The Ninth Circuit's order denying rehearing en banc in Silveira v. Lockyer, which you can access here, is accompanied by four separate dissenting opinions.

The lengthiest and most substantial of those dissents was written by Circuit Judge Andrew J. Kleinfeld. Circuit Judge Alex Kozinski joined in Judge Kleinfeld's dissent, as did Circuit Judges Diarmuid F. O'Scannlain and T.G. Nelson. Judge Kozinski also wrote a separate dissent (and a quite poetic one at that, which definitely deserves to be read), as did Circuit Judges Harry Pregerson and Ronald M. Gould.

You can access the three-judge panel's original opinion here and amended opinion here. Because the Ninth Circuit's panel's ruling conflicts squarely with a 2001 decision of the U.S. Court of Appeals for the Fifth Circuit, the likelihood of U.S. Supreme Court review is good.
Posted at 13:30 by Howard Bashman



Differing views in advance of this afternoon's Senate Judiciary Committee subcommittee hearing about filibustering judicial nominees: Today's edition of The Boston Globe contains an editorial entitled "Balancing judges." For an opposing point of view, The Washington Times offers an op-ed by James L. Swanson, a senior fellow in constitutional studies at the Cato Institute and editor in chief of the Cato Supreme Court Review, entitled "Filibustering the Constitution."

The hearing, which is due to start at 2:30 p.m. eastern time today, will be broadcast online via this link.
Posted at 12:37 by Howard Bashman



"Perdue, Baker go to court Tuesday; Justices to decide who is state's legal authority": Today's edition of The Atlanta Journal-Constitution offered this preview of the oral argument that the Supreme Court of Georgia heard this morning.
Posted at 12:27 by Howard Bashman



In today's news from Ohio: The Cincinnati Enquirer reports here that "Judge trades state bench for federal." The Plain Dealer reports here that "Senate confirms Cook to appellate court." The Columbus Dispatch reports here that "Senate Confirms Cook Appointment." The Canton Repository runs an article from The Associated Press entitled "Senate approves Cook nomination." And finally, The Cincinnati Post reports here that "Taft to fill opening on top court."
Posted at 11:32 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "NRA, U.S. to Appeal Campaign Ruling"; here "Nearly All of Malvo Confession Allowed"; and here "Okla. Bomb Conspirator's Ex-Wife Testifies."
Posted at 11:25 by Howard Bashman



"Judicial Bean Games: Race, sex, and the parties." Roger Clegg has this essay at National Review Online this morning.
Posted at 11:22 by Howard Bashman



I only caught the very end of the Supreme Court of Georgia's Webcast of oral argument this morning: But I must congratulate that court on the investment of resources into the technology that the video feed revealed. And as someone who was privileged to attend law school in Atlanta, I enjoyed hearing some familiar voices.
Posted at 11:16 by Howard Bashman



"Circuit-riders: Political deadlock has cost North Carolina any voice on a key federal court. The state's senators now can clear the air": Today's edition of The News and Observer of Raleigh, North Carolina contains this editorial.
Posted at 11:09 by Howard Bashman



On today's agenda: Today is the one-year anniversary of "How Appealing." That's correct, from this point forward you cannot legitimately wonder "What would I have done one year ago today without 'How Appealing'" because this blog was in fact then in existence. To commemorate the occasion, the good folks at "The Academy" blog promise to publish today my responses to their "20 questions." If any of my answers seem improbable or out-of-character, chances are those kids have simply made them up.

In what should be more serious news, today at 2:30 p.m. the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights is holding a hearing entitled "Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent." You can access the official announcement, which lists the scheduled witnesses, at this link. Assuming my continued interest in the matter, I will try to keep you advised concerning whether the hearing can be viewed or listened to online.

[Folks with far too much free time may wish to view the Webcast of a Supreme Court of Georgia oral argument this morning. I previously provided the details here. I'll be out and about this morning getting my BCRA-delayed haircut.]
Posted at 06:00 by Howard Bashman



Monday, May 05, 2003
U.S. Supreme Court round-up for Monday, May 5, 2003: Welcome to the home-stretch! Under two months to go before the end of the U.S. Supreme Court's 2002 Term, and many significant cases remain to be decided. Those of us who cover the Court's activities can therefore look forward to much heavy lifting ahead -- although one hopes that no decisions will rival in heft the special three-judge panel's campaign finance ruling that issued this past Friday. Whatever heavy lifting there is to be done remains in the future, thankfully, as today the Court issued just one unanimous opinion in an argued case and one unanimous, straightforward per curiam decision in a case that was summarily vacated.

1. The Court's decision today in Illinois ex rel. Madigan v. Telemarketing Associates, Inc., No. 01-1806 (U.S. May 5, 2003), illustrates nicely the double-meaning inherent in the phrase "charity begins at home." In a series of three earlier rulings, the Court established that the First Amendment protects the right to make charitable solicitations and, more significantly for present purposes, that a State violates the First Amendment when it seeks to prohibit charitable solicitations based solely on the fact that the charity's cost of fundraising is exceptionally high.

On the facts of today's case, between 85 to 90 percent of donations raised by telemarketers on behalf of a charity intended to benefit Vietnam veterans never made it to the charity. Instead, that vast bulk of donated money was used to pay for the cost of fundraising. If that's all today's case involved -- a possibility made quite real by the misphrasing of the question presented, as Justice Antonin Scalia explains in his short concurring opinion in which Justice Thomas joined -- then the result in today's case would clearly be governed by those earlier decisions holding that States cannot bar charitable solicitations due solely to the high cost of fundraising.

But, unfortunately for the telemarketers -- and who doesn't feel sorry for telemarketers, especially when they call seeking money just as dinner arrives on the table -- the facts of today's case prevent it from being governed by those earlier rulings. For, you see, the Attorney General of Illinois's lawsuit against the telemarketers asserts that the fundraisers actively misled contributors into believing that only a very small percentage of money raised would go to defray fundraising costs. That factual distinction, Justice Ruth Bader Ginsburg explains in her opinion for a unanimous Court, makes quite a difference, because it involves a crossing of the line between saying nothing -- thereby merely exploiting the stupidity of the Average Joe, which remains quite permissible in the name of charitable fundraising here in the USA -- and actively misleading the donor -- something that the First Amendment will not countenance.

Justice Ginsburg's opinion explains that the line separating passively misleading conduct, which remains ok, and actively misleading conduct, a big no-no, will be easy to police because to prevail the Attorney General of Illinois must show that the telemarketer acted with knowledge of the falsity of the misrepresentations. Moreover, these First Amendment cases require the appellate court to conduct a probing, non-deferential de novo review of factual findings, which provides further protection for legitimate speech.

In the aftermath of today's ruling, the next time you're about to sit down to a hot meal when the phone rings and a telemarketer is looking to raise money for some charitable cause that sounds too good to resist, be sure to ask how much of your donation actually will be used for charitable purposes. If the telemarketer answers "Holy cripes! You mean I could be getting paid for doing this," when in fact the telemarketer is being paid quite handsomely, perhaps someday a friendly local or state law enforcement agency will be able to prevail in a fraud lawsuit against the telemarketing firm.

2. There are two categories of cases that the U.S. Supreme Court in past years has shown a willingness to overturn summarily. In the first category are rulings from the U.S. Court of Appeals for the Ninth Circuit that -- even if the name of the issuing court were concealed from the Justices -- the Justices on reading the decision below unanimously conclude, "Zowie, this must be from the Ninth Circuit." In the second category are cases involving incredibly over-aggressive law enforcement techniques where a sufficient number of Justices, on reading the decision below, ask "From which near police state in the south did this ruling originate?"

Today, the Court issued a unanimous per curiam decision in Kaupp v. Texas, No. 02-5636 (U.S. May 5, 2003), to remind law enforcement agencies everywhere that in the absence of either probable cause or a warrant, the police can't haul a murder suspect from his bed at home in the middle of the night, in the dead of winter, while the suspect is wearing just a T-shirt and boxer shorts, throw the suspect in handcuffs, and lock him in an interrogation room where of course the suspect incriminates himself in the murder in question and later claim that the whole transaction was simply a consensual encounter. I respectfully remind those readers who are aghast that in 2003 there are still things that the police can't do in the name of stopping crime that the movie "Minority Report" pretends to take place in the year 2054.

* * * * * * *

The Court is next scheduled to issue opinions and orders on Monday, May 19, 2003, when the mad dash for the finish-line begins. Until then, may the Justices enjoy their final two-week recess of the 2002 Term.
Posted at 22:55 by Howard Bashman



Available online at law.com: Jonathan Groner has a "Survival Guide" that addresses "Why are some controversial judicial nominations making it through, while others are getting stopped cold?" The final item contained in tomorrow's legal news roundup by Bill Kisliuk cites and links to today's installment of this blog's "20 questions for the appellate judge" with Ninth Circuit Judge Andrew J. Kleinfeld.

Sweeps week must be here because the Texas Lawyer (see third item) contains an article that bears the headine "CCA Upholds Butt Search for Crack."

And in The Legal Times (free registration required), you can access here an item entitled "A Thunderclap, at 1,600 Pages" and here an op-ed by Scott D. Gerber entitled "Justice Thomas and Mr. Jefferson: Yes to the Declaration, no to affirmative action."
Posted at 22:30 by Howard Bashman



Pryor restraint: Some editorials ran in various Alabama newspapers this weekend about the nomination of Alabama Attorney General William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit. The Mobile Register contained an editorial entitled "Pryor's point is precedent." The Huntsville Times contained an editorial entitled "Pryor's preaching." And The Tuscaloosa News had an editorial entitled "Pryor's opinion goes beyond mainstream." (Via "Southern Appeal.")
Posted at 22:21 by Howard Bashman



"Senate Confirms Long-Stalled Cook Nomination": Reuters offers this report.
Posted at 22:13 by Howard Bashman



The Associated Press is reporting: You can access here an article by Jesse J. Holland entitled "Senate Ready to Fight Again Over Estrada" and here an article by Anne Gearan entitled "Rehnquist Warns on Cataloging Sentencing."
Posted at 20:12 by Howard Bashman



"Wiener, Circuit Judge, either dissenting or specially concurring.*******" The separate opinion of Fifth Circuit Judge Jacques L. Wiener, Jr. in this decision issued today is certainly worth a look. In his opinion, Judge Wiener contends that an earlier panel's published decision on an issue that controls the result in today's case does not constitute binding precedent until rehearing en banc is denied in the earlier case. That's a new concept to me, but then again perhaps this is some wrinkle of Fifth Circuit practice with which neither I nor the panel majority is familiar.
Posted at 19:02 by Howard Bashman



Fifth effort to invoke cloture of debate on the nomination of Miguel A. Estrada to the D.C. Circuit fails by a vote of 52 for, 39 against: Sixty votes for are required to invoke cloture. You can access the official vote tally here.
Posted at 18:56 by Howard Bashman



Tomorrow's Supreme Court of Georgia oral argument in Perdue v. Baker to be Webcast: This may be a first for that court. You can access the video feed online tomorrow at 10 a.m. via this link. And you can access my earlier post about the case here.
Posted at 16:57 by Howard Bashman



The U.S. Senate's vote on Deborah L. Cook's nomination to the Sixth Circuit is now underway: Results to follow. Update: I'll post the exact vote tally a little later this evening, but it is firmly expected that Justice Cook will be confirmed. Second update: Justice Cook was confirmed by a vote of 66-25, with nine Senators not voting. You can access the official vote tally here. The Sixth Circuit, which before last week had six vacancies, now only has four, placing it at 75 percent of full strength.
Posted at 16:49 by Howard Bashman



The Detroit Free Press is reporting: You can access here an article that begins, "The federal courthouse was evacuated Monday and a portion of downtown Detroit closed after a fire in an electrical tunnel underneath Lafayette Boulevard caused three manhole covers to blow off."
Posted at 16:05 by Howard Bashman



The Supreme Court of Georgia will soon decide who represents that State before the U.S. Supreme Court: The battle between the Governor of Georgia and that State's Attorney General over which of those two individuals gets to decide Georgia's position in a redistricting challenge argued last week before the Supreme Court of the United States will be argued tomorrow before the Supreme Court of Georgia. On Friday, May 2, 2003, Georgia's Attorney General filed his brief for appellee in that State's highest court, and you can access the brief online here. (Thanks to the good folks at "SCOTUSblog" for hosting the brief online.)
Posted at 14:40 by Howard Bashman



When your MDMA must definitely, positively be there overnight: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion by Circuit Judge Sidney R. Thomas that begins:
Does the Fourth Amendment protect those who wish to hide in plain sight? Under the circumstances presented in this appeal, we conclude it does not and affirm the district court's denial of the defendant's suppression motion.

I

A Federal Express employee noticed something out of the ordinary about a package in the Brussels, Belgium warehouse. The alert Brussels scout notified Belgium Customs officials who examined the parcel, which was addressed to "Dr. Miller" at Kaiser Permanente Medical Center in Bellflower, California. It contained MDMA, which turned out not to be materials concerning a physician with a master's degree, but rather 20,000 methylenedioxymethamphetamine (or, to use its street name, "ecstacy") tablets, concealed in video cassette boxes. To investigate this apparent "fed-ecstacy" scheme, Belgium Customs notified the United States Drug Enforcement Administration ("DEA") Belgium Country Office and requested the agency's assistance in effectuating a controlled delivery. The Los Angeles Field Division of the DEA agreed to conduct the requested controlled delivery.
You can access the opinion at this link.
Posted at 13:32 by Howard Bashman



"Bush nominees likely to swing 6th Circuit right": Today's issue of The Cleveland Plain Dealer contains this report.
Posted at 13:28 by Howard Bashman



"Supreme Court Criticizes Texas Police": Gina Holland of The Associated Press has this report.
Posted at 13:10 by Howard Bashman



"Wow, get a load of this guy's praxis": Gail Diane Cox, writing in The National Law Journal, appears to have enjoyed this opinion from First Circuit Judge Bruce M. Selya nearly as much as I did.
Posted at 13:06 by Howard Bashman



Watch online the U.S. Senate's debate on the nomination of Deborah L. Cook to serve on the Sixth Circuit: The debate -- four hours of it -- has just begun, with a confirmation vote to follow at 4:45 p.m. today. You can watch online at this link, via C-SPAN2. Following the vote to confirm Justice Cook, the Senate will resume debate on the nomination of Miguel A. Estrada to serve on the D.C. Circuit. At 6 p.m. today, the Senate will conduct its fifth vote to invoke cloture on the Estrada nomination.
Posted at 12:46 by Howard Bashman



Today is "20 questions for the appellate judge" day at "How Appealing": Today's interviewee is Circuit Judge Andrew J. Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit. You can access his very interesting interview either by scrolling down to access the entry posted at midnight this morning or by clicking here to access this blog's "20 questions" archive.

Yeah, I know I mentioned this earlier, but it's a really interesting interview, and I don't want anyone to miss it. At least I'm not repeating for the zillionth time that tomorrow is the one-year anniversary of "How Appealing."
Posted at 12:09 by Howard Bashman



Attention cheeseheads -- this part of the Eighth Circuit is Vikings country: Today the U.S. Court of Appeals for the Eighth Circuit issued an opinion in which the court explained:
Assuming Rocky, as a fourth-grader, has a constitutionally protected right to free expression at school, that right was not violated when school officials required adherence to directions on school projects. Rocky's preference for the Packers does not trigger heightened protection, and thus the teachers' reasonable curriculum-based decisions with regard to appearance, and attendance, at school-related functions will not support a sec. 1983 claim. Sonkowsky has presented no evidence to refute the school's explanations for its decisions regarding Rocky's participation in school activities, nor is there a supportable inference that Rocky was disciplined, penalized, or discriminated against because of his passion for Green Bay.
You can access the opinion at this link.
Posted at 12:02 by Howard Bashman



"Court: Telemarketers can be held to truth": Michael Kirkland of United Press International has this report.
Posted at 11:43 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Supreme Court OKs Telemarketing Lawsuits." Gina Holland reports here that "High Court Takes Case on Vincent Foster" and here that "High Court to Rule on Police Roadblocks." And in other news, "Closed-Door McCarthy Transcripts Unsealed"; and "Ohio Exempts Amish From Workers' Comp."
Posted at 11:36 by Howard Bashman



McCain-Feingold case arrives at the Supreme Court of the United States: "SCOTUSblog" posts the jurisdictional statement filed with the Supreme Court of the United States on Friday, May 2, 2003 -- the same day that the special three-judge panel's humongous ruling issued. And Law Professor Rick Hasen asks, "Why the rush?"
Posted at 11:19 by Howard Bashman



"Judicial Nominations, Filibusters, and the Constitution: When a Majority Is Denied Its Right to Consent." The official notice for tomorrow afternoon's hearing of the Senate Judiciary Committee's Subcommittee on the Constitution, Civil Rights and Property Rights is available online here. Careful readers of this blog will note that some additional witnesses have been added. The original press release announcing this meeting, which I published here, did not yet include the witnesses selected by the subcommittee's Democratic Senators.
Posted at 10:55 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: The Supreme Court of the United States issued one opinion in an argued case today, in Illinois ex rel. Madigan v. Telemarketing Associates, Inc. (opinion here; oral argument transcript here). Justice Ruth Bader Ginsburg delivered the opinion of the unanimous Court, and the judgment under review was reversed and remanded.

The Court also issued a unanimous per curiam decision in Kaupp v. Texas.

You can access this morning's Order List at this link. The Court granted certiorari in two cases and, in a third case, "[t]he judgment is vacated and the case is remanded to the United States Court of Appeals for the Eleventh Circuit for further consideration in light of the position taken by the Solicitor General in his brief for the United States filed April 4, 2003."

The Court is now in recess until Monday, May 19, 2003, when more opinions and orders are expected. Of course, I'll have a summary of today's decisions online sometime tonight.
Posted at 10:00 by Howard Bashman



From today's edition of The Wall Street Journal: You can access here an article entitled "High Court May Weigh Stay Of Campaign-Finance Ruling" and here a related editorial entitled "The March of Folly."
Posted at 09:58 by Howard Bashman



"Santorum On Sex: Where The Slippery Slope Leads": Stuart Taylor Jr. has this essay online today at National Journal.
Posted at 09:55 by Howard Bashman



"The Court and the University": Ronald Dworkin has this essay in the May 15, 2003 edition of The New York Review of Books. Also in that issue, Peter Singer reviews a bunch of books in an essay entitled "Animal Liberation at 30."
Posted at 09:35 by Howard Bashman



Early nominee for news report of the day: The Atlanta Journal-Constitution reports here that "Restroom voodoo reported to court."
Posted at 09:34 by Howard Bashman



"Women Grads Mark 50 Years At Law School": Today's edition of The Harvard Crimson contains this report.
Posted at 09:30 by Howard Bashman



On today's agenda: The Supreme Court of the United States is scheduled to issue opinions and orders at 10 a.m. this morning. The Court will then take a two-week recess during which its Justices may find time to read this past Friday's lengthy campaign finance ruling if they manage to devour a bit more than 120 pages per day.

The U.S. Senate is scheduled to hold four hours of debate on the nomination of Deborah L. Cook to serve on the U.S. Court of Appeals for the Sixth Circuit. Thereafter, at 4:45 p.m., the Senate will vote on that nomination, and Justice Cook will be confirmed. Following the vote to confirm Justice Cook, the Senate will resume debate on the nomination of Miguel A. Estrada to serve on the D.C. Circuit. At 6 p.m. on Monday, the Senate will conduct its fifth vote to invoke cloture on the Estrada nomination. See page two of this PDF document for all the details.
Posted at 06:55 by Howard Bashman



In Monday's newspapers: In The Washington Post, Charles Lane has an article entitled "A Cowgirl's Sense of the Constitution and the Court." In other news, an article reports that "'Conservative Values' Guide Court Appointee." You can access here an article entitled "Bork to Argue Microsoft Case On Appeal." A front page article reports that "Gun Firms On Verge Of Winning New Shield; Liability Bill Reflects Industry, NRA Clout." And a letter to the editor runs under the heading "Eroding Due Process."

The New York Times today contains an editorial entitled "The Brawl Over Judges." An article about a case currently pending before an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit reports that "Case Challenges Employees' Waiving Right to Sue." You can access here an article entitled "Release of Audit Roils Trust Fight at the Barnes." An article reports that "Campaign Documents Show Depth of Bush Fund-Raising." And in local news, "Prosecutors Seek to Bring Up Old Denial in Crown Hts. Case."

In USA Today, Joan Biskupic is co-author of an article entitled "Ruling makes a mess of parties' planning for next election; Until the Supreme Court weighs in, campaign-finance law lies in tatters." An editorial is entitled "Flaws in campaign financing argue for broad changes," while William Hamilton has an op-ed entitled "Ruling exposes law's flaws." Tony Mauro has an op-ed entitled "'Under God' doesn't belong in pledge." And a letter to the editor appears under the heading "Ironies in religion rulings run rampant."

Online at OpinionJournal, you can access here an essay by Robert L. Bartley entitled "'Gaffes' and Personal Destruction; Compulsive 'borking' is a symptom of the left's sickness."

In The Washington Times, Frank J. Murray reports that "Judges approve all but one wiretap order in four years." And Nat Hentoff has an op-ed entitled "Hush-hush at the Justice Department."

The Los Angeles Times contains a front page article entitled "A Life Sentence of Expense: The state is spending millions to care for incapacitated inmates. Their release might save money but would raise questions of justice." In other news, "A Son's Fate in the Balance: A Kuwaiti who helped the U.S. during the Gulf War is frustrated over his firstborn's detention at Guantanamo Bay as an enemy combatant." From Bloomberg News comes word that "Plaintiffs to Contest Philip Morris Deposit." An article reports that "Cats Gain Right to Keep and Bare Claws in W. Hollywood; The ban on declawing, believed to be the first in the country, goes into effect Wednesday." And Patt Morrison's column is entitled "Can Bush Carry California? He Has to Get on Ballot First."

Finally for now, The Boston Globe reports here that "Ailing Thurmond unable to accept honor; Centenarian's name is on porch, minds in S.C." In local news, "SJC case may shift control over state's tidal lands." And an editorial is entitled "Facing the Internet music."
Posted at 06:15 by Howard Bashman



20 Questions for Circuit Judge Andrew J. Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit: "How Appealing" is very pleased that Circuit Judge Andrew J. Kleinfeld of the U.S. Court of Appeals for the Ninth Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Kleinfeld joined the Ninth Circuit in September 1991, when he was in his mid-40s. His first stint at judicial service occurred from 1971 to 1974, while he was in his mid- to late-20s, when he served as a part-time U.S. Magistrate in the U.S. District Court for the District of Alaska. In 1986, President Ronald Reagan nominated, and the U.S. Senate confirmed, Judge Kleinfeld to serve as a U.S. District Judge for the District of Alaska. He remained a district judge until he joined the Ninth Circuit in 1991. Judge Kleinfeld attended college at Wesleyan and law school at Harvard. His chambers are based in Fairbanks, Alaska, and the Ninth Circuit has its headquarters in San Francisco.

Questions appear below in italics, and Judge Kleinfeld's responses follow in plain text.

1. What are your most favorite and least favorite aspects of being a federal appellate judge?

The most enjoyable part of the job is studying the excerpts of record and the briefs, and studying the relevant law. I especially enjoy the scholarly research, and the chance to delve into the details of lives, occupations and industries other than my own. The most satisfying part is being able to go home feeling like what I do is worthwhile.

My least favorite aspect of the job is that there is so much volume.

2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

The judge I admire the most is the first Justice Harlan. I admire his independence of mind and the great courage that he had to stand against both his Court and the society of his times to do the right thing in Plessy v. Ferguson.

3. How did you come to President Reagan's attention in 1986 to fill a brand new judgeship on the U.S. District Court for the District of Alaska and to President Bush's attention in 1991 to fill a vacancy on the Ninth Circuit, and do you have positive, negative, or mixed memories of the confirmation processes that followed those nominations?

In 1986, Senator Murkowski took the lead on the nomination. He used a merit selection system. After obtaining expressions of interest from a number of people, he asked the Alaska Bar Association to poll the bar members by region on suitability of those who'd expressed interest. I came in highest on the bar poll in my region of the state. Senator Murkowski sent three names to the White House, as the President then required, and when President Reagan selected me, Senator Stevens, Senator Murkoswki and Representative Young all endorsed my nomination. So I suppose you could say that the way I came to President Reagan's attention in 1986 is that the lawyers in Alaska, in response to Senator Murkowski's decision to consider their views, brought me to his attention through the Senator.

In 1991, Senator Stevens had obtained an agreement with the Executive Branch that Alaska would get the next seat on the Ninth Circuit. After calling me, Senator Stevens put my name forward.

The confirmation process itself is extremely unpleasant. From the time the FBI and ABA investigations make it known that the President has tentatively decided to nominate a person, the prospective nominee dangles in the cold wind while the President's adversaries look for dirt. At least that's how it was when I experienced it. No doubt some good potential nominees decide to avoid the whole process, and the courts lose talent.

4. In a letter that you submitted in May 1998, you endorsed a division of the Ninth Circuit that would place the States of Alaska, Idaho, Montana, Oregon, and Washington into a new Twelfth Circuit. Do you continue today to view that proposed split as the best possible division, if not what proposed split do you favor today, and please explain the reasons for your answer.

I continue to strongly favor a split of the Ninth Circuit. The most important reason why is purely administrative, that the circuit is just too big for effective appellate decision making.

As to the details of how the split is done, I don't think it matters all that much. Placing just about any combination of states in the Twelfth Circuit, and apart from California, would improve the quality of justice in both by making both the Ninth and the new circuit smaller. When the Eighth Circuit was split into the Eighth and Tenth Circuits, and the Fifth Circuit was split into the Fifth and Eleventh Circuits, the people in all of those new circuits benefitted from a more coherent and predictable decision-making process.

I agree with the conclusion of the Commission headed by Justice Byron White (and two-thirds of the appellate and district judges that they surveyed) that the Ninth Circuit has far too many judges for an optimally functioning appellate court. Currently, we have twenty-eight seats for active judges on this court, and forty-six judges on the court counting those who have taken senior status (almost all senior judges still participate quite substantially).

Our court is much too big for us to read all of each other's decisions and it's too big for us to sit together to rehear a case en banc. There are well over 3,000 combinations of judges, not including senior and visiting judges, so a pair of active judges on the court can go 3 or 4 years without sitting with each other on a regular panel. Our "limited en banc" consists of 11 judges out of 28. If you have a majority of 6 judges in those cases (as we often do), then a "majority" that is less than one-fourth of the whole court purports to be acting for the full court in rehearing our most important and controversial cases.

5. If the Ninth Circuit is indeed divided, what are the three things about the current Ninth Circuit that you expect you will miss the most, and what three things will you miss the least?

The three things I'll miss the most are:
1. My very capable colleagues and friends in whatever states are no longer in my circuit.

2. Working on the diverse and interesting problems that arise out of California.

3. The pleasure of the people and places I regularly get to visit when hearing cases in San Francisco and Pasadena.
The three things I'll miss the least are:
1. Too many cases, with the consequence that a judge just can't read all the slip sheet opinions from the court. As a result, the law becomes somewhat incoherent and unpredictable. I once tried to carry a year's worth of slip sheets up to a podium to give a speech about the Ninth Circuit, but there were so many that the carton broke and the slip sheets fell like snow all around my feet and up to my ankles in a huge pile. That proved my point better than anything I could have said.

2. The rarity with which I get to work on the important legal concerns of my own state, and other states with which Alaskans have more contact and similarity than California.

3. The "crapshoot" aspect of en banc panels drawn randomly from our much larger court.
6. You are the first former trial court judge to participate in the 20 questions feature. I have heard some federal appellate judges who formerly served as federal district judges remark that they enjoyed the job of federal district judge more than they enjoy the job of federal appellate judge. How do the two jobs compare in your opinion, and what things if any do you miss about being a district judge?

For me, anyway, it's not true that I enjoyed the district judgeship more than the appellate judgeship. They are both great privileges and I quite frequently think how fortunate I am to be doing this work. I like the Circuit Court better, because my own tastes run to reading briefs and records and researching the law, and I didn't get to do as much of that as a district judge. A district judge's work is kind of lonely, because he exercises most of his authority in the court room, and does it by himself.

As for how the two jobs compare, being an appellate judge is more like being back in law practice. Your daily work consists in significant part of trying to persuade judges to accept your view of the law. Although I am not writing memos supporting or opposing summary judgment any more, writing suggestion memos, en banc memos, and to some extent the process of writing opinions is a lot like the part of law practice that isn't conducted on the telephone. Studying and writing about the law, and trying to come up with an analysis of the facts and the law that will satisfy the other two judges on the panel, is a lot like what I did when practicing in front the Alaska courts.

As for what I miss most about being a trial judge, I liked supervising a case in pretrial, frequently on matters that I understood well and with lawyers on both sides that I knew. I enjoyed being able to adjust the conditions and limitations on discovery and trial in such a way that the case would be resolved fairly, on the merits, with attorney's fees and expenses that were reasonable in relationship to the stakes on both sides. The ability to bring about justice in an individual case, and to recognize how to do that, is often much greater as a trial judge than as an appellate judge. The discretionary decisions of trial judges shape most cases, and it's nice to be able now, as an appellate judge, to understand and appreciate those exercises of discretion.

7. Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?

I have no criticisms of the press coverage of the Ninth Circuit, any more than I have criticisms of press coverage of any major institution. Of course, lay journalists often do not understand technical matters in the law. But I certainly see nothing wrong with critical reporting on a public institution, whether it's a court or not. When we are wrong about something, and we get reversed, there's no reason why it should be our little secret.

8. While today you don't have to travel hundreds of miles by dogsled to hear cases as your predecessor judges based in Alaska once did, you probably now have the most grueling commute of any federal appellate judge to arrive at the locations where your court regularly hears oral arguments. When you weigh the substantial costs of oral argument against its benefits, do you find oral argument to be over-valued? And do you have (or if not would you favor) the option of participating in oral argument via videoconference, which even the rather geographically compact U.S. Court of Appeals for the Third Circuit uses when its judges can't justify a trip to Philadelphia?

Oral argument is worth the trouble.

We have occasionally had oral arguments by conference call, typically on a comeback case that we are not hearing during a regular argument week (it would not be practical for all three judges to travel just for one case). In my experience, it works reasonably well, though not quite as well as live argument. Videoconferencing would be a little better. I didn't know about the videoconference oral argument in the Third Circuit. Thanks for telling me.

Despite its inconvenience, I find oral argument extremely valuable and worth the very considerable effort it takes for me to get there. The effort is no joke: it's 8 ½ hours to San Francisco and 10 ½ to Pasadena when everything goes right, and as long as 22 hours when it doesn't (which is often).

The value of oral argument differs for different judges, because judges have different learning styles. Some prefer to learn things and develop their opinions as they read, others as they listen and talk. I'm in the "listen and talk" camp. On a case where some aspect is troubling or difficult (and that's many of the orally argued cases), I just don't make up my mind until I have to; and I don't have to, even tentatively, until we confer after oral argument. There is no point to making up my mind sooner, because I learn a lot from the dialogue with the lawyers. The value comes not just from answers to my own questions, but from the loosely structured back-and-forth when a three judge panel conducts oral argument, and the dialogue that the other two judges have with the lawyers. Even when I come in with a fairly well-set, tentative view, the lawyers often educate me on matters I did not fully understand from the briefs or the excerpts. Ordinarily, a lawyer knows more about his or her own case than the judges can possibly know, and they educate judges. Sometimes we don't really understand the case from the briefs, particularly if they are not that well written, and the issues become clear at the oral argument.

9. After growing up in Brooklyn, New York and attending college and law school on the east coast, you traveled to Fairbanks, Alaska to take a judicial clerkship with Justice Jay A. Rabinowitz of the Supreme Court of Alaska. What strategy did you employ in seeking a judicial clerkship, how did you come to accept this one, and what were the reasons why you decided to make your home in Alaska following your clerkship's conclusion?

Although I was born in the Bronx (not Brooklyn), I mostly grew up in the Washington, D.C. suburbs. I had thoughts about a political career and Alaska looked like a good place for it, but I abandoned those thoughts after discovering that law was much more interesting for me than politics. I had no strategy for seeking a clerkship. I chose to apply to Jay Rabinowitz after reading a large number of Alaska Supreme Court decisions and deciding that of the three justices who were then on the court, he was the one with whom I was most impressed and with whom I resonated the most. I was most impressed with some dissents Justice Rabinowitz wrote in a case that went up and down to the U.S. Supreme Court, because of his lucid and effective defense of freedom of speech in the face of a majority that got the answer wrong.¹

The only clerkship I applied for was with Justice Rabinowitz. While finishing it, I thought about going back to Boston where I had an offer lined up at a very fine firm I had clerked for after my second year, Rackemann, Sawyer & Brewster. Before I went back I decided to hang out my shingle in Fairbanks to see what it would be like. Back then, Fairbanks was just a small frontier town. What happened was that from the start I was making more money and having more fun then I expected to have in Boston, so I never went back. And the camaraderie of the bar in Fairbanks was delightful (and still is - I have lunch with the Tanana Valley Bar Association every Friday unless I'm out of town.)

10. 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. Also, are you adhering to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?

When looking at potential clerkship applicants, I look first for a very high level of intelligence. I prefer that the person have had a good undergraduate education, so that the law clerk will be well-rounded in history, economics, political science, and literature, with some general scientific and mathematical understanding. It is not at all unusual for us to have to think together about Reconstruction politics or statistical significance as well as legal doctrine.

I don't limit myself to hiring applicants from the top law schools. Some highly capable people don't go to the top law schools because they can avoid incurring a six figure debt by accepting a good financial package from a law school a little further down on the U.S. News & World Report's list. And some people just have more talent at the law than they did at their undergraduate subjects and blossom in law school. I prefer to give a chance to a broader range of people, and it gives me the benefit of a broader market.

My clerks and I spend a lot of time together, and we have daily conferences where they have to present cases to me orally. We also have lunch together frequently. So I look for clerkship applicants who speak clearly and concisely about complex matters, and who I will enjoy talking with. I like law clerks who share my view that judges should perform an intellectually honest analysis of the law and apply it to the facts of the particular case, rather than imposing their policy preferences. Resume entries such as participation in the Federalist Society or with organizations like the Institute for Justice also pique my interest. And I look for nice people, so that through an entire year working closely together in a small office at a remote subarctic outpost we will continue to like each other and enjoy each other's company.

I don't follow the law clerk hiring plan, because it is impractical for Alaska. I hire before, during, and after the officially stated times. As a practical matter, I now expect to do much of my hiring during the summer following second year and during the fall of third year. Applicants applying in advance of the law clerk hiring plan shouldn't wait on recommendations from their professors before sending applications.

The reason I don't follow the plan is that it would be too great an imposition on an applicant to make them travel to Fairbanks, Alaska for an interview, so I squeeze in a very few interviews when I am Outside on calendars. Often the interview is a long dinner at a good restaurant. The timing of my calendar trips and the sparseness of interview slots requires that I spread them out more than the hiring plan allows for. Also, I make better judgments on whom to hire when I can spread out the decisions and hire the law clerks one at a time.

11. In researching these twenty questions for you, I've enjoyed learning about Fairbanks, Alaska (which is now celebrating its centennial) via this online visitors' site and from the Web site of the local newspaper, The Fairbanks Daily News-Miner. Do the clerkship candidates who apply to work for you generally view the opportunity to live in Fairbanks, Alaska for a year as a positive or negative feature of the job, and what do you tell candidates from the lower forty-eight States who are not sure whether Fairbanks is the place for them about what it's like to visit or live there?

Among those who apply, Fairbanks seems to be a positive draw. Few other clerkships of this caliber give the clerks a chance to go to the Chatanika Outhouse Races, or walk from chambers onto the frozen Chena River to see dogs finishing the 1,000-mile Yukon Quest dog sled race, and get rewarded with big slabs of raw steak. If applicants are not sure if Fairbanks is the place for them, I encourage them to read and think about it, and not to clerk for me if they would rather be somewhere else, because there are a lot of people who think it would be a real treat to be in Fairbanks, Alaska.

12. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is giving serious consideration to a rule that would allow the citation of unpublished, non-precedential decisions in briefs filed in federal appellate courts. The Ninth Circuit appears to stand alone in actively opposing that rule change. Where do you personally stand on this issue, and do you think that the Ninth Circuit's opposition to the possible rule change stems from the large size of the court and its inability to ensure that its non-precedential decisions are adequately considered?

I stand in the very uncomfortable position of having a leg on each side of the fence on this issue. On the one hand, we owe it to people to treat like cases alike and, in that sense, all cases ought to be precedential. On the other hand, we simply cannot supervise our own court's output adequately for publication because of the size of the court. If we did publish all our decisions, it would not accomplish the purposes of achieving consistency, because we could not read them all. Universal publication would make the law less predictable, because there would be too many decisions going too many ways, and neither the judges nor the lawyers could keep up with them and develop a coherent body of law.

A very substantial percentage of our unpublished decisions are written by staff attorneys at our San Francisco headquarters. They are reviewed by the judges in "motions and screening panels," in which we decide an enormous number of cases in a few days, based on oral presentations by the staff attorneys and such examination of the briefs, record, and unpublished dispositions as we feel we can do in a very few minutes. Within chambers as well, our unpublished dispositions are a way for us to cope with excessive volume by avoiding the very time consuming process of writing an opinion in what appear to be easy cases. The care one takes with the language in a published opinion is extremely time consuming and requires many drafts. The unpublished dispositions are necessarily not as careful. It is not at all unusual for them to have sentences that, taken out of the context of the particular case, would give a mistaken view of the law.

My personal preference would be to change the name from "memorandum" and "unpublished disposition" to "summary disposition," and to make the dispositions so summary in form that publication and citation could do no harm. Summary form is in fact what our circuit's general orders call for, although some judges issue longer dispositions. There's really no such thing as an unpublished disposition, since they are all published electronically and in West's Federal Appendix. Calling them "summary" would encourage the writers to make them summary, with fewer articulated errors that spread to other cases.

13. Is the salary paid to federal appellate judges too low, and if your answer is "yes," what should the salary be or, perhaps less controversially, how would one determine what the proper salary should be?

For me, salary doesn't matter. I saved enough money while in private practice to provide for my wife, to send my three children through college and, if they want, graduate or professional school, and to continue to live well despite the judicial salary. If I die broke, that's just a good estate tax avoidance scheme. This is easy for me to say because housing in Fairbanks is a lot cheaper than in Seattle, San Francisco, or Los Angeles.

I do think the salary should be raised. Prestige in our society tends to be linked with salary. As the salary of judges falls compared with lawyers, law professors, law school deans, university presidents, and others in conspicuous positions, it affects our ability to draw the most accomplished and capable lawyers into the federal judiciary. A lot of lawyers can't afford to be judges.

Also, in the long run, if judges are paid more like clerks than like highly successful lawyers, then people are more likely to treat their decisions as being more like those of clerks, than those of highly respected officials in our government. I think there is a tendency in this direction in the Continental system. Most of our compliance with the law is voluntary and based on respect for the law, so this would be an unhealthy development.

As for how high the salary should be, it seems appropriate to draw comparisons with the relevant market, such as law firm partners and law school deans. It's ridiculous that our law clerks make more than their judges within a couple of years.

14. You were the author of a decision which held that a jury's award of $5 billion in punitive damages arising out of the Exxon Valdez oil spill against the oil company and the ship's pilot was constitutionally excessive. I imagine that like most federal appellate judges, you generally labor in anonymity. Did you receive more feedback than usual from other Alaska residents following your ruling in that case, and was it mostly positive, mostly negative, or evenly divided?

Anonymity is great. I knew when I was writing the decision in the Exxon Valdez case that it would be very unpopular in Alaska, and it was. There were some very intense feelings, though the most intense feelings were in South Central Alaska, not in the Interior where I live. Nevertheless, life tenure and anonymity are just great when you have to make a decision that you know people won't like.

15. Of the many opinions that you have written since joining the Ninth Circuit in 1991, what single opinion -- unanimous, majority, concurring, dissenting, or other -- do you find to be the most memorable?

An especially important opinion for me was a short dissent I wrote in our court's "right to die" case, Compassion in Dying, which was later reversed by the Supreme Court. In my view, liberty and democracy are the two most important aspects of our form of government, and the Constitution sets up what the boundaries are between majoritarian control over individual choices and individual protection from majoritarian governance. There is an unfortunate tendency among people who don't think about it too deeply to think that if something is very important, then it must be a matter of constitutional law. That implies that if something is very important, power is transferred from the majoritarian institutions to the courts. "The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary." Compassion in Dying v. State of Washington, 79 F.3d 790, 858 (9th Cir. 1996).

I have also been particularly interested in working out the application to changing times of our unchanging constitutional protection of freedom of speech and freedom of religion, as in Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996), K.D.M. v. Reedsport School District, 196 F.3d 1046 (9th Cir. 1999), Ex rel Lavine, 279 F.3d 719 (9th Cir. 2002), and others. Another case of considerable interest involved protecting families from unconstitutional searches and seizures by social workers as well as by police. Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).

It's also hard to beat relatively trivial cases that gave me the opportunity to plant in the law procedural determinations that increase fairness and reduce arbitrariness. For example, I took a lot of satisfaction in the holding in Carmen v. San Francisco Unified School Dist., 237 F.3d 1026 (9th Cir. 2001), that in order to prevent a summary judgment, a respondent has to include the evidence or a reference to it in the opposition papers, instead of rescuing the case on appeal with some document buried hundreds of pages earlier in the file that neither the judge nor the movant were alerted to.

16. Public outcry in reaction to judicial decisions is no longer a seldom-seen occurrence. Two examples are the annual protests that accompany the anniversary of the U.S. Supreme Court's ruling that recognized a constitutional right to abortion and the protests that followed the Ninth Circuit's recent Pledge of Allegiance ruling written by Senior Circuit Judge Alfred T. Goodwin, whose decision to take senior status opened up the Ninth Circuit seat that you now hold. What weight, if any, should an appellate court judge give to the general public's actual or expected reaction to a ruling under consideration or reconsideration?

The value of having life tenure is that we can reject the general public's expected reaction when the law requires rejection, instead of following public sentiment as we would usually have to do were we elected legislators rather than judges. But that doesn't mean that public reaction, both actual and expected, should be ignored. When the law leads me to a conclusion that I know would cause public concern or outcry (if the reporters picked it up, which they usually don't), then I check my work carefully. Of course, I check my work carefully anyway, but I would have to say I check it more carefully to see whether the law really compels the conclusion, if I know that most laypeople would think that the conclusion was idiotic. When most people think something, it's often right -- but not always. If the law compels a result, that's the way it is, and being able to reach that result without being beholden to public opinion is what life tenure is good for. Nevertheless, I do not think judges ought to affect disdain for public opinion.

17. How do you define the term "judicial activism," and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?

I don't use the term "judicial activism" myself, because I am uncomfortable with the imprecision of its definition.

We are bound to determine whether the law compels a result, whether it is consistent with the judges' preferences or not, and when the law does compel a result, a judge is obligated to apply it. For example, if someone is in litigation against a union and you're reviewing a summary judgment, you don't decide the case based on being pro-union or anti-union. You decide whether the summary judgment papers establish that there were no genuine issues of material fact and that the appellee was entitled to judgment as a matter of law.

As judges, we are just as bound by the law as everybody else in society. The people are entitled, except where they are barred by constitutional limitations, to make the law through democratic processes, and they are entitled to have us follow it. As I wrote in Compassion in Dying, this is a democratic republic, and the people are entitled to have their elected legislators and executives, not us, make policy judgments. If we don't like the laws and regulations, we can vote for the other guy, just like other citizens. To my mind, the judge who simply decides upon the outcome he or she prefers rather than deciding upon an intellectually honest application of the law, is himself or herself an outlaw. "The courts must declare the sense of the law; and if they should be disposed to exercise Will instead of Judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body." The Federalist No. 78 (Alexander Hamilton). Also, there just isn't the satisfaction of a craft performed well, if we substitute our policy preferences for the law. Judging like that is just an exercise in despotism, rather than the intriguing, difficult and satisfying craft that an honest judge practices.

18. I see that in your published opinions, you follow the method of legal writing that recommends putting all citations to authority in the footnotes rather than in the body of the text. What reasons can you offer to other federal appellate judges for why they should join you in that practice, and would you recommend that appellate advocates who file briefs in the Ninth Circuit follow your approach or use the more common approach, whereby citations to authority often appear in the text rather than exclusively in footnotes?

I've been putting my citations in footnotes because I was persuaded by Brian Garner's argument that this makes the opinions more readable and leads to clearer reasoning and writing. Footnote citations require judgment, though. Often it's important for the reader to know the name of the case you are talking about, or what court it came out of, or what date it came down, without having to look at the footnote, and it's important to put these things in the text when they're necessary to the reader. The idea of using footnotes is that no one has to read them unless they are writing something, a decision or a brief, and need to check the cites. Because my process can't be mechanical and involves a lot of writing judgments, it requires more work. It's possible that I will drop the practice because it has not spread.

The real attraction of it to me is not just a matter of writing style. There is a deeper underlying philosophy. I require all my law clerks to read George Orwell's essay, Politics and the English Language.² Orwell describes bureaucratic and academic writing as "a mass of Latin words [that] falls upon the facts like soft snow, blurring the outlines and covering up all the details." To my mind plain language and clear writing are essential to clear thinking and are a protection against judicial error and government abuse. A layperson should be able to pick up one of my opinions and understand it. It's important that people be able to know the justifications for the decisions judges make in the exercise of their power. That's the real reason why I use Bryan Garner's footnote style, and why I write in such a plain-spoken way when I can take the time to reduce my less easily understood early drafts to plain English.

As for what the briefs do, I don't have a recommendation. You never want to stand out too much for your style or form in a brief, because you don't want to distract from the substance of what you are saying or risk annoying a judge who is reading it. Because of the volume of briefs, being clear and succinct is most important.

19. In the early 1990s, while you were still serving as a federal district judge, you sat by designation of the Secretary of the Interior as an Acting Associate Justice on the High Court of American Samoa, Appellate Division (see here and here for two opinions noting your service on that court). How did that assignment happen to come your way, and what memories do you have of serving on that relatively obscure court?

The High Court of American Samoa gets its Acting Associate Justices for appeal by asking them to serve as volunteers and getting the Secretary of the Interior to appoint them. The judges try to pick out visitors who they think will do a good job and will appreciate the opportunity. I had a friend who was one of the regular resident justices on the court, and he called me. It was among the especially pleasurable experiences I've had as a judge.

The cases were exotic and required me to learn a lot of interesting law about how one gets to be a chief or a "talking chief" (like a lawyer) in Samoan society, and how the complexities of communal land tenure there distinguish it from the individual land tenure system we have in our common law system. I had the satisfaction of writing the decision in one land dispute that had gone on for the better part of a century, a Bleak House of the South Pacific.³ And I like the other judges and lawyers in Samoa. It was fun sitting with judges who wear a necklace, lavalava (a kind of skirt worn by men in Tonga and in American and Western Samoa), and sandals on Fridays, the traditional dress days in court. I bought a lavalava myself and wore it to the luau that the Governor gave for the court.

20. What do you do for enjoyment and/or relaxation in your spare time? And do any special obligations accompany the distinction of being the northernmost federal appellate judge in the United States?

If you drive north out of Fairbanks for a half hour, you are in some of the most beautiful wilderness on the planet. I enjoy that a lot, as well as puttering around, photography, and teaching myself new things like assembly language programming and Photoshop. I especially enjoy having lunch every Friday with our local bar association, as I have for the last 34 years. I enjoy sitting in my chair in my log house in the hills, reading, listening to music, and looking out my window at the woods, the valley, the Alaska Range and Mount McKinley a couple of hundred miles away. As for special obligations arising from being the northernmost federal appellate judge in the United States, I feel a special obligation to release my staff from work and encourage them to walk outside to see the North American Championship dog mushing race that starts right outside my chambers.

----------------------------------------------------

1. Watts v. Seward School Board, 454 P.2d 732 (Alaska 1969), cert. denied, 397 U.S. 1071 (1970); Watts v. Seward School Board, 421 P.2d 586 (Alaska 1966), reh'g denied, 423 P.2d 678 (Alaska 1967), vacated, 391 U.S. 592 (1968).

2. Available at http://www.resort.com/~prime8/Orwell/patee.html.

3. Tavete v. Laisene, 19 Am. Samoa 2d 40 (1991).
Posted at 00:00 by Howard Bashman



Sunday, May 04, 2003
Two additional emails on whether a judicial confirmation crisis exists: A former law clerk at the U.S. Supreme Court who now teaches at a law school in the midwest emails in response to this post from yesterday reprinting an email from a recent U.S. Supreme Court clerk under the heading "What judicial nomination crisis?":
My unknown colleague makes the excellent point that it is a good thing, and not a "crisis," for profound disagreements -- e.g., about "important questions regarding the proper judicial role, the appropriate balance of power between the states and the federal government, the scope of individual liberties in times of danger, etc. -- to play out in the United States Senate, and in the context of the judicial-confirmation process.

The problem with the Senate's performance at present is not that Senators are asking and arguing about judicial philosophy, democratic theory, constitutional meaning, etc. Rather, the problem is that a minority of Senators, at the behest of a relatively small group of unrepresentative special-interest groups, appear to be requiring -- as a condition of confirmation -- adherence to a set of views that is strikingly out of step with those of the broad sweep of American citizens (even if it does appear to correspond, by and large, with the views of the American legal academy).

My colleague seems to be assuming that the views for which the Democrats in the Senate are fighting are those of the roughly half of the country that voted for Vice President Gore. In fact, though, the Democrats in the Senate (and, in particular, the Democrats sitting on the Judiciary Committee) have determined to label as "extreme" views that, well, aren't; and to hold out as "mainstream" a set of views that, well, aren't (consider, e.g., rigid no-aid separationism, abortion-rights absolutism, opposition to the judicial enforcement of enumerated-powers principles, etc.).

Consider: Professor James Lindgren, of Northwestern University, has observed that if someone held the left or progressive views on abortion, sexual orientation, crime, and affirmative action -- the views that, in my judgment, the Democrats in the Senate presume to be "mainstream" -- that would put them in the left 2% of the US population. If someone (Mr. Pryor, for instance) held conservative views on the same issues, they would be in the right 28% of the US population (see 1998, 2000, and (newly released) 2002 NORC General Social Survey (the most used sociological database outside of the US Census)).
Another reader who agrees with yesterday's post writes:
I appreciated your giving blog-time to the ex-SCOTUS clerk who questioned whether there's a judicial nominations "crisis." Myself, I think that the uproar over Estrada (and now Owen) is the legal community's version of Chandra Levy or Laci Peterson on CNN or FOX---a 24/7 media tempest, full of sound & fury, signifying very little.

How many nominations has the Democratic minority filibustered? Two, so far? How many federal judges has the President successfully appointed with Senate approval? Well over a hundred? Some of them quite conservative indeed?

The prudence of the Democrats' digging in on this issue remains to be seen. But I suspect most of the people exacerbated one way or the other were already pretty sure who they would (or wouldn't) vote for in the 2004 presidential election, and I'm skeptical that the man on the street (or woman---though "woman on the street" has unfortunate connotations) will care too much about a 1 to 2 % rejection rate for federal court nominees.

Nor is the use of the "antidemocratic" filibuster any more of a "crisis" than it ever has been. The Republicans have used it before and will again. Anything that checks the power of a narrow majority seems to me to be well in keeping with the Framers' intentions, even though the filibuster isn't part of the constitution.

So instead of going on about the solutions to this "crisis," I wish more of the brilliant commentators who're linked to this blog (and I mean no sarcasm---many of them are brilliant) would explain why two or three filibustered nominations are a "crisis" when the vast majority of W.'s nominees are sailing through, conservative credentials and all.
As always, thanks to everyone who takes the time to write such thoughtful messages.
Posted at 23:52 by Howard Bashman



"Government lawyers say burglars 'need protection'": Monday's edition of The Independent (UK) reports here that "Government lawyers trying to keep the Norfolk farmer Tony Martin behind bars will tell a High Court judge tomorrow that burglars are members of the public who must be protected from violent householders." (Thanks to a friend for passing this along.)
Posted at 23:40 by Howard Bashman



Senate Judiciary Committee schedules new hearing for Fifth Circuit nominee Charles W. Pickering, Sr.: Thanks to one of my readers in Australia (yes, you can't make stuff like this up!) for drawing to my attention this page on the Alliance for Justice's Web site. According to AFJ, Fifth Circuit nominee Charles W. Pickering, Sr. is scheduled to have a new Senate Judiciary Committee hearing on Wednesday, May 7, 2003. As of this moment, the committee's official hearing announcement does not detail the nominees to be considered on that date.
Posted at 22:46 by Howard Bashman



Tonight at midnight: I'll be posting online here the newest installment of "20 questions for the appellate judge." Plus, it will then also be available at the online archive for those interviews, which you can access here.
Posted at 22:33 by Howard Bashman



"Will Court Finesse Race Case?" Washingtonian magazine, in its Capital Comment section, has this report (see fifth item). Thanks to the Washington, DC-area attorney who emailed to bring this to my attention.
Posted at 20:39 by Howard Bashman



"Hill urges students to get involved in legal debate": Today's edition of The Boston Globe contains this article.
Posted at 18:53 by Howard Bashman



"Rules key to success of cameras in courts; Other states' officials say Miss. must determine specific conduct standard": Today's edition of The Clarion-Ledger contains this report.
Posted at 18:51 by Howard Bashman



"For these recruits, legal duty calls in postwar Iraq; Judges, lawyers to study justice system": Yesterday's edition of The Newark Star-Ledger contained this report.
Posted at 18:44 by Howard Bashman



"A judge's rulings often run counter to views": Garrett Epps has this op-ed in today's edition of The Oregonian.
Posted at 18:37 by Howard Bashman



"Democrats brace for more losses": Columnist Robert Novak has this essay today, which contains a segment entitled "Filibustering judges."
Posted at 18:34 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Colombian Druglord Faces Trial Monday"; here "Rumsfeld Wants Faster Guantanamo Process"; here "Key McVeigh Witness Criticized FBI Lab"; here "Ex-Inmate Sues Over Prison Prayer Group"; here "Judge Awards $1 to Woman in Texas Case"; and here "Man on Trial for Licking Woman's Foot."
Posted at 18:32 by Howard Bashman



You know you're a law geek when . . . . I'm returning my donation to become a charter member of the National Constitution Center in an envelope to which I have affixed the Thurgood Marshall stamp.
Posted at 17:43 by Howard Bashman



In action: If, like me, you collected sports cards in the 1970s, you might remember those baseball and football cards that showed the player "in action." Well, thanks to the Web site of The Green Bag, you can see the Chief Justice William H. Rehnquist bobble-head doll in action. Don't complain to me if you think that the doll doesn't precisely resemble the Chief Justice of the United States. I didn't design it. (Link to doll via "Throwing Things.")
Posted at 17:23 by Howard Bashman



"Ruling could open 'soft money' floodgates - briefly; Friday's limits on McCain-Feingold bill mark broadest court decision on money in politics since 1976." Tomorrow's edition of The Christian Science Monitor will contain this article.
Posted at 16:56 by Howard Bashman



William O., wheredya' go? Where did you go to law school, that is. An email that arrived this morning states:
Love the blog and read daily; congrats on the anniversary! I wanted to point out a glaring error in Tom Taulli's FindLaw review of "Wild Bill: The Legend and Life of William O. Douglas": Taulli refers more than once to Douglas as a graduate of Yale Law School, although it is clear that he is a Columbia grad (though he later taught at both Columbia and Yale). I wonder, did Taulli even read the book (Posner clearly did)? Does he have an editor? As a Columbia Law student, I felt it was my duty to point this out to you (and as a Columbia College alum, I think you should out Mr. Taulli!).
To confirm this point, all anyone need do is look at Justice William O. Douglas's official Federal Judicial Center biography or run a quick Google search to find an authoritative biography.
Posted at 13:41 by Howard Bashman



In next week's news magazines: The May 12, 2003 issue of U.S. News and World Report contains an article entitled "Terror's cellblock: Complaints over the handling of suspects at Guantanamo are raising hackles in Washington." Another article is entitled "Taking Liberties: Are tough new responses to terrorism upsetting the balance between legal rights and national security?" And John Leo has an essay that appears under the heading "Taking it off the streets."

The May 12, 2003 edition of Newsweek contains an item entitled "Military: The Attacker's Defense; A soldier charged with killing two Army officers in Kuwait says he was provoked by anti-Muslim harassment." In "Conventional Wisdom," campaign finance receives a down arrow. And overlooking the principle that real litigators don't need lunch, an article is entitled "Feeding Lawyers; A dot-com survivor: SeamlessWeb handles meal deliveries to fancy Manhattan firms."
Posted at 13:39 by Howard Bashman



Elsewhere in Sunday's newspapers: The cover story of The Boston Globe Magazine is entitled "My Way: How the stubbornness of George W. Bush defines his presidency in both war and peace." And an article reports that "Law firms in tobacco suit seek $1.2b more; Move against Bay State rankles legal community."

In The Los Angeles Times, Henry Weinstein reports that "North Carolina Senate Votes for Executions Moratorium; The halt would stay in effect until 2005 pending a review of defendants' legal representation and discrimination in the state's capital cases." Professor Amitai Etzioni, whose blog you can access here, has an op-ed entitled "Aliens Are Not Part of the Club Yet." And letters to the editor appear under the headings "Vincent Moves Left on Gay Rights" and "Armed and Free."

Finally for now, The Washington Post, in addition to the items I've already noted this morning, contains an article entitled "You Have a Dream: Achievement Summiteers Bask in The Past and Presence of Greatness."
Posted at 10:53 by Howard Bashman



This weekend at Harvard Law School: Celebrating fifty years of women graduates. Learn more here and here. Meanwhile, The Associated Press reports here that "Harvard Marks 50 Years of Female Grads."
Posted at 10:50 by Howard Bashman



Law Professor Rick Hasen asks "Is the Supreme Court sending a signal about BCRA timing?" See his blog post here. And is the decision itself virtuous? Law Professor Lawrence Solum ponders that question in blog posts you can access here and here. To which Hasen responds here.
Posted at 10:36 by Howard Bashman



Viewing the judicial confirmation imbroglio as a consequence of the outcome in Bush v. Gore: Law Professor Jack M. Balkin offers these views, to which Law Professor Lawrence Solum responds here.
Posted at 10:25 by Howard Bashman



Fourth Circuit Judge Dennis W. Shedd is a Federalist Society member? An email correspondent requesting anonymity who, over time, has established himself as an acquaintance of Judge Shedd writes:
The Atlanta Journal Constitution article "Senate goes easy on judicial picks" -- which you noted last night on your site -- states that 4th Circuit Judge Dennis Shedd is a (gasp!) "Federalist Society Member" who has been confirmed. The author of the article needs to do some fact-checking: Dennis Shedd is not now, nor has he ever been, affiliated with the Federalist Society. "Not that there's anything wrong with that."
Too funny. Next thing you know, I'll be accused of being a part of that organization.
Posted at 09:00 by Howard Bashman



In Sunday's newspapers: The Washington Post reports here that "Soft Money Could Return In a Big Way, Experts Say; Democrats Would Benefit If Court Ruling Stands." Emily Bazelon has an op-ed entitled "With No Sentencing Leeway, What's Left to Judge?" And columnist George F. Will has an essay entitled "Clarity in a Blurred Racial Picture."

In The New York Times, an article reports that "Advocates of Equal Rights Amendment Resume Their Fight." From Australia comes an article entitled "A Drifter's Oddysey From the Outback to Guantanamo." Adam Liptak has an article entitled "Crown Heights Redux: The Best Defense Is an Offense." And an editorial is entitled "Rally Round Intolerance."
Posted at 08:50 by Howard Bashman



Saturday, May 03, 2003
The one year anniversary of "How Appealing" isn't until May 6, 2003: Yet, like the author of the "Throwing Things" blog, the authors of the "Balasubramania's Mania" and "White Noise" blogs just can't wait to commemorate the event. Thanks much!
Posted at 22:42 by Howard Bashman



Yesterday's FindLaw columnists: Vikram David Amar and Alan Brownstein have an essay entitled "The Importance of Looking to Government Motive and Purpose: Why Intent Matters Both In the University of Michigan Affirmative Actions Cases, And Iraq War Arguments."

Also, Tom Taulli reviews "Wild Bill: The Legend and Life of William O. Douglas," a book by Bruce Allen Murphy. My favorite review of that book, however, continues to be the one written by Seventh Circuit Judge Richard A. Posner. Murphy, the book's author, gave a talk about the book in March 2003 at The Cato Institute, and you can access separate video and audio broadcasts of those remarks via this link.
Posted at 22:25 by Howard Bashman



"Senate goes easy on judicial picks; Democrats' opposition is selective": Tomorrow's edition of The Atlanta Journal-Constitution contains this report.
Posted at 20:51 by Howard Bashman



"Parties Weigh Risks of Passing Soft-Money Plate": Sunday's edition of The New York Times contains this report.
Posted at 20:46 by Howard Bashman



What judicial nomination crisis? I received the following email a few days ago from someone who clerked at the U.S. Supreme Court in the 2000 Term for a Justice who is viewed as comfortably within the Court's liberal to moderate wing:
I think you do an excellent job of presenting legal news in a manner that is useful and compelling to readers of all political and judicial philosophies.

The only area where I find myself occasionally frustrated is your coverage of the pending judicial nominations. While I disagree with you on the merits of some of the candidates and have more sympathy for some of the tactics being employed in the battle than you do, others have engaged you on these issues and I don't mean to draw you into a repetitive conversation.

However, there is one point that I find extremely perplexing about the entire debate: About the only thing that both sides seem to agree on is that there is a judicial nomination "crisis" and that we need to do something to fix the problem. I'm sorry, I just don't see a crisis. In fact, I see the system working pretty much as it was designed to. We are in an era where the best legal minds profoundly disagree about important questions regarding the proper judicial role, the appropriate balance of power between the states and the federal government, the scope of individual liberties in times of danger, etc. It encourages me that all the relevant actors seem concerned about making sure that the courts are staffed by people who share their views on these important questions. To the extent that they care, the electorate is cleaved down the middle on these issues as well. Given the importance of the questions, the legitimacy of the arguments on both sides, and the division of public opinion as to the direction our judiciary should take, it seems appropriate that we move slowly on judicial confirmations until one of two things happen: (1) the President (whoever he or she may be) proposes candidates who are broadly acceptable to both sides of this wide divide or (2) one side wins the argument by convincing a sufficient super-majority of the electorate that their approach is sound. Until then, I think it is the responsibility of both sides to stand up for what they believe in even if it means a slightly understaffed judiciary. In short, in contrast to the common perception that we have a "crisis," I think that the system is working swimmingly.
I thank this neophyte law professor for writing to share these views.
Posted at 20:14 by Howard Bashman



In news from Canada: Canadian Press reports that "B.C. appeal court overturns supreme court decision banning same sex marriage." (Via "Kiwi Pundit.") And The Globe and Mail reported here yesterday that "B.C. to allow same-sex marriages." Update: Via "GreenGourd's Garden," I learn that the court's decision in this matter is accessible online here.
Posted at 20:05 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "A Look at New Campaign Finance Law"; here "Campaign Finance Rules Now in Flux"; here "Okla. Wants to Charge Nichols With Murder"; and here "Judge: Court Official to Visit Sick Child."
Posted at 16:26 by Howard Bashman



From tomorrow's edition of The Washington Post Magazine: A cover story whose headline is "Running Scared; Bob Graham's message to the voters is simple: However frightened we are, it isn't nearly frightened enough."
Posted at 16:25 by Howard Bashman



On this evening's installment of C-SPAN's fine program "America and the Courts": According to the program's description: "As part of a C-SPAN and Comcast project to encourage dialog between students and national leaders, Justice O'Connor spoke [on May 1, 2003] to high school students [from Gonzaga College High School in Washington, DC] about the value of public service, law careers, and her experience in politics and the judicial system. Following her remarks she answered questions from the students." If you miss it on television this evening, you can watch the program online during the next several weeks via this link.
Posted at 13:14 by Howard Bashman



Thank you! Adam Bonin of the always very interesting "Throwing Things" blog wishes "How Appealing" a happy first anniversary in a post that's simply too kind.
Posted at 11:40 by Howard Bashman



Elsewhere in Saturday's newspapers: In The Boston Globe, Lyle Denniston reports that "Soft money ban is dealt legal blow; But prohibition on attack ad funding upheld." In related news, you can access here an article entitled "Full scope of decision uncertain" and here an article entitled "Political groups praise decision; Decry retention of 'attack ad' ban." An editorial is entitled "Special-interest ruling." And in other news, "'CSI' episode won't air in R.I."

In The Los Angeles Times, David G. Savage is the co-author of an article entitled "'Soft Money' Ad Ban Upheld; Judges' ruling focuses on the key component of campaign finance reform passed last year. The Supreme Court will have the final word" and the author of an article entitled "High Court Weighs Survivors' Privacy; A request for close-ups of the body of Vincent Foster, a former Clinton aide, pits the public's right to know against family's wishes."

The Washington Times reports here that "Panel upends campaign finance." An article reports that "Court rules smoking ban was invalid." And in other news, "Campus lifts limits on conservative clubs."

The Washington Post, in addition to the articles about the campaign finance ruling that I linked to last night, contains an editorial entitled "A Mixed Decision." An article reports that "List Created of Captives to Be Tried by Military Tribunals." In local news, you can access here an article entitled "Moussaoui Barred From Hearing; U.S. Request Cited Discussion of Classified Information" and here an article entitled "Malvo Was Brainwashed, Ex-Guardian Says." And letters to the editor run under the headings "A Loss of Our Humanity" and "Justice for Victims of State-Sponsored Terror."

The New York Times, in addition to the articles about the campaign finance ruling that I linked to last night, contains an editorial entitled "Half-Right on McCain-Feingold." And an article you can access here is entitled "A Black Woman Sits in Bull Connor's Seat."
Posted at 11:07 by Howard Bashman



Some federal judicial nomination and confirmation news from here and there: The Cleveland Plain Dealer reports here that "Confirmation vote is Monday for Ohioan." An article in The Houston Voice runs under the headline "Bush pick for appeals court called gays 'queers'; Allen, an abstinence-only advocate, would serve on Md., Va. court." Not to mention North Carolina, South Carolina, and West Virginia. The Hattiesburg American today contains an editorial entitled "Democrats target Bush nominees." And the Scripps Howard News Service contains an item by Bill Straub entitled "Here's why Congress is squabbling over judge nominees."
Posted at 09:21 by Howard Bashman



"Judicial panel suffers setback": The Times Union of Albany, New York, in an article accessible here, reports that "U.S. District Judge David Hurd rejected the commission's request that his February ruling -- striking down key judicial codes as unconstitutional -- not take effect until after an appeal."
Posted at 09:13 by Howard Bashman



Friday, May 02, 2003
Week 52: Two pieces of encouraging news to close out the final full week of this Web log's first year of existence. First, every single day this week -- from Monday through to today -- "How Appealing" has received more than 9000 page views per day. True, this blog's busiest day ever didn't occur this week, but this is the first week in this blog's history that so many visits have occurred every single day of the week. And second, I received an email from a federal appellate judge today that stated, "I thought you'd like to know that I was with a bunch of the judges on my court at a dinner table Tuesday evening, and everybody was talking about how indispensable your 'blog is." What a gratifying way to close out the final week of the first year of this blog's existence.
Posted at 23:30 by Howard Bashman



And yet no discussion so far of the elusive italicized period: Via "GreenGourd's Garden" today comes news of the "Bluebook Blog." Hmmm, I wonder what Steven Wu, whose post "Why I hate the Bluebook" you can access here, might have to say about this.
Posted at 23:13 by Howard Bashman



On the front page of Saturday's edition of The Washington Post: Neely Tucker and Juliet Eilperin report that "Campaign Finance Law Is Partly Struck Down; Decision Brings Uncertainty to Election Fundraising." And Charles Lane has an article entitled "High Court Faces New Political Foray."
Posted at 23:02 by Howard Bashman



From tomorrow's edition of The New York Times: Neil A. Lewis with Richard A. Oppel Jr. report that "U.S. Court Issues Discordant Ruling on Campaign Law." And Linda Greenhouse has an article entitled "1,638 Pages, but Little Weight in Supreme Court."
Posted at 22:57 by Howard Bashman



Available online at law.com: Tony Mauro reports here that one advantage of being a member of the U.S. Supreme Court's Bar -- the ability to take notes in the Courtroom -- has vanished because now everyone can. He also discusses a Chief Justice Rehnquist bobble-head doll and the actual Chief Justice's reaction when a certain Federal Circuit Judge sought to wax longiloquent at the podium when moving the admission of his law clerks into the U.S. Supreme Court's Bar.

Marcia Coyle reports here that "Senate Eyes Competing Class Action Bills; Easing path to U.S. courts is key" and has an article here entitled "Relief Denied: Detainee cases move toward the Supreme Court."

In news from New York, an article reports that "New York High Court Declares It Is Not Bound by 'Spargo'; Brooklyn Supreme Court justice removed from bench despite federal ruling." In related news, you can access here an article entitled "Limits of Judicial Speech Debated."

Plenty of commentary to point to this evening. Associate Justice William W. Bedsworth's latest column is available online, and as always it is very funny but this time is also quite peripatetic. Elsewhere, an essay is entitled "Jean Valjean Lives: Petty criminals face harsh future after three strikes cases." Evan P. Schultz has an op-ed entitled "Tilting the Scales of Justice: Tort reform is always tricky -- especially if the justices forget it's a balancing act." And some lawyers whom I've never heard of (sorry, folks) have an essay entitled "What Does 'Moseley' Mean? Other courts must answer key questions from the Supreme Court's big trademark case."
Posted at 22:33 by Howard Bashman



"Calif. Girl Recites Pledge Despite Dad's Lawsuit": Reuters offers this report. And today's edition of The Sacramento Bee reports here that "Court urged to toss out pledge ruling; Elk Grove school officials want a ban reversed without a full-dress review."
Posted at 20:50 by Howard Bashman



Analysis of today's McCain-Feingold ruling: Law Professor Rick Hasen -- who despite all signs to the contrary continues to believe that I intend to read today's opinions -- is an election law specialist. He plans to provide a great deal of coverage and analysis of today's decision over at his blog, "Election Law."

Here, by contrast, you'll continue to receive snippets of information likely to be of interest to children of all ages, most of which I'm probably receiving via email from readers. For example, one reader who recently clerked at the D.C. Circuit emails to observe: "I may have spotted the first error: Top of page 11 in the per curiam opinion, the court says, 'this Court lacks standing to entertain challenges to these provisions.' A party can lack standing, and a court can lack jurisdiction, but I've never heard of a court lacking standing. Was the court an intervenor, perhaps?"
Posted at 19:48 by Howard Bashman



From "The Indiana Law Blog": Marcia Oddi posts here this afternoon that "In a 47-page opinion issued today, May 2, 2003, the Indiana Court of Appeals has ruled in the case of The Indianapolis Star v. The Trustees of Indiana University. * * * As you basketball fans will recall, this case involved the Star's efforts to access records held or produced by the I.U. Board of Trustees as a result of their investigation of player Neil Reed's charges against Coach Bob Knight." Marcia's post contains a link to the ruling.
Posted at 19:35 by Howard Bashman



Further evidence that librarians love "How Appealing": Thanks much to the Law Library at the Loyola University of Chicago School of Law for linking "How Appealing" on its "News" page. The only thing that rivals the affection that law librarians have for "How Appealing" is the affection that "How Appealing" feels toward them.
Posted at 19:32 by Howard Bashman



The latest wire service reports on this afternoon's McCain-Feingold decision: The Associated Press reports here that "Parts of Campaign Finance Law Struck Down" and here is a "Campaign Finance Chronology." James Vicini, who covers the U.S. Supreme Court for Reuters, reports here that "Court Throws Out Parts of Campaign Finance Law."
Posted at 17:37 by Howard Bashman



A reader asks: Someone who not too long ago served as a law clerk at the U.S. Supreme Court emails to ask whether footnote one of D.C. Circuit Judge Karen LeCraft Henderson's opinion (the footnote starts on page six of this PDF document) represents payback for the leaks that had accused her of having been the cause of the delay that preceded today's ruling. Interesting question.
Posted at 17:31 by Howard Bashman



If, like me, you don't relish the prospect of reading 1625 pages of opinions: The Greedy Clerks Board is back online. Now if you're a U.S. Supreme Court Justice contemplating retirement and you learn that the campaign finance decision produced opinions totaling more than 1500 pages in length, what would your reaction be? Just askin'. And will this decision get its own volume of F. Supp.? Only time will tell.
Posted at 17:06 by Howard Bashman



Let's chart it out: On pages 12 to 15 of the two-judge per curiam opinion in the enormous McCain-Feingold ruling, you'll find a chart listing how each of the three judges has voted on the major questions presented.
Posted at 16:34 by Howard Bashman



You can now access the McCain-Feingold opinions online: Via this link. (Thanks to Marty of "SCOTUSblog" for the pointer. By his count, only 1625 pages of opinions.)
Posted at 16:16 by Howard Bashman



"Parts of Campaign Finance Law Struck Down": Here's The AP's latest report.
Posted at 16:09 by Howard Bashman



"Federal court declares part of campaign finance law's soft money ban unconstitutional." The Associated Press has this news alert. Perhaps next we'll learn how many pages the decision is. And not to belabor an obvious point, but if someone emails a copy of the decision to me, I'll get it posted online (although you may have to use my work email address if the file is that huge).
Posted at 15:52 by Howard Bashman



"Longest Death Row Inmate's Appeal Denied": The Associated Press has this report. There's a question lurking in that awkwardly-phrased headline that I don't especially wish to ask.
Posted at 15:36 by Howard Bashman



Law Professor Rick Hasen says that the special three-judge panel's ruling in the McCain-Feingold case will issue within the hour: And this time he appears to really mean it (scroll down at his blog if context is required). I'll try to provide a link to the opinion as soon as it becomes available online, while I'm sure that Rick and others will do their best to make sense of it all.
Posted at 15:33 by Howard Bashman



Not a hypothetical question: Imagine a federal appellate court that is authorized to have six judges in regular active service. Imagine further that on the question whether to grant rehearing en banc, three active judges vote in favor of rehearing en banc and two vote against. What would happen?

Well, in the U.S. Court of Appeals for the First Circuit, the answer to that question depends on the answer to another question -- why are only five judges voting? If the reason why only five judges are voting is that the sixth seat is vacant, then rehearing en banc will be granted. But if the reason why only five judges are voting is because the sixth judge is recused, rehearing en banc will be denied because the recused judge -- at least in the First Circuit -- is considered as a vote against rehearing en banc. Indeed, today the Nation's federal appellate courts remain all over the lot as to whether a majority of all judges in regular active service -- whether recused or not -- is necessary to grant rehearing en banc, or whether only a majority of the non-recused active judges is required. The April 2001 installment of my monthly appellate column -- which was entitled "Recused Federal Appellate Judges Should Not Be Counted As Voting Against Petitions For Rehearing En Banc" -- explains my views on this issue.

The reason why this question is not hypothetical is that yesterday the First Circuit denied rehearing en banc in the Boston firefighters racial discrimination remedial decree case (divided three-judge panel opinion available here), which I previously reported on at this link, by a vote of three judges in favor of rehearing en banc, two judges against, and one judge recused.
Posted at 15:24 by Howard Bashman



"In the Bedroom: Rick Santorum wants to regulate your passions." Jacob Sullum has this essay online at Reason.
Posted at 15:10 by Howard Bashman



20 questions update: On Monday, May 5, 2003, the newest installment of "20 questions for the appellate judge" is due to appear online here. May's interviewee serves on the U.S. Court of Appeals for the Ninth Circuit. And, coincidentally, so does June's interviewee. But you have my word that the July, August, and September interviewees serve on other federal appellate courts (although one of those interviewees has a very real connection to the Ninth Circuit).

Now that I've all but wrapped-up my responses to the "20 questions" that my friends at "The Academy" blog asked of me, I have a new appreciation for just how much work is involved in being the interviewee. "The Academy" blog will be posting their questions and my answers online there on Tuesday, May 6, 2003, which just happens to be the one-year anniversary of "How Appealing." It's been fun.
Posted at 14:49 by Howard Bashman



Today's federal judicial nomination, filibuster, and confirmation news from here and there: The Dallas Morning News reports here that "GOP senators go 1-for-2 on judges; As Democrats continue to block Owen, another nominee is confirmed." Today's edition of The San Antonio Express-News contains an article entitled "Prado OK'd for appeals court." On Monday of this week, The Austin American-Statesman published an op-ed by Kae McLaughlin entitled "Owen is perfect candidate for filibuster." Today's edition of The Atlanta Journal-Constitution contains an article entitled "Frustrated by filibuster, GOP vows to get even." And The Financial Times contains an article entitled "Fight over 'ideological selection of judges.'"

Today's edition of The Houston Chronicle reports here that "Houstonian among 5 Bush taps for Texas judgeships."

In news from Oregon, today's edition of The Oregonian reports here that "Mosman's bid for judgeship receives boost." The Statesman Journal reports here that "Wyden will back Mosman for seat; The U.S. attorney's stance on gay and lesbian issues had drawn concerns." And The Associated Press reports here that "Gay groups withdraw opposition to attorney eyeing federal judgeship." On Tuesday, The Oregonian contained two other related items: an article entitled "Judge candidate says he's not biased against gays" and an editorial entitled "Mosman in the spotlight."
Posted at 13:32 by Howard Bashman



You can now access online the official notice of yesterday's federal judicial nominations: It's available here. I reported the news last night, before the official notice appeared online, in a post you can access here.
Posted at 13:30 by Howard Bashman



"I want to know who the three were who had more important things to do than vote for me." That quotation is a humorous statement which The Associated Press in this article attributes to newly confirmed Fifth Circuit Judge Edward C. Prado upon learning that the U.S. Senate voted 97-0 in favor of his confirmation. The article goes on to say:
Locally, he is well-known for his humorous courtroom banter with lawyers and using his laptop computer to punctuate trials with music and various sound effects, like Porky Pig's "T-t-t-that's all, folks!" to mark the end of a day of testimony.

"It might be more challenging to use some of my technology on the appellate court, but I think I'm going to try to find ways of using it," he said.
Hmmm, this could be interesting!
Posted at 13:21 by Howard Bashman



Stock market news: If the make believe world of Blogshares isn't enticing, via a New York Times newsletter I learn today that an Australian stock exchange yesterday "launch[ed] the world's first publicly traded brothel." The New York Post has this report, and The Times of London provides this coverage.
Posted at 13:05 by Howard Bashman



"Judicial Considerations: We've come a long way. Or have we?" Kay Daly, spokesperson for the Coalition for a Fair Judiciary, has this essay just posted at National Review Online.
Posted at 09:50 by Howard Bashman



"Edward Becker, 'finest living judge in the U.S.'": Let the parade of plaudits -- all unquestionably well deserved -- begin. Today's issue of The Philadelphia Daily News contains this report. Chief Judge Edward R. Becker of the U.S. Court of Appeals for the Third Circuit takes senior status on Sunday, May 4, 2003, making today the last business day on which he will be serving as the Third Circuit's chief judge. Come Monday morning, the world will greet Third Circuit Chief Judge Anthony J. Scirica, who just happens to be another exceptionally talented jurist.
Posted at 09:36 by Howard Bashman



The AP is anti-"ass": Some may find amusing the fact that the article from The Associated Press to which I have linked immediately below attributes to Senator Orrin G. Hatch (R-UT) the statement: "Some I think are dumb ... questions, between you and me. I am not kidding you. I mean, as much as I love and respect you, I just think that's true." For what that ellipsis conceals, see my earlier post here. (Update: A reader emails to ask -- "This from the same news organization that put out the 'man on dog' freaking me out comments last week?")
Posted at 09:31 by Howard Bashman



"GOP Frustrated by Dem Filibusters May Sue": Jesse J. Holland of The Associated Press offers this report.
Posted at 07:41 by Howard Bashman



In Friday's newspapers: The Washington Times reports here that "Bid to end filibuster of Owen falls short" and here that "GOP weighing strategies to break judge filibusters." And in op-eds, Michelle Malkin writes of "Ashcroft vs. the Chicken Littles"; Cal Thomas considers "Privacy vs. whose morals?"; and Richard W. Rahn asks "Legality a la France?"

In The New York Times, Neil A. Lewis reports that "G.O.P. Fails in Bid to End Filibuster Against Texas Judge." You can access here an article entitled "Senator in Heated Exchange With Parents of Gay Children." In other news, "Broad Domestic Role Asked for C.I.A. and the Pentagon." An article is entitled "After the Holocaust Losses, Finding Hope in Legislation." This article reports that "Airlines Want 9/11 Lawsuits From Families Thrown Out." And you can access here an article entitled "Times Reporter Resigns After Questions on Article." (And now over to you, Romenesko.)

The Washington Post reports here that "Nomination Of Tex. Judge Is Blocked." An article reports that "Md. Lawyer Wants Bar Higher for Death Row; Resentencing Urged for Inmates." In other local news, "Weston Trial May Begin Within a Year." An editorial is entitled "Locked Out of Court." And a letter to the editor from two U.S. Senators runs under the heading "Federalizing Victims' Rights."

The Boston Globe reports here that "Democrats block vote on Bush nomination; 2d filibuster bars appeals court pick." An editorial is entitled "Santorum's passions." In op-eds, Derrick Z. Jackson considers "How Big Tobacco is rising from the ashes" and Scot Lehigh considers "Bias masked as 'inclusion.'"

The Los Angeles Times contains an article entitled "The Foot Soldiers of Justice: In Birmingham, Ala., a reunion will honor the ordinary people who took extraordinary risks on the front lines of the civil rights movement." An op-ed by Law Professor Jonathan Turley runs under the heading "Appetite for Authoritarianism Spawns an American Gulag." An op-ed by Jason Halperin is entitled "Feeling the Boot Heel of the Patriot Act." Letters to the editor run under the headings "Return Lady Liberty" and "Wal-Mart's Treatment of Its Employees."

And finally for now, The Christian Science Monitor contains an op-ed by Amitai Etzioni (whose blog you can access here) entitled "Patriot Act is needed, but so are revisions."
Posted at 06:33 by Howard Bashman



U.S. Senate votes scheduled for Monday, May 5, 2003: On Monday, May 5, 2003, the U.S. Senate is scheduled to hold four hours of debate on the nomination of Deborah L. Cook to serve on the U.S. Court of Appeals for the Sixth Circuit. Thereafter, at 4:45 p.m., the Senate will vote on that nomination, and Justice Cook will be confirmed. Following the vote to confirm Justice Cook, the Senate will resume debate on the nomination of Miguel A. Estrada to serve on the D.C. Circuit. At 6 p.m. on Monday, the Senate will conduct its fifth vote to invoke cloture on the Estrada nomination. See page two of this PDF document for additional details.
Posted at 00:40 by Howard Bashman



Thursday, May 01, 2003
Care to see what other bloggers are saying about the federal judicial nomination and confirmation process? If so, then you may find some or all of the following links to be of interest: Jack M. Balkin replies to Juan Non-Volokh; Non-Volokh surreplies; Sam Heldman invites himself into the conversation (which is perfectly fine blogger etiquette); Rick Hasen provides his answer to my question "What's the difference?"; Lawrence Solum examines what it means for the U.S. Senate to take a recess; and Brett Marston sticks up for political scientists (which is what he happens to be).
Posted at 23:31 by Howard Bashman



The Associated Press is reporting: How about starting with a headline that refers to the U.S. Supreme Court's first female Justice by her middle name? You can access here an article entitled "Supreme Court's Day: Gay Rights Cases Up." In other news: "Nominee Brief Resembles Santorum Remarks"; "Ala. Supporters Rally to Keep Monument"; and "Moussaoui Wants Ashcroft to Answer Quiz."
Posted at 23:12 by Howard Bashman



Blogshares has gone live: Yes, the beta testing is over. As if we didn't already have enough idiotic ways to whittle away the hours. Anyhow, 1000 shares of "How Appealing" remain up for "sale."
Posted at 22:45 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Boston Globe, Lyle Denniston reports here that "US urges Supreme Court to keep 'under God' in pledge; 'Religious heritage' cited by Ashcroft in appeal of ruling" and here that "Justices weigh housing authority policy; Some cast doubt on case's relevance to 1st Amendment." You can access here an article entitled "Kerry admits to an error in boast about 1st speech." In local news, you can access here an article entitled "SJC rejects abuse suit reaching back to '50s" and here "Panel delays vote on gay marriage." An editorial is entitled "Brand illusions." In op-eds, Ellen Goodman writes of "The Republican theocracy"; Adrian Walker asserts that "Lopez must step down"; and Raymond J. Brassard maintains that "Juries help keep our democracy working."

In The Los Angeles Times, David G. Savage reports that "White House Takes Pledge Fight to Top Court." In news pertaining to California, "High Court to Review Law Allowing Slave Labor Suits." And Norah Vincent has an op-ed entitled "'Gay Case' Should Worry Straights Too."

In The San Francisco Chronicle, Bob Egelko reports that "U.S. asks high court to take pledge case."

In USA Today, an article reports that "Kidnap victims gather to watch Bush sign ''Amber Alert'' law." And an op-ed by Richard Florida is entitled "Gay-tolerant societies prosper economically."
Posted at 22:26 by Howard Bashman



Today's federal judicial nominations: President Bush today officially nominated the following individuals to the courts indicated: Michael Fisher (3d Cir.), James Cohn (FL,S); David Proctor (AL,N); Earl Yeakel (TX,W), Xavier Rodriguez (TX,W), Kathleen Cardone (TX,W), Marcia Crone (TX,E), Dana Sabraw, (CA,S); Dale Fischer (CA,C); William Hayes (CA,S); Roger Benitez (CA,S); Larry Burns (CA,S), John Houston (CA,S); Frank Montalvo (TX,W). These nominations aren't yet noted on the White House Web site, so you'll just have to take my word for it.
Posted at 22:18 by Howard Bashman



Oh no -- not judicial nomination humor! Neal Pollack, at his blog "The Maelstrom," tries his hand at some judicial nomination humor. (Via "Eschaton.")
Posted at 21:00 by Howard Bashman



President Bush's statement on the Democratic filibuster of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit: You can access it online here.
Posted at 20:57 by Howard Bashman



"Senate confirms Prado's nomination to appellate court": The San Antonio Express-News provides this report.
Posted at 20:23 by Howard Bashman



We agree to disagree: The final three paragraphs of this three-judge panel per curiam opinion that the U.S. Court of Appeals for the Fifth Circuit issued today are worth quoting in full:
For better or for worse, however, we conclude that Murphy's appeal in this case is now controlled, not by the Supreme Court's decisions in Penry I and Penry II, but by the en banc decision of this Court in Robertson v. Cockrell, 2003 WL 1204119 (5th Cir. 2003) (en banc). Like Murphy and Penry, Robertson was tried in that same troublesome period of time between 1989 and 1991 and the two special statutory issues (deliberateness and future dangerousness) and a separate instruction on mitigating evidence including "the nullification instruction," which were given in Robertson's state trial, were virtually identical to those given in Penry's retrial and Murphy's original trial. After Robertson's conviction and death penalty were affirmed by the state courts on both direct and state habeas reviews and by this Court on federal habeas, the U.S. Supreme Court granted a writ of certiorari, vacated the judgment of this Court and remanded the case for reconsideration "in light of" Penry II. On remand from the Supreme Court, a panel of this Court granted habeas relief to Robertson on the basis of the Supreme Court decision in Penry II; but that panel decision was voted to be reconsidered en banc and a majority of this Court sitting en banc concluded that (i) Robertson's mitigating evidence failed to satisfy the requirements of "constitutionally relevant mitigating evidence" as defined by numerous decisions of this Circuit; (ii) that all of Robertson's mitigating evidence therefore could be legitimately considered by the jury within the framework of the two statutory special issues which were submitted; (iii) that the "nullification instruction" which was actually submitted to Robertson's jury was surplusage and error, if any, in regard to its submission, was harmless; and, (iv) that the holding of the Supreme Court in Penry II did not apply to or control Robertson's appeal.

The quantity and quality of mitigating evidence offered by Murphy in the punishment phase of his state trial is certainly not any stronger than the mitigating evidence offered by Robertson and we conclude that this panel is bound by the holding of our en banc court in Robertson and we therefore reluctantly affirm the decision of the District Court below which denied Murphy all relief which he requested.

We use the adverb "reluctantly" in the preceding holding because two members of this panel filed comprehensive dissents to the holding of the en banc court in Robertson; and for the reasons stated in those dissents, we rule as we do here in Murphy's appeal only because we are bound by the en banc decision in Robertson.

Judge Wiener concurs in the judgment only.
Interestingly, Circuit Judge Jacques L. Wiener, Jr. also concurred only in the judgment in the Robertson case. It was the two other judges on today's panel who dissented from the earlier en banc ruling.
Posted at 18:51 by Howard Bashman



Another press release: Hey, as long as they're interesting, I'll post them. Or at least until Senator John Cornyn's (R-TX) staff figures out how to post these promptly to the Senator's own Web site.
CORNYN TO CONVENE HEARING TO DISCUSS "FRESH START" IN JUDICIAL CONFIRMATION PROCESS

Senators, leading constitutional scholars to testify

WASHINGTON – U.S. Sen. John Cornyn, Chairman of the Judiciary Committee's subcommittee on the Constitution, announced Thursday a list of witnesses scheduled to testify in the hearing he will convene on reforming 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 witnesses scheduled to testify are Sens. Zell Miller (D-Ga.), Chuck Schumer (D-NY), and Arlen Specter (R-Pa.), as well as constitutional scholars Bruce Fein, Fein & Fein; Dean Douglas W. Kmiec, Catholic University School of Law; Professor Steven G. Calabresi, Northwestern School of Law; and Professor John C. Eastman, Chapman Law School.

"These witnesses, with their vast constitutional knowledge and confirmation process expertise, will provide a broad range of insight and ideas into how best to reform the judicial confirmation process. We hope to identify not only the flaws in the current system, but how they can best be addressed," Sen. Cornyn said. "The hearing will provide a forum for all sides to raise important concerns and suggestions with the intent of creating a fair and reasonable process of confirming judicial nominees."

The hearing comes 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 being filibustered by a partisan minority of the Senate. Five of the 11 nominees have still not had a vote by the full Senate.

"It's encouraging that Sen. Schumer, my colleague on the subcommittee, has acknowledged that the system is broken and has offered a proposal of his own. Our hearing will review his, and many other proposals," Chairman Cornyn added.

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.

-See below for biographies of the witnesses-

Bruce Fein, Fein & Fein

Bruce Fein is a nationally acclaimed expert on constitutional law. He has more than 25 years of experience in legal fields ranging from antitrust to communications to national security law. He is former Associate Deputy Attorney General in the Department of Justice and former General Counsel of the Federal Communications Commission. Both parties in Congress have repeatedly summoned Mr. Fein to testify on various constitutional subjects. According to National Law Journal, he is one of the seven most quoted attorneys in the nation. He regularly appears on national radio and television, including National Public Radio, Face the Nation, C-Span and MSNBC.

***

Douglas W. Kmiec, Catholic University School of Law

One of the nation's leading experts in constitutional law, Douglas W. Kmiec previously held the Caruso Family Chair in Constitutional Law at Pepperdine University School of Law. Prior to that post, he taught constitutional law at the University of Notre Dame for nearly two decades. Professor Kmiec has previously served as Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice.

Dean Kmiec has authored or co-authored numerous books and articles on constitutional issues and the role of the U.S. Supreme Court. These include books co-authored with distinguished legal historian Stephen B. Presser - The American Constitutional Order, Individual Rights and the American Constitution, and The History, Structure and Philosophy of the American Constitution.

***

Steven G. Calabresi, Northwestern School of Law

Professor Calabresi is a member of the faculty of the Northwestern University School of Law and is a graduate of the Yale Law School and of Yale College. He served as a Law Clerk to Justice Antonin Scalia of the United States Supreme Court. From 1985 to 1990, he served in the Reagan and Bush Administrations working both in the White House and before that in the U.S. Department of Justice. Since joining the Northwestern Faculty in 1990, Professor Calabresi has participated in constitutional reform conferences with Eastern European officials.

***

John C. Eastman, Chapman School of Law

John Eastman is a Professor of Law at the Chapman University School of Law, specializing in Constitutional Law and Legal History. He is also the Director of the Center for Constitutional Jurisprudence, a public interest law firm affiliated with the Claremont Institute for the Study of Statesmanship and Political Philosophy. Prior to joining the Chapman law faculty, Dr. Eastman served as a law clerk to the Honorable Clarence Thomas, Associate Justice, Supreme Court of the United States.
It looks to be quite an interesting hearing.
Posted at 17:30 by Howard Bashman



Remember that bench memo you wrote all those many years ago? Thanks to a reader from Oregon who brought to my attention the controversy surrounding a possible nominee to the federal district court bench there. You can access here an article from The Statesman Journal entitled "U.S. attorney meets with gay community; Mike Mosman's views about homosexuality may be a factor in his bid for a judgeship." And The Oregonian previously reported here that "Smith's pick stirs gay-rights controversy."
Posted at 15:47 by Howard Bashman



The U.S. Senate has confirmed Edward C. Prado to the U.S. Court of Appeals for the Fifth Circuit: The vote was 97-0.

And here are the results of today's Senate Judiciary Committee business meeting. The committee has held over until its next meeting votes on the nominations of John G. Roberts, Jr. to serve on the D.C. Circuit and Carolyn B. Kuhl to serve on the Ninth Circuit. Controversial U.S. District Court for the Eastern District of Arkansas nominee J. Leon Holmes was reported to the floor of the U.S. Senate by the committee without recommendation.
Posted at 15:34 by Howard Bashman



Statements from today's Senate Judiciary Committee business meeting: You can access the statement of committee chairman Orrin G. Hatch (R-UT) here and the statement of ranking Democratic member Patrick J. Leahy (D-VT) here.
Posted at 14:07 by Howard Bashman



Worse than death or taxes: A lengthy opinion that Ninth Circuit Judge Marsha S. Berzon issued today begins, "The estate tax combines into one sad transaction the only two certainties in life."
Posted at 13:53 by Howard Bashman



Hierophantic and rhadamanthine indeed: You can always count on Senior Ninth Circuit Judge Ferdinand F. Fernandez to put in a good word (and often times more than just one), as the conclusion to this opinion issued today demonstrates.
Posted at 13:37 by Howard Bashman



Today is "Law Day": To readers of "How Appealing," it probably seems like every day is "Law Day." But today really, truly is. You can access President Bush's official proclamation here.
Posted at 12:51 by Howard Bashman



Today's round-up of judicial nomination and confirmation news and commentary: Today's edition of The Dallas Morning News reports here that "Senate freshmen seek 'a fresh start' on judicial nominations; Cornyn, 9 others say process mired in old fights, recriminations." Reuters reports here that "New Senators Seek to End Judicial Battles." Today's edition of The Financial Times reports here that "Democrats set to block Bush nomination."

The U.S. Senators from Georgia -- one a Democrat and the other a Republican -- are co-authors of an op-ed entitled "Give court nominees their day in Senate" that appears today in The Atlanta Journal-Constitution.

Yesterday's edition of The Wall Street Journal contained an editorial entitled "One Judge In, Only 51 to Go." Today's edition of The Las Vegas Review-Journal contains an editorial entitled "Filibuster two-fer; Senate Democrats kick judicial obstruction up a notch."

Elsewhere, Talon News has an item entitled "White House, Hatch Rebuke Dems for Judicial Obstruction." John Nowacki, Director of Legal Policy at the Free Congress Foundation, has an op-ed entitled "Senate Hard-liners Start New Filibuster." In The Washington Times, Gary J. Andres has an op-ed entitled "Two to tango."

Finally, The San Antonio Express-News reports here today that "Bush to name Texas judicial picks." And The Corpus Christi Caller-Times reports here that "Senator makes 8th attempt to change how Texas picks its judges; He wants them to be appointed instead of elected and wants to put the idea to voters."
Posted at 12:31 by Howard Bashman



"It's in there!" I always enjoyed that Prego pasta sauce commercial, and apparently so did Eighth Circuit Judge William J. Riley if footnote eight of this opinion issued today is any indication.
Posted at 12:27 by Howard Bashman



"Democrats Block a Second Bush Judicial Nominee": Reuters provides this report.
Posted at 12:18 by Howard Bashman



The Associated Press is reporting: Jesse J. Holland reports that "Democrats Block Judge From Appeals Court." In other news, you can access here an article entitled "Senators Want to Expand Hate Crimes Law"; here an article entitled "Colo. Court Water Ruling Blow to Farmers"; and here an article entitled "Cincinnati Drops Suit Vs. Gun Industry."
Posted at 12:04 by Howard Bashman



From yesterday's White House press briefing: Lots of discussion of the judicial nomination and confirmation process. See here, here, here, here, and here. The final link in that list presents the following question: "A new controversy may be cropping up because the two Maryland senators are concerned about the Claude Allen nomination. Grant you, they might not have voted for Owen and Estrada anyway, but they're upset about the Claude Allen nomination because he's a Virginian, and they consider that to be a Maryland seat on the 4th Circuit. Does the President have any feeling of obligation to hold to those kinds of gentlemen's agreements?"
Posted at 12:00 by Howard Bashman



Mmmm, stuffing: Denise Howell has a very kind post in which she writes that in just a few days "Howard Bashman will be celebrating his first year of blogging the stuffing out of appellate jurisprudence." Happy sixth wedding anniversary, Denise!
Posted at 11:56 by Howard Bashman



Revisions to the U.S. Supreme Court's rules take effect today: Of course, you probably already knew that based on my post of January 27, 2003, which noted the adoption of the revisions on that day and provided all the relevant details.
Posted at 11:42 by Howard Bashman



The U.S. Senate's roll call vote tally on the defeated motion to invoke cloture of debate on the nomination of Priscilla R. Owen to the Fifth Circuit: You can access it online here. Only two Democrats joined with the 50 Republicans who voted for cloture. Three Democrats and one Republican were absent and thus did not vote.
Posted at 11:37 by Howard Bashman



What "rule of six"? An email from a veteran watcher of the U.S. Supreme Court, which I posted here last night, stated that "under conventional practice within the Court, it takes the votes of six justices to reverse summarily at the petition stage."

In response, "How Appealing" reader Miguel A. Estrada emails:
I do not think it is entirely correct to say that it requires 6 votes to secure a summary reversal. It can be done with five votes, just like a reversal on the merits after briefing and argument. What it requires is for at least one of the remaining four members not to insist on granting cert. and set the case for argument. In other words, the "rule of four" for granting cert. must be respected, so a summary reversal is not possible if four Justices want to set the case for argument. But it is entirely possible for five Justices to issue a summary reversal so long as at least one of the remaining four Justices-- who may well agree with the majority of five on the merits for all we know -- does not think the case is worth the Court's time.
And a law professor at one of Pennsylvania's many fine law schools emails to say:
I am surprised that the "veteran Court watcher" you have quoted believes that "under conventional practice within the Court, it takes the votes of six Justices to reverse summarily at the petition stage." I know that H.W. Perry says the same thing in his book and quotes a member of the Court as his authority for the "rule of six." But there was no "rule of six" in the Burger Court. For example, in Stone v. Graham, 449 U.S. 39 (1980) (the Ten Commandments case), only five Justices joined the per curiam opinion; the other four dissented from the summary reversal. More recently, the Court summarily reversed the 10th Circuit over the dissent of four Justices in Leavitt v. Jane L., 518 U.S. 137 (1996). And still more recently, four Justices dissented from the summary reversal of the 9th Circuit in Calderon v. Coleman, 525 U.S. 141 (1998).

It is certainly true that summary reversals are now rare. But it is not true that they require six votes.
Thanks much to those who have taken the time to offer these clarifications.
Posted at 11:30 by Howard Bashman



Some interesting appellate news from Ohio: This morning's edition of The Canton Repository contains an article that begins, "A woman wants the Ohio Supreme Court to overturn her conviction for violating a protective order she sought against her ex-husband by inviting him to a party. The case before the Supreme Court involves conflicting opinions by two lower courts on whether victims of domestic violence can be charged with violating protective orders they sought." (Thanks, as always, to the reader who emailed to bring this article to my attention.)
Posted at 11:04 by Howard Bashman



The U.S. Senate's vote for cloture on the nomination of Priscilla R. Owen to the Fifth Circuit is defeated by a vote of 52 for, 44 against: Sixty votes for cloture are required to end debate. I'll provide a link to the roll call vote when it becomes available. Thus, two filibusters of federal appellate court nominees are now officially underway. And, as Associated Press reporter Jesse J. Holland reports here, Democrats are threatening an additional filibuster against Ninth Circuit nominee Carolyn B. Kuhl.
Posted at 10:54 by Howard Bashman



The U.S. Senate is now voting on a motion to invoke cloture on the debate over Priscilla R. Owen's nomination to the Fifth Circuit: You can watch live online at C-SPAN2 via this link. Thereafter, the full Senate will begin debate (see page two of this PDF document) on U.S. District Judge Edward C. Prado's nomination to the Fifth Circuit. When a vote occurs, Judge Prado is expected to be confirmed, and by a comfortable margin.
Posted at 10:43 by Howard Bashman



"Doubts, Filibusters, and Schumer's Wacky Idea: A bad day for the GOP on the judicial front." Access here Byron York's essay posted this morning at National Review Online.
Posted at 09:31 by Howard Bashman



The Senate Judiciary Committee has an executive business meeting scheduled for 9:30 a.m. today: A couple of controversial nominees appear to be on the agenda for committee votes. And keep in mind that the committee's vote on the nomination of John G. Roberts, Jr. to serve on the D.C. Circuit won't occur until next week, at the earliest. Update: The start time has been pushed back to 10:30 a.m.
Posted at 07:59 by Howard Bashman



In Thursday's newspapers: In The Washington Post, Charles Lane reports here that "High Court Debates Trespassing Issue; Case That Pits Freedom Against Safety May Be Returned to Virginia" and here that "Court Is Asked to Keep 'Under God' in Pledge." An article reports that "Judicial Nomination Reform Urged; Senators Agree Change Is Needed But Offer Conflicting Solutions." You can access here an article entitled "Bush Signs 'Amber Alert' To Save Kids; Wiretapping Expanded; Pretrial Release Banned." In other news, you can access here an article entitled "U.S. Objects in Moussaoui Case; Prosecutors Want Hearing, Evidence Closed to Defendant" and here an article entitled "McVeigh Lawyers Express Ire Over Letter." And one of the final items in Lloyd Grove's "The Reliable Source" column jokingly suggests that Senator Orrin G. Hatch (R-UT) may require a parental advisory warning on his next record album.

In The Washington Times, Frank J. Murray reports here that "Ashcroft asks court to undo Pledge of Allegiance ban" and here that "VMI ruling heartens liberties group." This article is entitled "Bids made to dislodge judicial picks." An article reports that "Gun-control plan gets 'slim' chance in Senate." And an op-ed by David Limbaugh is entitled "Turning judicial activism on its head."

In The New York Times, Linda Greenhouse reports that "First Amendment Argument Is Made in a Trespass Case." Adam Liptak has an article entitled "Court Makes It Harder to Sue in Some Cases of Sexual Abuse." In local news, "Fox Loses Round in Its Suit Over Anchor's Move to CNN." And an editorial entitled "Brooklyn's Courthouse Gang" calls for the "merit selection" of state court judges in New York.
Posted at 06:35 by Howard Bashman



"Panel Spars Over Roberts Nomination": FOXNews.com offers this report.
Posted at 00:17 by Howard Bashman




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