How Appealing

Monday, June 30, 2003
"Sex Appeal": Jeffrey Rosen has this essay online at The New Republic. In it he writes, "Yes, as a constitutional matter, Lawrence is worse than Roe."
Posted at 23:56 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Frist backs amendment to define marriage." Frank J. Murray reports that "Ruling on race likely to spur fight." David Limbaugh has an op-ed entitled "Moral relativism erodes freedom"; Gary J. Andres and Michael McKenn have an op-ed entitled "Developing young minds"; and Nat Hentoff has an op-ed entitled "TV's voice of the Constitution."

USA Today reports here that "Canada gives gays hope for change; Couples can cross border to get legal recognition U.S. denies them." Tony Mauro has a very interesting op-ed entitled "High court role in our lives becomes more public." And letters to the editor appear under the heading "Supreme Court ruling on gays hits right constitutional note."

In The Boston Globe, Lyle Denniston reports that "High court's course debated after rulings; Two key civil rights decisions mark shift from conservatism." And Cathy Young has an op-ed entitled "Upholding racial division."

The Los Angeles Times reports here that "Ruling Reigns at Gay Parades; Pride events in San Francisco and other cities herald the Supreme Court decision voiding anti-sodomy laws." In other news, "Lee vs. Viacom Raises Trademark Questions: The filmmaker is suing to stop the media giant from renaming its cable channel 'Spike TV.'" An editorial entitled "Skewed Picture of America" begins, "By nominating William H. Pryor Jr. to the federal appeals court, George Bush has declared that the Alabama attorney general is not only qualified to sit on the nation's second-highest court but is the kind of judge most Americans want. Senators should reject this implausible assessment." An op-ed by Richard Sander is entitled "Colleges Will Just Disguise Racial Quotas." And a letter to the editor appears under the heading "Conservative Opposition to Alberto Gonzales."
Posted at 23:32 by Howard Bashman



"Ruling Lets Unwanted E-Mail In; State high court says Intel can't stop a fired worker from sending critical messages unless they harmed the system. Critics fear companies may become targets." The Los Angeles Times provides this report.
Posted at 23:18 by Howard Bashman



"Court: Anonymous P2P no defense": c|net News.Com has this report on today's ruling of the U.S. Court of Appeals for the Seventh Circuit, which I noted earlier here.
Posted at 23:02 by Howard Bashman



"Woman who wore cross gets job back; School aide reinstated until Aug. 28 hearing": Last Thursday's edition of The Pittsburgh Post-Gazette contained this report. And you can access the ruling of U.S. District Judge Arthur J. Schwab of the U.S. District Court for the Western District of Pennsylvania at this link.
Posted at 22:28 by Howard Bashman



From the July 7, 2003 edition of Time magazine: You can access here an article entitled "A Yea For Gays: The Supreme Court scraps sodomy laws, setting off a hot debate"; here "It's No Big Deal: Both sides are playing up the gay-rights decision to inflame political passions"; and here "How Much Diversity Do You Want from Me? If affirmative action means having to speak for your minority, it's asking a lot."
Posted at 22:16 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Lawyers Won't Be Fined Over Disclosure" and here an article headlined "Judge Allows Evidence Against Nichols."
Posted at 22:13 by Howard Bashman



"Sense and nonsense": The Economist recently published this review of "Law, Pragmatism, and Democracy," the latest book from Richard A. Posner. The review concludes, "Mr Posner is a spirited analyst of contemporary politics, and he can be an entertaining and provocative thinker. His account of the controversial Supreme Court decision awarding George Bush the presidency is well worth reading. But as his book also makes clear, he is not much of a legal theorist, and he might have made a better legislator, academic or even political campaigner than a judge." (Via "PrestoPundit.com.")
Posted at 19:33 by Howard Bashman



"Supremes back free speech in Intel e-mail case": Bob Egelko of The San Francisco Chronicle has this report.
Posted at 19:22 by Howard Bashman



"Court Rejects Intel Electronic Trespass Charge": Slashdot provides this exchange of views.
Posted at 19:19 by Howard Bashman



"California Supreme Court says anti-Intel e-mail not trespassing": David Kravets of The Associated Press provides this report.
Posted at 17:32 by Howard Bashman



"Ex-Intel worker wins in Calif. high court": c|net News.Com has this report.
Posted at 17:30 by Howard Bashman



"U.S. Court Rejects DEA Ban on Hemp Foods": The Associated Press has this report. And you can access today's ruling by a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 15:36 by Howard Bashman



The Fifth Circuit's Clerk's Office has closed early today due to Tropical Storm Bill: Details here.
Posted at 15:07 by Howard Bashman



"State's high court upholds right of ex-Intel mass mailer": The San Jose Business Journal has this report.
Posted at 14:47 by Howard Bashman



All Lawrence, all the time: That's what the blog "Ninomania" has been since last Thursday.
Posted at 14:43 by Howard Bashman



Seventh Circuit announces its ruling in the Aimster case: You can access Circuit Judge Richard A. Posner's opinion for a unanimous three-judge panel here. In short, the injunction that was the subject of the appeal has been affirmed.
Posted at 13:48 by Howard Bashman



"Sniper Case Judge Keeps Terrorism Charge": The Associated Press has this report.
Posted at 13:29 by Howard Bashman



You can now access online the Supreme Court of California's ruling in Intel Corp. v. Hamidi: Available here (78-page PDF document). The Court has ruled in favor of Hamidi, explaining:
After reviewing the decisions analyzing unauthorized electronic contact with computer systems as potential trespasses to chattels, we conclude that under California law the tort does not encompass, and should not be extended to encompass, an electronic communication that neither damages the recipient computer system nor impairs its functioning. Such an electronic communication does not constitute an actionable trespass to personal property, i.e., the computer system, because it does not interfere with the possessor's use or possession of, or any other legally protected interest in, the personal property itself. The consequential economic damage Intel claims to have suffered, i.e., loss of productivity caused by employees reading and reacting to Hamidi's messages and company efforts to block the messages, is not an injury to the company's interest in its computers--which worked as intended and were unharmed by the communications--any more than the personal distress caused by reading an unpleasant letter would be an injury to the recipient's mailbox, or the loss of privacy caused by an intrusive telephone call would be an injury to the recipient's telephone equipment.

Our conclusion does not rest on any special immunity for communications by electronic mail; we do not hold that messages transmitted through the Internet are exempt from the ordinary rules of tort liability. To the contrary, e-mail, like other forms of communication, may in some circumstances cause legally cognizable injury to the recipient or to third parties and may be actionable under various common law or statutory theories.
The ruling is not unanimous, and you can access it in its entirety here.
Posted at 13:00 by Howard Bashman



"Bloggers Gain Libel Protection": Wired News today provides this report.
Posted at 12:25 by Howard Bashman



"Revenues at Law Firms Rise 8.5 percent, Aided by Diversification and Cuts": The Wall Street Journal today has this report. More information is available here, via The American Lawyer.
Posted at 11:46 by Howard Bashman



Available at National Review Online: Stephen Moore has an essay entitled "One Nation, Divisible: Supreme unwisdom." And John Bloom has an essay entitled "Affirmative Reaction: 'Don't ask, donít tell.'"
Posted at 11:39 by Howard Bashman



The Supreme Court of California will today issue its ruling in Intel Corp. v. Hamidi: The questions presented are:
(1) Does sending unsolicited noncommercial e-mail messages into a companyís computer network system in disregard of the company's objection constitute an actionable trespass to chattel, supporting injunctive relief, in the absence of any physical disruption to the receiving computer equipment? (2) Does judicial enforcement of an injunction against the sender of such e-mail messages constitute state action under the federal or state constitutions?
The opinion is scheduled to be available online at 10 a.m. pacific daylight time.
Posted at 11:15 by Howard Bashman



"The dysfunctional Supreme Court": Robert Novak suggests a rather improbable retirement scenario in today's edition of The Chicago Sun-Times. (Via "Southern Appeal.")
Posted at 11:00 by Howard Bashman



"New rights for gay couples: Gay and lesbian couples will be awarded the same legal rights as married couples under plans outlined by the government." BBC News has this report.
Posted at 10:38 by Howard Bashman



"Scalia's opposition misguided": Today's edition of The Daily Texan contains this op-ed. Meanwhile, Mike Luckovich demonstrates how difficult it is for an editorial cartoonist to poke fun at the U.S. Supreme Court. See here (not funny; via "Sugar, Mr. Poon?") and here (somewhat funny). Finally, as for this one (by cartoonist Daryl Cagle), well, make up you own mind.
Posted at 10:06 by Howard Bashman



Hendrik Hertzberg on same-sex marriage: Here, in the July 7, 2003 issue of The New Yorker.
Posted at 09:14 by Howard Bashman



In Monday's newspapers: The New York Times reports here that "Gays and Lesbians Parade With a New Sense of Pride." An article reports that "Bush, Looking to His Right, Shores Up Support for 2004." In local news, "Behind a Troubled Bench, an Arcane Way of Picking Judges." And a letter to the editor appears under the heading "Prosecutors' Power."

Today's installment of The Lawyer's Column in The Washington Post appears under the heading "Unusual Allies? Not at All, Says Conservative Fein." In media news, "The Peterson Murder Case, Made for Cable." Columnist William Raspberry has an op-ed entitled "Closing the Race Gap," and Terence J. Pell has an op-ed entitled "Camouflage for Quotas."

In today's edition of The Wall Street Journal, Eugene Volokh has an op-ed entitled "Nike and the Free-Speech Knot." Jason L. Riley has an op-ed entitled "Salivating Over Fast-Food Torts." And Shelby Steele the other day had an op-ed entitled "A Victory for White Guilt: Justice O'Connor and her colleagues embrace anti-Americanism."
Posted at 08:15 by Howard Bashman



"Retirement's not for all -- and that's fine": Columnist Brian Dickerson has this op-ed in today's edition of The Detroit Free Press.
Posted at 06:23 by Howard Bashman



"Missouri is getting its first black chief justice": This article appears in today's issue of The St. Louis Post-Dispatch.
Posted at 06:21 by Howard Bashman



Available online at FindLaw: Today, Sherry F. Colb has an essay entitled "Welcoming Gay People Back Into the Fold: The Supreme Court Overrules Bowers v. Hardwick." And on Friday, Vikram David Amar had an essay entitled "Can the Senate Bind Itself So that Only a Supermajority Can Change Its Rules? A Key Issue in the Controversial Filibuster Debate."
Posted at 06:18 by Howard Bashman



Senior Ninth Circuit Judge Alfred T. Goodwin turned 80 years old yesterday: Law Professor Jack Bogdanski, who once served as Judge Goodwin's law clerk, was at yesterday's celebration and has this report.
Posted at 06:15 by Howard Bashman



"Sodomy case has far-reaching significance": David J. Garrow had this essay in Friday's issue of The Chicago Tribune.
Posted at 06:11 by Howard Bashman



Sunday, June 29, 2003
On the op-ed page of Monday's New York Times: Stanley Fish considers "One Man's Opinion." And columnist William Safire's op-ed is entitled "The Bedroom Door."
Posted at 23:37 by Howard Bashman



A look at the U.S. Supreme Court's 2002 Term: I still owe you, my loyal readers, summaries of the Supreme Court's final ten decisions. I haven't forgotten, and they'll be along in due course (which is another way of saying "four down, six to go").

Although the ink is barely dry on Thursday's Term-ending decisions, it's never too soon to begin reviewing the Term that has just concluded. On Tuesday, July 1, 2003, the American Constitution Society will be holding in Washington, DC:
A Supreme Court Round-up featuring: Akil Amar, Yale Law School; Preeta Bansal, former New York Solicitor General; Beth Brinkman, Morrison & Foerster; Drew Days, former US Solicitor General; Walter Dellinger, former US Solicitor General; Laurence Gold, Bredhoff & Kaiser; Maureen Mahoney, Latham & Watkins; Peter Rubin, Georgetown University Law Center; Theodore Shaw, NAACP LDF. National Press Club, 529 Fourteenth Street, N.W., 9:30 - 11:30 a.m.
You can access additional details, and RSVP instructions, here.

Then, on Wednesday, July 16, 2003, Legal Times will be hosting a program in Washington, DC moderated by Tony Mauro entitled "Sizing Up A Pivotal Supreme Court Term: A Practitioner's View." Scheduled to participate are:
Roy T. Englert Jr., Partner, Robbins, Russell, Englert, Orseck & Untereiner LLP; Edwin S. Kneedler, Deputy Solicitor General, U.S. Department of Justice; Maureen E. Mahoney, Partner, Latham & Watkins LLP; Paul M. Smith, Partner, Jenner & Block LLC; Seth P. Waxman, Partner, Wilmer, Cutler & Pickering.
I plan to attend the Legal Times program, and you too can sign-up to attend via this link. I'm hoping to arrive in Washington in the morning, so that I will have time to visit with some "How Appealing" readers at a few other choice locations around town. It should make for quite an interesting day.
Posted at 22:57 by Howard Bashman



"The Manifest Border" blog has moved to a new address: You can now access it here.
Posted at 22:44 by Howard Bashman



"Judge strikes down state death penalty": Yesterday's issue of The Indianapolis Star contained this report. Additional coverage is available via "The Indiana Law Blog."
Posted at 22:41 by Howard Bashman



"Execution Summaries: Copies of three death-penalty memoranda prepared by Alberto R. Gonzales for Texas Governor George W. Bush": Online here, via The Atlantic Monthly.
Posted at 22:39 by Howard Bashman



On Friday, July 4, 2003, the National Constitution Center opens in Philadelphia: Justice Sandra Day O'Connor will be on hand, perhaps joined by two other U.S. Supreme Court Justices. The Philadelphia Inquirer has a special online section where you can access complete coverage of the Center and the festivities scheduled to mark its opening.
Posted at 22:35 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Gay Pride Parades Celebrate Court Ruling" and here an article headlined "Frist Endorses Idea of Gay Marriage Ban."
Posted at 22:29 by Howard Bashman



"As O'Connor votes, so tilts the Supreme Court; Neither consistently liberal nor conservative, she emerged this term as having 'the vote that matters.'" Warren Richey has this article in Monday's edition of The Christian Science Monitor.
Posted at 22:26 by Howard Bashman



"Board will name judicial candidates; Senators reactivate panel in light of appeals vacancy": Last week, The Milwaukee Journal Sentinel provided this report concerning plans to fill a forthcoming Seventh Circuit vacancy in Wisconsin.
Posted at 22:24 by Howard Bashman



Available online at law.com: Tony Mauro wraps-up the Term in an article headlined "Confounding the Court Watchers," while here he provides "A Look Ahead to Next Term." From California comes news that "Cases Begin to Fall as Prosecutors, PDs React to Decision in 'Stogner.'" In news from New Mexico, "A Win for Unmarried Couples: Unwed can sue for loss of consortium; gay rights activists are heartened." And in news from New York, "Appellate Specialists Come to Town" and "Conviction Overturned for Inmate Who Allegedly Attacked a Guard."
Posted at 17:07 by Howard Bashman



"Supreme Court leans to the left; Conservatives can no longer rely on justices marching to their tune": Bob Egelko has this article in today's edition of The San Francisco Chronicle. And you can access here an article headlined "High court ruling likely to usher in new era for gays; Decision's logic to have impact on other rights."
Posted at 16:59 by Howard Bashman



"How the Supremes Redeemed Bush: The conservative court's decisions on homosexuality and affirmative action boost Bush's image with moderates": Joe Klein has this essay online at Time.com.
Posted at 16:56 by Howard Bashman



"Museum Honoring Constitution Set to Open": The Associated Press has this report from Philadelphia.
Posted at 16:51 by Howard Bashman



"Is Gay Marriage Next?" That's the question on the cover of the July 7, 2003 issue of Newsweek. The lead article bears the headline "The War Over Gay Marriage: In a landmark decision, the Supreme Court affirms gay privacy and opens the way to a revolution in family life." A related article reports that "Breaking Up Is Hard to Do: Marriage is one thing. But what happens when partners part? For gay couples splitting up, itís still a legal 'no manís land.'" Finally for now, Evan Thomas and Stuart Taylor Jr. have an article headlined "Center Court: She helped America seek a middle ground on the thorny subject of race. Sandra Day OíConnorís brand of justice."
Posted at 16:45 by Howard Bashman



"Supreme Court confounds critics; Until last week, the nation's top court had a conservative hue, but moderates changed that": Jan Crawford Greenburg has this report in today's edition of The Chicago Tribune.
Posted at 16:43 by Howard Bashman



"Rehnquist holds high court cards, but will he retire?" The Scripps Howard News Service has this report. And a related item lists the "Supreme Court short list."
Posted at 16:42 by Howard Bashman



"Campaign finance highlights next Supreme Court session": CNN.com has this report. And you can access here an article entitled "Affirmative action topped many landmark cases."
Posted at 16:40 by Howard Bashman



"O'Connor proves pivotal on court": This article appears in today's edition of The Sacramento Bee.
Posted at 16:38 by Howard Bashman



"Group Wants Judge Punished for Race Case": The Associated Press has this report.
Posted at 16:37 by Howard Bashman



In Sunday's newspapers: In The Washington Post, Charles Lane reports that "Civil Liberties Were Term's Big Winner; Supreme Court's Moderate Rulings a Surprise." A related article is headlined "Court That Liberals Savage Proves to Be Less of a Target." An article reports that "Two Trials Make for Unlikely Allies; Separate Sniper Cases Tangle Theories of Prosecutors, Defense Teams." You can access here an article headlined "Sodomy Ruling Prompts Promises of Activism; In Wake of Supreme Court Decision, Va. Lawmakers Predict Bills Supporting and Opposing Gay Rights." In other local news, "Debate Rekindled Over Ten Commandments Monument." A series of essays collected under the heading "Down the Road From The Michigan Rulings" consists of an essay by Larry Adelman entitled "Right Ruling, Wrong Reason"; an essay by Safiya McClinton entitled "More Fleeting Than Favorable"; an essay by Goodwin Liu entitled "A Moment as Big as 'Brown'"; an essay by Martha Montelongo entitled "No Longer 'We, the People'"; and an essay by Peter Wood entitled "Diversity? That's a New One." An editorial is entitled "Wanted: A Real Defense." And in op-eds, columnist David S. Broder considers "The Scalia Model"; U.S. Senator Edward M. Kennedy has an essay entitled "The Senate Role"; and Amy Joyce writes of "A Boost for Workplace Diversity; High Court's Ruling on College Affirmative Action Bolsters Corporate Practices."

In The Los Angeles Times, David G. Savage reports that "Justices Take a Turn to the Left; The Supreme Court's rulings for gay rights and affirmative action surprise many -- and leave Justice Antonin Scalia on the margins." An article reports that "Family Embodies Split on Affirmative Action; Justices' rulings shine a light on the diversity of opinion -- among the Boyds and the nation." In other news, "Mexico Still Seen as Fugitive Friendly; Arrests of Andrew Luster and others show the country is trying to shake that image, but U.S. criminals still head for its beach towns to flee the law and blend in with the tourists." In op-eds, Frank del Olmo writes that "Right Wing Risks a Supreme Injustice; Alberto Gonzales should not be blocked as a high court candidate"; Abigail Thernstrom argues that "College Rulings Add Insult to Injury; Court's upholding of admissions preference glosses over need for better early schooling"; John Rechy has an essay entitled "Finally, Dignity and Respect -- but at Such a Cost"; Charlotte Allen writes that "It's Always 1984 in Cuba"; and Dana Parsons has an essay entitled "Supreme Court Shows the Way." Philip K. Howard reviews the book "The Rule of Lawyers: How the New Litigation Elite Threatens America's Rule of Law," by Walter K. Olson. And letters to the editor appear under the heading "Court Strikes Bans on Gay Sex."

In The New York Times, Adam Liptak reports that "Student Sues for Admission to Schools for Hawaiians." In The Week in Review Section, Neil A. Lewis reports (first item) that "The Court Takes the Nation's Pulse." An article reports on "A Decision That Universities Can Relate To." Here's an affirmative action timeline. In business news, one article is headlined "Affirmative Action, Productive Potential," while another carries the title "Affirmative Action: A Corporate Diary." An item entitled "Debunking America's Enduring Myths" appears in plenty of time to celebrate July 2d. A related item is entitled "Pursuing Happiness in Our Time." In local news, "Judges Keep the State After School." Dennis J. Hutchinson reviews Justice Sandra Day O'Connor's newest book, "The Majesty of the Law: Reflections of a Supreme Court Justice," and you can access the first chapter of the book here. An editorial is entitled "A Moderate Term on the Court." And a letter to the editor appears under the heading "Enemy Combatants and Civil Liberties."

In The Washington Times, Frank J. Murray reports that "Court's rulings mirror culture." In other news, "White House steps in on church-school case." Mark Steyn has an op-ed entitled "Counting on diversity in court"; Paul Greenberg has an op-ed entitled "What Supreme Court doesn't know about race"; Thomas Sowell has an op-ed entitled "Quotas sustained"; and Steve Chapman has an op-ed entitled "The law no one missed."

The Boston Globe reports here that "Justice's 'deadline' confounds colleges." Glenn C. Loury writes "Affirmed... for now; The Supreme Court's decision made affirmative action resoundingly legal. Now comes the hard part-making it unnecessary." In local news, "A civil tradition: Data show same-sex unions in Vt. draw a privileged group." In op-eds, Jeff Jacoby writes of "A shameless decision that promotes bias"; Ellen Goodman considers "Playing catch-up on gay sex ban"; and E.J. Graff asserts "The high court finally gets it right." And The Boston Globe Magazine contains an article entitled "College Rivalry: Universities will do almost anything these days to land a star professor who can bring instant prestige, attract large donors, and, oh yes, even do some teaching."
Posted at 10:12 by Howard Bashman



Saturday, June 28, 2003
Available online at Reason: Jesse Walker has an essay entitled "Supreme Sodomy: Look how far this country has come," and Jacob Sullum has an essay entitled "Know Thy Enemy Combatant: The Bush administration decides who gets due process."
Posted at 23:29 by Howard Bashman



In Saturday's newspapers: In The New York Times, Linda Greenhouse reports here that "Court to Hear Case on Congressional Redistricting" and here that "Justices Extend Decision on Gay Rights and Equality." An article reports that "Administration Lawyer Lauds Affirmative Action Ruling." You can access here an article headlined "A Few Gay Americans Tie the Knot in Canada" and here an article headlined "Judge in New Jersey Hears Arguments on Gay Marriage." An article reports that "In Schools Case, a Certainty: Only 400 Days to Comply." A related op-ed by Peter Schrag is entitled "Adequacy in Education: Why Is Clear. But How?" You can access here an article headlined "Where Thurmond Lived, Died and Was Forgiven." An editorial is entitled "Strom Thurmond's Century." And letters to the editor appear under the headings "A Major Victory for Gay Rights" and "Affirmative Action and Justice Thomas."

In The Washington Post, Charles Lane reports that "Gay Rights Ruling Affects Kan. Case; 17-Year Term in Teen Sex Case at Issue." You can access here an article headlined "Experts: Redistricting Decision Aids Democrats." In related news, "Democrats Discovering Campaign Law's Cost." An article reports that "Muhammad Prosecutors to Consider Non-Jury Trial; Unless All Sides Agree, Case Could Move From Pr. William." In business news, "Flood of Fees Draining Enron Funds; $496 Million in Charges Rung Up So Far by Lawyers, Others." An editorial is entitled "Soliciting Prayer." Columnist Colbert I. King has an op-ed entitled "Truth From Justice Ginsburg." And letters to the editor appear under the heading "Privacy, Gay Rights and the Supreme Court."

In The Los Angeles Times, David G. Savage reports here that "High Court Retirement Rumors Were Just That; All the buildup for the confirmation battle lacked only one ingredient: an announcement from one of the justices" and here that "Ruling Seen as Precursor to Same-Sex Marriages; Supporters and foes of gay civil rights say the court's overturning of sodomy laws could lead to gay unions." In other news, you can access here an article headlined "Cell Doors Swing Open After Ruling on Molestation Cases"; here "Abuse Cases in O.C. Jolted; The Supreme Court's rejection of a California sex-offender law could free several convicted molesters and halt other prosecutions"; and here "Burden of Proof Now Falls on Victims in Sex Abuse Civil Suits; Supreme Court decision throwing out older criminal cases will shift focus to lawsuits." An article reports that "'Soft Money' Restrictions May Aid GOP; A study says Democrats depended more on larger donations in 2002 while Republicans garnered more in small contributions." A front page article reports that "Behavior May Leave a Mark on Genes; A father is on death row. His son is accused of an eerily similar crime. Scientists are exploring the biochemistry behind violent actions." Henry Weinstein reports "New Trial, New Charge in Old Cases; A death row inmate's conviction is voided in the 1979 murder of an Orange County girl, but DNA allegedly links him to a 1977 Malibu killing." And letters to the editor appear under the heading "Week of Momentous Supreme Court Decisions."

In The Boston Globe, Lyle Denniston reports that "High court rejects appeal over antiabortion posters." In other news, "Ruling may boost civil abuse suits; Victims see another route after court rejects Calif. law." And an editorial is entitled "Supreme Court justice."

The Washington Times reports here that "Sniper suspect's request pondered." An editorial is entitled "James Strom Thurmond." And Michelle Malkin has an op-ed that asks "Why the cheering?"
Posted at 22:39 by Howard Bashman



"Nino's Opera Bouffe": Columnist Maureen Dowd has this op-ed in Sunday's issue of The New York Times.
Posted at 20:41 by Howard Bashman



"Victims can go after schools; Indiana Supreme Court clears way for suits by those who are assaulted": This article appears in today's issue of The Indianapolis Star.
Posted at 19:34 by Howard Bashman



"Rehnquist Speaks at Judicial Conference": The Associated Press provides this report.
Posted at 19:33 by Howard Bashman



"Supreme Court Retirement Appears Unlikely for Now": Neil A. Lewis has this article in Sunday's issue of The New York Times.
Posted at 16:25 by Howard Bashman



"Justice sworn in at High Court": This article appears in today's edition of The Honolulu Advertiser.
Posted at 16:24 by Howard Bashman



"Ashcroft Opponent Poised for Court Post": The AP reports here.
Posted at 16:23 by Howard Bashman



"Supreme Court Looking Less Conservative": Anne Gearan of The Associated Press has this report. And in related coverage, you can access here an item entitled "Major Rulings in This Supreme Court Term" and here an item entitled "Supreme Court by the Numbers."
Posted at 16:22 by Howard Bashman



"What 'Conservative' Supreme Court?" This editorial appears in today's edition of The New York Post.
Posted at 13:50 by Howard Bashman



"Democrats Praise Supreme Court on Affirmative Action": Reuters reports here.
Posted at 13:49 by Howard Bashman



Exit stage left: That's what the U.S. Supreme Court did at the close of this Term, according to this report from CBS News.
Posted at 13:47 by Howard Bashman



"Kansas told to rethink gay sex case": Today's edition of The Kansas City Star contains this report.
Posted at 13:46 by Howard Bashman



Friday, June 27, 2003
Elsewhere in Friday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Bans on Gay Sex Ruled Unconstitutional; Privacy: Law can't be used to single out homosexuals for disapproval, Supreme Court says in 6-3 ruling"; here that "High Court Rejects Nike Appeal in Speech Suit; Company claims 1st Amendment protection. Justices vote to send the case back for a trial"; and here that "Shift of Black Voters in Ga. Upheld." An article reports that "California Molestation Law Struck Down; Abuse: Hundreds of convictions will be tossed out and prosecutions dropped, some involving priests." Henry Weinstein reports that "Man's Death Sentence Overturned; Justices say public defenders in the murder trial did not investigate or present evidence of childhood abuse that could have swayed a jury." An article reports that "Politics in Play for a Seat Not Yet Vacant." You can access here an article headlined "Sodomy Ruling Fuels 'the Culture War'; Gays celebrate the landmark decision as a 'day of liberation.' Christian groups fear the decree could lead to same-sex marriage." An editorial is entitled "A Door Marked 'Private': Supreme Court has barred government from places it ought not to enter." An obituary is headlined "Longest-Serving Senator Led Segregationist South." In other news, "Settlement Gets Lead Out of Kaopectate; The antidiarrhea liquid has been reformulated as a result of a lawsuit; the caplets will follow." An article reports that "Bounty Hunter to Be Tried; Mexican judge says prosecution of the man who captured fugitive should deter others." Andrew P. Napolitano has an op-ed entitled "'Enemy Combatants' Cast Into a Constitutional Hell." And a letter to the editor appears under the heading "Best Filter for Internet Porn Is the Parents."

In The Boston Globe, Lyle Denniston reports here that "Court reverses gay sex ban; Ruling cites right to privacy"; here that "Court upholds statute of limitations on prosecution"; and here that "Case called US setback." An article reports that "Retirement drama caps end of high court's term." In related news, you can access here an article headlined "Gays, lesbians praise decision; Others compare it to Roe v. Wade" and here an article headlined "State's gay marriage backers are elated." An editorial is entitled "A victory for intimacy." An obituary bears the headline "Strom Thurmond dead at age 100." And columnist Derrick Z. Jackson has an op-ed entitled "Bush's jive act on campus diversity."

In The Washington Times, Frank J. Murray reports here that "Sodomy law struck down" and here that "High court voids Md. death sentence." An article reports that "Sodomy decision triggers emotional reactions." An editorial is entitled "Privacy amok." In other news, "Appeals court rejects U.S. effort to block Moussaoui." An obituary is headlined "Strom Thurmond, Senate legend, dies." And Clarence Page has an op-ed entitled "Wise counsel."

In USA Today, Joan Biskupic reports here that "Gay sex ban struck down; Supreme Court majority says such laws violate privacy"; here that "Decision represents an enormous turn in the law"; and here that "2 justices' influence felt in latest term; Rehnquist, O'Connor signal they'll be around for awhile." An article reports that "Ruling sides with death-row inmate." You can access here an article headlined "Sodomy ruling gives hope to many; But others say court has hurt 'natural family'" and here "Attitudes on gay relations tied to demographics." An obituary is entitled "Politics loses South Carolina icon; Ex-segregationist was senator for record 48 years." Editorials appear under the headings "Court ruling ushers in overdue rights for gays" and "Death penalty concerns." And an op-ed by Ken Connor is entitled "Right to privacy goes too far."
Posted at 22:40 by Howard Bashman



"Court OKs sex offender photos; State's online list to show faces, addresses": Today's edition of The Indianapolis Star contains this report.
Posted at 22:39 by Howard Bashman



"In the Land of Guantanamo": This article appears in Sunday's issue of The New York Times Magazine.
Posted at 22:34 by Howard Bashman



"Mr. Diversity": Columnist Bill Keller has this op-ed about Justice Clarence Thomas in tomorrow's edition of The New York Times.
Posted at 22:31 by Howard Bashman



Do court records available online contain too much information about you? This article appears in today's issue of The Orlando Sentinel.
Posted at 22:29 by Howard Bashman



"Woman wins record damages over strip search": The Age has this report. And in related news, that publication contains an article headlined "$138,000 payout over strip search." And The Herald Sun reports here that "A simple 'sorry' would have saved taxpayers $700,000."
Posted at 22:25 by Howard Bashman



"Tenn. Judge Refuses to Allow Horse As Pet": And in federal court, no less. The Associated Press has this report.
Posted at 21:00 by Howard Bashman



NPR's Nina Totenberg summarizes yesterday's U.S. Supreme Court rulings: Listen here (Real Player required).
Posted at 17:40 by Howard Bashman



Eugene Volokh deserves his own MSNBC blog: Here's all the proof you'll need, in a post entitled "Judging Clarence Thomas."
Posted at 16:58 by Howard Bashman



Reuters is reporting: You can access here an article entitled "U.S. Supreme Court to review credit card fees"; here "Top Court Rejects Appeal by Abortion Opponents"; here "Supreme Court Won't Review Sidewalk Disability Case"; and here "Supreme Court's Rulings on Gays, Race Surprises."
Posted at 16:48 by Howard Bashman



"The Executioner's I.Q. Test": This upcoming Sunday's edition of The New York Times Magazine will contain this article that addresses "what's wrong with exempting the retarded" from the death penalty.
Posted at 16:34 by Howard Bashman



Law firm of Altheimer & Gray to dissolve Monday? That's what Crain's Chicago Business is reporting here.
Posted at 16:27 by Howard Bashman



Senate Judiciary Committee likely to vote on nomination of William H. Pryor, Jr. to the Eleventh Circuit on July 10, 2003: "Southern Appeal" has details here.
Posted at 16:23 by Howard Bashman



"Santorum again the target of gay activists": This article appears in today's issue of The Pittsburgh Post-Gazette.
Posted at 16:00 by Howard Bashman



Thou shalt not remove this plaque: The Philadelphia Inquirer reports here that "Chesco's Commandments can remain; An appeals court cited historical value of the courthouse plaque." The Pittsburgh Post-Gazette reports here that "Court upholds Ten Commandments plaque on courthouse." The Daily Local of Chester County, Pennsylvania reports here that "The plaque can stay" and here that "Courthouse crowd supports ruling."
Posted at 15:49 by Howard Bashman



"Oral arguments start in case for same-sex marriages": The Philadelphia Inquirer has this news from New Jersey.
Posted at 15:39 by Howard Bashman



Online at Salon.com: Tim Grieve has an essay entitled "The next war: Bush and the Supreme Court; With William Rehnquist and Sandra Day O'Connor considering retirement, activists on all sides are preparing for a firefight over Bush's next high-court nominee." And Andrew Sullivan writes of "A great day for liberty; In his dissent from the Supreme Court's historic decision in the Texas sodomy case, angry Antonin Scalia was right about one thing: The next step is gay marriage."
Posted at 15:24 by Howard Bashman



"Texas to Restore Race in Admissions": The Associated Press reports here that "Six years after dropping affirmative action in favor of a 10 percent solution, Texas' public university system will work to restore race as a factor in admissions, with the blessing of the U.S. Supreme Court."
Posted at 15:14 by Howard Bashman



Unconstitutional "punishment" for "pure thought": Today a divided three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a decision in which the majority's opinion begins:
John Doe was banned for life from all park property in the City of Lafayette, Indiana--including a golf course, sports stadium, and city pools. The City did not provide notice or a hearing before instituting the ban, nor did it allow Doe to appeal its decision. Doe filed suit against the City, arguing that the ban violates his First Amendment right to freedom of thought and a fundamental right under the Fourteenth Amendment to loiter in public parks. The district court granted summary judgment in favor of the City. We reverse, finding the ban violates the First Amendment.
The dissenting opinion, by contrast, begins:
The majority invalidates the City of Lafayette's ("the City" or "Lafayette") action because, in its view, the ban order against Mr. Doe violates the First Amendment. In my view, the City has adopted a reasonable proscription designed to protect a vulnerable part of the population, its children, against the danger of a relapse by Mr. Doe. Therefore, I respectfully dissent.

The majority and Mr. Doe base their position on the conclusory proposition that banning Mr. Doe from the park constitutes "punishment" for "pure thought." See Appellant's Br. at 9. This view requires that we close our eyes to Mr. Doe's actions in that park in January of 2000. It also requires that we give short shrift to Mr. Doe's condition as an admitted pedophile who, despite some progress in dealing with his condition, continues to have difficulty controlling his urges. Indeed, it is difficult to see how the City's ban impacts expression protected by the First Amendment. Not only was Mr. Doe's conduct lacking the expressive element necessary to invoke the First Amendment's protection, but his thoughts, if expressed, would fall into categories of expression the Supreme Court has held to be unprotected.
You can access the complete decision at this link.
Posted at 13:39 by Howard Bashman



Uninformative statistics: Eugene Volokh takes a closer look at the Bloomberg News article I mentioned yesterday bearing the headline "Prosecutor Misconduct Is Found in 18% of Appeals, Study Says." The underlying study by The Center for Public Integrity is accessible here. Update: The "Zonitics" blog offers additional commentary here.
Posted at 13:34 by Howard Bashman



En banc Eighth Circuit considers when it will enforce waiver of appellate rights as part of a plea agreement on federal criminal charges: You can access today's en banc ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 13:06 by Howard Bashman



"Sandra Day O'Connor was no accident of history." Dahlia Lithwick and Walter Dellinger wrap-up their discussion this week about the Supreme Court of the United States.
Posted at 12:12 by Howard Bashman



Seventh Circuit grants rehearing en banc in free speech case involving college journalists: You can access the appellate docket entries here, via the Seventh Circuit's Web site. You can access the now-vacated three-judge panel ruling here, and you can access my original coverage of that ruling (including other useful links) here. Plus, here's an AP report entitled "Federal Appeals Court To Rehear GSU Paper Case."
Posted at 12:10 by Howard Bashman



Access online the NAFTA ruling in the matter between The Loewen Group and the USA: It is available here (71-page PDF document).
Posted at 11:50 by Howard Bashman



And in other news from the U.S. Supreme Court: Anne Gearan of The Associated Press reports here that "Supreme Court Will Settle Privacy Case." And an article reports that "Supreme Court to Hear Everglades Case."
Posted at 11:47 by Howard Bashman



D.C. Circuit affirms dismissal of suit brought by wartime sex slaves against Japan: Today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit begins:
The appellants are 15 women from China, Taiwan, South Korea, and the Phillippines; they brought this suit against Japan, seeking money damages for having been subjected to sexual slavery and torture before and during World War II. The district court held Japan immune from suit pursuant to the Foreign Sovereign Immunities Act of 1976, 28 U.S.C. secs. 1330, 1602Ė1611, because it had not waived its immunity and the conduct alleged did not come within the commercial activity exception to the FSIA. The district court also held the suit was barred under the political question doctrine.

We affirm the judgment of the district court. Under the FSIA Japan is entitled to immunity from suit concerning the preĖ1952 acts alleged in this case. We reject the appellants' argument that violation of a jus cogens norm constitutes a waiver of sovereign immunity.
You can access the complete opinion at this link.
Posted at 11:31 by Howard Bashman



"Pryor: Ruling makes Alabama law 'unenforceable'; Gay rights groups cheer ruling on Texas ban, others dismayed": This article appears in today's edition of The Mobile Register. (Via the newly-redesigned "Southern Appeal.")
Posted at 11:17 by Howard Bashman



Available at National Review Online: Ramesh Ponnuru has an essay entitled "The Perils of Rationality: A comment on that Texas gay-rights case." David Frum considers "Sodomy in Texas." Robert A. Levy has an essay entitled "Discriminate but Obfuscate: The Courtís message to universities." And Peter Wood has an essay entitled "Affirming Faction: Diversity's multiple meanings."
Posted at 11:11 by Howard Bashman



"Court Rejects Anti-Abortion Appeal": The Associated Press has this report regarding the denial of certiorari in the Nuremberg Files case. The article also notes the denial of review in the City of Sacramento case involving sidewalk accessibility and the Americans with Disabilities Act.
Posted at 10:56 by Howard Bashman



NAFTA News -- "Panel absolves U.S. of Loewen damages": The Globe and Mail contains this report. Many readers may recall that The New Yorker in November 1999 published a lengthy and very interesting article about the facts giving rise to this NAFTA lawsuit.
Posted at 10:37 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access it online here. The Court summarily affirmed in one case, noted probable jurisdiction in another, and granted certiorari in four more cases. The Order List closes with the following words: "RECESS ORDER The Court will take a recess from today until Monday, September 8, 2003."
Posted at 10:20 by Howard Bashman



"Student Sues Hawaiian School Over Race": The Associated Press today has this report. Yesterday's edition of The Honolulu Star-Bulletin reported here that "Kamehameha sued over its admissions; The challenge alleges the Hawaiians-only policy is in violation of federal civil rights laws." And today's edition of that newspaper reports that "Kamehameha trustees bank on preferences being upheld; The trust retains a mainland law firm to defend its entry policy." Additionally, today's issue of The Honolulu Advertiser reports here that "Kamehameha plans 'vigorous' defense."
Posted at 10:17 by Howard Bashman



"Ronnie White ready to take historic role at Supreme Court": Yesterday's issue of The Jefferson City News Tribune contained this report.
Posted at 09:40 by Howard Bashman



"Rep. Alcee Hastings Mulls Run for Senate": The Associated Press has an article that begins, "Rep. Alcee Hastings formed an exploratory committee Thursday to help him mull a run for the Senate, the chamber that removed him as a federal judge more than a decade ago."
Posted at 07:07 by Howard Bashman



In Friday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices, 6-3, Legalize Gay Sexual Conduct in Sweeping Reversal" and here that "Nike Free Speech Case Is Unexpectedly Returned to California." In other news, you can access here a report entitled "Court Limits the Prosecution of Sexual Abusers of Children"; here "Court Allows a New Approach to Redrawing Districts by Race"; and here "Justices Throw Out a Murderer's Death Penalty, Due to Poor Defense." Neil A. Lewis reports that "Conservatives Furious Over Court's Direction." From San Francisco comes news that "Gays Celebrate, and Plan Campaign for Broader Rights." A related editorial is entitled "A Gay Rights Landmark." In news from the Fourth Circuit, "Bush Officials Lose Round in Prosecuting Terror Suspect" and "Microsoft Can Leave Java Out of Windows, Court Rules." In business news, an article reports that "Senate Panel Agrees to Increase Size of Asbestos Trust." One obituary bears the headline "Strom Thurmond, Foe of Integration, Dies at 100," while another bears the headline "Jose Trias Monge, 83, Puerto Rico Chief Justice, Dies." And in local news, you can access here a report entitled "Court Rules State Shortchanged New York City on School Funds"; here "Battle Lines Drawn: It's City vs. State"; here "Few Understand How Subsidies Are Set"; and here "As a Long Road Ends, Another Begins." And a related editorial is entitled "Fighting for Fairness at School."

In The Washington Post, Charles Lane reports here that "Justices Overturn Texas Sodomy Ban; Ruling Is Landmark Victory for Gay Rights"; here that "Court Strikes Down California Law That Lifted Statute of Limitations"; here "Justices Decline to Hear Nike Case; Suit Over Corporate Statements Was Viewed as Free-Speech Test"; and here that "Death Penalty Of Md. Man Is Overturned." In other news from the U.S. Supreme Court, you can access here an article headlined "High Court Orders Review of Redistricting Plan" and here an article headlined "Rehnquist Uses 'R' Word to Good Effect." A news analysis reports that "A Debate on Marriage, And More, Now Looms," while an article reports that "Gay Community Hails 'a New Day'; Ruling on Sodomy Law Celebrated." In other news, "Appeals Court Rebuffs U.S. in Moussaoui Case." An obituary reports that "Ex-Senator Thurmond Dies at 100; Lawmaker Helped Shape Modern GOP." An editorial is entitled "Breakthrough." Columnist George F. Will has an op-ed entitled "Lap Dancing On the Constitution," and columnist Charles Krauthammer has an op-ed entitled "No 'Roe' Replay On Affirmative Action."

The Christian Science Monitor reports here "Big boost for privacy rights; In a ruling on a Texas law, the Supreme Court strengthened both gay rights and abortion rights."

At OpinionJournal, an editorial is entitled "Sodomy and Sneakers; A Roe v. Wade for gay rights." And Daniel Henninger has an op-ed entitled "40 Years After
Rev. King's Speech Court Adds 25; Beating racism is a moral fight, not a legal one."
Posted at 06:36 by Howard Bashman



Not quite the news: "Stevens quits"? See for yourself.
Posted at 06:27 by Howard Bashman



New record: The Bravenet hit counter here at "How Appealing" on Thursday recorded 35,818 visits, blasting past the previous record established on Monday of 25,708.
Posted at 00:09 by Howard Bashman



Thursday, June 26, 2003
This was unexpected: You can access here an article entitled "Sandra Day OíConnor Quits Supreme Court, Joins Supremes." (Thanks to Rob Truman of the Boley Law Library, Lewis and Clark Law School, for the pointer.)
Posted at 23:46 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "U.S. Supreme Court Strikes Down Law Banning Gay Sex" and here that "Supreme Court Won't Hear Nike Free Speech Case." Jonathan Ringel reports that "High Court Revives Democrats' Redistricting Plan; Justices mull 'overall' effect on minorities." Shannon P. Duffy reports that "Plaque of Ten Commandments May Stay on Courthouse Wall." In other news, "High Court Declines to Reopen Bomber Crash Case; U.S. high court declines to review case involving 1948 military crash." And in news from New York, you can access here an article headlined "Landmark Ruling Raises Public Education Standard; State system has sunk below constitutional requirement" and here an article headlined "Right to Counsel Cannot Be Invoked By a Third Party."
Posted at 23:43 by Howard Bashman



"Smooth sailing for Duncan; Nominee for 4th Circuit Court gets friendly questions before Senate panel": Today's edition of The Raleigh News and Observer contains this report.
Posted at 23:31 by Howard Bashman



Elsewhere in Thursday's newspapers: Today's edition of The Washington Times reports here that "Abortion foes poised for court vacancy." In other news, "Malvo team seeking 'under spell' defense." An op-ed by Cal Thomas is entitled "Negative action," and William Murchison has an op-ed entitled "Law and principles."

The Boston Globe reports here that "Admissions ruling may cool the issue."

In The Los Angeles Times, Henry Weinstein reports that "Prosecutor Misconduct Probed in National Study; About 2,000 cases have been overturned, set aside or retried since '70 because of wrongdoing." In other news, "EEOC Suit Against Firm Reinstated." An article reports that "Bounty Hunter Faces Judgment in Mexico; American who captured fugitive rapist Andrew Luster could get four years in prison." An editorial is entitled "Kids, Shackles and Shame." And letters to the editor appear under the headings "Will Racial Entitlements Be a Permanent System?" and "Outreach and Affirmative Action."
Posted at 23:05 by Howard Bashman



Flabbergasted by today's Moussaoui ruling: A reader who, putting it mildly, knows a thing or two about criminal appeals emails:
I am flabbergasted by the Fourth Circuit decision in Moussaoui, in the way that only a true appellate geek can be flabbergasted. The government's authority (don't like to say "right" when talking about The State) to appeal in a criminal case is not primarily governed by the "final order " rule of 28 USC sec 1291 (see Arizona v Manypenny, 451 US 232, 247 (1981); US v. Jannotti, 673 F2d 578, 580 n.1 (3d Cir. 1982) (en banc). Obviously an order allowing the defendant pretrial access (by whatever means) to a detained witness is interlocutory. The government's authority to appeal in criminal cases is defined by specific statutes, primarily 18 USC sec 3731 (adopted in 1970), which the 4th Cir never mentions. The fact that there is no authorization to appeal an order of this kind in sec 3731 is the most powerful evidence that the Court lacked jurisdiction, but somehow was not mentioned in the opinion. In light of sec 3731, it is doubtful even that general "collateral order" jurisdiction under sec 1291 should still be recognized for govt appeals (cf. Carroll v US, 354 US 394 (1957)), but since the order in question was plainly not "entirely separate from the merits" it couldn't be "collateral" either, as the Court of Appeal correctly ruled. The failure to address 3731 first, rather than 1291, astonishes me. Since this order would surely not be appealable by the government after trial, however, the first part of the opinion makes no sense.
Thanks for sending along this especially thoughtful email.
Posted at 23:04 by Howard Bashman



Ex-S.C. Sen. Strom Thurmond Dies at 100: The Associated Press has this report.
Posted at 22:49 by Howard Bashman



Lawrence v. Texas, the early days: Jim Dedman links to the decisions of a Texas intermediate appellate court that set the stage for today's U.S. Supreme Court ruling striking down laws that make consensual homosexual sodomy a crime.
Posted at 22:39 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "High Court Ruling Sparks Strong Reactions" and here an article entitled "Indiana Court Upholds Sex Offender Law." A bit more information about the second article is available over at "The Indiana Law Blog."
Posted at 22:31 by Howard Bashman



Twelve years ago tomorrow: Justice Thurgood Marshall announced his retirement from the Supreme Court of the United States.
Posted at 22:19 by Howard Bashman



Hot or not? Today's events made Law Professor Jack Bogdanski think about Byron White and Myron Bright.
Posted at 22:15 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Supreme Court Librarian Retires" and here an article entitled "Scalia Blasts Court on Sodomy Ruling."
Posted at 19:23 by Howard Bashman



"Plaintiffs are oenophiles who reside in the Houston area." Don't worry, it just means that they like wine. And the Fifth Circuit today affirmed a trial court's ruling that "Texas violates the Commerce Clause by economically discriminating against out-of-state wineries in favor of its own in-state wineries." At this rate, soon Texas will have no one against whom it can legally discriminate (except, perhaps, in university admissions).
Posted at 19:15 by Howard Bashman



O'Connor and Rehnquist: Trying to top the report that "Sinead O'Connor Announces Retirement," a reader emails the link to an article reporting that "Janet Rehnquist Resigns."
Posted at 17:47 by Howard Bashman



"Court OKs Race As Factor in Wash. Schools": The AP has this report. You can access today's ruling of the Supreme Court of Washington State here (majority opinion), here (concurrence), and here (dissent). (Thanks to the author of "Balasubramania's Mania" for the links.)
Posted at 17:38 by Howard Bashman



"Woman Sues Maternity Wear Company": For pregnancy discrimination, of course. The Associated Press has this report. (Maybe she was wearing another company's clothing?)
Posted at 17:27 by Howard Bashman



Endorsed by the "militant moderate": The "militant moderate" blog, that is. See the post here, and check out the end of this post for a theory about what "The Volokh Conspiracy" actually entails.
Posted at 17:26 by Howard Bashman



"Prosecutor Misconduct Is Found in 18 Percent of Appeals, Study Says": Bloomberg News has this report. You can access the study via this link. On the bright side, no prosecutorial misconduct was found in 82 percent of appeals.
Posted at 17:02 by Howard Bashman



Available at National Review Online: Douglas W. Kmiec writes of "Michiganís Small World: Racial preference for diversity is constitutional only in elite institutions." An editorial is entitled "Travesty: The Court failed to do its duty." Ward Connerly examines "Murder at the Supreme Court: Meritocracy and equal treatment, R.I.P." And Deroy Murdock explains "Got Spike? You may be sued."
Posted at 16:53 by Howard Bashman



But please tell us how you really feel! The author of the blog PrestoPundit writes, "Read the most recent legislation enacted by our Supreme, er, Court. Nine unelected old people decide what they want the laws to be, and you obey. A crazy system in a Liberal democracy -- and more than a bit out of control." And Clayton Cramer is presumably preparing to leave the country -- but where to go? (But seriously, you can access Clayton's posts concerning today's ruling here and here.)
Posted at 16:30 by Howard Bashman



People who know stuff and have opinions: Law Professors Jack Balkin and Lawrence Solumn have posts on Lawrence v. Texas. Law student Phil Carter looks at the ruling from the perspective of the U.S. military.

And Law Professor Rick Hasen of the "Election Law" blog writes about today's ruling in Georgia v. Ashcroft.
Posted at 16:26 by Howard Bashman



Available online at The Washington Post: Charles Lane reports here that "Supreme Court Strikes Down Texas Sodomy Law" and here that "Supreme Court Throws Out Death Sentence for Maryland Man; Decision Sets New Standards for Right to Effective Counsel."
Posted at 16:17 by Howard Bashman



"Sinead O'Connor Announces Retirement": Oh the things readers send me.
Posted at 16:15 by Howard Bashman



"Court Overturns Microsoft Injunction": Reuters provides this report. And Declan McCullagh reports here that "Court curbs Microsoft's Java distribution."
Posted at 15:46 by Howard Bashman



"Holy Moses! 3rd Circuit Rules Ten Commandments Can Stay": Shannon P. Duffy of The Legal Intelligencer has this article on today's Third Circuit ruling.
Posted at 15:42 by Howard Bashman



"Court Lets Pa. Commandments Plaque Stay": The Associated Press has this report.
Posted at 15:40 by Howard Bashman



Microsoft wins a big part of its appeal in the Sun Microsystems case: Today the U.S. Court of Appeals for the Fourth Circuit issued this decision.
Posted at 15:34 by Howard Bashman



When to move off tenterhooks: The idea of a U.S. Supreme Court Justice announcing retirement from the bench on the last day of the Term is a bit overrated. Why hold your colleagues captive for that, and why share the spotlight (or divert the spotlight from today's newsworthy rulings)? Instead, in recent memory, the announcement usually comes from behind a podium before the press corps. Accordingly, I would suggest waiting until the end of the day tomorrow before moving off the tenterhooks.
Posted at 15:10 by Howard Bashman



"Fairbanks libraries reconsider pornography filters": The AP provides this news from Alaska.
Posted at 15:05 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Supreme Court Strikes Down Gay Sex Ban" and here that "Supreme Court Won't Hear Nike Ad Case." Gina Holland reports here that "Court Strikes Down Law on Old Sex Crimes" and here that "Supreme Court Rules Lawyers Failed Client." Here's a report entitled "Court Gives States Boundary Leeway." An article bears the incorrect title "Sept. 11 Suspect May Question Witness." Sorry NYU, this correction says. In other news, "Court Says NY School System Failing Kids" (and access the opinion of the New York State Court of Appeals at this link); "Wolfowitz to Choose Tribunal Commission"; and "Judge Rules for Reporters in Murder Case."
Posted at 14:48 by Howard Bashman



In case anyone missed it: Chief Justice William H. Rehnquist did announce from the bench this morning the retirement of the U.S. Supreme Court's librarian. A spirited confirmation battle, and possibly a filibuster, are anticipated. And any nominee who refuses to reveal his or her personal views about the Dewey Decimal System may have a very difficult time winning the votes of certain Senators.
Posted at 14:42 by Howard Bashman



Dahlia Lithwick asks "Did Justices Kennedy and O'Connor have some sort of conversion?" See her posting here (second item).
Posted at 14:39 by Howard Bashman



"The facts are amazing, but we shall resist the temptation to recount them at length." Amazing indeed! Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion by Circuit Judge Richard A. Posner that begins:
John Veysey appeals from his conviction, after a jury trial, and sentence of 110 years in prison for mail and wire fraud, arson, and the related offense of felony by fire. The facts are amazing, but we shall resist the temptation to recount them at length. In 1991 Veysey set fire to his house and inflated the claim that he then filed with his insurer. The insurer paid, and the house was rebuilt. The following year Veysey married a woman named Kemp, increased the insurance on the house, removed the valuable contents of the house, along with himself and his wife, and then cut the natural-gas line inside the house, causing the house to fill up with gas and explode spectacularly, utterly destroying it. He grossly exaggerated the value of the property allegedly lost in the explosion--some did not exist and some he had removed before the explosion. The insurance company (a different one) paid, and he used part of the proceeds to buy another house. The next year he tried to kill his wife by driving his van with her in it into a river. When that failed he killed her by poisoning her, and collected $200,000 in the proceeds of insurance policies on her life. He placed personal ads in newspapers, seeking to meet women. He became engaged to one of the women he met through his ads, named Donner, but broke his engagement after failing to procure a $1 million policy on her life. He then took up with a Ms. Beetle. This was in 1996 and the same year he burned down his house, again submitting an inflated estimate of the loss and receiving substantial proceeds from the insurance company (a different one, again). He then married Beetle, and they moved into a rented house. She insured her life for $500,000 with him as beneficiary. One night in 1998, after drugging her, he set fire to the house, hoping to kill both her and their infant son, on whom he had also taken out a life insurance policy and who was in the house with her. They were rescued, and soon afterwards Veysey and Beetle divorced. The house was rebuilt and Veysey persuaded a woman named Hilkin to move in with him after she had accumulated some $700,000 in life insurance and named him as the primary beneficiary. He apparently intended to murder her, but he was arrested before his plans matured. There is more, but these are the highlights.
You can access the complete opinion at this link.
Posted at 14:31 by Howard Bashman



"Houston attorney calls today 'day of independence'": The Houston Chronicle has this report.
Posted at 13:26 by Howard Bashman



Walter Dellinger predicts the outcome in Lawrence v. Texas: I know, I know, so did everyone else, but his prediction is in print here at Slate.
Posted at 12:52 by Howard Bashman



"Court vacancy would trigger political warfare; Since Bork battle, confirmation fights have intensified in the Senate": Tom Curry has this report at MSNBC.com.
Posted at 12:50 by Howard Bashman



"Court Gives States Boundary Leeway": The Associated Press has this report.
Posted at 12:28 by Howard Bashman



"Bill Frist sets some rules for a Supreme Court confirmation battle." See his letter to all Senators here, via National Review Online.
Posted at 12:26 by Howard Bashman



"Court: Ten Commandments plaque can stay": The Philadelphia Inquirer has this early report.
Posted at 12:14 by Howard Bashman



You can now access online the Third Circuit's ruling in the Ten Commandments plaque on the exterior of the county courthouse case: It is available here.
Posted at 11:51 by Howard Bashman



No retirement(s)? Just because no Justice announced from the bench of the Supreme Court of the United States this morning that he or she is retiring doesn't mean that such an announcement won't come at some other time soon.
Posted at 11:35 by Howard Bashman



U.S. Court of Appeals for the Third Circuit reverses trial court's order directing removal of Ten Commandments plaque from Chester County, Pennsylvania courthouse: The decision issued this morning isn't yet available online, but I'll post a link to it when it becomes available. For now, you can access a report on the oral argument in the case via this link.
Posted at 11:30 by Howard Bashman



"Supreme Court Dismisses Nike Free-Speech Appeal": Reuters has this early report. And Anne Gearan of The AP provides this report.
Posted at 10:59 by Howard Bashman



"Supreme Court Rules Lawyers Failed Client": The Associated Press has this report.
Posted at 10:55 by Howard Bashman



"Supreme Court kills ban on gay sex": The Houston Chronicle has this breaking news. CNN.com reports here that "Supreme Court strikes down Texas sodomy law." And The AP reports here that "Supreme Court strikes down gay sex ban." Links to this ruling are now available, below.
Posted at 10:26 by Howard Bashman



"Court Strikes Down Law on Old Sex Crimes": Gina Holland of The Associated Press has this report.
Posted at 10:22 by Howard Bashman



Today's U.S. Supreme Court opinions: The Supreme Court of the United States today announced decisions in the following five argued cases: Lawrence v. Texas (syllabus here; majority opinion here; opinion concurring in the judgment here; dissenting opinion here; additional dissenting opinion here; oral argument transcript here); Nike, Inc. v. Kasky (per curiam dismissal here; concurring opinion here; dissenting statement here; dissenting opinion here; oral argument transcript here); Georgia v. Ashcroft (syllabus here; majority opinion here; concurring opinion here; additional concurring opinion here; dissenting opinion here; oral argument transcript here); Stogner v. California (syllabus here; majority opinion here; dissenting opinion here; oral argument transcript here); and Wiggins v. Smith (syllabus here; majority opinion here; dissenting opinion here; oral argument transcript here).

Later today, the Court could issue an Order List. Update: Now I'm advised the Order List won't issue until tomorrow.
Posted at 10:00 by Howard Bashman



"Federal Court Dismisses Appeal in Moussaoui Case": The Washington Post has this report available online.
Posted at 09:58 by Howard Bashman



BREAKING NEWS: U.S. Court of Appeals for the Fourth Circuit decides federal government's appeal in Zacarias Moussaoui case: You can access the ruling at this link.

The federal government today has lost in its effort to obtain immediate reversal of the trial court's order that granted Moussaoui access in preparation of his defense to an al Qaeda member being held by the U.S. military overseas. The Fourth Circuit ruled that it lacked appellate jurisdiction and that the trial court's order was not so clearly wrong as to merit invocation of the extraordinary writ of mandamus.
Posted at 09:15 by Howard Bashman



"Justice O'Connor's Real World Wisdom": Al Hunt offers this appreciation in today's issue of The Wall Street Journal.
Posted at 09:04 by Howard Bashman



Who is that masked "How Appealing" reader: Why, it's Adam White, of course.
Posted at 09:02 by Howard Bashman



"Divided US court reflects divided nation": BBC News today offers this analysis.
Posted at 08:14 by Howard Bashman



"US court to rule on gay case": BBC News provides this report. And The Daily Texan reports here that "Sodomy law ruling expected today; Supreme Court likely to be closely divided on issue."
Posted at 08:13 by Howard Bashman



"Supreme Court May Decide Several Cases": The Associated Press offers this report.
Posted at 07:43 by Howard Bashman



On today's agenda: The Supreme Court of the United States is scheduled to announce rulings in the five remaining argued cases this morning at 10 a.m. eastern daylight time. You can access my list of those cases and the questions they present at this link. We may also learn at that time whether any Justice on the Court intends to retire this summer. Stay tuned for complete coverage.

Also this morning, one of the regional federal courts of appeals is expected to announce a ruling of significance. And where would you expect to learn the details of the ruling first? Indeed.
Posted at 06:09 by Howard Bashman



"How Dare Justice Thomas Dissent on This One": This op-ed by Sheryl McCarthy appears in today's issue of Newsday.
Posted at 06:05 by Howard Bashman



"Disabled woman can bear child, guardian says": Today's issue of The Orlando Sentinel contains this report.
Posted at 06:04 by Howard Bashman



Today's FindLaw columnist: Edward Lazarus has an essay entitled "The Supreme Court And Equal Protection: Why This Term's Momentous Affirmative Action and Same-Sex Sodomy Cases Have Put the Doctrine To the Test."
Posted at 06:02 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge Mulls La. 'Choose Life' Plates" and here an article entitled "Courts Back Feds in Legal War on Terror."
Posted at 06:00 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "Va. Grand Jury Probes Group of Muslim Men; 2 Held After Guns, Documents Found in Raids." In other news, "Judge Declines to Free Farmer Pending Trial; Court Outburst, Alleged Threats Cited." An article reports that "Lawyers Say Malvo Was Under A 'Spell'; Muhammad Controlled Youth, Defense Team Contends in Sniper Case." Richard Cohen has an op-ed entitled "Confused O'Connor," while Jim Hoagland has an op-ed entitled "Round-the-World Ruling."

The New York Times reports here that "Ruling in '98 Blackface Case Finds Favor in the Community." In other news, "Trenton Court Refuses to Ease Requirements for Poor Schools." An op-ed by William Safire is entitled "Big Media's Silence." And a correction explains that "An article on June 12 about confirmation hearings for William H. Pryor, Alabama's attorney general, who has been nominated for a federal judgeship, referred incorrectly to Senator Arlen Specter of Pennsylvania, a member of the Judiciary Committee. He indeed appeared at the hearing, and questioned Mr. Pryor. (Mr. Specter had told a reporter that he was not going to attend because he was busy, but as the hearing was near an end, he decided to go.)" Of course, you heard it here first back on June 12th.

Today's installment of John Fund's Political Journal at OpinionJournal is entitled "Bush Eyes Brown; The California jurist who may replace Justice O'Connor." And Barbara D. Phillips has an essay entitled "Mo' Better Spikes? Lee claims the name that many share."
Posted at 05:59 by Howard Bashman



Wednesday, June 25, 2003
"Lawyers Pursue Evidence in Sniper Case": The Associated Press has this report.
Posted at 22:45 by Howard Bashman



Statistics: According to statistics compiled by Tom Goldstein of SCOTUSblog, the Supreme Court of the United States so far this Term has decided eleven cases by a margin of 5-4 (either entirely or as to a major issue). Only one Justice has been in the majority in all eleven instances. Her name is Sandra Day O'Connor.
Posted at 22:41 by Howard Bashman



Available online at law.com: Jason Hoppin reports here that "9th Circuit Colors in Rules for Web Libel." From New York comes news that "Judge-Picking Dispute Delays Nominees; Schumer, Pataki closing in on power sharing deal." And from Texas comes a report that "Paperwork Glitch Almost Scuttles Tulia Writ Applications."
Posted at 22:31 by Howard Bashman



"Disabled, city settle sidewalk lawsuit; Sacramento agrees to set funding and not push case to high court." This article appears in today's edition of The Sacramento Bee.
Posted at 22:28 by Howard Bashman



"Left, right take aim at Bush aide; Both oppose possible nomination of Alberto Gonzales to Supreme Court": Today's issue of The Ft. Worth Star-Telegram contains this report.
Posted at 22:26 by Howard Bashman



In twelve hours from now: Everyone will be waiting for news of the U.S. Supreme Court's rulings in the five remaining argued cases and for word about whether any of the Justices has announced retirement.
Posted at 22:12 by Howard Bashman



From Thursday's edition of The Telegraph (UK): Even one more interview with Justice Sandra Day O'Connor, and she's asked the question that's on everybody's mind. And here's an article headlined "Outrage as black judge attacks affirmative action."
Posted at 19:43 by Howard Bashman



If you've been wondering why there's not a law blog named "stickbugblog": Your prayers have been answered. And the blogger lives in Philadelphia, no less.
Posted at 19:29 by Howard Bashman



Tomorrow: CNN.com reports here that "Supreme Court expected to issue ruling on sodomy laws." And CBS MarketWatch reports here that "Supreme Court ruling due on Nike."
Posted at 19:27 by Howard Bashman



A relator in a qui tam False Claims Act action cannot proceed pro se: That's what the U.S. District Court for the District of Columbia ruled in this decision dated Monday, June 23d.
Posted at 19:23 by Howard Bashman



"Dan Morales jailed; Judge revokes former attorney general's bond": David Pasztor of The Austin American-Statesman has this report from Texas.
Posted at 19:16 by Howard Bashman



"How To Confirm O'Connor's Replacement Ö and end the deadlock on federal judges." Timothy Noah has this chatterbox essay online at Slate.
Posted at 19:13 by Howard Bashman



"Democrats continue to press for consultation on Supreme Court nominee": Jesse J. Holland of The Associated Press has this report.
Posted at 18:53 by Howard Bashman



"Judge OKs Plan for Disabled Rape Victim": The AP reports here from Orlando, Florida that "A severely retarded rape victim who was thrust into an abortion debate when Gov. Jeb Bush said he wanted a guardian appointed for her fetus will be allowed to carry her pregnancy to term, a judge ruled Wednesday."
Posted at 17:41 by Howard Bashman



"Law Experts Say Terror Trial Rules Unfair": The Associated Press has this report. (A large number of law experts in this blog's audience are now remarking to themselves, "Hey, no one asked me!" I feel your pain.)
Posted at 17:28 by Howard Bashman



How will this affect me, Al Franken? The "Election Law" blog looks at how Justice Sandra Day O'Connor's retirement would affect the U.S. Supreme Court's decision in the BCRA/McCain-Feingold cases.
Posted at 17:03 by Howard Bashman



"Ladies and gentlemen, the Supremes": Law Professor Jack Bogdanski of the Lewis and Clark Law School in Portland, Oregon explains, in a blog post you can access here, that "[e]ven if you don't follow legal news much, this is a good week to check out the doings at the U.S. Supreme Court."
Posted at 16:51 by Howard Bashman



See for yourself: Streaming video of U.S. Senator Patrick J. Leahy's talk today at the National Press Club is now available for viewing online here (Real Player required).
Posted at 16:11 by Howard Bashman



Americans United for Separation of Church and State to file amicus brief opposing cert. in the Pledge of Allegiance case: You can access online the amicus brief, to be filed in the Supreme Court of the United States tomorrow, at this link. (Thanks to both the sender, and the online host, of the brief, for making this blog post possible.) As I noted here last night, tomorrow is also the one-year anniversary of the Ninth Circuit's issuance of its original opinion in the Newdow case.
Posted at 16:04 by Howard Bashman



"Is Justice O'Connor getting ready to pack it in?" That's the question on Dahlia Lithwick's mind this afternoon (second entry here). A reader of "How Appealing" who attended Senator Patrick J. Leahy's (D-VT) talk today at the National Press Club emails with the prediction "that Leahy knows that there will be one SCOTUS vacancy, opened by O'Connor's retirement." Speculation abounds, but perhaps tomorrow we will know for sure.
Posted at 15:07 by Howard Bashman



"Winks, Nods -- and Preferences": Lino A. Graglia has this op-ed in today's issue of The Wall Street Journal. (Via "Ex Parte.")
Posted at 15:03 by Howard Bashman



"Court Curbs EPA's Cleanup Order Powers": The Associated Press has this report. And you can access yesterday's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 15:00 by Howard Bashman



"U.S. lags on gay rights; Supreme Court can help": Steve Sanders had this op-ed in Sunday's issue of The Chicago Tribune.
Posted at 14:09 by Howard Bashman



To be incompetent or youthful: The U.S. Court of Appeals for the Ninth Circuit today handed down two interesting rulings in the area of criminal law.

In one case, Circuit Judge Alex Kozinski on behalf of a unanimous three-judge panel ruled that a criminal defendant sentenced to death who becomes incompetent due to mental illness is entitled to a stay of habeas proceedings until he or she again becomes capable of assisting counsel. You can access Judge Kozinski's very interesting opinion here.

In the other case, Circuit Judge Stephen Reinhardt ruled on behalf of a unanimous three-judge panel that a defendant who pleaded guilty to various federal drug-related criminal offenses under the guise that he was past the age of majority was entitled to an evidentiary hearing on remand after he claimed, for the very first time on appeal, that he was a juvenile at the time of the crime. Under Ninth Circuit law, the federal district court would have lacked subject matter jurisdiction over the criminal charges if brought against a juvenile in the absence of a special certification by the Attorney General of the United States, which had not been obtained for obvious reasons. You can access this opinion here.
Posted at 13:32 by Howard Bashman



On the agenda: Today at 2 p.m., the Senate Judiciary Committee will hold a confirmation hearing for Fourth Circuit nominee Allyson K. Duncan. You can access a live Webcast of the hearing via this link.
Posted at 12:51 by Howard Bashman



Could Dowd be right? Today New York Times columnist Maureen Dowd has an op-ed entitled "Could Thomas Be Right?" about Justice Clarence Thomas's separate opinion in the Grutter v. Bollinger case. Andrew Sullivan and Robert Alt don't agree with what Dowd has to say.
Posted at 12:44 by Howard Bashman



"Fla. Judge Fights to Preserve Everglades": The Associated Press provides this report.
Posted at 12:32 by Howard Bashman



"Life tenure for judges ensures better courts": Richard J. Kopf, the Chief Judge of the U.S. District Court for the District of Nebraska, has this op-ed in today's edition of The Omaha World-Herald.
Posted at 12:02 by Howard Bashman



Dahlia Lithwick left Walter Dellinger speechless for an entire day: But no longer, and today he calls her last posting "extraordinary--biting, witty, and brilliant. And also profoundly wrong."
Posted at 11:54 by Howard Bashman



"Court Won't Reopen 1948 Bomber Crash Case": The Associated Press provides this report.
Posted at 11:51 by Howard Bashman



Another big win for the Office of the Solicitor General: Details here, via the blog "Life, Law, Libido."
Posted at 11:26 by Howard Bashman



Back to the future with the Volokhs: The other day, Eugene Volokh wrote that "Apparently our future-dated posts are coming up on our archive page already; * * * I guess it's time for us to finally switch to some other blogging software."

Here's what he means -- if you click here, you can read blog entries that have been written to post online at "The Volokh Conspiracy" at specified dates and times in the future. While I'd be the first to admit that this isn't the equivalent of a newspaper reporter pretending to be filing a report from a city on a day when he's not there, I'm curious whether blog readers care about what I'll call "dateline integrity" in blogging? Anyone with views on this topic is invited to comment via email.

Update: The blog "Sugar, Mr. Poon?" miraculously predicted this post. And my friend Sasha Volokh responds here.
Posted at 11:15 by Howard Bashman



"The Google backlash: The king of search rules the Web -- but now some of the natives are growing restless." Farhad Manjoo has this essay online today at Salon.com.
Posted at 11:01 by Howard Bashman



Also at National Review Online: James Justin Wilson has an essay entitled "Diversityís Division: Reality at Michigan." And Gabe Neville has an essay entitled "Not So Diverse: The secret lives of campus conservatives."
Posted at 10:56 by Howard Bashman



Speaking while black: Today the U.S. Court of Appeals for the Sixth Circuit issued an opinion that examines "the issue of racial voice identification." According to the opinion, "In a study involving 421 graduate and undergraduate students at Stanford University, the participants were asked to identify the racial or ethnic background of twenty different speakers. They correctly identified the African-American males' voices approximately 88 percent of the time."
Posted at 10:52 by Howard Bashman



Available online at The Hill: An article reports that "'Nuclear' option retained to break filibuster." And Byron York has an essay about the judicial confirmation process entitled "When Democrats attack, stand your ground."
Posted at 10:45 by Howard Bashman



Available at National Review Online: William J. Bennett has an essay entitled "Restoring Equality, Restoring Civil Rights; So much for the long march of civil rights." And Eugene Volokh has an essay entitled "Club Codes: The slippery slope hits the local Elks." Of course, Professor Volokh all but owns the slippery slope these days.
Posted at 09:52 by Howard Bashman



"O'Connor voices hope for day affirmative action not needed; In a rare interview the day after issuing a landmark University of Michigan ruling, a key justice reflects on racial preferences, her groundbreaking career and life on the high court": Jan Crawford Greenburg has this report in today's edition of The Chicago Tribune.
Posted at 09:38 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "G.O.P. Pushes Easier Rule on Filibusters." In coverage relating to the University of Michigan rulings, an article reports that "Impact on Universities Will Range From None to a Lot." In related news, "Group Vows to Monitor Academia's Responses." An article reports that "Enemy Combatant Decision Marks Change, Officials Say." In local news, "Judge Rules City Erred by Firing 3 for Blackface." An editorial is entitled "Internet Filters and Free Speech." Columnist Maureen Dowd has an op-ed entitled "Could Thomas Be Right?" And letters to the editor appear under the heading "Affirmative Action: The Ruling and the Debate."

In The Washington Post, Charles Lane has a news analysis entitled "In Court's Ruling, a Nod to Notion of a Broader Elite." An article reports that "U-Mich. Rulings Spur Strategic Scramble; Affirmative Action's Backers and Foes Ponder Response to High Court's Decision." In other news, "GOP Votes To Break Nominee Filibusters; Democrats Appear Able to Block Plan." In business news, "Verizon Backs Portability Of Phone Numbers." Columnist David S. Broder has an op-ed entitled "How to Head Off a Fight Over the High Court." Columnist Courtland Milloy has an op-ed entitled "A Ruling Not Entirely Of This Reality." And in letters to the editor, "Diversity and the High Court" and "The Other Side of Class Action Reform."

The Washington Times reports here that "Conservatives slam split race rulings" and here that "Justice's '25 years' holds potential for more lawsuits." In other news, "Senate Rules panel votes to ban judge-choice filibusters." Editorials appear under the headings "Bad law on preferences" and "Don't legalize gay marriage." And in op-eds, Bruce Fein has an essay entitled "Disguised quotas"; Terry Eastland writes of "Quotas with tenure"; Paul Craig Roberts has an essay entitled "Trumping the Constitution"; and Jonah Goldberg asserts "Argument faulty in affirmative-action ruling."

In The Los Angeles Times, David G. Savage reports that "At High Court, How They Rule Is a Matter of Opinion." An article reports that "Jailing of Juveniles Examined; Supervisors seek alternatives for teens held in men's facility while awaiting trial." In other news, "N.Y. Violated Rights of Trio, Judge Rules; Two firefighters and a police officer were fired for wearing blackface during a parade." Steve Lopez writes that "Dogged Determination Nabbed Luster While the FBI Catnapped." And letters to the editor appear under the heading "Justices Endorse Affirmative Action."

The Boston Globe reports here that "States eye court's race-based admissions ruling; Some Calif. leaders seeking to repeal Proposition 209" and here that "Texas ponders changes to 10% law." An op-ed by Robert Kuttner is entitled "Other rights are hanging by a thread," while an op-ed by Derrick Z. Jackson asks "What about the bonus points for whites?"

The Christian Science Monitor reports here that "Admissions shifting well before ruling." Editorials appear under the headings "An Affirming Court Ruling" and "Blocking Porn at Libraries." Finally for now, Trevor Corson has an op-ed entitled "The hues of affirmative action."
Posted at 06:27 by Howard Bashman



Available online at FindLaw: Michael C. Dorf has an essay entitled "The Supreme Court's Divided Rulings in the University of Michigan Affirmative Action Cases: What Does it All Mean?" And Joanne Mariner has an essay entitled "Rehnquist Family Values: The Supreme Court's Misguided Decision in Overton v. Bazzetta."
Posted at 06:14 by Howard Bashman



Tuesday, June 24, 2003
"Context and the Court": Linda Greenhouse will have this news analysis in Wednesday's issue of The New York Times.
Posted at 23:15 by Howard Bashman



"When America talks about race, all of us need to listen; A US victory for affirmative action points the way for British universities": Wednesday's edition of The Guardian (UK) contains this commentary.
Posted at 23:14 by Howard Bashman



"Partisans gear up for possible court vacancy": CNN.com tonight provides this report.
Posted at 23:03 by Howard Bashman



Available online at law.com: Jason Hoppin has an article headlined "Heightened Scrutiny: U.S. Supreme Court paid close attention to 9th Circuit this term." And here's a chart illustrating the sources of the U.S. Supreme Court's cases decided on the merits this Term. In news from New York, "Participation in Racist Float Ruled to Be Protected Speech" and "Panel Deals Another Blow to Gun Suit." And an article bears the headline "Calif. High Court: Apply 'But For' Standard in Transactional Malpractice Case."
Posted at 22:43 by Howard Bashman



"1 court retirement could tip balance; Observers whisper Stevens' name": Jan Crawford Greenburg had this article in yesterday's issue of The Chicago Tribune.
Posted at 22:31 by Howard Bashman



Racial preferences in university admissions: Garrett Moritz (no, not this guy) examines "Why '25 years" is important, before 2028."

And relatedly, I have received via email the text of a press release from the Young Conservatives of Texas entitled: "Better Than Bakke: YCT Says Supreme Court's Michigan Decisions, Despite Their Shortcomings, Place Significant New Limits on Use of Race in Admissions; Organization Warns Univ. of Texas President That His Pledge to Reimpose Racial Preferences in Undergraduate Admissions is Illegal Under Michigan Rulings Because School Has Already Reached 'Critical Mass' Through Race-Neutral Policies." That argument could very well prove successful before the right panel of Fifth Circuit judges.
Posted at 22:23 by Howard Bashman



Big case, important parties, and highly regarded law firms don't always merit a full-blown opinion on the merits: Take, for example, this not-for-publication decision that the U.S. Court of Appeals for the Fourth Circuit issued today in the antitrust dispute known as R.J. Reynolds Tobacco Co. v. Philip Morris USA, Inc.
Posted at 22:16 by Howard Bashman



Will a Justice announce retirement from the U.S. Supreme Court on June 26th? Yes. And on June 26, 2003, you can wish happy first birthday to the Ninth Circuit's Pledge of Allegiance ruling.
Posted at 20:26 by Howard Bashman



"More Than 7,000 Legal Cases From Missouri History Now Are Online In New Supreme Court Historical Database": Who ever thought we'd live to see the day when "an online resource allowing access to more than 7,000 legal actions pursued to the [Missouri] highest court between 1790 and 1871" became available free of charge? Details here. Too bad that I've already decided to spend tonight watching "Rabbit-Proof Fence" (reviews here and here) and, thereafter, writing more of an appellate brief.
Posted at 20:24 by Howard Bashman



"Judge Fights Allegations in Court Ruling": Gina Holland of The Associated Press has the latest news about allegations of internal Sixth Circuit rule-breaking.
Posted at 20:19 by Howard Bashman



A bomb damage repair update from the Yale Law School: You can access it here. (Thanks to the reader who forwarded this along.)
Posted at 19:45 by Howard Bashman



ScrappleFace hones in on my territory: You can access here and here Scott Ott's posts concerning this week's rulings from the Supreme Court of the United States.
Posted at 17:29 by Howard Bashman



"Mich. Starts Work on Admissions Policy": The Associated Press has this report.
Posted at 17:18 by Howard Bashman



Even more coverage of the University of Michigan rulings: The Detroit News reports here that Jennifer Gratz celebrates and "feels vindicated after beating U-M"; Barbara Grutter is "proud of fight, despite loss"; and Patrick Hamacher is both delighted and baffled. You can access an entire package of reports from The Detroit News via this link. The Ann Arbor News also provides comprehensive coverage, available here. And The Detroit Free Press has a bunch of articles on yesterday's rulings, and you can access them via this link.

Elsewhere, Michael Kinsley writes online at Slate of "Supreme Court Fudge." At Reason, Robert A. George has an essay entitled "Sandra and George's Diversity Garden Party; Everybody's got a compelling interest," and Julian Sanchez has an essay entitled "Token Gesture: The Supremes make the best of a bad situation." David Davenport of the Hoover Institution has an essay entitled "Affirmative inaction."

Elsewhere, Thulani Davis has an essay in The Village Voice entitled "Affirmative Action: A Court of Two Minds; Race Counts ... Just Don't Say How Much." A commentary at Business Week suggests "Try Wealth-Based Affirmative Action; Poverty, more than race itself, holds kids back. So schools should give more preference to students from impoverished backgrounds." Roger Pilon of the Cato Institute argues here that "The Court Stumbles Again." Drake Bennett has an essay online at The American Prospect entitled "Affirmative Decision: Why yesterday's ruling puts affirmative action on firmer ground than ever before." John Podhoretz has an op-ed in The New York Post entitled "Embarrassing Illogic." And from The Harvard Crimson comes a report that "Harvard administrators hail Court's mixed decision as victory."
Posted at 16:58 by Howard Bashman



Senator Santorum's nightmare: I'm sorry, but why did the author of the "SW Virginia law blog" have to send me an email bringing this not-for-publication opinion that the Fourth Circuit issued today to my attention?
Posted at 16:37 by Howard Bashman



Online at The Weekly Standard: Terry Eastland writes of "Our Living Constitution: The Supreme Court's Michigan law school ruling means that the Constitution means one thing today and will mean another in 2028." And Claudia Winkler has an essay entitled "Liberal Perversity: The left wing of the Supreme Court votes against the Children's Internet Protection Act."
Posted at 16:15 by Howard Bashman



"Senate Panel Seeks Change on Judicial Nominees": Reuters provides this coverage.
Posted at 16:11 by Howard Bashman



"Library Web censorship riles workers": The Times Herald-Record today contains a report that begins, "The Supreme Court may be able to censor the Internet, but it can't censor Phyllis Vail. 'I think it's stupid, ridiculous, asinine, whatever you want to say,' Vail said yesterday, reacting to a Supreme Court decision to force federally funded public libraries to equip computers with anti-pornography filters. Vail directs the Port Jervis Free Library."
Posted at 16:07 by Howard Bashman



Can a retailer's refusal to sell alcoholic beverages to a disabled person whose symptoms mimic the traits of intoxication violate the Americans with Disabilities Act? Yes, a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit ruled today, in an opinion you can access here.
Posted at 15:46 by Howard Bashman



"Judge Rules NYC Violated Workers' Rights": The Associated Press reports here that "The city violated the First Amendment rights of two firefighters and a police officer when it fired them for riding on a parade float in blackface in 1998, a judge ruled Tuesday."
Posted at 14:37 by Howard Bashman



Available online at Salon.com: You can access here an essay entitled "Right ruling, wrong reason: The Supreme Court did the right thing by upholding affirmative action -- but by pretending that racial preferences don't harm anyone, it showed that America still can't talk straight about race." A related item appears under the heading "A difficult, divisive issue: Top thinkers on race relations say Monday's Supreme Court rulings on affirmative action herald another generation of opportunity and another generation of conflict." Finally, you can access here an essay entitled "Filter mojo: The institutions struggling to rid the Internet of porn and spam may have found the one weapon that works: The Net itself."
Posted at 14:33 by Howard Bashman



Kabbala and gematria: A reader emails:
I am a rising 2L at Georgetown with backgrounds in both Jewish thought and mathematics. I therefore read with interest the posting about kabbala. Unfortunately, your contributor misunderstood what gematria is.

Gematria isn't about counting letters; it's about the value of the letters! Clearly, Due Process is based on the gematria of "due" equals 10 (the letter "daled" has a value of 4; the letter "vav" has 6; those two letters compose the word "due").

Affirmative action equals 25 because the Hebrew word for lavan (white) equals 52, and just as affirmative action reverses white exclusivity, 25 is the reverse of 52.
Aha, now we're getting somewhere with this!
Posted at 14:29 by Howard Bashman



"Michigan Muddle: The Supreme Courtís schizophrenic preference." Deroy Murdock has this essay today at National Review Online.
Posted at 14:26 by Howard Bashman



"Let Judges Do Their Jobs": Senior U.S. District Judge John S. Martin Jr. of the U.S. District Court for the Southern District of New York has an op-ed in today's edition of The New York Times that concludes, "When I took my oath of office 13 years ago I never thought that I would leave the federal bench. While I might have stayed on despite the inadequate pay, I no longer want to be part of our unjust criminal justice system." A contributor at "The Academy" blog knows Judge Martin well and voices regret over the events that have led to this result.
Posted at 14:23 by Howard Bashman



Do you know the way from San Jose? Today a three-judge Ninth Circuit panel entered a published order directing a U.S. District Judge based in San Jose, California to conduct some additional proceedings on remand, after which the trial court is to forward its supplemental findings and conclusions of law to the Ninth Circuit. What strikes me as odd, however, is that in the final paragraph of the published order the Ninth Circuit judges set forth the mailing address of the Ninth Circuit's Clerk's Office. If there's one thing that a federal district court already knows well, it's how to send documents up to the federal appellate court that regularly reviews its rulings. (This post's title loosely based on a song by Burt Bacharach and Hal David.)
Posted at 14:05 by Howard Bashman



First Amendment and defamation law in cyberspace: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a ruling in which the majority opinion begins:
There is no reason inherent in the technological features of cyberspace why First Amendment and defamation law should apply differently in cyberspace than in the brick and mortar world. Congress, however, has chosen for policy reasons to immunize from liability for defamatory or obscene speech "providers and users of interactive computer services" when the defamatory or obscene material is "provided" by someone else. This case presents the question whether and, if so, under what circumstances a moderator of a listserv and operator of a website who posts an allegedly defamatory e-mail authored by a third party can be held liable for doing so. The case also presents a novel procedural question -- whether the denial of an Anti-SLAPP suit filed pursuant to California law can be appealed prior to a final judgment in the underlying case. After recounting the unusual tale underlying this case, we address each of these questions in turn.
The opinion concurring in part and dissenting in part begins:
I respectfully dissent from the majority's analysis of the statutory immunity from libel suits created by sec. 230 of the Communications Decency Act (CDA). The majority gives the phrase "information provided by another" an incorrect and unworkable meaning that extends CDA immunity far beyond what Congress intended. Under the majority's interpretation of sec. 230, many persons who intentionally spread vicious falsehoods on the Internet will be immune from suit. This sweeping preemption of valid state libel laws is not necessary to promote Internet use and is not what Congress had in mind.
You can access the complete ruling at this link.
Posted at 13:36 by Howard Bashman



"Senate Panel Votes to Limit Filibusters": Jesse J. Holland of The Associated Press has this report.

U.S. Senator John Cornyn (R-TX) has issued the following press release to mark the occasion:
BID TO END PARTISAN OBSTRUCTION CLEARS KEY SENATE COMMITTEE

Rules Committee vote a "crucial first step in judicial nomination reform," Cornyn says

WASHINGTON Ė The Senate Rules Committee took an important step toward repairing the broken judicial confirmation process Wednesday, U.S. Senator John Cornyn said following the committee's 10-0 vote to pass Senate Resolution 138. The bipartisan proposal, co-sponsored by Cornyn, would guarantee full debate on nominees, while enabling a Senate majority to eventually hold up-or-down votesóbringing an end to the current obstruction faced by judicial nominees such as Justice Priscilla Owen of Texas and Miguel Estrada.

"This resolution is a reasonable, common-sense proposal," Sen. Cornyn said. "There are at least 26 laws on the books today that prohibit a minority of senators from using the filibuster to permanently block certain kinds of measures. The judicial confirmation process should surely be added to this list. By passing this resolution, the committee recognized that, and took a crucial first step in judicial nomination reform."

Cornyn, Chairman of the Judiciary Committee's Subcommittee on the Constitution held a May 6 hearing on the constitutionality of filibusters against judicial nominees, where filibuster reform was first debated. And S. Res. 138 was debated in a Rules Committee hearing on June 5 where Cornyn testified on behalf of the reform. The rule change would gradually reduce the 60-vote requirement on successive cloture votes until a filibuster could eventually be ended by a simple majority. Such a rule would prevent endless delay of judicial nominees, while ensuring the right of the minority to have an adequate debate--the original purpose of filibusters.

"The current filibusters of judicial nominees, done not to ensure adequate debate, but to block a Senate majority from confirming judicial nominees, are unprecedented and wrong," said Cornyn. "This resolution repairs that damage, bringing certainty to the confirmation process: all nominees brought to the Senate floor can be afforded an up-or-down vote."

Currently, in an unprecedented move, a minority of senators is blocking an up-or-down vote for Justice Owen, nominated to the U.S. Court of Appeals for the Fifth Circuit, and Miguel Estrada, nominated to the U.S. Court of Appeals for the D.C. Circuit.

"There has never been a filibuster of a judicial nominee--now there are two," Sen. Cornyn said. "Further nominees are threatened to be filibustered and we must do something soon or this downward spiral of obstructionism will only grow beyond our capacity for reform. Such failure would be especially troubling, and in fact unacceptable, during the confirmation debate on a future nominee to the Supreme Court. I hope my colleagues will join me in approving this bipartisan measure when it reaches the Senate floor for a vote. Judicial nominees, now and in the future, deserve no less."

The resolution now moves to the full Senate for a vote. A majority of the Senate is sufficient to approve a rules change. Under Senate Rule 22, debates on a rule change can be ended by a two-thirds vote. However, Cornynís May 6 hearing on the constitutionality of filibusters against judicial nominees demonstrated the widely-held view shared by legal scholars and Vice Presidents across the political spectrum that a prior Senate majority cannot constitutionally forbid a current Senate majority from changing the rules if it wants to do so.

Cornyn chairs the Subcommittee on the Constitution, Civil Rights & Property Rights, and is the only former judge on the Senate Judiciary Committee. He served previously as Texas Attorney General, Texas Supreme Court Justice, and Bexar County District Judge.
And thus, the plot thickens.
Posted at 12:26 by Howard Bashman



"The battle for the Constitution": Columnist Cal Thomas today has this essay in which he previews what might happen when a vacancy opens on the U.S. Supreme Court.
Posted at 10:49 by Howard Bashman



"Judge: Marshall violated woman's right to 'dirty dance'": Today's edition of The Asheville Citizen-Times contains an article that begins, "Dancers in Marshall might want to clear the floor now that Rebecca Willis, thanks to a judge's recommendation, can get down. U.S. District Court Judge Max O. Cogburn Jr. said the town violated Willis' First Amendments rights by barring her from dancing. Willis' gyrations, on video tape, look like a cross between Mick Jagger's pelvic swagger and a fish flopping on the end of a line."
Posted at 10:30 by Howard Bashman



The Daily Texan is reporting: The student newspaper of the University of Texas reports here that "Court votes 5-4 to keep policy; Ruling upholds use of racial status to grant admissions"; provides here "Affirmative Action: An Overview"; and notes here that "'Hopwood is dead.'" An editorial is entitled "Split decision best for society." And here's an interesting article entitled "Heated legal issue revisited for two longtime colleagues; UT law professors remain as closely divided as the Court's ruling." (Via Jim Dedman.)

Relatedly, the University of Texas Web site offers a press release entitled "The University of Texas at Austin reacts to the Supreme Courtís affirmative action decisions."
Posted at 10:22 by Howard Bashman



Available online at The Hill: You can access here an article headlined "Hispanics, blacks laud court ruling"; here "Retirement fears ease as top court adjourns" [ed.: Huh?]; here "Specter boosts Hatch for future court vacancy"; and here "Senate weighs ways to ban secret holds."
Posted at 10:11 by Howard Bashman



"Green Tree case sent back to arbitrator": From South Carolina, The State provides this report.
Posted at 09:50 by Howard Bashman



Available at National Review Online: Peter N. Kirsanow, a commissioner on the U.S. Commission on Civil Rights, has an essay entitled "The Abominable Snow Job: Court says discrimination on the basis of race is not unlawful discrimination." And David Frum writes of "A Fine Mess."
Posted at 09:39 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices Back Affirmative Action by 5 to 4"; here that "Justices Back Law to Make Libraries Use Internet Filters"; and here that "Justices to Hear Case on Whether the Disabled Can Sue States on Access to Courtrooms." Neil A. Lewis reports that "Angry Groups Seeking a Justice Against Affirmative Action." Adam Liptak reports that "Affirmative Action Proponents Get the Nod in a Split Decision." A news analysis bears the headline "After 25 Years, a Road Map for Diversity on Campus." In related coverage, you can access here an article headlined "Diversity Still Crucial Issue at University, Students Say"; here "Ruling Provides Relief, but Less Than Hoped"; and here "Companies See Ruling as a Way to Help Keep the Pipeline Open." And a related editorial is entitled "A Win for Affirmative Action." An article reports that "Court Rejects Law Designed to Help Holocaust Survivors Get Insurance Information." In science news, "A Mathematician Crunches the Supreme Court's Numbers." An article reports that "Librarians Size Up Internet Filter Law's Impact." In local news, "Ruling on Religious Markers, but No End to the Fight." And an op-ed by Senior U.S. District Judge John S. Martin Jr. of the U.S. District Court for the Southern District of New York is entitled "Let Judges Do Their Jobs."

In The Washington Post, Charles Lane reports here that "Affirmative Action for Diversity Is Upheld; In 5 to 4 Vote, Justices Approve U-Mich. Law School Plan"; here that "Ruling Backs Porn Filters In Libraries"; and here that "Court Rejects Law Aiding Survivors of Holocaust; Calif. Act Undercut Presidential Role, Ruling Says." In other news, "Lending Dispute Won't Be Heard; Supreme Court Returns Protracted Case to Arbitrator." A news analysis reports that "Court Mirrors Public Opinion." You can access here an article headlined "Decision Means Most Colleges Will Stay Course." A related editorial is entitled "Reaffirmative Action." And in other news, "Justice Backs Evangelists Seeking Access to Schools."

In The Los Angeles Times, David G. Savage reports here that "Court Affirms Use of Race in University Admissions" and here that "Web Porn Filters at Libraries Upheld; Facilities that receive federal money must shield children from smut, justices rule." You can access here an article headlined "Decisions May Lead to More Lawsuits; Observers on both sides of the affirmative action debate see the rulings as opening doors to disputes over how they should be carried out"; here "State Finds Itself Hemmed In; Because of California's 1996 ban on racial preferences, the Supreme Court's rulings on race do not apply directly here"; and here "Day of Celebration in Michigan City at Center of Court Debate; Students at Ann Arbor university laud the Supreme Court's ruling upholding the law school's affirmative action policy." Henry Weinstein reports that "Holocaust Insurance Law Negated; The U.S. high court rejects a California statute to help survivors collect on Nazi-era policies. Lawmakers promise new legislation." In other news, "U.S. Court's Ruling Allows Rocketdyne Suits to Continue." An article reports that "Notes by Luster May Offer Clues; U.S. officials are trying to obtain a journal that the fugitive rapist reportedly left in Mexico. It could contain names of accomplices." An editorial is entitled "A Welcome Affirmation." And in op-eds, Jonathan Turley has an essay entitled "A Ruling That Only Goldilocks Could Love; We still don't know how much weight to give race in college admissions," while Jim Sleeper writes of "Negatives vs. Affirmatives; Countermeasures against racism have gone too far for much too long."

In The Boston Globe, Lyle Denniston reports here that "Race in admissions upheld; Court allows use by schools as one factor" and here that "1978 Bakke decision resurrected in ruling." In related news, you can access here an article headlined "Supporters of affirmative action are pleasantly surprised" and here an article headlined "Some colleges must adjust procedures." An editorial is entitled "Back to Bakke." In other news, " case for family; Law firm driven to rein in associates' workload." And an op-ed by Joan Venocchi is entitled "Abortion issue sharpens for '04."

In USA Today, Joan Biskupic reports here that "Court upholds use of race in university admissions; But justices ban use of automatic points in rating applicants" and here that "Requirement for library porn filters upheld; Court: Federal aid can set conditions." An article about yesterday's racial preferences rulings reports on "What happens next? Questions and answers on issue." An editorial is entitled "Supreme Court bolsters vital goal of campus diversity." An op-ed by Clint Bolick is entitled "Racial gap will widen." And an editorial is entitled "Privacy bookmark."

In The Washington Times, Frank J. Murray reports that "Split decision for choice-by race." In related news, you can access here an article headlined "More lawsuits likely on affirmative action"; here "Race case ruling a 'victory' for firms"; and here "Area educators call solution pragmatic." And in other news, "Librarians decry filter ruling."

In The Christian Science Monitor, Warren Richey reports here that "Race in admissions revised; Supreme Court does not ban use of race by universities, but says it must be limited" and here that "High court OK's Internet filters for public libraries; The decision adds latitude for shielding kids from porn, but curbs some speech." And here's a report entitled "Evolution of affirmative action."

Finally for now, The Wall Street Journal contains an editorial entitled "Supreme Court Quotas: Justice O'Connor provides the fifth vote for racial preferences."
Posted at 06:00 by Howard Bashman



"A Resounding Victory For Diversity on Campus": Lee C. Bollinger has this op-ed in Tuesday's edition of The Washington Post. Also there, George F. Will has an op-ed entitled "Crude Remedy for A Disappearing Problem."

The Associated Press reports here that "Affirmative Action Still Has Uneasy Place." Newsday reports here that "Enthused Educators Affirm Their Action." And Monday's edition of The NewsHour with Jim Lehrer contained a lengthy discussion of the rulings.

The Houston Chronicle reports here that "UT to reintroduce race-based criteria; President wants cap on 'top 10 percent' students." And The Dallas Morning News reports here that "Ruling to shake up admissions in Texas."
Posted at 00:26 by Howard Bashman



"Insurers welcome Nazi-era ruling": The Financial Times has this report.
Posted at 00:25 by Howard Bashman



A new record for visits on a single day: Yesterday the Bravenet hit counter here at "How Appealing" recorded a total of 25,708 page visits, and it was off-line for one and a half hours yesterday afternoon. The previous one-day record for this site was 14,882 visits on June 16, 2003.
Posted at 00:21 by Howard Bashman



Monday, June 23, 2003
Available online at law.com: Tony Mauro reports that "High Court Upholds Admissions Policy at Michigan Law School." Jonathan Groner reports that "Supreme Court Orders Libraries to Filter Internet Porn." And in other news, "'Green Tree' Ruling Gives Arbitrators Clout in Class Actions."

In the latest issue of Legal Times (free registration required), Jonathan Groner reports that "New Challenge Expected by Hill Shooter; Ruling could reopen question of Weston's forced medication." Tony Mauro has an article headlined "Does U.S. Trump States in Pesticide Cases? Supreme Court will decide whether to take cases testing federal pre-emption of tort lawsuits filed in state courts." In commentary, Ryan E. Long has an essay entitled "Big Foot, Big Mouth; Nike's free speech claim is just an argument for false advertising." And Adam H. Morse has an essay entitled "Still Awash in Cash: The high court's decision in FEC v. Beaumont plugs one campaign finance loophole, but others remain open."
Posted at 22:18 by Howard Bashman



Five to go: The five argued cases in which the Supreme Court of the United States is expected to announce rulings on Thursday, June 26, 2003 are:
1. Wiggins v. Smith, to what degree must defense counsel in a death penalty case investigate mitigating evidence, perhaps entitling the defendant to a sentence other than death, to be effective (oral argument transcript here).

2. Lawrence v. Texas, presenting a constitutional challenge to a state law prohibiting homosexual sodomy (oral argument transcript here).

3. Stogner v. California, may a State eliminate the statute of limitations applicable to a crime without running afoul of the constitutional rights of those offenders whose prosecution would otherwise be time-barred (oral argument transcript here).

4. Nike, Inc. v. Kasky, should the "commercial speech" doctrine continue to exist under the First Amendment, and if so was it properly applied here (oral argument transcript here).

5. Georgia v. Ashcroft, a redistricting challenge that could become moot at any moment depending on how the Supreme Court of Georgia rules in a companion case (oral argument transcript here).
Of those five cases, the one that may offer a surprising intellectual feast (yes, I'm borrowing a phrase from former D.C. Circuit Judge Robert H. Bork) is the Stogner case. I just hope that the Justices most likely to provide me with that intellectual feast aren't too distracted by their dissenting opinions in the Lawrence case to do so.
Posted at 22:04 by Howard Bashman



"Schmiberties": Over at the newly-redesigned blog "The Neal Pollack Invasion," you can find this post about some recent developments in the law.
Posted at 21:55 by Howard Bashman



Porn filter: Fresh from a visit to a strip joint in Vegas, the ringleader of "The Academy" blog writes a post about her porn filter.
Posted at 21:46 by Howard Bashman



Justice Sandra Day O'Connor was not the only Arizonan looking far into the future today: A reader emails:
I am a rising 2L at Georgetown Law, an intern with a U.S. circuit court of appeals, and an avid fan of your blog.

I'm not sure whether you're actually interested in hearing about every picky little error to issue from the Supreme Court, but I found one in United States v. American Library Assoc., and in the search for minor typos in today's affirmative action rulings, I didn't want that other opinion to feel left out.

In footnote 2, p. 6, the plurality opinion cites to Dole, 830 U.S. at 210. I thought 830 sounded rather high--we're not that close to U.S.2d yet!--and indeed, South Dakota v. Dole is at 483 U.S. 203.

Thanks for all your efforts in creating one of the most entertaining, interesting, and useful legal sites out there.
Well, it's reassuring to see that even the Supreme Court of the United States is capable of transposing the digits in the volume number of a cited case.
Posted at 21:35 by Howard Bashman



From this evening's edition of NPR's All Things Considered: Nina Totenberg reports that "Affirmative Action Upheld with Limits" (nine minutes); Larry Abramson reports that "Supreme Court Backs Library Internet-Porn Filters" (four and a half minutes); and here's a report entitled "High Court Rules Against Holocaust Restitution Law" (four and a half minutes). Real Player is required to hear these audio clips.
Posted at 21:15 by Howard Bashman



A look at the impact of today's affirmative action in university admissions rulings on Texas and California: The Associated Press reports here that "University of Texas starts work on new admissions policies" and here that "Supreme Court ruling no direct impact in California."
Posted at 21:13 by Howard Bashman



Justice David H. Souter seems to channel Ninth Circuit Judge Alex Kozinski: "[A]fter extended dickering President Clinton put his weight behind two specific measures toward that end," Justice David H. Souter wrote on page 6 of his opinion for the Court today in American Ins. Assn. v. Garamendi. The use of a couple of words in that sentence reminded me of a particular federal appellate judge who sometimes appears to have a difficult time passing up a chance to take a seemingly gratuitous swipe at a certain former President.
Posted at 20:11 by Howard Bashman



"Dems: Stakes High if Bush Reshapes Court": The Associated Press has this report.
Posted at 19:50 by Howard Bashman



"Sandra Day Prufrock's maddeningly wrong opinion." Dahlia Lithwick, with viper's tongue intact, delivers the goods here (scroll down to the final post) at Slate.
Posted at 19:45 by Howard Bashman



Available online at The New York Times: Linda Greenhouse reports that "Supreme Court Splits on Diversity Efforts at University of Michigan." And Neil A. Lewis reports that "Race Rulings May Affect Prospects for a Likely Nominee."
Posted at 19:41 by Howard Bashman



"In Split Decision, Court Backs Affirmative Action; Justices Limit How Much a Factor Race Can Play in Admissions": Charles Lane has this report online at The Washington Post.
Posted at 19:39 by Howard Bashman



"Anticlimactic Action: Does the Court give us the law we want?" Jeff Taylor has this interesting essay online at Reason.
Posted at 17:21 by Howard Bashman



"Hatch faces tough task on asbestos trust" Tomorrow's issue of The Financial Times will contain this report.
Posted at 17:18 by Howard Bashman



"Upholding the Status Quo: While both sides are claiming victory, the Supreme Courtís latest rulings have done little to end the legal uncertainty over race-based university admissions" Newsweek offers this article as a "Web exclusive."
Posted at 17:13 by Howard Bashman



"Questions and Answers on Web Filtering": Available online and unfiltered from The AP.
Posted at 17:07 by Howard Bashman



NPR's Nina Totenberg reports on this morning's racial preferences in university admissions rulings: You can listen here (Real Player required).
Posted at 17:02 by Howard Bashman



"Affirmative action survives close Supreme Court vote": The Independent (UK) offers this report.
Posted at 16:57 by Howard Bashman



"Justices Pen Widely Varied Mich. Opinions": The Associated Press has this report.
Posted at 16:52 by Howard Bashman



A look twenty-five years into the future: A reader emails:
Thanks again for your excellent updates on today's activities at the Court. (You reprinted my speculations on the outcomes of the cases back in April, after the argument; I turned out to be wrong about the undergraduate case, although I did get the outcome of the law school case right). As I mentioned then, I worked at the Court a few years ago in the Administrative Office to the Chief Justice. One of my old friends at the PIO emailed a PDF copy of the opinion just after 10 today, so I've had a chance to read it. I wondered if you or your readers would help settle a debate among some of the 3Ls at Harvard Law.

For us, the most surprising part of today's rulings is the following flourish in the penultimate paragraph of Justice O'Connor's majority opinion in the law school cases:

"We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Slip op. at 31.

A group of HLS students is bitterly divided: is this conclusion a holding, binding upon the Courts of Appeals?

Those who think not note that the Court has used the term "expect," indicating that the Court is merely speculating as to a future state of affairs. Such conjecture, they argue, cannot be the basis of a constitutional holding. Instead, the Courts of Appeals will have to weigh those expectations against the facts found in future cases, and will be free to hold as they see fit on the basis of the other principles in the opinion.

Others argue that it is not for the Courts of Appeals to decide when a proposition receiving five votes is harmless dicta and when it is binding. Although law students routinely consider "dicta" that part of an opinion not necessary to render the judgment, of course many important constitutional principles were rendered thusly.

These students argue that this rule is a holding, binding on the Courts of Appeals. They point out that Justice Thomas has, in a bit of gamesmanship, characterized the sentence as a "holding." Slip op. at 2 (Opinion of Thomas, J., concurring in part and dissenting in part). They also note that the five Justices in the majority have not responded to that characterization, as they easily could have. And none of the Justices casting majority-granting votes concurred in the opinion but only in the judgment with respect to the sentence in question, leaving it without the force of law. This, combined with the fact that the sunset provisions of the Equal Protection Clause are inarguably constitutional principles, makes the 25-year statement a rule of law which Courts of Appeals must apply.

I would be grateful to know what you and your readers think of this very narrow question in a very broad case. Thanks again for your tremendous efforts in keeping those of us (now) away from the Court posted.
Obviously, that sentence from Justice O'Connor's opinion will mean whatever five or more Justices serving on the Court some twenty-five years from now decide that it means. Coincidentally, Justice Clarence Thomas, who today celebrated his 55th birthday, will then be 80 years old, and some may be speculating in June of 2028 about when his retirement announcement will be forthcoming.
Posted at 16:37 by Howard Bashman



"Supreme Court Throws Case Against Conseco": The Associated Press provides this report.
Posted at 15:49 by Howard Bashman



"Conservatives Call Affirmative Action Rulings 'Disgusting' and 'Disappointing'": The Cybercast News Service offers this report.
Posted at 15:28 by Howard Bashman



Applause, anyone: The Associated Press reports here that "Some big businesses applaud high court decision on affirmative action." And the White House has issued a statement from President Bush headlined "President Applauds Supreme Court Decision."
Posted at 15:06 by Howard Bashman



What or who is "it"? The nice thing about having such a popular blog (over 20,000 page visits today already, far surpassing the earlier record of 14,000+) is that at least one correspondent is already reading through the Court's fractured ruling in Green Tree Financial Corp. v. Bazzle.

Justice Stephen G. Breyer's opinion announcing the judgment of the Court contains a paragraph, which begins on the bottom of page four, carrying over to page five, that states:
Whether Green Tree is right about the contracts themselves presents a disputed issue of contract interpretation. THE CHIEF JUSTICE believes that Green Tree is right; indeed, that Green Tree is so clearly right that we should ignore the fact that state law, not federal law, normally governs such matters, see post, at 1 (STEVENS, J., concurring in judgment and dissenting in part), and reverse the South Carolina Supreme Court outright, see post, at 4-6 (REHNQUIST, C. J., dissenting). THE CHIEF JUSTICE points out that the contracts say that disputes "shall be resolved . . . by one arbitrator selected by us [Green Tree] with consent of you [Green Tree's customer]." App. to Pet. for Cert. 110a. See post, at 4-5. And it finds that class arbitration is clearly inconsistent with this requirement. After all, class arbitration involves an arbitration, not simply between Green Tree and a named customer, but also between Green Tree and other (represented) customers, all taking place before the arbitrator chosen to arbitrate the initial, named customer's dispute. [bold emphasis added]
So, who or what is the "it" to which Justice Breyer's opinion is referring in this paragraph? And does this indicate that Justice Breyer's opinion began as a dissent?
Posted at 14:44 by Howard Bashman



Enough with today's rulings in the University of Michigan cases! Just kidding. The Ann Arbor News reports here that "Court splits over U-M admissions." The Detroit News reports here that "Schools can consider race in admissions, Supreme Court rules; But U-M's undergraduate point system is rejected." The Detroit Free Press reports here that "Use of race upheld in U-M admissions, but undergrad policy must be changed" and here that "Michigan students weigh in on Supreme Court ruling." The Associated Press reports here that "Both sides claim victory in Supreme Court ruling"; here that "Bush Hails 'Race-Neutral' Court Ruling"; and here provides "Gov. Jennifer Granholm's statement on court decision." The Michigan Daily reports here that "Supreme Court rules on 'U' policies; Law School policy upheld, LSA's partially reversed." And via The University of Michigan's Web site comes "Comments from University leaders."
Posted at 14:21 by Howard Bashman



Online at The Washington Post: Charles Lane reports here that "Supreme Court Upholds Internet Filters" and here that "Court Strikes Down Law for Holocaust Survivors."
Posted at 14:04 by Howard Bashman



"Supreme Court Declines Immigration Case": Gina Holland of The Associated Press has this report.
Posted at 14:00 by Howard Bashman



"Race in admissions revised; Supreme Court does not ban use of race by universities, but says it must be limited." Warren Richey will have this article in tomorrow's issue of The Christian Science Monitor.
Posted at 13:58 by Howard Bashman



"Supreme Court raises the stakes": BBC News offers this report.
Posted at 13:57 by Howard Bashman



"Should the Supreme Court decide by consensus?": Slate offers this "breakfast table" discussion between Walter Dellinger and Dahlia Lithwick (currently in progress).
Posted at 13:52 by Howard Bashman



Some reader mail concerning today's Grutter v. Bollinger decision: A reader emails:
While lawyers, law students, law clerks and many others across the country are busy sifting through the opinions in Grutter and Gratz to gain some understanding of them, I write with a less lofty but nonetheless important purpose -- to draw the Court's attention (via your website) to a substantively unimportant but mildly annoying misquotation of the brief filed on behalf of military officers. At page 18 of the Court's opinion, the Court makes reference to the military's "principle" mission rather than its "principal" mission. Knowing the attention that this specific brief apparently received (as indicated by the reference made to it using Carter Phillips' name in a question posed at oral argument), I thought it would be particularly embarrassing if the brief contained this common spelling mistake. A quick search of the brief (available here) revealed that the brief contained the correct spelling. The Court -- not Greenberg Traurig or Sidley Austin, and certainly not Carter Phillips, who wasn't even counsel of record on the brief -- is to blame. The same search also revealed that the quotation appears on page 5 of the brief, not page 27, as indicated by the Court. I trust that both of these errors will be fixed. Now back to reading the opinions for their content ....
And a reader who has turned into something of Kabbalist speculator emails:
Is O'Connor a Kabbalist too?

Once again, the Supreme Court considers a constitutional issue and comes up with a particular number. Once again, it appears that the Supreme Court is using Kabbalah in order to decide difficult cases.

Kabbalah, as was noted in an April 2003 post on your weblog, "is a form of Jewish mysticism (although lately it has become rather trendy and includes many people who aren't Jewish). One of the aspects of Kabbalah (known as 'gematria') is the belief that the letters of the Hebrew alphabet also serve as numerals and they provide a method of reading novel and unexpected meanings into a text."

The April 2003 post noted that the Supreme Court's State Farm Mutual Automobile Insurance Co. v. Campbell opinion could be explained as being based on Kabbalah: "In that case, the Court concluded that the Due Process clause limits punitive damages awards to multipliers of less than 10. The first source of the reader's puzzlement might be that the Due PROCESS clause would contain such a substantive limitation. The second source of puzzlement might be the fact that Justice Kennedy came up with a particular number. Where, the reader might think to himself or herself, did Justice Kennedy come up with that number? Thousands and thousands of attorneys and judges have been reading this clause for hundreds of years, but nobody has found the number 10 contained in it . . . This helps explain the State Farm opinion. One problem, however, is that unlike Hebrew, English letters do not have a particular numerical value. Justice Kennedy has apparently solved this problem by counting each letter as having the value of one.

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

The Supreme Court's Grutter opinion can also be explained by Kabbalah. Where, the reader might ask, did Justice O'Connor come up with the 25 year time limit for affirmative action programs? The easy answer is: "affirmative action programs" has 25 letters.

It is interesting to compare Kennedy's approach to Kabbalah to O'Connor's approach to Kabbalah. Kennedy appears to use a text-centered approach to Kabbalistic decisionmaking. That is, he counts the letters in the constitutional text ("Due Process" has 10 letters). OíConnor seems to take a more "facts of the case" approach to Kabbalah. That is, she counts the number of letters in the item being considered ("affirmative action programs" has 25 letters).

This is a potentially very fruitful way of looking at the Court's decisionmaking--especially if the Court issues more opinions in which it looks at the constitutional text and comes up with particular numbers.
The so-called "time limit" that is the subject of this second email appears on page thirty-one of Justice O'Connor's opinion for the Court: "We expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today."
Posted at 12:27 by Howard Bashman



Yale Law Professor Jack Balkin comments on today's University of Michigan rulings: Here, at his blog "Balkinization."
Posted at 12:26 by Howard Bashman



"Court Passes on Mormon Church Case": The Associated Press has this report.
Posted at 12:21 by Howard Bashman



Reuters is reporting: U.S. Supreme Court correspondent James Vicini reports here that "Top Court Splits on University Race Preferences"; here that "Top Court Upholds Internet Library Filters"; and here that "Top Court to Decide Reach of Disability Law." And an article without a byline reports that "High Court Strikes Down Holocaust Insurance Law."
Posted at 12:17 by Howard Bashman



"Supreme Court Glance": Here, from The AP.
Posted at 12:10 by Howard Bashman



"Michigan Students React to Court Ruling": The AP provides this news from Ann Arbor.
Posted at 11:57 by Howard Bashman



"Court Limits Race As Factor in Admissions": Anne Gearan of The Associated Press now has this more detailed report.
Posted at 11:32 by Howard Bashman



"Supreme Court Takes Local Telecom Case": The AP has this report.
Posted at 11:16 by Howard Bashman



Decisions yet to be announced: No homosexual sodomy ruling today, and no "commercial speech" ruling either. Stay tuned until Thursday for those.
Posted at 10:54 by Howard Bashman



The Associated Press is reporting from the U.S. Supreme Court: An article reports that "Court Limits Race As Factor in Admissions"; Gina Holland reports that "Court OKs Anti-Porn Filters in Libraries"; and Anne Gearan reports that "Court Rejects Law on Holocaust Insurance."
Posted at 10:44 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: The Supreme Court of the United States issued opinions in the following five argued cases today: American Ins. Assn. v. Garamendi (entire decision available here; oral argument transcript here); Green Tree Financial Corp. v. Bazzle (entire decision available here; oral argument transcript here); Grutter v. Bollinger (entire decision available here; oral argument transcript here); Gratz v. Bollinger (entire decision available here; oral argument transcript here); and United States v. American Library Assn., Inc. (entire decision available here; oral argument transcript here). [Note: If you're having trouble downloading these opinions from the U.S. Supreme Court's Web site, you may have better luck at this site, provided by The Associated Press.]

You can access today's Order List at this link. The Court today granted review in three new cases.

The Court has announced that it will next issue opinions on Thursday, June 26, 2003.
Posted at 10:00 by Howard Bashman



"Some campuses find new keys to diversity": This article appears in today's edition of The Sacramento Bee.
Posted at 09:45 by Howard Bashman



"U-M cases debated at presidential forum": The Associated Press has this report.
Posted at 09:40 by Howard Bashman



"U-M ready to respond to justices' ruling; Decision on admissions cases may come today": Today's issue of The Detroit Free Press contains this report.
Posted at 09:37 by Howard Bashman



"Bad Strategy: Why Pryor handcuffs the Dems." Quin Hillyer today has this essay at National Review Online.
Posted at 09:32 by Howard Bashman



On the agenda: At 10 a.m. eastern daylight time today, the Supreme Court of the United States is scheduled to announce decisions in some or all of the remaining ten argued cases pending before it. You can access my summary of those ten cases here. Stay tuned to learn which decisions the Court issues today.
Posted at 06:55 by Howard Bashman



Elsewhere in Monday's newspapers: In The Washington Times, Frank J. Murray reports that "Top court reverses all Virginia rulings." In other news, "Democrats threaten to filibuster nominee." An article reports that "Fast food next on the menu for lawyers." From Virginia comes an Associated Press report that "Tech changes programs for minorities before ruling." Roger Clegg has an op-ed entitled "Michigan verdict forethought," while Bruce Fein has an op-ed entitled "Shortchanged campaign ruling."

The Los Angeles Times reports here that "Napster Court Case Pits Label vs. Label; Bertelsmann, sued for allegedly aiding music piracy, says its accusers are partly to blame." And letters to the editor appear under the headings "Teens' Scary Artwork: Courts Ignore Rights" and "Proposed Rules on Love Affairs With Students."

Finally for now, The Boston Globe contains an editorial entitled "Protecting the innocent." And Cathy Young has an op-ed entitled "Legal arguments weak against gay marriage."
Posted at 06:45 by Howard Bashman



"High court's term to end with a flurry": The Cox News Service offers this report.
Posted at 06:31 by Howard Bashman



In Monday's newspapers: The Washington Post contains an article headlined "Brown + 50: The Fight Goes On; Elaine Jones's Latter-Day Battle." Editorials run under the headings "The Logic of Money" and "Shackling Children." Courtland Milloy has an essay entitled "Weighing Words On the Scales Of Injustice." And columnist William Raspberry has an op-ed entitled "Pardoned but Still Disbarred."
Posted at 00:05 by Howard Bashman



Sunday, June 22, 2003
"Beyond the Pale": That's how an editorial in tomorrow's issue of The New York Times describes Eleventh Circuit nominee William H. Pryor, Jr. For a more favorable view, Terence P. Jeffrey has an op-ed entitled "Clear vision of civil rights" in today's issue of The Washington Times.
Posted at 23:42 by Howard Bashman



"The Senators' Sons -- In Nevada, Reid Is the Name to Know; Members of one lawmaker's family represent nearly every major industry in their home state. And their clients rely on his goodwill." Tomorrow's edition of The Los Angeles Times will also contain this article, the second in a two-part series. A related chart, in PDF format, is available at this link. And you can access part one of the series here.
Posted at 23:42 by Howard Bashman



"Right Wing Objects to Bush Aide as a Justice": Monday's issue of The Los Angeles Times will contain this report.
Posted at 23:39 by Howard Bashman



"State officials look to release sex offenders": And in other news from Minnesota, today's edition of The Star Tribune contains an article that begins, "For the first time in a decade, Minnesota mental health officials are looking for ways to release into the community some of the 190 sexual psychopaths now locked in state treatment centers."
Posted at 22:27 by Howard Bashman



"Colleges poised to re-think race policies as ruling looms": Tomorrow's edition of The Minneapolis Star Tribune will contain this report.
Posted at 22:25 by Howard Bashman



Available online at The National Law Journal: Marcia Coyle has an article headlined "A cloudy future for forced medication; After the ruling, more litigation?" And here's an article entitled "Tossing out the clock: States are repealing some statutes of limitations."
Posted at 22:21 by Howard Bashman



"Rulings expected on gay, diversity, remapping issues": Monday's edition of The Atlanta Journal-Constitution will contain this report.
Posted at 21:32 by Howard Bashman



Happy birthday to Justice Clarence Thomas: Tomorrow he turns 55 years old.
Posted at 21:31 by Howard Bashman



"Supreme Court to rule on affirmative action": The Knight Ridder News Service offers this report.
Posted at 21:30 by Howard Bashman



Right to privacy may confer right to abortion, but right to abortion doesn't confer right to privacy: This morning's installment of NPR's Weekend Edition-Sunday contained the following segment:
Kansas Law Requires Reporting of Underage Abortion: Doctors who perform abortions on girls under 16 must report the patients to authorities for investigation of possible rape or sexual abuse, a new state attorney general's opinion says. As Kansas law prohibits sex with a child under 16, pregnancy is evidence of child abuse, state Attorney General Phill Kline says. Hear Kansas Public Radio's Peter Hancock.
You can listen to the segment online at this link (Real Player required).
Posted at 21:22 by Howard Bashman



"Pryor's path": Today's edition of The Montgomery Advertiser offers this detailed profile of Eleventh Circuit nominee William H. Pryor, Jr. (Via "Southern Appeal.")
Posted at 20:56 by Howard Bashman



"The Conservative Case for Gay Marriage: Want to foster responsibility and commitment? There is no better way": Andrew Sullivan has this essay in the June 30, 2003 issue of Time magazine.
Posted at 19:30 by Howard Bashman



Chief Justice Rehnquist, pro and con: Also in the June 30, 2003 issue of Time magazine, two law professors face off concerning whether the impact of Chief Justice William H. Rehnquist's service on the Supreme Court of the United States should be remembered positively or negatively. John O. McGinnis has an essay entitled "Pro: Rehnquist's court renewed civic virtues." And Erwin Chemerinsky has an essay entitled "Con: His tenure curtailed essential freedoms."
Posted at 19:23 by Howard Bashman



"High court expected to rule on affirmative action; At issue: Whether race may be factor in admissions": CNN.com has this report.
Posted at 19:22 by Howard Bashman



Error Time: A bunch of readers have emailed to note errors in the Time magazine article I linked to immediately below, entitled "How Rehnquist Changed America." The following email nicely sums up the errors spotted so far:
The Time Magazine article on the Rehnquist Court contains at least two errors. The writers erroneously state that the 1994 Supreme Court vacancy filled by Justice Breyer was the first confirmation process since the contentious hearings surrounding the nomination of Justice Thomas in 1991. Of course, Justice Ginsburg was confirmed in 1993. Also, Chief Justice Rehnquist was not the "sole dissenter" in Atkins v. Virginia. He was joined by Justices Scalia and Thomas.
You can access a list of U.S. Supreme Court Justices in the order they began serving on the Court at this link, and you can access the decision in Atkins v. Virginia here.
Posted at 19:10 by Howard Bashman



"How Rehnquist Changed America: As speculation builds about new faces on the Supreme Court, a close look at the Chief Justice's legacy shows the many ways the court has diluted Washington's power" The June 30, 2003 issue of Time magazine will contain this report.
Posted at 17:17 by Howard Bashman



"They Have a Little List": The New York Post today contains an editorial that begins, "Three top Senate Democrats have volunteered to serve as a clearing house of sorts for President Bush before he selects someone to fill possible vacancies on the U.S. Supreme Court."
Posted at 14:12 by Howard Bashman



"Nation's eyes on affirmative action cases; Top court is about to revisit its '78 stance on racial quotas": Today's edition of The Newark Star-Ledger contains this report. And a related article bears the headline "Jersey colleges say they strive for diversity; Many acknowledge factoring race into their admissions decisions."
Posted at 14:10 by Howard Bashman



In Sunday's newspapers: In The Boston Globe, Lyle Denniston reports that "Military may sway court on diversity."

The Los Angeles Times reports here that "Case Sparks Recruitment Debate Over Race; Some fear that a ruling against affirmative action may cut diversity at military academies." Relatedly, an article reports that "For Diversity, UC Uses Outreach; Alternatives Tried as Court Considers Affirmative Action." You can access here an article headlined "In Mexico, Luster Hid in Plain Sight; The fugitive rapist made many friends who would join him for days of surfing and nights of partying in coastal towns." An op-ed by Anthony Lewis is entitled "An Injudicious Trend; Increasingly, political ideology is tainting court appointments," and Peter Irons has an op-ed on a related topic entitled "Politics Count, Not Excellence."

The Washington Times reports here that "Advocates meet to plan Big Mac attack on fat." In other news, "Cameras put focus on civil liberties." An op-ed by Lawrence Hunter is entitled "Bring in the cots," and John Hasnas has an op-ed entitled "Diversity thumbs on the scales."

Today's edition of The Washington Post contains an article headlined "In Ohio, a Test for Eminent Domain; Rights vs. Renewal at Stake in Case." In other news, "Hundreds of Gay Couples Make Their Way to Ontario to Say 'I Do.'" An op-ed by Charles H. Whitebread is entitled "Jurors Must Be Impartial. They Shouldn't Be Clueless." And a letter to the editor appears under the heading "A Better Way to Discipline Lawyers."

Finally for now, The New York Times contains an article headlined "The Unraveling of an Un-Law Firm." From Mexico comes an essay about "Bounty Hunting for Fame." Columnist Frank Rich writes, "Gay Kiss: Business as Usual." An op-ed by Orlando Patterson is entitled "Affirmative Action: The Sequel." And letters to the editor of the Magazine section (third item) respond to the recent essay by Jeffrey Rosen entitled "How I Learned to Love Quotas."
Posted at 11:30 by Howard Bashman



"Verdicts, lawyers under FBI scrutiny; Former leader of trial lawyers says White House strategy to blame": The Clarion-Ledger today offers this report from Mississippi.
Posted at 11:22 by Howard Bashman



"Courts giving grandparents a big say on visitation, custody issues": Today's edition of The Pittsburgh Post-Gazette contains this report.
Posted at 11:20 by Howard Bashman



"Colleges await future of affirmative action": This article appears in today's issue of The Cleveland Plain Dealer. And a related item is entitled "Colleges' admissions criteria often as diverse as candidates themselves."
Posted at 11:18 by Howard Bashman



"'Compelling interest' key in U-M court cases; Expression may apply both in court decision and public focus on it": Today's edition of The Ann Arbor News contains this report.
Posted at 11:13 by Howard Bashman



"State court clouds issue on Scouts, gays": Today's issue of The San Jose Mercury News contains this essay by columnist Scott Herhold.
Posted at 11:09 by Howard Bashman



"Not Just Black and White: As the Supreme Court prepares to redefine affirmative action for the first time in a quarter century, the class of 1982 looks back at the challenges it has overcome and the obstacles that still remain": This article appears in the June 30, 2003 issue of Newsweek, where the cover story is entitled "No Sex, Please, We're Married."
Posted at 11:07 by Howard Bashman



"Political divide sparks disorder in the courts; 6th Circuit Court's spats lift veil, and picture isn't pretty": Today's issue of The Cincinnati Enquirer contains this report.
Posted at 08:53 by Howard Bashman



"Is 'Al Gonzales' Spanish For 'Stealth Liberal'?" This article from the June 2003 issue of Texas Monthly is finally available for viewing online, free of charge.
Posted at 00:45 by Howard Bashman



Saturday, June 21, 2003
"For Rehnquist Watchers, No Signs of a Retirement": Charles Lane has this report in Sunday's edition of The Washington Post. And from a source quite a bit farther away comes an article with the headline "Estrada Pushing Supporters To Pressure Supreme Court."
Posted at 23:50 by Howard Bashman



Supreme ignorance: The Dayton Business Journal reports here that "Nearly two-thirds of American adults cannot recall the names of any of the nine justices currently serving on the high court, according to a survey from Findlaw." You can access FindLaw's press release here and a chart displaying the results here. Ironically, the Court's second-longest serving Justice, John Paul Stevens, is also its least well known, identified by only one percent of the respondents in the poll. (No statistics were given for petitioners or amici, sorry.)
Posted at 17:17 by Howard Bashman



"Death-penalty cases can strain state, county budgets": This article appears in today's issue of The Kansas City Star.
Posted at 17:08 by Howard Bashman



"Capture of Max Factor heir highlights Mexican extradition policy": More news from The AP.
Posted at 17:01 by Howard Bashman



"Court Battles Over Gay Marriage Expected": The Associated Press has this report. And here's a related item entitled "Summary of Same-Sex Marriage Debates."
Posted at 17:00 by Howard Bashman



"9/11 Injury Claims Go Federal": This article appears in today's edition of Newsday.
Posted at 16:57 by Howard Bashman



"A supreme showdown": Today's issue of The Guardian (UK) contains this lengthy article about Gratz v. Bollinger, the case that challenges the University of Michigan's use of racial preferences in undergraduate admissions.
Posted at 16:54 by Howard Bashman



"Shops fearful of DEA's wrath; Pipes and clips are legal, shopowners say; police in no rush to make arrests." This article appears in today's issue of The Sacramento Bee.
Posted at 16:52 by Howard Bashman



Random justice: Today's edition of The Detroit Free Press reports here that "Judge disciplined for coin flip."
Posted at 16:50 by Howard Bashman



1.5 million served: A some point this weekend, the Bravenet hit counter that records visits to "How Appealing" will pass the one-and-a-half million mark. (You can see it for yourself toward the bottom of the right hand column of this page.) One million five hundred thousand page views since May 6, 2002. Who ever would have expected this level of interest in a blog devoted to appellate litigation? Not me.
Posted at 11:40 by Howard Bashman



In Saturday's newspapers: In The Los Angeles Times, Henry Weinstein reports that "Hatch to Seek Vote on Judge; The Senate Judiciary chairman rebuffs a move against an L.A. jurist's nomination." An article reports that "Appeals Court Upholds Freezing of Islamic Charity's Assets; The panel finds 'ample evidence' linking the Holy Land Foundation to terror group Hamas." In other news, "Luster Is Seeking Right to Appeal." An article reports that "3 Filmmakers Are Fined $500 for 'Bumfights.'" From Kentucky comes a report that "Trial Urged for Suspect in Deadly Army Tent Attack" and a related report that "2 Kuwaitis Initially Suspected in Army Tent Attack; Military officials testify that the interpreters, brought to the camp a day before the grenade assault, were sleeping in command quarters." And in local news, "Students Assail School's Move to Kill Article; Newspaper staff at Venice High cries censorship after principal spikes investigative piece on health teacher's past."

The Boston Globe reports here that "Kerry vows filibuster to uphold Roe v. Wade." In other news, "Lodge wins round in smoking battle." And an article reports that "SJC rules ex-officer not entitled to pay."

Today's issue of The New York Times contains an article that addresses the question "If Sanity Is Forced on a Defendant, Who Is on Trial?" An article reports that "Senator Ready to Filibuster Over Views of Court Pick." Neil A. Lewis reports that "Court Upholds Freeze on Assets of Muslim Group Based in U.S." In other news, "Court Upholds Tougher Rule on Arsenic Limits in Water." In sports news, "Court Backs Artist Who Created Print Depicting Woods." An article reports that "Massachusetts Legislature Repeals Clean Elections Law." From Kentucky comes news that "Court-Martial Is Backed in Fatal Grenade Attack." An article reports that "Man in Brooklyn Bridge Plot Spurred Early F.B.I. Interest." In local news, "Some Say Inquiry Could Lead to Overhaul in Picking Judges." And an editorial is entitled "A Chilling Reminder."

The Washington Post reports here that "Judge Approves More Funds for Malvo Defense." And from Texas comes a very interesting front page article bearing the headline "Pride (and $50) at Steak; Woman Takes a Stab at a 72-Ounce Slab of Sirloin."

Finally for now, The Washington Times reports here that "Sniper judge grants funding."
Posted at 11:12 by Howard Bashman



"The Senators' Sons -- A Washington Bouquet: Hire a Lawmaker's Kid; Stiffer rules are making it harder to direct cash to a congressman. But you can still put his family on the payroll." Sunday's edition of The Los Angeles Times will contain this article, the first in a two-part series.
Posted at 11:00 by Howard Bashman



"It's Unanimous: Will the Court Move Right? It Already Has": Linda Greenhouse will have this report in the Week in Review section of Sunday's issue of The New York Times. (Thanks to Rick Hasen for the pointer via email.)
Posted at 10:52 by Howard Bashman



Friday, June 20, 2003
"All Sides Ready for Possible High-Court Fight": Reuters offers this report. And Anne Gearan of The Associated Press reports here that "Bush May Be Relieved if No Justice Quits."
Posted at 23:05 by Howard Bashman



Available online at law.com: Tony Mauro's Courtside column bears the headline "'Under God' Underdog?" From Texas comes news that "Defendant at Center of 'Sleeping Lawyer' Case Gets Life Sentences." And Evan P. Schultz has an essay entitled "A Hidden Hope for Fair Use: Does the pro-copyright decision in 'Eldred' quietly invite a challenge to the DMCA?"
Posted at 22:37 by Howard Bashman



"Teen Sues Over 'Lesbian Barbie' Shirt Ban": Reuters has this report. Today's edition of The New York Daily News contains an article entitled "Barbie T-shirt suit; Gay theme got student sent home." Newsday reports here that "Lesbian Pupil's Mom Sues City." And The New York Post reports here that "Teenage Lesbian Suing Ed Dept."

Given that this legal dispute involves Barbie, it's regrettable that the lawsuit is pending in a federal trial court in New York, which greatly decreases the chances that Ninth Circuit Judge Alex Kozinski will receive the opportunity to write another Barbie-related judicial opinion arising out of this matter. Undoubtedly, he'd advise the parties "to chill."
Posted at 22:15 by Howard Bashman



"Gov. Davis urges U.S. Supreme Court to hear Pledge of Allegiance case": The Associated Press has this news from California.
Posted at 20:55 by Howard Bashman



"Justice Denied at the Source: Considered Guilty Until Proved Innocent": Columnist Nat Hentoff today has this essay online at the Web site of The Village Voice.
Posted at 19:30 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Upholds Medicare Probe Ruling"; here "High-Profile Sex Offender Arrested Again"; here "Sen. Hatch Removes Link to Porn Web Site"; and here "Bush to Name Acosta to Justice Dept. Post."
Posted at 19:26 by Howard Bashman



"Kerry to Block Anti-Abortion Court Picks": The Associated Press reports here that "Democratic presidential candidate John Kerry said Friday that he is prepared to block any Supreme Court nominee who would not uphold the Roe v. Wade decision that legalized abortion."
Posted at 17:41 by Howard Bashman



Ronnie L. White to become Supreme Court of Missouri's Chief Justice: Today's edition of The Daily Dunklin Democrat provides this report.
Posted at 17:38 by Howard Bashman



"Guilford Man Becomes Federal Judge; Mark R. Kravitz Confirmed By Senate": Today's issue of The Guilford Courier contains this report.
Posted at 17:32 by Howard Bashman



"Right on, Sen. Leahy: Seeks bipartisanship on high court nominees": Wednesday's edition of The Register-Guard of Eugene, Oregon contained this editorial.
Posted at 16:39 by Howard Bashman



"Rapper Snoop Dogg Gets MTV Comedy Show": The Associated Press has this report about a television program that's certain to confound the judiciary of Great Britain.
Posted at 16:27 by Howard Bashman



You too can own a book by Dahlia Lithwick: And let's not overlook co-author Brandt Goldstein, who attended Yale Law School -- "Oooooh, Yale," as the back cover of the book exclaims.

Thanks to the most wonderful Dahlia, my copy of the book "Me v. Everybody: Absurd Contracts for an Absurd World" arrived via UPS today from the publisher. The book looks great. You can't look at the book without being put into the mood to laugh, which is a good thing since it's a humor book. For just $12.95 you too can own this good looking, no doubt very funny, book, which not only contains Dahlia's signature but also a color photo of her too.

And while it's true that the book is printed in China, I'm assured that it's printed in a good part of that country where all workers are paid quite fairly. And even though it's printed in China, you don't need to know Chinese to read it. Plus, the book's Web site also isn't in Chinese, unless you first run it through Babel Fish.

So, if you've missed Dahlia Lithwick's work as much as I have while she's been away on pregnancy leave, you'll have no one to blame but yourself if you don't pick up a copy of this book. And if you do pick up a copy of this book while inside a store that sells books, be sure to pay for it before taking it home with you.
Posted at 16:05 by Howard Bashman



Seventh Circuit rules that its refusal to allow a nationwide federal court class action involving Ford SUV's and Firestone tires prohibits state courts from certifying such a nationwide class action: Although it's only ten pages long, this opinion that Circuit Judge Frank H. Easterbrook issued today on behalf of a unanimous three-judge Seventh Circuit panel will likely have class action experts talking for quite some time.
Posted at 15:32 by Howard Bashman



Binky ban's back; ravers enraged: Thanks to a journalist from the great State of Texas for emailing to draw my attention to this very interesting ruling that the U.S. Court of Appeals for the Fifth Circuit delivered today. At issue was whether third-parties (here, third-parties who loved to attend rave parties) could challenge the lawfulness of the following special condition contained in a plea agreement that a rave-hosting company had entered into as part of its sentence of conviction on federal drug-related charges:
[The defendant will] take all reasonable steps to prohibit the introduction of infant pacifiers or any objects in the shape of a pacifier, objects that glow, including but not limited to glow sticks and flashing rings, vapor rub products and vapor inhalers, dust masks or masks of any description by any person entering a concert or an event where an admission is charged or at the State Palace Theater.
Hey, had I known that being a raver allowed one to suck on pacifiers and play with glow sticks -- oh, nevermind.
Posted at 15:18 by Howard Bashman



Today's catchy new slogan -- "Justice rushed is justice crushed": Senior Circuit Judge Joseph F. Weis, Jr. today issued an opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit in which he writes:
The only virtue in dismissing the case here was clearing the court's docket. Although promptness in judicial administration is highly desirable, delay may sometimes be necessary to the mission of doing justice. We are all too often reminded that "justice delayed is justice denied." But, it is equally true that in some situations "justice rushed is justice crushed."
A quick search of Westlaw indicates no previous use of the latter slogan. So, delay-favoring lawyers of America, you now have a new rallying cry.
Posted at 15:01 by Howard Bashman



Kentucky's governor pledges to commute death sentence of convict who murdered at age of 17: Yesterday's edition of The Lexington Herald-Leader contained an article reporting that "Patton commutes killer's sentence; Death Row inmate was 17 when he murdered woman." The Associated Press yesterday reported that "Patton Says He Plans to Commute Sentence of Juvenile Killer." An article online at The Louisville Channel reports that "Killer's Spared Life Draws Fire From Victim's Family; Stanford Family Gets 'Gift From God.'" Yesterday's edition of The Courier-Journal reported here that "Stanford's family celebrates; victim's sister is repulsed." And today's issue of The Cincinnati Enquirer reports here that "Patton's pardons galvanize Republicans."

Kevin Stanford was one of two juvenile murderers sentenced to death whose case came before the U.S. Supreme Court back in 1989, when the Court ruled 5-4 that a State does not violate the Eighth Amendment's cruel and unusual punishment clause when it executes someone who committed murder at the age of 16 or 17. Stanford's case made a return visit to the Court recently, and in October 2002 the Court denied, over the dissent of four Justices, Stanford's application for an original writ of habeas corpus asking the Court to hold that his execution would be unconstitutional because he was under the age of 18 when he committed his offense.

I have previously covered recent developments regarding the imposition of the death penalty on those who commit murder at the age of 16 or 17 in posts you can access here, here, and here.
Posted at 13:52 by Howard Bashman



Don't mess with success: Tony Mauro's Courtside column in next week's edition of The Legal Times will report that Michael A. Newdow plans to continue serve as his own lawyer even if the U.S. Supreme Court agrees to review the Ninth Circuit's ruling in the Pledge of Allegiance case. Careful readers of "How Appealing" may recall that the Ninth Circuit had offered to appoint counsel for Newdow, but he turned the court down and ended up winning anyway. While it is out of the ordinary for pro se litigants to argue in the U.S. Supreme Court, it's not unprecedented. If my recollection is correct, the last time it happened was in the 2001 Term in the case of Christopher v. Harbury (access the oral argument transcript here).
Posted at 13:36 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Fed Court Declines to Reopen Roe v. Wade"; here "Appeals Court Blocks FEC Records Release"; here "Feds Get OK to Hold Muslim Charity Assets"; here "Ruling: Reno Can't Be Sued for Elian Raid"; here "Court Upholds EPA Arsenic Rule for Water"; here "Cosmetics Heir Begins 124-Year Sentence"; here "Bill to Reverse FCC Ruling Uncertain"; here "Mass. May Repeal 'Clean Elections Law'"; here "Texas Lawmakers Question Redistricting"; here "Sniper Suspect Lawyers Request More Funds"; here "Feds: Ohio Terror Suspect Is Cooperating"; here "Fingerprint Database Merge Off Schedule"; and here "Falwell Gets Rights to Web Addresses."
Posted at 13:11 by Howard Bashman



Dead Kennedys v. Jello Biafra: On Wednesday, the California Court of Appeal, First District, Division Four, issued this not-for-publication opinion. The band's official Web site is accessible here.
Posted at 11:48 by Howard Bashman



Law Professor Eugene Volokh shares some "lost maxims of equity" that he has uncovered: Available here.
Posted at 11:24 by Howard Bashman



Holy Land Foundation for Relief and Development loses its effort to challenge the U.S. Government's labeling of it as a "Specially Designated Global Terrorist": You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link. You can access some additional background about the federal government's action against the organization here (via the White House's Web site) and here (via the U.S. Department of State's Web site).
Posted at 10:57 by Howard Bashman



D.C. Circuit strikes down Federal Election Commission regulation under First Amendment: Today the U.S. Court of Appeals for the D.C. Circuit struck down under the First Amendment a Federal Election Commission regulation that requires the FEC to make a "public release of all investigatory file materials not exempted by the Freedom of Information Act" once an FEC investigation concludes. According to the majority opinion, "We hold that the regulation, though not contrary to the plain language of the statute, is nevertheless impermissible because it fails to account for the substantial First Amendment interests implicated in releasing political groups' strategic documents and other internal materials."

Circuit Judge Karen LeCraft Henderson issued an opinion concurring in the judgment that contained a least a few bits of levity. For example, her opinion begins, "We are asked in this case, as in so many others, to dance the Chevron two-step * * *." And later she writes:
Taken to its logical conclusion, the FEC's argument would render every prohibition in the United States Code susceptible of ambiguity. "Thou shall not kill" is a mandate neither silent nor ambiguous about whether murder is permissible if committed after 5.00 p.m.--or, for that matter, if committed in the billiard room with the candlestick--but the FEC's reasoning would lead one to conclude otherwise.
There just aren't enough opinions that refer to the game Clue, in my humble judgment. You can access today's D.C. Circuit ruling at this link.
Posted at 10:26 by Howard Bashman



Is Tiger Woods "a walking, talking trademark"? No, concludes a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit in a very interesting decision issued today that you can access here.
Posted at 10:20 by Howard Bashman



"Gay wedding decision puts heat on U.S.; American homosexuals head north, since no state will marry them": Today's edition of The Ottawa Citizen contains this article.
Posted at 10:03 by Howard Bashman



U.S. Senator John Edwards (D-NC) succeeds in effort to slow Boyle: The Senate Judiciary Committee has scheduled a confirmation hearing for Fourth Circuit nominee Allyson K. Duncan to occur on the afternoon of Wednesday, June 25, 2003. Yesterday's edition of The Charlotte Observer reported the news in an article headlined "Appeals nominee hearing planned; Former N.C. appeals judge would be first black woman in post."

While this is excellent news for both Duncan and the Fourth Circuit, it also demonstrates the degree to which U.S. Senator John Edwards (D-NC) has succeeded in his effort to derail confirmation of Fourth Circuit nominee Terrence W. Boyle, who currently serves as Chief Judge of the U.S. District Court for the Eastern District of North Carolina. President George W. Bush originally nominated Boyle to the Fourth Circuit on May 7, 2001, and yet more than two years later Boyle hasn't even received a hearing before the Judiciary Committee.

Why? Because Senator Edwards hasn't yet returned a so-called "blue slip" indicating whether he approves or disapproves the nomination. Duncan, by contrast, was nominated on April 28, 2003, nearly two full years after Boyle. And her confirmation hearing will occur next week, and she will probably be sitting on the Fourth Circuit before the Judiciary Committee holds a hearing on Boyle's nomination. Why is one nomination on a fast track and the other on a boat adrift at sea? Because Senator Edwards supports Duncan but for whatever reason doesn't want to go on record with his position on Boyle.
Posted at 09:51 by Howard Bashman



Top ten reasons to keep an eye on the U.S. Supreme Court next week: The U.S. Supreme Court has ten argued cases in which it has yet to announce rulings and just one week to go in which those decisions are to be announced. You can access my list of the case names and questions presented at this link. The Court will next announce opinions at 10 a.m. on Monday, June 23, 2003; stay tuned to "How Appealing" for full coverage. If anyone needs an eleventh reason to pay attention, here's one -- if any of the Justices decides to retire from the Court this year, that announcement too would be expected to occur next week.
Posted at 09:38 by Howard Bashman



"My Case": Former University of Michigan president Lee C. Bollinger gets personal about the racial preferences in student admissions cases soon to be decided by the U.S. Supreme Court, in this op-ed found in today's edition of The Wall Street Journal.
Posted at 09:33 by Howard Bashman



"The Democratic Delay: Democrats attack the Pryor nomination with questions, questions, and more questions." Byron York has this essay today at National Review Online.
Posted at 09:31 by Howard Bashman



In Friday's newspapers: The New York Times contains an article headlined "Vacancy or Not, Bracing for Supreme Court Fight." An article reports that "Ashcroft Calls on News Media to Help Explain Antiterrorism Laws." In other news, "Trial Date Set for Martha Stewart." An article reports that "Suit Disputes Integrity of Poland Spring Water." In entertainment news, "Court Keeps Spike TV Off the Air for Now." Clyde Haberman's NYC column today is entitled "Executed at Sundown, 50 Years Ago." And an editorial is entitled "A Retailer Is Dressed Down."
Posted at 06:43 by Howard Bashman



In defense of Fifth Circuit nominee Priscilla R. Owen: "The Curmudgeonly Clerk" offers this very interesting post.
Posted at 06:27 by Howard Bashman



Today's FindLaw columnist: John W. Dean has an essay entitled "White House Counsel Alberto Gonzales's Texas Execution Memos: How They Reflect on the President, And May Affect Gonzales's Supreme Court Chances."
Posted at 06:23 by Howard Bashman



"Court hints at rejection of Ohio gay-rights suit": Thursday's edition of The Cleveland Plain Dealer contained this report about a case recently argued before the U.S. Court of Appeals for the Sixth Circuit.
Posted at 00:10 by Howard Bashman



"Judge rigged Michigan case, needs to be indicted": Thursday's edition of the Nashville City Paper contained this essay by Joseph Perkins, a columnist for The San Diego Union-Tribune.
Posted at 00:07 by Howard Bashman



Thursday, June 19, 2003
Available online at law.com: In news from New York, "Wesley Discusses His Transition; The veteran Court of Appeals judge now sits on 2nd Circuit federal bench." And Shannon P. Duffy reports that "3rd Circuit Resolves 'Apprendi' Issues; Non-jury juvenile adjudication question has split federal courts." You can access the Third Circuit ruling in question, issued today, at this link.
Posted at 23:29 by Howard Bashman



Available at National Review Online: Edward Blum has an essay entitled "Civil-Rights Showdown: Get ready for the onslaught to come." Peter N. Kirsanow, a commissioner serving on the U.S. Commission on Civil Rights, has an essay entitled "The Non-Preferred Minority: Michigan, Asians, and Arbitrariness." And Robert Pambianco has an essay entitled "Suspicious Behavior: The Ninth Circuit lets ex-spies sue the CIA."
Posted at 23:26 by Howard Bashman



A report on today's Senate Judiciary Committee business meeting: As predicted, the Senate Judiciary Committee did not vote on the nomination of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit at today's business meeting. Indeed, according to this report at the "Southern Appeal" blog, Pryor's nomination probably won't receive a committee vote until the second business meeting from now. When precisely will that occur? Too soon to tell, but I'll post the information here just as soon as it becomes official.
Posted at 23:06 by Howard Bashman



"Free Speech, Inc.": Lisa J. Danetz of the National Voting Rights Institute has this essay, which TomPaine.com posted online today, about the pending U.S. Supreme Court case of Nike, Inc. v. Kasky.
Posted at 22:49 by Howard Bashman



"Senate Panel OKs Bill on Media Ownership": The AP offers this news.
Posted at 22:30 by Howard Bashman



"Bush to Tap Kavanaugh for D.C. Court": The Associated Press provides this report.
Posted at 20:10 by Howard Bashman



"Affirmative action at risk": Michael Kirkland, UPI Legal Affairs correspondent, today had this news analysis.
Posted at 20:09 by Howard Bashman



Supreme Court shuffle, or not: Friday's edition of The Christian Science Monitor will contain an article entitled "The great court shuffle that may not come: Despite speculation about high court retirements, continuity may prevail" and an editorial entitled "Supreme Court Checkmate: Justices can't be foot soldiers in ideological wars." And tomorrow's issue of The Financial Times will contain an article entitled "Judges' names roll out for a job that isn't there - yet."
Posted at 20:07 by Howard Bashman



"How Appealing" is featured in tomorrow edition of "Al's Morning Meeting": Al Tompkins of The Poynter Institute is the author an email newsletter that goes out each weekday morning to many, many journalists throughout the Nation. In tomorrow morning's edition of the newsletter, he writes:
Interesting Court Rulings Resource

Al's Morning Meeting reader Howard J. Bashman, who is both a lawyer and a columnist on legal matters, passed along his interesting and useful site "How Appealing." The site covers appellate litigation throughout the United States. In just a few minutes trolling around his site, I found a half-dozen story ideas that I will be passing along to you in the days to come.
I'm gratified that so many distinguished professional journalists already visit my site regularly and rely on it as a resource. And I extend a hearty welcome to all journalists visiting for the first time via Friday's installment of "Al's Morning Meeting."
Posted at 19:26 by Howard Bashman



"White House May Consult on Judge Seats": What a difference a day makes. Jesse J. Holland of The Associated Press has this report.
Posted at 19:19 by Howard Bashman



"Bullied lesbian teacher loses appeal; A lesbian teacher who says she was forced out of her job by homophobic bullying by pupils has lost her House of Lords appeal." BBC News provides this report. And you can access today's ruling beginning at this link.
Posted at 19:01 by Howard Bashman



More good news for Janet Reno: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued an opinion that begins:
Like our decision in Gonzalez v. Reno, 325 F.3d 1228 (11th Cir. 2003), this case arises from the events surrounding the seizure by federal agents of Elian Gonzalez ("Elian") from the home of Lazaro, Angela, and Marisleysis Gonzalez ("the Gonzalezes") on April 22, 2000. In Gonzalez v. Reno, we held that former Attorney General Janet Reno, former Commissioner of the Immigration and Naturalization Service ("INS") Doris Meissner, and former Deputy Attorney General Eric Holder were entitled to qualified immunity from damages claims by the Gonzalezes because the Gonzalezes failed to establish a causal connection between the supervisory actions of Reno, Meissner, and Holder and the alleged excessive force by the federal agents who forcibly removed Elian Gonzalez from the Gonzalezes' home on April 22, 2000. Now, we must decide whether former Attorney General Reno is entitled to qualified immunity from damages claims by Donato Dalrymple, who was in the Gonzalezes' house when Elian was taken, and fifty-one protestors, neighbors, and passers-by who claim they were sprayed with gas, shoved, kicked, and threatened at gunpoint by federal agents during the raid to seize Elian from the Gonzalezes' home. We conclude that, like the Gonzalezes, these plaintiffs have failed to establish a causal connection between Reno's supervisory actions and the allegedly unconstitutional acts of the federal agents on the scene.
You can access the complete opinion at this link.
Posted at 18:42 by Howard Bashman



"Slow and Fatal Justice: The case against a Bush court nominee": Lou Dubose had this essay about Fifth Circuit nominee Priscilla R. Owen in last week's edition of LA Weekly.
Posted at 18:37 by Howard Bashman



Isn't that bizarre: Today Circuit Judge J. Michael Luttig issued an opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit that begins:
This case presents the question of first impression before our court of whether a plaintiff can sustain his attack on the constitutionality of congressional district apportionment by alleging that the challenged districts are bizarrely drawn.

Appellant, Robert P. Duckworth, sued various Maryland agencies and officials, appellees, alleging that their enforcement of the state's 2002 congressional reapportionment statute, Laws of Maryland Chapter 340, violated the one man-one vote principle embodied within Article I, section 2 of the United States Constitution, the First Amendment and the Fourteenth Amendment, by apportioning Anne Arundel County voters into four different bizarrely-drawn congressional districts. The district court dismissed the case for failure to comply with Federal Rule of Civil Procedure 12(b)(6). On appeal, Duckworth does not challenge the dismissal of his Article I, section 2 and his First Amendment claims. He appeals only the district court's dismissal of his Fourteenth Amendment political gerrymandering claim. Having reviewed Duckworth's pleadings, we too conclude that he failed to state a valid claim, and so, for the reasons given below, we affirm the judgment of the district court.
You can access the entire opinion here.
Posted at 17:58 by Howard Bashman



Welcome to the age of zero tolerance: A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued a decision that begins:
In this civil rights action brought pursuant to 42 U.S.C. sec. 1983, S.G., father of A.G., a kindergarten student in the Sayreville, New Jersey Public School System, claims that the Sayreville Board of Education, the Superintendent of Schools and the principal of the school that A.G. attended (jointly referred to as "School Defendants") violated A.G.'s constitutional rights to freedom of speech, procedural due process and equal protection by suspending him from school for uttering the statement "I'm going to shoot you" to his friends while they were playing at recess in the school yard. The District Court granted summary judgment in favor of the School Defendants. This appeal followed.
The Third Circuit affirmed the grant of summary judgment in favor of the defendants in an opinion you can access here.
Posted at 17:53 by Howard Bashman



In Louisiana, the times they are a-changin': Today's edition of The Times-Picayune reports here that "House passes public sex ban 100-0; Gov. Foster now has the final say on bill." (Via "Obscure Store"; this post's title courtesy of Bob Dylan.)
Posted at 17:38 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Killer With Sleeping Lawyer Pleads Guilty"; here "Max Factor Heir Luster Returns to Calif."; here "U.S. Gays Get Marriage Licenses in Canada"; here "Ohio Trucker Pleads Guilty in Terror Case"; here "Cities Want Slavery Ties Exposed"; here "Union Sues to Block Contracting Rules"; and here "Ex-College President Sentenced for Pot."
Posted at 17:29 by Howard Bashman



"Court Restricts Input on Campaign Finance": The Associated Press has this news from the U.S. Supreme Court. And you can see today's order setting page limits at this link.
Posted at 17:20 by Howard Bashman



More to come a bit later: Today the Atlanta Braves are in town for an early afternoon baseball game against the Philadelphia Phillies. And my son recently wrapped-up his second grade studies and is still a few days away from starting summer camp. So you can probably guess where we'll be this afternoon (go Braves!). I'll be back later to wrap-up any interesting events that happen while I'm away. Update: Mike Hampton and the Braves held the Phillies hitless through seven full innings, but neither a no-hitter nor a win was in the cards for the Braves, as this recap, entitled "Phillies foil Hampton's bid, Braves' lead," explains. At least it didn't rain very much during the game, and the sun even came out for a little while.
Posted at 11:21 by Howard Bashman



Does a special prosecutor in a criminal case who simultaneously serves as contingent-fee counsel for the victim in a lawsuit for damages against the same defendant have absolute prosecutorial immunity in a later civil rights action brought by the defendant? A divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit appears to split three ways on the question in this opinion issued today.
Posted at 10:02 by Howard Bashman



"The recall - a minefield in California election law": Law Professor Rick Hasen of the "Election Law" blog has this editorial in today's edition of The San Diego Union-Tribune.
Posted at 09:49 by Howard Bashman



"Appeals court upholds BellSouth lawyer disqualification": Today's edition of The Atlanta Journal-Constitution contains this report. You can access my coverage of the ruling at this link.
Posted at 09:39 by Howard Bashman



"Bush should take middle road for Supreme Court": Susan Estrich offers this advice.
Posted at 09:36 by Howard Bashman



"Most Americans Want to Know Supreme Court Nominees' Views On Abortion": ABC News has the poll results here.
Posted at 09:30 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports that "Bush Spurns Proposal on Court Picks; White House rejects Democrats' offer to consult on Supreme Court nominations." From California comes news that "Judges in Boy Scouts Could Face Conflict; Court warns about cases involving gays, who are barred by the group." An article reports that "Fugitive Rapist Is Captured in Mexico; Bounty hunters chase down Andrew Luster, who fled during a break in his trial in Ventura County." In related news, "'Dog' Known for Fetching Fugitives." An article reports that "U.S. Violates Laws in Handling of Refugee Kids, Group Says; Youngsters, a majority of them teens, are held in jailhouse conditions, Amnesty International charges. Government pledges reform." In seemingly related news, "Plight of Juveniles at Men's Jail Spurs Criticism; Those Considered the Most Dangerous of Underage Offenders Are More Confined Than Death Row Inmates." An article reports that "Texas Republicans Take New Shot at Redistricting." In other news, "Strip Club Law Stalls; Council sends proposed ban on lap dancing back to committee for further study after colorful testimony from strippers and owners." You can access here an article headlined "Erotica goes mainstream: When Erotica LA holds its annual convention this weekend, it will offer special programs to couples and women." In other local news, "Making a Federal Case of an O.C. Pipe Bomb: Legal experts say the Patriot Act charges against two brothers after a blast inside a car reflect a kind of legal vigilance since Sept. 11." An op-ed by Ronald Radosh is entitled "They Clearly Were Traitors: The Rosenbergs stole major U.S. secrets. The left should stop trying to make them martyrs." And a letter to the editor runs under the heading "Unocal in Myanmar."

Today's edition of The Boston Globe contains a Bloomberg News report headlined "Microsoft targets Mass. bids for curbs; Asks court to reject call for restrictions." And in other news, "'Lucky' fish no help for defendant."

Finally for now, USA Today contains an editorial entitled "Racism: Past and present."
Posted at 09:23 by Howard Bashman



"Schumer and Bush administration stand by judicial nominee": The Associated Press has this report. Today's edition of The New York Post, meanwhile, reports that "Irizarry OK With Chuck, But Not Bar."
Posted at 09:09 by Howard Bashman



D.C. Circuit calculus: Today's edition of The Washington Post reports here that "President Bush plans to nominate White House lawyer Brett M. Kavanaugh, an author of independent counsel Kenneth W. Starr's report on President Bill Clinton, for a seat on the U.S. Court of Appeals for the District of Columbia Circuit, Republican sources said yesterday." As the article goes on to explain, "The D.C. Circuit court has openings on its 11th and 12th seats. Republicans blocked Clinton from filling at least one of them by arguing that additional judges were not needed." In fact, the D.C. Circuit currently has three vacancies and one pending nominee, Miguel A. Estrada.

The challenge facing the White House is that if it nominates someone to the D.C. Circuit whom the Democratic leadership views as more acceptable than Estrada, that nominee will be confirmed, and Estrada -- whose nomination occurred more than two years ago and is now the subject of a filibuster -- will be left behind, holding a nomination to a seat that in the recent past Republicans have said did not need to be filled. So, if the White House indeed does nominate individuals to the eleventh and twelfth seats on the D.C. Circuit, we are likely to receive answers to the trivia question "Which D.C. Circuit nominees does the White House believe the Democratic leadership will find even more unpalatable than Miguel A. Estrada?" Anything else would represent a clear sign from the White House that the Estrada filibuster battle cannot be won and is no longer worth fighting.
Posted at 07:21 by Howard Bashman



"Microsoft Defends Gov't Antitrust Deal": The AP offers this report.
Posted at 07:09 by Howard Bashman



"Prosecutor says Flynts violated deal, could be tried": The Associated Press provides this report from Cincinnati.
Posted at 06:51 by Howard Bashman



In Thursday's newspapers: The Washington Times reports here that "Hispanics tune out Estrada filibuster." Frank J. Murray reports here that "Gay activists caution against 'marriage' trips to Canada." From Maryland comes news that "Reaction mixed to ban on toy guns." And an article reports that "Chief Moose gives up job for book on sniper killings."

The Washington Post reports here that "Hispanics Declared Largest Minority; Blacks Overtaken In Census Update." From Los Angeles comes news that "Fugitive Rapist Is Captured; Max Factor Heir Had Fled to Mexico." An article reports that "Moose Quits As Chief in Ethics Flap; Head of Montgomery Police Won't Drop Sniper Book Deal." You can access here "Praise and Criticism For Moose's Tenure." And an article reports that "Bush Taps Md. Lawyer For Judgeship."

The New York Times reports here that "U.S. Gays Who Marry in Canada Face Hurdles." A news analysis is headlined "Gay Marriage Plan: Sign of Sweeping Change in Canada." And a related editorial is entitled "Canada's Celebration of Marriage." In other news, "False Terrorism Tips to F.B.I. Uproot the Lives of Suspects." An article reports that "Study Says Government Improperly Detained Foreign Children." From Mexico City comes news that "Fugitive and Heir to Cosmetics Fortune Is Captured in Mexico." In local news, "Waterbury Ex-Mayor Now Fights State Sex Case." An editorial is entitled "Remembering the Rosenbergs." And columnist Bob Herbert has an op-ed from Tulia, Texas entitled "A Good Day."

Today's edition of The Christian Science Monitor contains an article headlined "Who'll defend the detainees?"

Finally for now, John Fund's Political Diary at OpinionJournal is entitled "Secrets of the Senate: A bipartisan proposal would make the body more open."
Posted at 06:11 by Howard Bashman



Wednesday, June 18, 2003
U.S. Supreme Court round-up for Monday, June 16, 2003: The Supreme Court of the United States issued four opinions in argued cases on Monday, leaving ten argued cases in which decisions have yet to be announced with one week officially left on the calendar. Then, the Justices will be free to ride off into the sunset, tour the country from the comfort of Justice Clarence Thomas's bus, or hit the road for Europe and the lucrative teaching contracts offered there each summer. Because decisions in nearly all of the Term's blockbuster cases remain to be announced, I can't help but think that I'm not the only one focusing on the work of the Nation's highest Court at this late hour. And now, on to the summaries.

1. One of the unfortunate consequences of a sentence of incarceration for having committed a criminal offense is that the convict cannot visit with his or her friends and family whenever he or she would like. Indeed, someone in prison won't be receiving any visitors unless the prison decides to let the visitors inside the facility and then brings the prisoner to see them. The State of Michigan was having problems both with prison inmates who were using illegal drugs behind bars and with young children who weren't behaving properly during prison visits. As a result, Michigan's Department of Corrections adopted regulations that allowed only attorneys and clergy members to visit those inmates who had two drug abuse violations. Two years after that penalty was imposed, however, the inmate could apply for reinstatement of normal visitation privileges. Also under these regulations, children could not visit unless they were the child, stepchild, grandchild, or sibling of the inmate, and child visitors had to be accompanied by a family member or legal guardian.

Inmates confined in the Michigan state prison system filed suit in a federal trial court to challenge the constitutionality of these restrictions. The prisoners asserted both that the restrictions impermissibly infringed on their constitutional right of free association and that the restrictions constituted cruel and unusual punishment. Both the trial court and the U.S. Court of Appeals for the Sixth Circuit agreed (access the Sixth Circuit's opinion here), and those courts accordingly invalidated the regulations as unlawful.

On Monday, the U.S. Supreme Court, in Overton v. Bazzetta, No. 02-94 (U.S. June 16, 2003), unanimously disagreed with both lower courts. Justice Anthony M. Kennedy wrote the opinion of the Court on behalf of himself and six other Justices. Justice Kennedy's opinion explains the obvious point that confinement in prison, by its very nature, prohibits the inmate from associating freely with others. The majority concluded that the challenged regulations bore a reasonable relationship with the legitimate penological interests that they were intended to further. That conclusion prevented the inmates from succeeding on their freedom of association claim. On the cruel and unusual punishment point, the Court found that the challenged deprivation was neither of a severity nor of a duration sufficient to implicate the Eighth Amendment. Justice John Paul Stevens wrote a concurring opinion, in which Justices David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer joined. These four Justices had joined in Justice Kennedy's majority opinion, so the point of Justice Stevens' concurrence was simply to remind the reader that these four Justices in an appropriate case would give prisoners more rights than the other three Justices in today's majority.

Justice Clarence Thomas wrote an opinion concurring in the judgment, in which Justice Antonin Scalia joined, that proved quite interesting right up to its surprisingly abrupt conclusion. Most of Justice Thomas's opinion consists of a review of the history of criminal punishment in the United States. For example, did you know that when the United States was a new nation, the public whipping of convicts -- rather than incarceration in a prison -- was the primary form of punishment? As society became more mobile, however, the value of public shaming lessened, and modern-day penitentiaries began to arise. But, historically, being in prison carried with it no right to visitation. Accordingly, Justice Thomas concluded, the free association claim fails. And because depriving a prisoner of visitation privileges is not "punishment" as that term is understood for purposes of the Eighth Amendment, the prisoners' claims under that constitutional provision likewise failed.

2. A former dentist by the name of Charles Thomas Sell seems to prefer incarceration in a prison hospital ward to receiving antipsychotic medication that would enable the federal government to bring to trial against him several serious criminal charges. Apparently where he is located the visitation policy isn't all that bad, and certainly what he is experiencing is far preferable to receiving a public whipping. Indeed, loss of visitation privileges for using drugs isn't a punishment that Sell is likely to face, because he is not someone who enjoys taking drugs. Sell refuses to allow the prison's doctors to administer to him the medication that would enable his mental illness to be controlled and the federal criminal charges against him to be resolved on the merits.

In Sell v. United States, No. 02-5664 (U.S. June 16, 2003), the Court examined the circumstances under which it is proper to order a mentally ill criminal defendant forcibly medicated so that criminal charges against him could go to trial. First, however, it was necessary to resolve whether the trial court's decision ordering that medication be administered against the inmate's will was a final, appealable order. Justice Breyer wrote the majority opinion, in which Chief Justice William H. Rehnquist and Justices Stevens, Kennedy, Souter, and Ginsburg joined. Justice Breyer first concluded that the order was an appealable collateral order, because once the drugs were administered, the inmate had lost the right to bodily integrity that he was seeking to vindicate. Then, on the question of when it's proper to order an inmate forcibly medicated in order to allow the trial of criminal charges against him or her, Justice Breyer set forth an intricately detailed balancing test that it would be worthwhile explaining only if a large number of people existed who were not only mentally ill and drug averse but also who preferred incarceration to trial. But, while there may be more than just one person like Sell -- the fellow who shot up the U.S. Capitol comes to mind -- there aren't enough to merit a detailed exegesis of the characteristically complex multi-part Justice Breyer test.

Justice Scalia wrote a dissenting opinion, in which Justices Sandra Day O'Connor and Thomas joined. Justice Scalia was of the view that the order in question did not qualify for immediate appeal as a collateral order, and therefore he would have required Sell to go forward with the trial before challenging the order to medicate on appeal from any resulting conviction. Justice Scalia doesn't appear to hold the collateral order doctrine in high regard generally, and he trots out a proverbial parade of horribles about why allowing a collateral order appeal here will cause the Nation's entire federal criminal justice system to grind to an unceremonious halt.

3. To combat drug dealing and other crime in a low-income housing development, the City of Richmond, Virginia's Housing Authority adopted an anti-loitering policy. Under the policy, someone who is found to be loitering there, after receiving a notice of loitering, will be subject to arrest if he or she visits again. Kevin Lamont Hicks had received a notice not to return, and was arrested and convicted under Virginia's trespassing law. He then challenged the law as violative of his First Amendment speech rights, and the Supreme Court of Virginia ultimately agreed. The holding was a bit odd because Hicks wasn't seeking to exercise his free speech rights in visiting the development in question.

On Monday, in Virginia v. Hicks, No. 02-371 (U.S. June 16, 2003), the U.S. Supreme Court unanimously ruled that the Supreme Court of Virginia erred in sustaining a First Amendment overbreadth challenge to the development's policy. The key consideration was that the regulation in question was not targeted at speech, and it applied regardless of whether a trespasser was seeking to return to engage in protected speech or not. The plainly legitimate sweep of the law in question, Justice Scalia's majority opinion explained, was so broad that the Virginia court erred in striking down the law. Justice Souter filed a concurring opinion, in which Justice Breyer joined, to observe that the two values being compared in this case were properly evaluated, but a different case might justify a different method of comparison.

4. The Court's fourth and final decision Monday came in Federal Election Comm'n v. Beaumont, No. 02-403 (U.S. June 16, 2003). The Court held, by a vote of 7-2, that Congress lawfully could prohibit nonprofit advocacy corporations from making direct political contributions in federal elections. For more about what this means, I leave you in the good hands of the "Election Law" blog, which examines the ruling in detail here.

This case arose from the U.S. Court of Appeals for the Fourth Circuit, and you can see its ruling here. Justice Souter's majority opinion mentions several times that the only Fourth Circuit judge to recognize the correct outcome below was Circuit Judge Roger L. Gregory. Judge Gregory is an interesting story in his own right, because he joined the Fourth Circuit as a Clinton recess appointee. Then, President George W. Bush renominated Judge Gregory, and the U.S. Senate confirmed him to a life-tenured position on the Fourth Circuit, where he remains the first and only African-American judge ever to serve on that court. Unlike another Bush-43 nominee from the south who supposedly has shouted "No more Souters," Judge Gregory was heard to exclaim after the Court's ruling in the Beaumont case on Monday, "Yes more Souters."
* * * * * * * * * *
The Court will next issue opinions and orders on Monday, June 23, 2003. Be prepared for the issuance of some rulings of great significance at that time.
Posted at 23:30 by Howard Bashman



"Bush to Choose Ex-Starr Aide; Kavanaugh to Be Nominee For Appeals Court Post": Tomorrow's edition of The Washington Post will contain this report concerning another D.C. Circuit nominee in the works, and this news is sure to get people talking. (Thanks to the author of "Southern Appeal" for the heads-up via email.)
Posted at 23:22 by Howard Bashman



"A Blogger's Big-Fish Fantasy": Thursday's edition of The New York Times will contain this article.
Posted at 23:16 by Howard Bashman



"Shirt's message protected by First Amendment": The Detroit Free Press has this report.
Posted at 23:08 by Howard Bashman



Supreme Court of Alaska hears challenge to that State's English-only law: The Anchorage Daily News today provides this report. And The Associated Press offers this report on yesterday's appellate oral argument.
Posted at 23:06 by Howard Bashman



"Supreme Court won't hear drug-test appeal": Gina Holland of The Associated Press yesterday had this report, which begins "The U.S. Supreme Court refused Monday to hear a second appeal from a South Carolina hospital in a lawsuit over now-illegal hospital drug tests on pregnant women."
Posted at 23:02 by Howard Bashman



"State judge ride high court track: Opposition Gearing Up For Fight If She's Nominated For Possible Vacancies": Monday's edition of The Mercury News contained this report about California Supreme Court Justice Janice Rogers Brown.
Posted at 22:58 by Howard Bashman



Monday's edition of The Detroit News contained special coverage of the U.S. Supreme Court's upcoming racial preferences rulings: You can access here an article entitled "Society may change course if affirmative action dies; Possible impact: Fewer minority professionals, weaker services"; here "Courts could lose trust, confidence of minorities; Fewer African-American and Hispanic lawyers from top schools feared"; here "Corporate innovation in peril; Fortune 500 companies fear shallow talent pool for top managers"; here "Minority recruiting plans may be scrapped"; here "Poor in danger of losing doctors; Many minorities choose to serve needy in order to give back to their communities"; here "Cohesiveness of ranks at risk; Before affirmative action, lack of minority officers caused polarization"; here "Native Americans fear less legal help from their peers; Reservations need professionals most at time of change"; and here "Road to Supreme Court."

This past Sunday's newspaper, meanwhile, contained an article entitled "Diversity efforts in peril; Critics would use Supreme Court decision to try to unravel affirmative action initiatives."
Posted at 22:50 by Howard Bashman



"W. House Rebuffs Democrats on Supreme Court Nominees": This article is available online from Reuters.
Posted at 22:45 by Howard Bashman



"California's top court limits judges' membership in Boy Scouts": David Kravets of The Associated Press has this report.
Posted at 22:44 by Howard Bashman



From this evening's edition of NPR's All Things Considered: This evening's program contained the following segment:
Court Orders Sacramento to Revamp Sidewalks for Disabled: NPR's Richard Gonzales reports that the city of Sacramento is embroiled in a bitter dispute over sidewalks and whether they have to be overhauled to accommodate the disabled. Disability rights activists say the city has violated federal law because its sidewalks are full of benches and poles and other obstacles. The Ninth Circuit Court of Appeals has agreed. Sacramento says federal law does not require the city to fix existing walkways. It has appealed for a hearing before the U.S. Supreme Court. Cities around the country are paying close attention.
You can hear the segment online via this link (Real Player required).
Posted at 22:43 by Howard Bashman



Available online at law.com: An article reports that "California Bench Isn't Banned From Scouts; California Supreme Court says judges should disclose membership." A report from Florida is headlined "The $710 Million Question: Decertification of class in tobacco case last month leaves unresolved what will happen to giant settlement." Thanks to Bill Kisliuk for his mention of "How Appealing" in tomorrow's newsbrief. Finally, Law Professor Peter H. Schuck has an op-ed entitled "Defensible Discrimination: Race or gender preferences may be easier to justify in making high court appointments, but that doesn't make them right."
Posted at 22:20 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Court Upholds Detainee Secrecy; U.S. was justified in withholding names of foreigners held after Sept. 11, appellate judges rule. Rights groups vow to appeal the decision." An article reports that "Court Bolsters FCC Area Code Effort; In another setback for wireless carriers, judges' decision opens the door to cell-phone-specific area codes." In other news, "New U.S. Guidelines Curb Racial Profiling; The rules are lauded by federal officials, but an ACLU officer calls them 'toothless.'" An article reports that "Fund-Raiser for Hillary Clinton Gala Probed; Aaron Tonken, who is facing a charge of mail fraud in connection with his charity work, organized a campaign event for her in 2000." An article from Bloomberg News reports that "Microsoft Settlement With Customers Stalls." In other news, "Claims Against Abercrombie Detailed; Nine students say they were fired or not hired because they didn't fit the 'A&F look.'" Bloomberg News also reports that "Tobacco Companies Not Liable, Jury Says; Verdict in a $9-million suit filed by a Missouri cancer patient is the latest victory for the industry in a series of damages claims." You can access here an article headlined "The last lap? Dancers say a ban wouldn't stop sleaze, just freedom of expression." In local news, "Evidence Barred in Ex-O.C. Judge's Child-Porn Case; Writings and photos were illegally obtained from Ronald Kline's computer, court rules." A front page article is entitled "Poetry as Art and Threat: In an era of school shootings, courts must sometimes decide when students' creative expression becomes criminal intimidation." And in op-eds, Paul R. Abramson writes of "No More Amour With UC Faculty? Litigation fears over love affairs with students are at heart of proposed ban," and Tommy J. Payne has an essay entitled "Addicted to Tobacco: Ban smokes? The thought gives jitters to governments hooked on the revenue."

In The Boston Globe, Lyle Denniston reports that "Appeals court backs secrecy of terror probe." In other news, "Canada to draft a law recognizing gay marriages." An article reports that "Microsoft sues 15 firms over spam." And an editorial is entitled "Justice detained."

In The Washington Times, Frank J. Murray reports that "Ruling OKs secrecy in terror detentions." In other news, "Ashcroft defends Patriot Act in visit." Attention toy Second Amendment theorists: an article reports that "Annapolis lawmaker puts toy guns in cross hairs." And an op-ed by Helle Dale is entitled "Still a country of laws."

Finally for now, USA Today reports here that "Justice Dept. prohibits racial profiling; But agents can use it to identify terrorists." And a letter to the editor appears under the heading "Shared values don't justify equal treatment."
Posted at 20:44 by Howard Bashman



Fact-checking The New York Sun: A reader who works at the U.S. District Court for the Southern District of New York emails:
Not to be nit-picky, but the New York Sun article that you link to ("Schumer, Clinton Block N.Y. Judges; Southern District's Mukasey Writes the Senior Senator") contains a not-insignificant error: it refers to Judge Richard Wesley as having been confirmed to the EDNY when in fact he was confirmed to (and today began serving on) the Second Circuit Court of Appeals.

"Mr. Schumer and the White House have found increasing common ground on several nominees. Mr. Schumer has made announcements in recent months that the two parties have reached agreements on the nominations of Dora Irizarry and Richard Wesley to the Eastern District, and Stephen Robinson and Kevin Castel to the Southern District. Of those nominees, only Mr. Wesley has received a hearing in the Judiciary Committee and been confirmed."

Not that anyone reading your blog was apt to be confused.
I would hope not.
Posted at 17:29 by Howard Bashman



Today's FindLaw commentators: Sherry F. Colb has an essay entitled "Sending Out Partial Birth Announcements: Symbolism and Deception by Pro-Life Legislators." And Barton Aronson has an essay entitled "The Supreme Court Rightly Rejects a Free Speech Challenge In Virginia v. Hicks, Which Is, At Heart, a Simple Trespassing Case."
Posted at 16:31 by Howard Bashman



Federal judicial nomination and confirmation commentary from here and there: Columnist Al Knight has an op-ed entitled "The high cost of congeniality" in today's edition of The Denver Post. Columnist Ruben Navarrette has an op-ed entitled "Edwards' gaffe reveals liberals' condescension" in today's issue of The Dallas Morning News. And yesterday, The San Francisco Chronicle contained an editorial entitled "Bringing politics to the bench" that opposed the confirmation of Eleventh Circuit nominee William H. Pryor, Jr.
Posted at 15:35 by Howard Bashman



"More innocents die when we don't have capital punishment": Columnist Dennis Prager makes the argument here.
Posted at 15:29 by Howard Bashman



Denial of motion to strike notice seeking death penalty in federal criminal prosecution gives rise to an appealable collateral order, divided Fourth Circuit panel rules: Circuit Judge J. Michael Luttig's opinion on behalf of himself and Circuit Judge M. Blane Michael begins:
Appellant Ferebe challenges the district court's denial of his motion to strike and to bar the United States' Notice of Intention to Seek the Death Penalty (the "Death Notice") in his trial for the murders of Yolanda Evans and Benjamin Harvey Page, on the grounds that notice was not provided to him a reasonable time before the trial as required by Title 18, section 3593(a) of the United States Code. Ferebe concedes that the district court's order denying his motion to strike the Death Notice is not a final judgment, and thus is susceptible to our review only if it is a collateral order, subject to review under the standards articulated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541 (1949). See Under Seal v. Under Seal, 326 F.3d 479 (4th Cir. 2003) (discussing the collateral order doctrine and its application in the Supreme Court and in the Fourth Circuit). The government contends that the district court's order was not a collateral order, but that if it was, the Death Notice was provided to Ferebe a reasonable time before trial, because he was not prejudiced by any tardiness in the filing of the Notice.

This case, having been fully briefed in December 2001, has now been presented to, and considered by, two separate panels of our court. Decision of the matter has been made difficult, both for the first panel that heard this case and for our panel, because the issues presented by the appeal -- one jurisdictional, one relating to the governing analytical framework, and one involving application of that framework to the facts of the case -- are tightly, if not inextricably, interwoven. This interweave, coupled with the diverging opinions of members of our court as to each issue, made attainment of dispositive agreement especially tricky. Today, however, we reach dispositive agreement on the required statutory analysis, and on its implications for the jurisdictional question.

We conclude that the proper analysis that is to be applied in deciding challenges to the timeliness of a filing under the Death Notice statute, 18 U.S.C. sec. 3593(a), is that of a pre-trial inquiry into the objective reasonableness of that timing. Because of the characteristics of orders decided under this analytical framework, we conclude that district court orders denying motions to strike Death Notices are collateral orders susceptible to our review. We are unable conclusively to determine the merits of this case, however, because the district court, operating under a different, and incorrect, analytical framework, did not make certain findings critical to the merits determination with sufficient clarity that we may rely on them in this case of life and death. Consequently, we vacate the appealed order and remand the case for further proceedings in the trial court.
At first glance, no further mention appears to be made in the opinion concerning why the first panel of the Fourth Circuit to consider this case stepped aside, making way for the second panel that issued today's ruling.

Circuit Judge Paul V. Niemeyer dissented because he did not agree that the order being challenged qualified for immediate appellate review under the collateral order doctrine. You can access the complete decision at this link.
Posted at 15:09 by Howard Bashman



"Hearing slated on U.S. appeals court bid; Approval likely for Raleigh lawyer": Today's edition of The News and Observer contains an article that begins, "Raleigh lawyer Allyson Duncan is scheduled to appear next week before the Senate Judiciary Committee for a hearing on her nomination to the U.S. 4th Circuit Court of Appeals."
Posted at 14:56 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Underage Kan. Abortions Must Be Reported" and here an article entitled "Court Strikes Down 'Stealing Love' Law." For those interested in the ruling of the Supreme Court of Missouri that yesterday abolished the tort of alienation of affection, it's available online here.
Posted at 14:13 by Howard Bashman



Force a federal district judge to recuse by hiring his nephew as counsel for the defendant? "Not this time," says divided Eleventh Circuit panel. Yesterday a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued an opinion (posted online today) that begins:
In these consolidated cases, we are called upon to consider the appropriate course of action where a party is accused of contriving to engineer the recusal of a district judge by hiring a close relative of the judge as counsel. Petitioners seek a writ of mandamus compelling the district court to vacate its order disqualifying attorney Terry Price ("Price") and his law firm, Lehr Middlebrooks Price & Proctor ("LMPP"), from representing BellSouth in a putative class-action race discrimination suit, Jenkins v. BellSouth Corp.
The majority, consisting of Circuit Judge R. Lanier Anderson III (the author of the majority opinion) and Senior Seventh Circuit Judge Richard D. Cudahy, sitting by designation, denied the petition for writ of mandamus seeking to reinstate Price as counsel and recuse Price's uncle, Chief U.S. District Judge U.W. Clemon of the Northern District of Alabama, concluding that BellSouth failed to show "a clear and indisputable right to relief or demonstrable injustice."

Judge Cudahy issued a concurring opinion that begins:
I join Judge Andersonís persuasive opinion, but I write separately in part to emphasize several matters which may be unique to my perspective on the case as a visitor to the Eleventh Circuit.

I find myself in the sensitive position of casting the deciding vote (at least pending possible reconsideration by the full court) in a dispute which, if not unique to the Eleventh Circuit, at least has an unusually substantial and controversial history in a judicial district of this circuit. The very problem presented by the case before us is certainly not new. Terry Price and his relationship to Judge Clemon have been a continuing issue in the Northern District of Alabama. See Robinson v. Boeing, 79 F.3d 1053 (11th Cir. 1996); N.D. Ala. Standing Order (July 12, 1996). With the locally focused nature of the present case in mind, I have some concern about being thought an interloper in a family affair, but, if this is to be my lot, I will do my best to cast my vote under principles of the broadest application.
Circuit Judge Gerald Bard Tjoflat dissented, and his dissenting opinion states at its conclusion:
In this case, petitioners have met their burden of showing a clear and indisputable right to relief. They have shown that Judge Clemon had a duty to recuse under Section 455(b) as soon as Price filed his notice of appearance. Judge Clemonís duty to recuse under Section 455(b) is not debatable; Congress clearly intended that recusal under this section be mandatory and automatic, without exception. Judge Clemon's failure to recuse and his decision to reassign the motion to disqualify Price to another judge amounted to a judicial usurpation of power which led to the deprivation of BellSouth's counsel of choice. Judge Smith's order disqualifying Price and his law firm was a further usurpation of power because Judge Smith had no authority to consider the motion to disqualify, much less grant it. By granting the motion, Judge Smith deprived BellSouth of its counsel of choice. We should issue the writ of mandamus to correct these violations of Section 455 and the deprivation of BellSouth's counsel of choice.
You can access this very interesting decision in its entirety (88 pages in PDF format) at this link.
Posted at 13:10 by Howard Bashman



A vote on the nomination of William H. Pryor, Jr. to serve on the Eleventh Circuit is indeed on the agenda for tomorrow morning's Senate Judiciary Committee business meeting: Under the rules, Senators from either political party have the right to have consideration of the nomination postponed for one week. Typically, controversial federal appellate court nominations such as this one have not gone to a vote in committee the very first time they have appeared on the agenda.
Posted at 12:29 by Howard Bashman



White House Counsel Alberto R. Gonzales and "The Texas Clemency Memos": This article from the July/August 2003 issue of The Atlantic is now available online here. (Via "Eschaton.")
Posted at 12:01 by Howard Bashman



"Schumer, Clinton Block N.Y. Judges; Southern District's Mukasey Writes the Senior Senator": Today's edition of The New York Sun contains this front page article. And to see a list of current federal judicial nominees and their "blue slip" status, click here.
Posted at 11:44 by Howard Bashman



"Bush Won't Consult Dems on High Court": The Associated Press has this report.

In other news, The AP reports here that "Fugitive Max Factor Heir Caught in Mexico" and here that "N.Y. Judge Quits Over 'Terrorist' Remark."
Posted at 11:28 by Howard Bashman



"The Good, The Bad, and the Blogly": Thanks to Glenn Harlan Reynolds, of "InstaPundit" fame, for his mention of "How Appealing" in his Tech Central Station column posted today.
Posted at 09:30 by Howard Bashman



The Onion asks "What do you think about FCC media deregulation?" Answers are available here.
Posted at 09:27 by Howard Bashman



"The Senator and the Chief Justice: Mrs. Clinton vs. the majesty of American democracy." John O. McGinnis had this essay yesterday at National Review Online.
Posted at 09:24 by Howard Bashman



"Wesley formally leaves top court": The Associated Press offers this news about the individual who will be sworn in later today as the newest member of the U.S. Court of Appeals for the Second Circuit.
Posted at 09:22 by Howard Bashman



"Hatch charges bias over Ala. nominee": Today's edition of The Hill contains this report. Also, The Crimson White reports here that "Vote on Pryor could come Thursday." (Via "Southern Appeal.")
Posted at 09:14 by Howard Bashman



And this Term's award for most boring U.S. Supreme Court opinion in an argued case goes to.... "GreenGourd's Garden" looks at the top three nominations and awards the prize in a post you can access here. My summaries of the cases in question can be found here (first place (fourth item)), here (first runner-up (third item)), and here (second runner-up (fourth item)).
Posted at 07:46 by Howard Bashman



This doesn't qualify as official publication (although it probably should): As I recently reported in a post you can access here, the federal Judicial Conference's Standing Committee on rules of court practice and procedure has approved the publication of two significant changes to the Federal Rules of Appellate Procedure. The first is the addition of a brand new rule, and the second involves an important amendment (shown in italics below) to an existing rule:
Rule 32.1. Citation of Judicial Dispositions

(a) Citation Permitted. No prohibition or restriction may be imposed upon the citation of judicial opinions, orders, judgments, or other written dispositions that have been designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like, unless that prohibition or restriction is generally imposed upon the citation of all judicial opinions, orders, judgments, or other written dispositions.

(b) Copies Required. A party who cites a judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database must file and serve a copy of that opinion, order, judgment, or other written disposition with the brief or other paper in which it is cited.

Rule 35. En Banc Determination

(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are in regular active service and who are not disqualified may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the courtís decisions; or

(2) the proceeding involves a question of exceptional importance.
I enthusiastically support the approval of both of these proposed changes (see here, here, and here for detailed explanations of my views).
Posted at 07:15 by Howard Bashman



"Guardian for fetus draws critics": Today's edition of The Orlando Sentinel contains this report.
Posted at 07:06 by Howard Bashman



"Landmark DUI ruling challenged": This report appears in today's issue of The Atlanta Journal Constitution.
Posted at 07:00 by Howard Bashman



"Gazette's fate lands on court's doorstep: Is the publication for renters an ad or a newspaper? Judges hear arguments." Today's edition of The Indianapolis Star contains this article.
Posted at 06:58 by Howard Bashman



"Judge: Forgive the case backlog; I'm a perfectionist." The Associated Press provides this report from Indiana.
Posted at 06:56 by Howard Bashman



Additional coverage of yesterday's Ninth Circuit oral argument on rehearing en banc in the Unocal case: David Kravets of The Associated Press reports here that "Appeals court reconsiders if Unocal can be sued for atrocities." In today's edition of The San Francisco Chronicle, Bob Egelko reports that "Unocal seeks dismissal of Burma suit. Villagers allege murder, rape by soldiers; Bush seeks rollback on litigation rights." And The Los Angeles Times reports here that "Unocal Hearing Focuses on Liability Standards."
Posted at 06:55 by Howard Bashman



"Viacom Loses $16.8 Million in 'Spike TV' Dispute": Reuters provides this report.
Posted at 06:46 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports that "10 Decisions Remain for Supreme Court." I recently listed the questions presented in those ten cases in a post you can access here. Neil A. Lewis reports that "Secrecy Is Backed on 9/11 Detainees." In other news, "Bush Issues Federal Ban on Racial Profiling." A related item is entitled "How the New Rules Will Work." From Toronto comes news that "Canadian Leaders Agree to Propose Gay Marriage Law." An article reports that "Microsoft Sues 15 Organizations in Broad Attack on Spam E-Mail." In other news, "In Dali Theft at Rikers Island, the 4 Suspects Aren't Inmates." From Florida comes news that "At Nude Youth Camp, Skin Is Bare but Lust Is Verboten." In business news, "Coke Confirms Product Test Was Rigged." An op-ed by Law Professor Laurence R. Helfer is entitled "Not Leading the World but Following It," and it begins: "Disparities in the legal treatment of lesbians and gay men in the United States and their treatment in the rest of the world are becoming more pronounced." And a letter to the editor appears under the heading "Judges and Partisanship."

In The Washington Post, Charles Lane reports that "High Court Breaks Ground on Overhaul." An article reports that "Daschle Urges Bush to Consult on High Court Picks." In other news, "Court Says Detainees' IDs Can Be Kept Secret; Panel: 9/11 Realities Outweigh Disclosure." A related editorial is entitled "Indefensible Secrecy." And columnist Robert J. Samuelson has an op-ed entitled "Affirmative Ambiguity."

The Christian Science Monitor contains an article entitled "Divorce online: faster, cheaper, and lawyer-free." And in editorials, "Drugging Defendants: Supreme Court sets limits, but is that enough?" and "Courting Campaign Reform."
Posted at 06:38 by Howard Bashman



"Courts may crack down on mobiles": A new generation of mobile phones with cameras brings new threats to courthouse security, The Age of Australia reports here.
Posted at 06:17 by Howard Bashman



Fortune magazine asserts that the Unocal case is pending before the Second Circuit: See this article from that publication's June 23, 2003 issue.
Posted at 06:10 by Howard Bashman



Available online at law.com: In news from New York, you can access here an article entitled "Wesley to Be Sworn in as Circuit Judge Today" and here an article entitled "Irizarry Found 'Unqualified'; Few on City Bar's Judiciary Committee cast votes for Bush nominee from Puerto Rico." From Hawaii comes news that "Local Zoning Fights Get DOJ Attention; A 3-year-old federal law helps religious groups in zoning clashes." Finally, you can access here an article headlined "Wanted: New Dean for Catholic Law School."
Posted at 06:08 by Howard Bashman



"Pryor Restraint: A judge shows he can set aside his strong views." Terry Eastland had this op-ed in Tuesday's issue of The Dallas Morning News. I made the same argument more generally, in the context of a nominee who seemed hypothetical at the time, in my monthly appellate column published December 9, 2002.
Posted at 01:06 by Howard Bashman



"Senators Mull Getting Rid of Secret Holds": Jesse J. Holland of The Associated Press provides this coverage of a hearing that occurred on Tuesday in the U.S. Senate's Rules Committee. I provided a preview of that hearing in a post you can access here.
Posted at 01:02 by Howard Bashman



"Presidents, not politicians, nominate Justices": U.S. Senator John Cornyn (R-TX) on Tuesday issued the following press release:
U. S. Sen. John Cornyn, chairman of the Constitution subcommittee of the Senate Judiciary Committee, sent the following letter to the White House Tuesday in response to recent suggestions by members of the Senate that despite constitutional mandate, and 200 years of Senate precedent, the Congress should select nominees to the Supreme Court:


June 17, 2003

The Honorable George W. Bush
The White House
1600 Pennsylvania Avenue, N.W.
Washington, D.C. 20500

Dear Mr. President:

On May 6, 2003, I convened a hearing of the Senate Subcommittee on the Constitution, Civil Rights and Property Rights, because I believe that the judicial confirmation process in the Senate is broken and needs to be fixed. Unfortunately, recent developments threaten to further politicize, rather than to solve, the current judicial confirmation crisis. Speculating that one or more justices of the U.S. Supreme Court may soon announce their intention to retire, Senators Patrick Leahy and Charles Schumer are now demanding a role not only in the confirmation process, but also in the selection process for appointing Supreme Court justices. As President of the United States, you of course are free to consider suggestions made by any member of the Senate, or indeed by any American. To the extent, however, that Senators Leahy and Schumer intimate that either the Constitution or Senate tradition establish a special role for individual Senators in the process of selecting Supreme Court justices, they are mistaken.

In his June 11 letter, Senator Leahy suggests that Presidents traditionally engage in "consultation with the Senate in advance of nomination" of a Supreme Court justice. He adds that such consultation might even be necessary to "reassure the Senate and the American people that the process of selecting a Supreme Court justice has not become politicized." Senator Schumer goes even further, claiming in his June 10 letter that the Constitution "mandate[s] that the Senate advise the President on judicial nominations" (emphasis added). Moreover, to carry out his "constitutional obligation" to "advise the President on whom to nominate," Senator Schumer boldly recommends five individuals for you to nominate to the Supreme Court.

These letters greatly concern me. I have long been a champion of an independent judiciary as a vital institution and as the very foundation of our system of government. Few things concern me more than the threat of politics interfering with our courts and our system of justice, including our system for selecting judges to serve on the federal bench. Few things would politicize our judiciary more than to hand over control of the process for selecting Supreme Court justices to individual members of the United States Senate. Although you are certainly free to entertain suggestions made by Senators Leahy, Schumer, or any other member of the Senate, neither the Constitution nor Senate tradition establishes the wisdom of such a course. Neither the Constitution nor tradition confers any responsibility or authority upon individual Senators to recommend nominees to the Supreme Court, or imposes any obligation upon the President to seek advice from Senators prior to announcing such a nomination.

The Constitution nowhere "dictates that federal judges be nominated by the President with the advice and consent of the Senate," as Senator Schumer contends. Instead, the Constitution says that only the President shall nominate. It has long been recognized and understood that the Senate's "Advice and Consent" role is limited to the appointment, and not the nomination, of judges: the Constitution explicitly states that "[t]he President . . . shall nominate, and by and with the Advice and Consent of the Senate, shall appoint . . . Judges." Much is made of the word "Advice," but the Advice and Consent Clause establishes only that the Senate's approval is necessary, but not sufficient, for the President to appoint an individual -- just as the Senate's approval is necessary, but not sufficient, for the President to ratify a treaty. The Senate must give advice on a nomination or a treaty submitted by the President, but it is the President who must, both initially and ultimately, decide.

The text of the Constitution therefore contemplates no formal role for the Senate as an institution -- let alone individual Senators -- to advise on selecting justices of the Supreme Court. As renowned constitutional scholar and historian David Currie has pointed out, President George Washington consulted with the Senate on the negotiation of future treaties, yet "no comparable practice emerged with regard to appointments; from the outset the President simply submitted the names and the Senate voted yes or no. . . . Madison, Jefferson, and Jay all advised Washington not to consult the Senate before making nominations." Alexander Hamilton wrote in Federalist No. 76 that "one man of discernment is better fitted to analyze and estimate the peculiar qualities adopted to particular offices than a body of men . . . . In the act of nomination, [the President's] judgment alone would be exercised." Law professors frequently consulted by Senate Democrats have expressed similar views. Professor Cass Sunstein, for example, has agreed that "the Constitution contemplates no formal prenomination advisory role for the Senate but reserves the act of nomination exclusively to the President." Professor Michael Gerhardt has similarly explained that "the Constitution does not mandate any formal prenomination role for the Senate to consult with the president; nor does it impose any obligation on the president to consult with the Senate prior to nominating people to confirmable posts."

Of course, individual Senators, like all Americans, have the right to suggest possible nominees to the Supreme Court. But no one should be confused into believing that the President is in any way bound, as a constitutional, political, or traditional matter, to follow any of those recommendations. Indeed, it is impossible to comprehend how the President would obey the wishes of 100 individual Senators, each of whom might submit their own slate of nominees. Good faith cooperation between the branches, and between both political parties, is of course frequently desirable and helpful to the effective operation of government. But such cooperation must be a two-way street. You have done your part in the judicial selection process by establishing an exceptionally successful system for selecting the finest legal minds in the country to serve on the federal bench. You have insisted upon individuals who understand that the role of a judge is to interpret, and not to make, law. Yet a minority of Senators has poisoned the atmosphere, by conducting unprecedented and dangerous filibusters of judicial nominees, and by falsely accusing certain judicial nominees of falling outside the mainstream of American jurisprudence. It is difficult to imagine how, given the current environment, there could be good faith consultation with certain Senators on a matter as important as a Supreme Court vacancy.

As President, you of course have the discretion to consider suggestions made by any American, including any individual member of the Senate, in the course of selecting a Supreme Court nominee. But the only role expressly contemplated by the Constitution, and recommended by tradition, in the nomination of Supreme Court justices is the President's and the President's alone. The preferences of any individual Senator should not distract any President from his constitutional responsibility to select individuals who are committed to faithfully interpreting the law on behalf of the American people.

Sincerely,

JOHN CORNYN
United States Senator
Senator Cornyn, serving in just his first term in the U.S. Senate, has already risen to the forefront of the Republican Party's efforts to restore sanity to the judicial confirmation process, and the Republican Party is fortunate to have him there.
Posted at 00:59 by Howard Bashman



"Appeals court reverses part of ruling against overweight woman": The Associated Press has this report. You can access today's 2-1 ruling of the U.S. Court of Appeals for the Ninth Circuit at this link, and be sure not to miss the dissent from Circuit Judge Johnnie B. Rawlinson. By the way, is anyone interested in tracking down when the last time Senior Circuit Judge Betty B. Fletcher voted against a Social Security or ERISA disability claimant in a published opinion? I don't know for sure, but it may have been a long, long time ago.
Posted at 00:51 by Howard Bashman



Some reports on Tuesday's Ninth Circuit en banc argument in the Unocal case: Jason Hoppin of The Recorder reports here that "9th Circuit Wrestles With ATCA Standards." Reuters reports here that "Citing Nazis, Lawyers Say Unocal Should Be Tried." And The Financial Times reports here that "US appeals court hears Unocal human rights case."
Posted at 00:44 by Howard Bashman



"Sheriff's deputies seize Hustler videos": The Cincinnati Enquirer provides this report.
Posted at 00:39 by Howard Bashman



An email from Australia: A reader from Melbourne, Australia emails:
I wonder whether you could answer a query from a slightly confused Australian law student. If the 11 US circuit courts of appeals hear cases based on their geographic region, and the Federal Circuit hears cases on certain subject-matters, what is the basis of the DC Circuit's jurisdiction? If it's just geographic, then how come so much work originates in DC?

In Australia, federal appellate jurisdiction is undertaken by 3-judge panels allocated from the Federal Court of Australia (equivalent to the US District Court). There is no separate appellate court, although there has been some suggestion that a single Federal Court of Appeal should be created (perhaps something along the lines of the Federal Court of Canada).

In any case, I am a frequent and appreciative visitor to your site: it's wonderful to have such an informative and comprehensive discussion of US appellate law available on the web. Surprisingly little US law is taught in Australian law schools (English, Canadian and New Zealand decisions are the most frequently cited), so it's great that through the wonder of the web, one can nevertheless keep oneself informed of the recent developments in US law.
I would normally take the time to answer this myself, but "new Blogger" was down for the past two hours (hence no U.S. Supreme Court round-up tonight as I had hoped), and thus I throw this question out to my readership. I'll be pleased to post those answers I view as correct (and, if many are received, the best of them) that arrive via email.
Posted at 00:36 by Howard Bashman



Tuesday, June 17, 2003
"Justices Break Ground on Court Expansion": Anne Gearan of The Associated Press has this report.
Posted at 17:43 by Howard Bashman



"Yale bomb probe brings 2nd raid; FBI, state police search Hamden apartment": Today's edition of The New Haven Register contains this report. (Via "Jurist's Paper Chase.")
Posted at 17:07 by Howard Bashman



Roe seeks to reopen case of Roe v. Wade: You can access some of the relevant documents filed in court today at this Web page. (Thanks to the reader who forwarded the link.) Of course, this simply raises the question -- what's up with Wade these days? The answer is that he died in March 2001 at the age of 86.
Posted at 16:56 by Howard Bashman



"Daschle Doesn't Want Battle Over Nominee": Jesse J. Holland of The Associated Press has this report, which begins: "Senate Democratic Leader Tom Daschle asked President Bush on Tuesday to call a meeting with leaders in both parties to talk about ways to avoid a bruising battle over a possible Supreme Court nomination." I say that the answer is more cartoons, and less face-to-face negotiation.
Posted at 16:31 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "'Jane Roe' Wants Landmark Case Overturned" and here an article entitled "All-Women's College Rewords Constitution."
Posted at 15:35 by Howard Bashman



"A Refreshing Exchange: William Pryor goes to Washington." William F. Buckley Jr. has this essay at National Review Online. (Via "Southern Appeal.")
Posted at 15:33 by Howard Bashman



"Justice on trial: Judge-lawyer coziness, money cause crisis of confidence": Sunday's edition of The Biloxi Sun Herald contained this report.
Posted at 14:41 by Howard Bashman



"Court Backs Secrecy for 9/11 Detainees": Here is an updated and expanded report from The Associated Press. And James Vicini of Reuters reports here that "Court Says Sept. 11 Arrest Names Can Be Secret."
Posted at 13:39 by Howard Bashman



"Journalism in the Balance: Supreme Court to rule on affirmative action": Poynter Online provides this report, which begins: "As the U.S. Supreme Court prepares to rule in the University of Michigan affirmative action case, journalists are considering the impact the decision will have on the future of the profession."
Posted at 12:33 by Howard Bashman



Sharply divided en banc Sixth Circuit holds unconstitutional a Michigan statute denying court-appointed counsel on appeal to defendants in guilty plea cases: You can access today's 7-5 ruling of the en banc U.S. Court of Appeals for the Sixth Circuit at this link.
Posted at 12:23 by Howard Bashman



"Justices back RRHA policy; Unanimously refuse to invalidate trespassing rule in city housing": Today's edition of The Richmond Times-Dispatch contains this article.
Posted at 11:54 by Howard Bashman



"U.S. Doesn't Have to Name 9/11 Detainees": The Associated Press has this report.
Posted at 11:38 by Howard Bashman



Divided D.C. Circuit panel holds that federal government could lawfully refuse to disclose names of September 11th detainees: You can access today's 2-1 ruling of the U.S. Court of Appeals for the D.C. Circuit in this Freedom of Information Act case at this link.
Posted at 11:28 by Howard Bashman



We're running out of phone numbers: And switching to an eleven-digit system, according to preliminary estimates, will cost between $50 billion to $150 billion. For additional details, please see this decision that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 11:24 by Howard Bashman



Today's Ninth Circuit en banc oral argument in Doe v. Unocal, coming soon to TV and the Internet: I am reliably advised that the U.S. Court of Appeals for the Ninth Circuit has agreed to allow C-SPAN to record on video this morning's en banc oral argument (scheduled to get underway within the half-hour) in Doe v. Unocal, a very interesting case involving the Alien Tort Claims Act. You can access my previous coverage of the case, including a list of the eleven judges selected to decide the case en banc, at this link.
Posted at 11:04 by Howard Bashman



Available at National Review Online: Kathryn Jean Lopez has an essay entitled "The Disney Smear: A goofy tactic used against a Bush judicial nominee." And Eugene Volokh has an essay entitled "Domestic Disputes: Bad social science and bad legal policy."
Posted at 10:59 by Howard Bashman



"Judicial Imperialism": Robert H. Bork has this op-ed in today's issue of The Wall Street Journal.
Posted at 10:59 by Howard Bashman



The NewsHour with Jim Lehrer looks at yesterday's U.S. Supreme Court rulings: You can access here the transcript of an interview with Jan Crawford Greenburg, who covers the Court for The Chicago Tribune.
Posted at 07:50 by Howard Bashman



"Limits OK'd on visits to inmates; Michigan rules prevail in U.S. Supreme Court": Today's edition of The Detroit Free Press contains this report.
Posted at 07:46 by Howard Bashman



"Court limits the forcible drugging of defendants": The St. Louis Post-Dispatch reports here that "In a case involving a St. Louisan, the U.S. Supreme Court on Monday set a tougher standard for prosecutors who want to forcibly medicate mentally ill prisoners awaiting trial."
Posted at 07:44 by Howard Bashman



On the agenda: Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit will hear reargument en banc in the case of Doe v. Unocal. You can access my recent coverage of that matter -- including the names of the judges who are assigned to the en banc panel -- at this link. And Stuart Buck, over at his nicely redesigned blog, offers thoughts here and here about the case.
Posted at 07:09 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Boston Globe, Lyle Denniston reports here that "Forced medication of defendants restricted; justices uphold public-housing trespass law" and here that "Supreme Court backs campaign-gift limits; Rulings also affects nonprofits' donations." In business news, "Bay State continues Microsoft case alone; W. Va. abandons further appeals." And an article reports that "Tobacco lawyers rebuffed on fees."

In The Washington Times, Frank J. Murray reports here that "High court OKs forcible medication for defendants" and here that "Campaign-fund caps imposed on nonprofits." In other news, "Asbestos bill eyes court-run trust fund." And in op-eds, Michael I. Krauss asks "Loading the dice for the ruling?"; Bruce Fein writes of "Laudable use of the law"; and Adrienne Washington asserts "Lawyers right to challenge tickets-by-camera policy."

In USA Today, Joan Biskupic reports here that "Court limits involuntary drugging of defendants" and here covers the "Other decisions Monday." An editorial is entitled "Supreme Court boosts fight against selling political clout." And Todd Gaziano has an op-ed entitled "Respect First Amendment."

In The Los Angeles Times, the full contents of which don't yet appear to be online, David G. Savage reports that "Court Rules Against Forced Medication of Some Defendants." In news from Tulia, Texas, "Prisoners' Release Is Met With Joy; Four years after their arrest in a drug sting, based on the testimony of a now-discredited undercover officer, 12 inmates taste freedom." From Boston comes a report headlined "Haunted by a Mobster Brother: William Bulger is a leading educator in Massachusetts. But his continued silence about his sibling leads to calls for his ouster." An article reports that "Santa Ana Battles to Retain Court; The state 4th District Court of Appeal could be moved to the UC Irvine campus." And from Sacramento comes news that "Online Sex Offender Registry Debated; Assembly Republicans want to post addresses, but Democrats are wary of possible vigilantism. Future of Megan's Law in California is at stake."

Update: These additional articles appear in The LATimes. David Savage reports here that "Corporate Funding Ban Survives; Ruling on contributions in federal elections is seen as a good sign for campaign finance law" and here that "Justices Uphold Trespassing Ban at Public Housing; Supreme Court rejects a free-speech challenge to the Virginia policy. Case centers on barring nontenants in crime-ridden project." Henry Weinstein reports that "Strict Prison-Visit Rules Upheld; In a 9-0 decision, justices say state of Michigan's interest in maintaining security outweighs inmates' rights in case of visitation restrictions." Finally, letters to the editor appear under the heading "Demagoguery Behind Late-Abortion Bill."
Posted at 06:40 by Howard Bashman



"Head of ACLU fearful rights may be violated": Yesterday's edition of The Miami Herald contained this report.
Posted at 06:30 by Howard Bashman



Today's FindLaw columnists: Joanna Grossman has an essay entitled "A Recent Supreme Court Decision Makes it Easier for Plaintiffs to Proceed When Discrimination Is One Motive, But Not the Only One." And Brian Lehman has an essay entitled "Can You Sue Someone In Fifty Words Or Less? Why Plaintiffs' Lawyers Ignore The Supreme Court's Instructions To Keep Complaints Brief."
Posted at 06:25 by Howard Bashman



"Oregon says 'no' to death row kidney transplant": Reuters has this report.
Posted at 06:20 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports here that "Court Sets Guidelines For Forced Medication" and here that "Va. City's Trespass Law Is Upheld; High Court Finds No 1st Amendment Issue in Richmond." Relatedly, you can access here an article headlined "Ruling Called Critical to Protecting Tenants." And an article reports that "Nonprofits Bound By Donation Rules; McCain-Feingold Case Impact Seen." In other news, "For Tulia 12, 'It Feels So Good'; Texas Inmates Freed After Four Years in Prison on Suspect Charges." In business news, "States vs. Microsoft: Then There Was One." And in local news, you can access here an article headlined "Muhammad Argues For Trial By Judge; Sniper Case Lawyers Cite Infamy of Crimes"; here "Jury Gets Murder Case With No Body, Weapon; Virginia Woman's Former Husband Charged"; and here "Jury May Determine Inmate's Mental Health; Ruling May Spare Life of Va. Murderer." An editorial is entitled "When to Drug a Prisoner." And Clint Bolick has an op-ed entitled "Flip-Flopping on Free Association."

In The New York Times, Linda Greenhouse reports here that "Supreme Court Limits Forced Medication of Some for Trial" and here that "Ban on Corporate Contributions Is Upheld." And a related editorial is entitled "A Trio of Good Rulings." In other news, you can access here an article headlined "Tales of Despair From Guantanamo." From Tulia comes news that "Texas Frees 12 on Bond After Drug Sweep Inquiry." An article reports that "Clothing Chain Accused of Discrimination Lawsuit." The chain in question in Abercrombie and Fitch. In local news, "In Stores, Private Handcuffs for Sticky Fingers." And an op-ed by Daniel Bergner is entitled "When Forever Is Far Too Long."
Posted at 00:10 by Howard Bashman



New blog template produces new record for most visits in 24-hour period: On Monday, June 16, 2003, this blog's hit counter recorded 14,882 page views, a new one-day record for "How Appealing." The previous record was 13,162 page views on April 1, 2003, the day on which the University of Michigan racial preferences in student admissions cases were argued in the Supreme Court of the United States.
Posted at 00:04 by Howard Bashman



Monday, June 16, 2003
Coming soon: My summary of today's four U.S. Supreme Court opinions will appear online at "How Appealing" tomorrow night. Anyone who can't wait until then to focus on a dentist who isn't quite right is invited to watch one of these three movies (here, here, or here) in the interim. And be sure not to overlook the striking last name similarity that one of those films happens to feature.

As for me, I'm in the midst of preparing the next round of "20 questions for the appellate judge," which I hope to forward to July's interviewee before too late in the day tomorrow. If all goes as planned, the interview will appear online at "How Appealing" on Monday, July 7, 2003.
Posted at 23:00 by Howard Bashman



Available online at law.com: Tony Mauro reports that "High Court Rules in Campaign Finance, Defendant Drugging Cases." An article reports that "2nd Circuit Revives Holocaust Suit Against French Rail Company; War crimes alleged for transporting Jews to Nazi death camps." From Atlanta comes news that "EEOC Raps Federal Judge's Ruling in Race Case; Commission urges appeals court to reinstate suit against Southern Co." And from Connecticut comes a report that "Judge's Worked-to-Death Claim Clears Hurdle; Legislative relief had broader purpose, court finds."
Posted at 22:25 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Rep. Mary Bono Forms Copyrights Caucus"; here "W.Va. Settles Microsoft Antitrust Case"; here "Islamic Charity Leader Awaits Sentencing"; here "Lawyers Must Stay on Murder-For-Hire Case"; and here "Ex-United Way Exec Sentenced to Prison."
Posted at 22:09 by Howard Bashman



NPR's Nina Totenberg reports on today's developments at the U.S. Supreme Court: She's waiting for Godot (listen here; Real Player required).
Posted at 19:55 by Howard Bashman



Today's Pryor coverage: The Birmingham News reports here that "Pryor's record on race a topic for both parties." "The Political Skinny" column (fourth item) in today's edition of The Mobile Register reports further on the "Gay Day" issue involving Disney World. Today's edition of The St. Petersburg Times contains an editorial entitled "Too much power for Pryor." And The Memphis Flyer contains an op-ed by Ed Weathers entitled "The Axis of Retro-Conservatives Threatens to Poison the Federal Judiciary for Decades."
Posted at 19:45 by Howard Bashman



"Kuhl May Be Next Nominee to Face Filibuster": FOXNews provides this report.
Posted at 19:42 by Howard Bashman



DNC says "Beware the Bush-enstein monster to be nominated to the U.S. Supreme Court": FOXNews reports here that "DNC Launches E-Mail Cartoon Lampooning Bush." You can access the cartoon in question at this link (Flash animation).

In the cartoon, a character portraying President Bush states, "I'm creating the perfect Supreme Court justice. A right-wing extremist the likes of which have never been seen before." The Bush character then states, ""My justice will have the vision of Charles Pickering, the teeth of Priscilla Owen, the secrets of Miguel Estrada, the arms of Clarence Thomas and the brain of Antonin Scalia." Then, according to the FOXNews article:
Vice President Dick Cheney, cast as Bush-enstein's sidekick Igor, wants to know more.

"And the heart," Cheney asks, to which Bush replies: "Heart? We don't need a heart."

A switch is turned on, pumping a black substance -- perhaps oil, in reference to the president's ties to the industry -- into Bush's monster and off it goes in judicial robes to destroy the nation's high court.
This animation is simply further proof that it's difficult to create a worthwhile cartoon on the issue of judicial nominations.
Posted at 19:30 by Howard Bashman



Reuters is reporting: James Vicini reports here that "High Court Limits Forced Medication for Trial"; here that "High Court Rejects Challenge to Trespass Policy"; and here that "Campaign Contribution Ban Is Upheld." And Jonathan Stempel reports here that "US top court to review rates charged to bankrupts."
Posted at 19:26 by Howard Bashman



"Calm before Supreme Court storm": Michael Kirkland, UPI Legal Affairs correspondent, has this news analysis.
Posted at 19:21 by Howard Bashman



From The Washington Post online: Charles Lane reports here that "Court Limits Drugging of Defendants" and here that "Court Rejects Challenge to Loitering Law."
Posted at 18:45 by Howard Bashman



"Court Limits Forced Medication of Mentally Ill Defendants": Linda Greenhouse of The New York Times hass this report.
Posted at 18:42 by Howard Bashman



In Tuesday's edition of The Christian Science Monitor: Warren Richey -- back from Iraq -- reports that "To stand trial, defendants can be medicated by force; High court rules that state can use drugs when mentally ill defendant is facing trial." And Seth Stern reports that "Dispute erupts over how appeals are heard; Rare flap centers on judges chosen to hear a landmark affirmative action case."
Posted at 18:39 by Howard Bashman



"Supreme Court Accepts Appeal From Inmate": Gina Holland of The Associated Press provides this report.
Posted at 17:32 by Howard Bashman



"12 Freed in Appeal of Texas Drug Busts": The Associated Press has this report from Tulia, Texas.
Posted at 15:26 by Howard Bashman



Denise Howell offers up a fresh crop of law blogs: You can access her list here. (By the way, isn't it odd that the spell-check feature included with BloggerPro doesn't recognize the word "blog"?)
Posted at 14:40 by Howard Bashman



Overton v. Bazzetta errata, part two: A reader emails:
To read today's Supreme Court opinions free of distractions, I left the office about 11:30 a.m. for lunch and didn't return until I had finished all of them. I was confident that, when I returned to my office and looked at your blog, you would already have a posting about a mistake in Overton v. Bazzetta.

Though you did not disappoint me, the mistake you pointed out is not the one I expected you to point out. On page 2 of the syllabus, the scandalously incorrect "de minimus" appears, even though page 9 of the Opinion of the Court uses the correct spelling "de minimis." Didn't you have an extensive discussion of this common misspelling on your blog some time ago?
This reader is to be congratulated on two grounds, neither of them de minimis. First, when I sit down to read a newly-issued decision of the Court, I usually disregard the syllabus insofar as it summarizes the decision, so this reader scores points for thoroughness. Second, this reader demonstrates an encyclopedic memory of "How Appealing," for it was back in mid-December 2002 that the "de minimis" versus "de minimus" discussion occurred. And, of course, I cannot overlook the classic email from Fifth Circuit Judge Jerry E. Smith in which he reviews the long, strange history of "de minibus."
Posted at 14:10 by Howard Bashman



A quick look at the ten argued cases still pending on the U.S. Supreme Court's docket: With one week remaining on the schedule for the announcement of decisions in argued cases, the following ten cases remain pending for decision before the Supreme Court of the United States:
1. United States v. American Library Assn., Inc., involving the constitutionality of a federal law that requires Internet filtering in public libraries (oral argument transcript here).

2. Wiggins v. Smith, to what degree must defense counsel in a death penalty case investigate mitigating evidence, perhaps entitling the defendant to a sentence other than death, to be effective (oral argument transcript here).

3. Lawrence v. Texas, presenting a constitutional challenge to a state law prohibiting homosexual sodomy (oral argument transcript here).

4. Stogner v. California, may a State eliminate the statute of limitations applicable to a crime without running afoul of the constitutional rights of those offenders whose prosecution would otherwise be time-barred (oral argument transcript here).

5. Grutter v. Bollinger, may a state-run law school use racial preferences in deciding which students to admit (oral argument transcript here).

6. Gratz v. Bollinger, may a state-run undergraduate school use racial preferences in deciding which students to admit (oral argument transcript here).

7. Green Tree Financial Corp. v. Bazzle, does the Federal Arbitration Act prohibit a case subject to arbitration from proceeding forward in arbitration as a class action where the arbitration agreement is silent on the matter (oral argument transcript here).

8. American Ins. Assn. v. Garamendi, does California's Holocaust Victim Insurance Relief Act survive scrutiny under federal law (oral argument transcript here).

9. Nike, Inc. v. Kasky, should the "commercial speech" doctrine continue to exist under the First Amendment, and if so was it properly applied here (oral argument transcript here).

10. Georgia v. Ashcroft, a redistricting challenge that could become moot at any second depending on how the Supreme Court of Georgia rules in a companion case (oral argument transcript here).
As I previously noted below, the Court is next scheduled to issue opinions on Monday, June 23, 2003.
Posted at 11:59 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Court OKs Ban on Some Campaign Donations" and here that "Supreme Court Affirms Prison Visit Limits." And Gina Holland reports here that "Court Upholds Public Housing Restrictions" and here that "Court Limits Drugging of Some Defendants."
Posted at 11:58 by Howard Bashman



Overton v. Bazzetta errata: A reader emails:
I'm sure you'll be hearing about this from others, but I find it remarkable that the plaintiff prisoner class in the sec. 1983 complaint was certified, according to Justice Kennedy on page 3 of his opinion, pursuant to "Federal Rule of Criminal Procedure 23." Not to be pithy [ed. picky?], but that is the sort of thing one would expect people to catch up there.
For those who aren't up on their rules of federal procedure, the class action rule is Federal Rule of Civil Procedure 23.
Posted at 10:59 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: Today the Supreme Court of the United States has issued opinions in the following four argued cases: Sell v. United States (syllabus here; majority opinion here; dissenting opinion here; oral argument transcript here); Federal Election Comm'n v. Beaumont (syllabus here; majority opinion here; opinion concurring in the judgment here; dissenting opinion here; oral argument transcript here); Overton v. Bazzetta (syllabus here; majority opinion here; concurring opinion here; opinion concurring in the judgment here; oral argument transcript here); and Virginia v. Hicks (syllabus here; opinion for a unanimous Court here; concurring opinion here; oral argument transcript here).

Today's Order List is available here. The Court granted review in two cases and has requested the views of the Solicitor General of the United States in an additional case.

The Court has announced that it will next issue opinions and orders on Monday, June 23, 2003.
Posted at 10:00 by Howard Bashman



Available online at The National Law Journal: Marcia Coyle reports that "High court gives workers a win; A lighter burden in certain bias cases." Todd Gaziano has an op-ed entitled "Filibusters: The Senate can change." And, as usual, Gail Diane Cox's Voir Dire column is worth a read this week.
Posted at 09:47 by Howard Bashman



"Sandra's Day: How Justice O'Connor has ruled the Court" That's the title of the cover story (not yet available online) by Ramesh Ponnuru in the June 30, 2003 issue of National Review magazine. Here's a preview of the article:
Justice O'Connor gets her way more often than the chief justice does. As the "swing vote" on the Court, O'Connor is in the majority more often than any of her colleagues. Legal briefs in important cases are written to appeal, above all, to her. As a result of her position at the center of the Court, she can be a powerful voice for conservatives when she is with them. When the Court upheld school choice last year, it was her unqualified endorsement of the decision in a concurring opinion, as much as the majority opinion itself, that conferred solidity to the ruling. But it is disturbing to reflect that, given the power the Supreme Court has assumed, O'Connor has become the most powerful woman in America. Excluding foreign policy, indeed, one could even say that she is the most powerful person in America.
You can access this and other previews from the June 30th issue here.
Posted at 09:36 by Howard Bashman



"The Great Compromise of 2003: Pre-persons and the law." Ned Rice has this essay today at National Review Online.
Posted at 09:34 by Howard Bashman



"Microsoft case is far from over; Company to defend deal in appeals court Wed." Lyle Denniston has this article in today's edition of The Boston Globe.
Posted at 09:31 by Howard Bashman



"Ruling due on Senate map; Decision could come today on redrawn lines": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 09:28 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue opinions and orders today at 10 a.m. EDT. As this handy list prepared by the kind folks at Mayer, Brown, Rowe & Maw indicates, the Court still has fourteen argued cases pending for decision as it enters what, according to the official schedule, should be the final two weeks during which opinions will be announced. It is thus quite possible that today the Court will announce a second date for the release of even more opinions later this week. Stay tuned throughout the day for all the details.
Posted at 06:45 by Howard Bashman



"High Court could force Ohio schools to judge students by the content of their academic record, not by... The color of their skin; Universities may struggle to maintain racial diversity if forced to change policies": Yesterday's edition of The Akron Beacon Journal contained this report.
Posted at 06:43 by Howard Bashman



Elsewhere in Monday's newspapers: The Boston Globe reports here that "Hiring-policy shift has whites eyeing fire jobs; Test scores now rule instead of diversity." The newspaper also contains two related articles: "Black firefighter finds career he didn't foresee"; and "White stopped applying when he scored only 99." In other local news, "Award upheld in golf club bias case." And in business news, "Preparing for 'number portability'; Wireless industry aims to dampen effect of change."

The Los Angeles Times reports here that "For Whistle-Blowers, Virtue May Be the Only Reward; Richard Bagley, who took on TRW, will pocket $8 million. But he's an exception -- and even he questions if the effort was worth it." In entertainment news, "A cable station mans the battle lines; MTV Networks plans to relaunch TNN as men's channel Spike TV, but there's a hitch: Director Spike Lee has filed an injunction." An editorial is entitled "Jurors Zing the Ding-a-Lings." An op-ed by Robert Meeropol, the son of Julius and Ethel Rosenberg, is entitled "A Test of Loyalty: Evidence against Julius and Ethel Rosenberg shook, but did not topple, a son's faith." And letters to the editor appear under the heading "Support Rights and Democracy -- and Bring Back Burma's Name."

The Washington Times reports here that "Republicans poised to strengthen hold on Senate in 2004 elections." And an op-ed by Larry Elder is entitled "Legalize insider trading?"

Finally for now, USA Today contains an op-ed by Joan M. Garry entitled "Sexual orientation: a state of being, not just a sex act."
Posted at 06:27 by Howard Bashman



Today's FindLaw columnists: Anthony J. Sebok has an essay entitled "The Continuing Struggle Over Litigation Funding: The Ohio Supreme Court Voids A Sale of An Interest In a Lawsuit." And Alec Walen has an essay entitled "An Alternative to the Partial Birth Abortion Ban Act: The Preferable, Constitutional Legislation Congress Declined to Enact."
Posted at 06:09 by Howard Bashman



"Unocal Case Arises From 1789 Statute; Alien Tort Claims Act is being used to fight human rights abuses in Myanmar." Monday's edition of The Los Angeles Times contains this article, which is the second in a two-part series. Part one remains accessible here.
Posted at 00:42 by Howard Bashman



In Monday's newspapers: In The New York Times, Neil A. Lewis reports that "Senator Seeks a Consensus in Replacing Any Justice." The Senator in question is Patrick J. Leahy (D-VT), ranking Democrat on the Senate Judiciary Committee. Columnist Bob Herbert's op-ed begins, "At least 12 of the people who were sent to prison on the word of a lying, reckless, bigoted lawman in Tulia, Tex., will step into the sweet light and fresh air of freedom this afternoon." Columnist William Safire has an op-ed entitled "Regulate the F.C.C." And letters to the editor appear under the heading "Using Class to Promote Diversity." You can access here the op-ed to which those letters are responding.

The Washington Post reports here that "13 Imprisoned in Tulia Drug Sweep To Be Freed Today; Racial Divide Still Deep in Texas Town." In part two of a two-part series, you can access here an article entitled "Misplaced Trust -- Guardians in Control: Rights and Funds Can Quickly Evaporate; Attorneys' Powers Thwarted Clients Trying to Remain Independent." You can access here an editorial entitled "Three More Reasons." William Raspberry ha an op-ed entitled "Liberty Is Security," and Alan K. Simpson has an op-ed entitled "Divided by Zealots."
Posted at 00:10 by Howard Bashman



Sunday, June 15, 2003
"State attorneys general ask Supreme Court to reverse pledge case": The Associated Press provided this report on Wednesday. Apparently the Attorneys General of all 50 states are calling on the U.S. Supreme Court to grant review of, and reverse, the Ninth Circuit's ruling in the Pledge of Allegiance case.
Posted at 23:49 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Government Urges High Court to Take Alien Detention Case." I view it as likely that the U.S. Supreme Court will agree to take that case, which I have previously discussed here, here, and here. The federal government's cert. petition (all 247 PDF pages of it) can be accessed here. The Court could announce whether it will grant review as early as Monday, June 23, 2003. Another likely cert. grant discussed in Mauro's column is Tennessee v. Lane, No. 02-1667, which presents the question "whether Title II of Americans with Disabilities Act exceeds Congress' authority under sec. 5 of 14th Amendment, and thus fails to abrogate states' 11th Amendment immunity from private damage claims."
Posted at 23:31 by Howard Bashman



"Airline forced to pay for dropping blue ice on boat; Vessel owner wins $3,236": Today's edition of The Santa Cruz Sentinel provides this report. And The Associated Press reports here that "Calif. Man Wins Plane Toilet Ice Lawsuit."
Posted at 22:02 by Howard Bashman



"Courting Trouble": The current issue of National Journal contains this cover story by Stuart Taylor Jr. about potential vacancies at the U.S. Supreme Court. (Via "Betsy's Page.") Taylor also has a separate item entitled "Who's Being Mentioned." Finally, you can access here a chart entitled "Divided They Stand."
Posted at 20:18 by Howard Bashman



Coming soon to a newsstand near you: The June 23, 2003 issue of U.S. News and World Report contains an article entitled "The court of foreign affairs: U.S. corporations face a slew of lawsuits alleging human-rights abuses." The article mentions the Unocal case that the Ninth Circuit will rehear en banc on Tuesday; you can access my preview of that oral argument here. You can access here an article entitled "Breathing easy: Should the government regulate the safety of tobacco products? Who would benefit most?" Relatedly, Bernadine Healy, M.D. has an op-ed entitled "Big Tobacco's triumph." And you can access here an article entitled "Getting DNA to bear witness; Genetic tests can reveal ancestry, giving police a new source of clues."

The June 23d edition of Newsweek contains an article entitled "She's the Girl They Love to Hate: When her school wanted to make her share the valedictorian spot, Blair Hornstine went to court. She won--and that's when her troubles began." You can access here an article entitled "Nickel-and-Dimed: How States Keep Prison Costs Down; Ambitious prison-building projects are being shelved and existing facilities closed." And finally for now, columnist George F. Will has an essay entitled "Race-norming In Michigan: At issue is the radical goal of overthrowing a core principle of our open society--that rights inhere in individuals, not groups."
Posted at 16:41 by Howard Bashman



In Sunday's newspapers: The New York Times reports here that "Blair Seeks a Supreme Court Modeled on the U.S. Version." The Blair in question is Tony, not Jayson. In other international news, "Gay Canadians' Quest for Marriage Seems Near Victory." An article reports that "Defense Teams Seek Access to an Operative for Al Qaeda." An article headlined "Yes, They Were Guilty. But of What Exactly?" begins, "Fifty years ago Thursday, Julius and Ethel Rosenberg were executed in the electric chair at Sing Sing." In news pertaining to television, "Babes, Yes Please. Female Viewers, No." The first item in today's "Reading File" contained in the Week in Review section begins, "Writing in the July-August issue of The Atlantic Monthly, due on the newsstands at the end of this week, Alan Berlow contends that Alberto R. Gonzales, as legal counsel to Gov. George W. Bush of Texas, often failed to give Mr. Bush adequate information to decide on 57 death penalty cases." An editorial is entitled "Fighting Terrorism Fairly." And Brent Staples has an editorial observer column entitled "Slaves in the Family: One Generation's Shame Is Another's Revelation."

The Washington Post kicks off a two-part investigative series with an article entitled "Misplaced Trust -- Guardians in the District: Under Court, Vulnerable Became Victims; Attorneys Who Ignored Clients or Misspent Funds Rarely Sanctioned." An article reports that "Contact Taints Murder Case; Md. Appellate Court Throws Out Conviction." And an editorial is entitled "Regulate Us, Please!"

The Boston Globe reports here that "Illinois preparing broad reforms on capital punishment." From Orlando comes news that "Fla. Muslims see veil case as distraction." An article reports that "Harvard Law sets goal to raise a record $400m; Hopes to expand plant, programs." And James Ryerson has an essay entitled "War of the weeks: An attempt to revise the 40-hour work week failed in Congress. But the debate over how the law should organize our time continues."

The Los Angeles Times contains an article that addresses the question "Cyberspace: Last Frontier for Settling Scores?" An article reports that "Lawyer's Dedication Helps Free Wrongly Convicted Family Friend; Alison Tucher never lost interest in Rick Walker's murder case. After 12 years in jail, her efforts persuaded a judge that he is innocent." Steve Lopez's column today is entitled "It's a Sad Day in L.A. When a Stripper Beats a Cardinal on Morality." And letters to the editor appear under the heading "Lap Dancing Less Harmful Than Alcohol."

Finally for now, Frank J. Murphy reports in The Washington Times that "Patriot Act of 2001 casts wide net."
Posted at 11:26 by Howard Bashman



Which Ninth Circuit judges have been selected to decide on rehearing en banc the case of Doe v. Unocal Corp.? On Tuesday, June 17, 2003, the U.S. Court of Appeals for the Ninth Circuit will hear reargument en banc in the case known as Doe v. Unocal Corp. The case presents the following questions:
Under the Alien Tort Claims Act, may Unocal Corporation be held liable for the forced labor, murder, rape, and torture inflicted on natives of Burma/Myanmar by the Myanmar Military in the course of construction of a gas pipeline? In order to determine if Unocal may be held liable for the acts of the government of Myanmar, should the federal courts apply an international-law aiding and abetting standard, or should Unocal's liability be resolved according to general federal common law tort principles?
You can access the three-judge panel's opinion in this case at this link (and my coverage of that ruling is available here).

Understandably, this case has been receiving much attention in the press. Today's edition of The New York Times contains an article headlined "Showdown for a Tool in Human Rights Lawsuits." Today's edition of The Los Angeles Times contains an article (the first of a two-part series) entitled "Pipeline to Justice? A U.S. appeals court offers hope to Myanmar farmers who accuse Unocal of complicity in human rights abuses." Last week, The LATimes also published two related op-eds: Ka Hsaw Wa wrote that "Court Is Villagers' Only Hope; The Justice Department and Unocal oppose a suit brought by alleged victims of abuse in Burma," and Michael O'Donnell wrote of "Capitalism vs. Conscience: Companies abuse human rights and the feds don't care." In a related article, Marcia Coyle of The National Law Journal reported here last week that "9th Circuit Spurns U.S. Over Alien Tort Claims; A big Unocal case is still to be argued."

As far as I have seen, however, no one has yet reported on which eleven judges have been selected to decide the Unocal case on rehearing en banc. So, let me perhaps be the first to do so. The eleven-judge en banc panel will consist of the following Ninth Circuit judges: Chief Judge Mary M. Schroeder and Circuit Judges Stephen Reinhardt, Alex Kozinski, Pamela Ann Rymer, Thomas G. Nelson, A. Wallace Tashima, Susan P. Graber, M. Margaret McKeown, William A. Fletcher, Raymond C. Fisher, and Johnnie B. Rawlinson. You can access the official oral argument calendar here. With this line-up, which is a bit more moderate in its political leanings than was the original three-judge panel, a 6-5 en banc ruling is definitely a possibility.
Posted at 10:54 by Howard Bashman



"Partisanship reigns in battle over courts: President Bush and Senate Democrats are fighting over several nominees, with abortion rights and the Supreme Court ultimately at stake." This report appears in today's edition of The Baltimore Sun.
Posted at 10:44 by Howard Bashman



"Rehnquist wins A.C. Open with strategy and patience": Today's edition of The Atlantic City Press contains this report. Given this performance in singles tennis, I too am beginning to view his retirement as unlikely.
Posted at 10:41 by Howard Bashman



CrimLaw can be such a blast: "Unlearned Hand" is now a group blog, which allowed its founding author the spare time to visit the shooting range with his criminal law casebook in tow. See what resulted via text and photos you can access here.
Posted at 08:27 by Howard Bashman



Saturday, June 14, 2003
In response to a clever parody (19th item) of "Lawrence Lessing": Law Professor Lawrence Lessig remarks, "another cost of losing eldred: man, i donít even get my name spelled correctly."
Posted at 23:59 by Howard Bashman



Can't sneak nothin' past this law professor: A reader who teaches law in Ann Arbor, Michigan emails:
Thank you for the link (posted Thursday, June 12, at 11:01 p.m.) to Jonathan Ringel's article in the Fulton County Daily Report on Bill Pryor's hearing before the Senate Judiciary Committee.

Ringel's article contains the following problematic statement: "Sutton's main problem was his work with Pryor on cases in which the U.S. Supreme Court held that Congress did not have the authority to extend to state governments laws prohibiting discrimination based on age, disability or national origin."

As you are well aware, the Supreme Court has held that nonconsenting states have sovereign immunity from damages suits brought under the ADEA (Kimel) and Title I of the ADA (Garrett). So that covers the references to age discrimination and disability discrimination. But national-origin discrimination? Unless I'm completely out of the loop (and I hope for my students' sake that I'm not), the Supreme Court has never held that state sovereign immunity extends to suits based on national-origin discrimination (which would be brought under Title VII or a related civil-rights provision). And, as far as I know, neither Jeff Sutton nor Bill Pryor has ever advocated such a position. Am I wrong on any of these points?

Thanks for your terrific and much-appreciated efforts.
Thank you for the kind email and for pointing out this apparent error.
Posted at 23:43 by Howard Bashman



Book review almost completed: I'm pleased to report that I've written and nearly finalized my review of UCLA Law Professor Eugene Volokh's new book, "Academic Legal Writing: Law Review Articles, Student Notes, and Seminar Papers" (Foundation Press 2003). Stay tuned for details about where and when the review will be appearing.
Posted at 22:35 by Howard Bashman



Some recent Ninth Circuit press releases: You can access here a press release that the U.S. Court of Appeals for the Ninth Circuit issued on June 11, 2003 entitled "New Ninth Circuit Award Honors Memory of Renowned Attorney John P. Frank." And you can access here a press release that the Ninth Circuit issued on June 3, 2003 entitled "Ninth Circuit Judicial Conference Focuses on Corporate, Professional Ethics." The Ninth Circuit's judicial conference is occurring this year from June 23 to 26 at the Hyatt Regency Resort on Kaua'i. I wish I were able to attend.
Posted at 22:32 by Howard Bashman



Nominate Ninth Circuit Judge Alex Kozinski to the U.S. Supreme Court: That's what "Plainsman" over at the "Sub Judice" blog is suggesting. Of course, if that doesn't happen, keep in mind that Judge Kozinski is in line to be the Ninth Circuit's next chief judge, starting sometime in 2007. For those of us who've been wishing he was on every eleven-judge en banc panel, it's just a matter of time until that happens for seven entire years, from 2007 through 2014. (The Ninth Circuit's chief judge, unless recused, is automatically included on every eleven-judge en banc panel.)
Posted at 19:23 by Howard Bashman



"Juries Reject Death Penalty in Nearly All Federal Trials": Sunday's issue of The New York Times will contain this article by Adam Liptak.
Posted at 19:17 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Fight Over Abortion Procedure to Continue"; here "Harvard Law School Starts Fund-Raising"; here "Army Man Who Proposed to Many Apologizes"; and here "Book by Police Chief Set for Sale on Web."
Posted at 19:01 by Howard Bashman



Judicial nomination and confirmation commentary from here and there: Today's edition of The Dallas Morning News contains an op-ed by Ruben Navarrette entitled "Nominee's story is the perfect soap opera." Navarrette writes of Miguel A. Estrada, "After being nominated by President Bush to the U.S. Court of Appeals for the District of Columbia Circuit, the Honduran native finds it's easier to get out of a Third World country than to get Senate Democrats to treat him like a first-class citizen."

Richard Reeves has an op-ed entitled "The Battle of the Quarter-Century" about what he expects to happen if vacancies arise soon on the U.S. Supreme Court.

Jeffrey St. Clair has an op-ed at CounterPunch entitled "Pryor Unrestraint: Killer Bill Pryor's Mad Quest for the Federal Bench." Heath Buckner, by contrast, has an op-ed online at The Washington Dispatch in which she describes Eleventh Circuit nominee William H. Pryor, Jr. as "Another Victim of Biased Reporting."

And finally for now, columnist Robert Novak has an essay entitled "Hillary holds a grudge."
Posted at 17:01 by Howard Bashman



"Texas-style justice": Yesterday's edition of The St. Petersburg Times contained this editorial.
Posted at 16:48 by Howard Bashman



"Bush's Justice": The June 23, 2003 issue of The Weekly Standard will contain an editorial that begins, "President Bush may or may not get the opportunity to name a Supreme Court Justice this summer. But if he does, who would be the right choice?"
Posted at 16:42 by Howard Bashman



"Pipeline to Justice? A U.S. appeals court offers hope to Myanmar farmers who accuse Unocal of complicity in human rights abuses." Sunday's edition of The Los Angeles Times will contains this article, the first of a two-part series.
Posted at 14:50 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "F.B.I. Leader Wins a Few at Meeting of A.C.L.U." An article reports that "Case Could Redefine Board Members' Liability." In entertainment news, "Court Ruling Puts Off Any Name Change at TNN." An article from Bloomberg News reports that "2 Drug Makers Lose Appeals Court Ruling." In local news, you can access here an article headlined "Inquiry Into Term-Limits Case Finds Judge's Actions Suspect" and here an article headlined "Ex-Mayor in Connecticut Sentenced to 37 Years for Abusing Two Girls." The Arts section, as it often does on Saturdays, contains some interesting articles: "History for Hire in Industry Lawsuits"; and "Islam and the Unveiled Photograph." And a letter to the editor appears under the heading "The Way to Choose Federal Judges."

The Los Angeles Times reports here that "Pooh Suit Imperiled, Lawyer for Disney Says; He suggests plaintiffs' attorney is quitting because of a client's changing testimony. The other side denies it." In local news, you can access here an article entitled "Nestle age discrimination award upheld; Nestle USA, Inc. blocked an L.A. man from other jobs, while promoting younger people with less experience, court says" and here an article entitled "Court Rules Families of 3 Killed in Copter Crash Can Finally Sue; Appeals judge says law blocking suit against aircraft maker doesn't apply in this case." An editorial about the Alabama Ten Commandments monument case now pending on appeal before the U.S. Court of Appeals for the Eleventh Circuit is entitled "Render Unto Caesar ..." An op-ed by Jan Johnson is entitled "Using Cell Phones in Cars Tests Our Social Contract." And letters to the editor appear under the heading "Student Can't Bear NRA's Yearbook Ad."

Today's edition of The Boston Globe reports here that "Ethics code tells judges to mind behavior." The article begins, "For the first time in 30 years, the state's highest court has expanded its ethical code of conduct for judges, exhorting them to maintain the appearance of impartiality, both on the bench and in their private lives."

The Washington Post reports here that "Sniper Victims Join Lawsuit to Fight Gun Use." And an editorial is entitled "Reforming Class Actions."

Finally for now, The Washington Times contains an op-ed by Gary Galles entitled "Liberty and justice for all."
Posted at 14:27 by Howard Bashman



"In Memoir as Manifesto, Clinton Takes On the GOP": Today's edition of The Washington Post contains an analysis by David Von Drehle of "Living History," the new book by U.S. Senator Hillary Rodham Clinton (D-NY). The article states:
In particular, Clinton sketches an indictment of Chief Justice William H. Rehnquist every bit as heated as the right-wing denunciations of then-Chief Justice Earl Warren in the 1960s. Though she does not call for Rehnquist's impeachment, she accuses him of leading a conspiracy to replace a fair-minded special prosecutor with a partisan zealot in the Whitewater investigation.

"I feared that the Republicans and their allies in the judiciary, led by Chief Justice William Rehnquist, would figure out some way to remove [special prosecutor Robert] Fiske because he was impartial and expeditious," Clinton writes. And when Fiske is replaced, she adds: "it was clear that [independent counsel Kenneth W.] Starr was replacing Fiske not to continue an independent investigation, but for partisan purposes."

In short, Rehnquist's "lifetime tenure as a Supreme Court justice did not inhibit his ideological or partisan zeal," Clinton writes.

Supreme Court spokeswoman Kathy Arberg said last night that Rehnquist was unavailable to comment on Clinton's book. The author also declined to be interviewed about the political content of her book.

Clinton also accuses Rehnquist of allowing a personal bias against the Clintons to color his legal opinions and of clinging to outdated, racist views. "Neither Bill nor I relished the idea of sharing such an important moment with William Rehnquist, who despised us and our politics," Clinton writes of her husband's second inauguration. The two even considered having another justice administer the presidential oath of office in 1997.

Presidential scholar Stephen Hess of the Brookings Institution says political memoirs have always been a way of burying the hatchet -- in an old foe's chest. "This is a way of settling scores, and that may be one purpose of the book," he said.

Clinton never makes clear exactly why Rehnquist has such a prominent place on her list of Republicans coldly bent on subverting the Constitution to "topple a President." He enters the story of her White House years three times: once because his duties included naming the three-judge panel in charge of appointing independent counsels; once because he presided at the trial in which her husband was acquitted; and once because he seemed unfriendly while administering the oath of office.

"'Good luck,' Rehnquist said without smiling. Something about his tone made me think we would need it," Hillary Clinton writes.

Offstage, Rehnquist voted to allow an Arkansas woman, Paula Corbin Jones, to sue Bill Clinton for sexual harassment stemming from an encounter when he was governor of Arkansas. But Rehnquist was just one of nine justices -- including two appointed by Clinton -- who held unanimously that the lawsuit should proceed.

But by placing the chief justice neck deep in the cabal trying to oust her husband, Clinton is able, at the end of the book, to link the hotly disputed 2000 presidential election recount to the impeachment attempt of the previous year. In writing of the Supreme Court's 5 to 4 decision to halt the examination of uncounted ballots in Florida -- thus awarding the presidency to George W. Bush -- Clinton adopts the view, widely held on the left, that conservatives on the court, including Rehnquist, simply rigged the result.

"Seldom if ever in our history has the people's right to choose their elected officials been thwarted by such blatant abuse of judicial power," Clinton sums up.
You can access the complete article at this link.
Posted at 14:08 by Howard Bashman



"Video industry challenges ban on games depicting cop killing": Today's edition of The Detroit News contains this report from Bloomberg News. Anyone interested in additional coverage of the lawsuit filed last week in the U.S. District Court for the Western District of Washington can access additional details here (press release from the Interactive Digital Software Association); here (Reuters reports that "Video Game Makers File Suit to Block Wash. Law"); here (The Tacoma News Tribune reports that "State sued over video game law"); and here (The Seattle Post-Intelligencer reports that "Suit will challenge state's video-game law; Legislation's sponsor confident that industry will lose appeal").
Posted at 13:53 by Howard Bashman



American Indian law: Yesterday's issue of Indian Country Today is full of interesting items. You can access here an article entitled "Overview: Judicial review makes Supreme Court a partner in government; Working for equal justice under the law"; here "Search for sovereignty: Protecting tribes from the Supreme Court"; here "Tribal legal economics 'vary dramatically'"; and here "Analysis: Project to educate the Supreme Court." In addition, you can access essays entitled "Pretension as the rule of U.S. Indian Law"; "Indigenous nations as reserved sovereigns"; "Law and politics in Indian country"; and "Indian laws and Tribal lawmakers." There's even an editorial cartoon on the subject. These items are all part of a special edition entitled "American Indian nations and American law - a primer."
Posted at 11:17 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Jury Returns $49M Verdict in Vitamin Case"; here "FBI Vows Changes in Holding Immigrants"; here "Microsoft Agrees to Settle N.C. Lawsuit"; here "Ex-Somali Judge Is Ordered to Leave U.S."; and here "Hatfield, McCoy Descendants Ink Truce."
Posted at 10:58 by Howard Bashman



New blog template: Blogger's new publishing system doesn't seem to like my old template much. So, I have replaced it with this "snazzy" (thanks, Juan) new template, courtesy of BlogSkins. Yet even if the blog now looks "snazzy" -- something about which reasonable minds may disagree -- its content will, you can be sure, remain as drab as ever.
Posted at 10:41 by Howard Bashman



Friday, June 13, 2003
"ABA Calls for Reform of State Judicial Systems": NPR's Jackie Northam had this report (Real Player required) on today's edition of All Things Considered.
Posted at 23:02 by Howard Bashman



"Ruling for minnow churns city, state": Today's edition of The Albuquerque Tribune contains this report. And in related news, "Minnow in trouble even with ruling."
Posted at 22:56 by Howard Bashman



Elsewhere in Friday's newspapers: In USA Today, Joan Biskupic reports that "Chief justice shows no sign of leaving soon; Meanwhile, Washington waits to fight over his replacement."

The Los Angeles Times reports here that "For Third Time, House OKs Reforming Class-Action Suits; The effort to move cases from state to federal courts sparks fierce debate before the vote. Democrats threaten a filibuster in the Senate." The news report of greatest interest to the most important person in my household appears under the headline "Super Diaper Baby Survives: Riverside Unified rejects bid to ban the book from its schools. Officials received complaint about the story line." An article reports that "Red Light Camera Ruling Reversed; Citations issued by West Hollywood will not be dismissed. A court finds the city has discretion in setting the length of traffic signals." In entertainment news, "Lee Gets Name Spiked From Network for Now." An item is entitled "Muslim woman doesn't get the picture." You can access here an op-ed by Morton H. Halperin and Ken Gude entitled "9/11 Detainees' Treatment Casts a Deep Shadow; Ashcroft used a cloak of secrecy to violate the rights of hundreds" and here an op-ed by Ellen Taylor entitled "Patriot Act is dangerous."

In The Washington Times, Frank J. Murray reports that "Pittsburgh courts seeking to increase blacks on juries." In other news, "House OKs bill to curb shopping of class-action lawsuits." An article reports that "'Gay pride' observance wanes in Bush era." And finally, an article reports that "Judge OKs camera tickets."
Posted at 22:41 by Howard Bashman



Happy anniversary, Volokhs! A reader who departed Honduras for the United States on May 9, 1979 emailed earlier today to suggest that I note for the benefit of all my readers that today is the 28th anniversary of the day on which the Volokh family left the Soviet Union. Had things turned out differently, "The Volokh Conspiracy" would today appear only in Cyrillic, making it even that much more difficult to comprehend.
Posted at 22:13 by Howard Bashman



The American Bar Association says "Justice in Jeopardy in Many State Courts": You can access all the relevant information via links that appear toward the bottom of this main Web page on the subject. You can access the ABA's report (a PDF document consisting of 141 pages) at this link.
Posted at 19:51 by Howard Bashman



"The Dark Side of Innocence": Sunday's issue of The New York Times Magazine will contain this essay by David Feige, a public defender in the Bronx.
Posted at 19:44 by Howard Bashman



"Analysis: Project to educate the Supreme Court": This article appears in today's edition of Indian Country Today.
Posted at 19:37 by Howard Bashman



"Federal Judge In Hartford Named": Today's edition of The Hartford Courant contains this report.
Posted at 19:34 by Howard Bashman



"Janice Brown: The next U.S. Supreme Court justice?" David Kravets of The Associated Press has this report. I view Brown as a likely candidate to replace Justice Sandra Day O'Connor should Justice O'Connor announce her retirement from the Court at the end of this Term.
Posted at 19:21 by Howard Bashman



In news from Guam: The Pacific Daily News reports here that "Court rejects panel; Guam drug case goes back to 9th Circuit." You must visit the article for no other reason than to see the photo of Justice John Paul Stevens.
Posted at 19:21 by Howard Bashman



"Same as it ever was": The good folks in the Blogger/Google hierarchy decided, on their own, that it would be a wonderful idea to move "How Appealing" to the "new Blogger" publishing system sometime overnight last night. The new publishing interface is a welcome sight to behold. Regrettably for both me and you, however, the publishing system doesn't yet work. You see, no posts appeared here all day not for lack of trying -- scroll down for proof -- but because the new publishing system failed to transfer the posts to my blog. And in that respect, I'm sad to say, Blogger truly is the "same as it ever was." (This post's title courtesy of "Talking Heads.")
Posted at 19:18 by Howard Bashman



Second Circuit reinstates claims brought on behalf of Holocaust victims against French national railroad company: Today's ruling of the U.S. Court of Appeals for the Second Circuit begins:
The named plaintiffs have brought this action individually and on behalf of other similarly situated Holocaust victims and their heirs against the French railroad company Sociťtť Nationale des Chemins de Fer Francais (SNCF or railroad). The action arises out of SNCF's 1942-1944 operation of trains that transported tens of thousands of French civilians to the infamous Nazi death and slave labor camps. Plaintiffs allege that in so doing SNCF committed war crimes and crimes against humanity under customary international law and the law of nations. Customary international law, plaintiffs further allege, is enforceable in federal district court as federal common law.

Plaintiffs filed their complaint in the United States District Court for the Eastern District of New York before Judge David G. Trager on September 12, 2000. When SNCF moved to dismiss it for lack of subject matter jurisdiction, the district court granted the motion, ruling that SNCF was an "agency or instrumentality of a foreign state" as that term is defined in the Foreign Sovereign Immunities Act of 1976 (FSIA or Act), 28 U.S.C. sec. 1603(b), and that, because plaintiffs' claims did not fall within any of the Act's exceptions to foreign sovereign immunity, it was without jurisdiction to adjudicate them. Abrams v. Societe Nationale des Chemins de Fer Francais, 175 F. Supp. 2d 423, 428-29, 450 (E.D.N.Y. 2001). On appeal, as in district court, plaintiffs urge that the FSIA does not apply to this case because it arises out of events predating the statute's 1976 enactment.
The Second Circuit today ruled that the record on appeal does not permit it to determine whether the dismissal was appropriate, and therefore the appellate court has sent the case back to the trial court for further proceedings on that question. You can access today's Second Circuit ruling at this link.
Posted at 17:02 by Howard Bashman



"Thinning the Herd: Is your weight the government's business?" Jacob Sullum today has this essay online at Reason.
Posted at 16:55 by Howard Bashman



Judge Posner argues that sex discrimination law has taken a wrong turn when it comes to "gender stereotyping" claims: Today Seventh Circuit Judge Richard A. Posner joined in a decision affirming the dismissal of a Title VII sex discrimination claim brought by a heterosexual male employee who claimed that his male co-workers had sexually harassed him. Then, in a very interesting concurring opinion, Judge Posner explained:
The case law as it has evolved holds, as Judge Williams explains, that although Title VII does not protect homosexuals from discrimination on the basis of their sexual orientation, it protects heterosexuals who are victims of "sex stereotyping" or "gender stereotyping." [citations omitted]

The origin of this curious distinction, which would be very difficult to explain to a lay person (an indication, often and I think here, that the law is indeed awry), is the Supreme Court's decision in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). Part of the evidence that the plaintiff in that case had been denied promotion because she was a woman was that her male superiors hadn't liked her failure to conform to their expectations regarding feminine dress and deportment. Id. at 235-36. That was indeed a reason to suspect that the firm discriminated against women. But there is a difference that subsequent cases have ignored between, on the one hand, using evidence of the plaintiff's failure to wear nail polish (or, if the plaintiff is a man, his using nail polish) to show that her sex played a role in the adverse employment action of which she complains, and, on the other hand, creating a subtype of sexual discrimination called "sex stereotyping," as if there were a federally protected right for male workers to wear nail polish and dresses and speak in falsetto and mince about in high heels, or for female ditchdiggers to strip to the waist in hot weather. If a court of appeals requires lawyers presenting oral argument to wear conservative business dress, should a male lawyer have a legal right to argue in drag provided that the court does not believe that he is a homosexual, against whom it is free to discriminate? That seems to me a very strange extension of the Hopkins case.

The "logic" of the extension is that if an employer disapproves of conduct by a man that it would not disapprove of in a woman, or conduct by a woman that it would not disapprove of in a man, the disapproval is "because of" sex. What is true, as I have said, is that this asymmetry of response may be evidence of sex discrimination; but to equate it to sex discrimination is a mistake. If an employer refuses to hire unfeminine women, its refusal bears more heavily on women than men, and is therefore discriminatory. That was the Hopkins case. But if, as in this case, an employer whom no woman wants to work for (at least in the plaintiff's job classification) discriminates against effeminate men, there is no discrimination against men, just against a subclass of men. They are discriminated against not because they are men, but because they are effeminate.
You can access the complete decision at this link.
Posted at 16:24 by Howard Bashman



In news pertaining to Alaska: Today's mail contained two copies of the May-June 2003 issue of The Alaska Bar Rag, which happens to be the official newsletter of the Alaska Bar Association. On the front page of the publication begins an article that consists of the text of my recent "20 questions" interview with Ninth Circuit Judge Andrew J. Kleinfeld, whose chambers are located in Fairbanks, Alaska.

Coincidentally, yesterday my wife received in the mail the Alaska travel guide that she recently ordered. Alaska-based fans of "How Appealing" should keep in mind that no visit to Alaska is planned for anytime soon. But, in the fullness of time, anything is possible. The next family getaway, planned for sometime this fall, is to the so-called state capital of Florida.
Posted at 16:02 by Howard Bashman



"Veteran wins Gulf War ruling": BBC News has this report. Relatedly, you can access here an article entitled "Gulf War judgement: What it means" and here an article entitled "One soldier's descent into despair."
Posted at 14:38 by Howard Bashman



"The Left Filibusters On": Harold Johnson, an attorney with the Pacific Legal Foundation, has this essay today at FrontPage Magazine.
Posted at 13:38 by Howard Bashman



Today's FindLaw columnist: Vikram David Amar has an essay (part one of two) entitled "With a Potential Supreme Court Nomination At Stake, Questions of The Filibuster's Constitutionality Linger."
Posted at 12:23 by Howard Bashman



"Me v. Everybody": The new book from Dahlia Lithwick and Brandt Goldstein now has its own Web site.
Posted at 12:15 by Howard Bashman



Sixth Circuit affirms trial court's holding that antitrust violation occurred in Cardizem CD antitrust litigation: Today the U.S. Court of Appeals for the Sixth Circuit issued an opinion that begins:
This antitrust case arises out of an agreement entered into by the defendants, Hoescht Marion Roussel, Inc. ("HMR"), the manufacturer of the prescription drug Cardizem CD, and Andrx Pharmaceuticals, Inc. ("Andrx"), then a potential manufacturer of a generic version of that drug. The agreement provided, in essence, that Andrx, in exchange for quarterly payments of $10 million, would refrain from marketing its generic version of Cardizem CD even after it had received FDA approval (the "Agreement"). The plaintiffs are direct and indirect purchasers of Cardizem CD who filed complaints challenging the Agreement as a violation of federal and state antitrust laws.
You can access the entire opinion at this link.
Posted at 10:29 by Howard Bashman



News of sweeping changes to the judicial system of Great Britain: The Financial Times reports here that "Blair acts to overhaul judicial system" and here reports on "Anger as 800-year tradition slips away."

From BBC News, you can access here an article entitled "Sweeping changes to justice system"; here "Controversy over historic changes"; and here "Thousand years of history 'torn up.'"

The Times of London reports here that "Supreme court to be heart of new justice system"; here that "Post dating back 1,400 years is consigned to history"; and here that "Uncomfy rests the rump that rules from Woolsack."

The Independent (UK) reports here that "OUT: Law Lords and the Lord Chancellor. IN: a Supreme Court" and here that "Falconer heads historic shake-up of judicial system."

The Telegraph (UK) reports here that "Blair casts aside legal history in radical reshuffle" and here "Stripping away a thousand years of history." And you can access here an editorial entitled "Blair's coup d'etat."

Finally for now, The Scotsman reports here that "Blair accused of vandalising the legal system."
Posted at 09:51 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "House Passes Limit on Big Class-Action Suits." An article reporting on a ruling issued yesterday by the Court of Appeals of New York -- that State's highest court -- appears under the headline "Court Says Indian Casinos Require Legislative Approval." You can access here an article reporting on "The Twilight Outlaws of Foley Sq." And an editorial is entitled "John Ashcroft and Gay Pride."

The Washington Post reports here that "House Backs Bill to Curb Class Action Suits." In other news, "Moussaoui Prosecutor Fights Ruling." An article reports that "D.C. Judge Rejects Suit On Traffic Cameras; 2 Motorists Challenge Electronic Enforcement." In entertainment news, "Judge Temporarily Blocks Name of Spike TV." An editorial is entitled "Injudicious." And finally, a letter to the editor appears under the heading "Not to Be Misunderstood."
Posted at 06:30 by Howard Bashman



"Justice: Supreme Court Faces Stormy Times": Gina Holland of The Associated Press has this report on a talk that Justice Ruth Bader Ginsburg engaged in yesterday before a meeting of the American Civil Liberties Union.
Posted at 06:20 by Howard Bashman



Available online at Salon.com: Joseph M. Birkenstock has an essay entitled "The future face of American justice: If the Supreme Court justices who handed Bush the presidency retire during his term, not only will they spark a virtual civil war, they'll destroy the integrity of the high court." And Michelle Goldberg has an essay entitled "Defining judicial deviancy down; Bush's nomination of right-wing caricature William Pryor to the 11th Circuit takes his court-packing efforts to new depths."
Posted at 00:11 by Howard Bashman



Thursday, June 12, 2003
"Senate Democrats Take Aim at 11th Circuit Nominee; Georgia AG Baker offers support to Pryor": Jonathan Ringel of the Fulton County Daily Report has this article.
Posted at 23:01 by Howard Bashman



May an employer terminate an at-will employee for exercising his constitutionally-guaranteed right to self-defense in a workplace attack when retreat is an available option? On Monday, Justice William W. Bedsworth of the California Court of Appeal, Fourth Appellate District, Division Three, answered that question in the affirmative on behalf of a unanimous three judge panel. You can access Justice Bedsworth's opinion at this link.
Posted at 22:59 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports that "U.S. Judge Rejects Wrestling Coaches' Challenge to Title IX; They have no standing to claim their profession and teams were harmed in favor of women's sports, he rules." An article reports that "Luster Gave Up Right to Appeal, Court Concludes." In other news, "Lawyer Withdraws From Pooh Lawsuit; Bertram Fields' firm pulls out of escalating fight with Disney over merchandising royalties." An article reports that "L.A. to Pay Dozens of People Held in Skid Row Sweeps; City settles civil rights case for $75,000, agrees to detain only those suspected of crimes." From Orange County comes word that "High Court Lets Charter Vote Stand; County voters, not the governor, can continue to select replacement supervisors." An article reports that "West Hollywood to Ask Judge to Uphold Tickets Issued by Cameras." Anyone interested in a time-consuming new hobby may be interested in a front page article headlined "These Guys Just Look for a Point; Positioning devices in hand, adventurers seek out the globe's perfect spots of confluence -- where latitude and longitude meet." Columnist Steve Harvey's essay today is entitled "The Good News Is, He Can Call His Lawyer and Take His Own Mug Shot." And columnist Norah Vincent has an op-ed entitled "Pro-Choice Feminists' Shameful Deception."

The Washington Times contains an article from The Associated Press headlined "Groups hit 'discriminatory' Va. Tech programs." Thomas Sowell has an op-ed entitled "Umpires, judges and others." Walter Williams has an op-ed entitled "Chipping away at liberty." And Gary J. Andres has an op-ed entitled "Political personas."

Finally for now, today's edition of The Boston Globe reports here that "Sampson challenges death penalty law."
Posted at 22:27 by Howard Bashman



"Appeals court upholds judge's silvery minnow ruling": The Associated Press has an article that begins, "In a victory for environmentalists, a federal appeals panel in Denver ruled Thursday the Bureau of Reclamation can send water from a New Mexico reservoir to the Rio Grande to aid the endangered silvery minnow. Critics of the U.S. 10th Circuit Court of Appeals ruling decried it as a threat to all cities and farmers served by federal water projects. Albuquerque's mayor said it takes 'water from the mouths of this city's children' and puts the city's future water supply in jeopardy." You can access today's 2-1 ruling of the U.S. Court of Appeals for the Tenth Circuit at this link.
Posted at 22:06 by Howard Bashman



"Edwards backs better health care for Latinos; Plan calls for improved translation services": What in tarnation does this have to do with filibustered D.C. Circuit nominee Miguel A. Estrada? Read this article from today's issue of The Charlotte Observer to learn the answer.
Posted at 21:02 by Howard Bashman



"House Passes Bill Curbing Class Action Suits": Reuters provides this article.
Posted at 20:54 by Howard Bashman



"Pryor fights charges of bias": Today's edition of The Birmingham Post-Herald contains this report (second item).
Posted at 20:53 by Howard Bashman



"Liberals Vow Court Fight Over Limit On Abortion; 'Partial Birth' Ban Faces Challenge": Tomorrow's edition of The Forward will contain this article.
Posted at 20:51 by Howard Bashman



"Fake cop busted when he tries to stop a real one": D'oh! Today's edition of The Kansas City Star has this report. (Via "Obscure Store.")
Posted at 20:47 by Howard Bashman



"Moussaoui Case Not Just About Sept. 11": The Associated Press offers this report about the redacted transcript of the closed-door oral argument session in the Zacarias Moussaoui appeal. The U.S. Court of Appeals for the Fourth Circuit released that redacted transcript to the press today.
Posted at 19:55 by Howard Bashman



"Posner for Chief Justice": If U.S. Senator Charles E. Schumer (D-NY) can tell the White House whom to nominate should a U.S. Supreme Court vacancy arise, then so can Yale Law Professor Jack M. Balkin. You can see Professor Balkin's ringing endorsement of Seventh Circuit Judge Richard A. Posner at this link. I'm pleased to say that, at least on this occasion, I'm hard-pressed to disagree with the good professor.
Posted at 19:20 by Howard Bashman



"Pryor meets opposition; Judicial nominee feels heat of hearing spotlight": Today's edition of The Montgomery Advertiser contains this report.
Posted at 19:18 by Howard Bashman



Today's FindLaw columnists: Edward Lazarus has an essay entitled "A Single Day's Decisions Illustrate Deep Fault Lines In the Supreme Court: Why Hibbs and Chavez Are Symptoms of the Justices' Divisions." And Madhavi Sunder has an essay entitled "In a Trademark Case, The Supreme Court Recognizes That Art Flows From Multiple Sources."
Posted at 17:37 by Howard Bashman



Reader mail: The following email arrived last night:
I had been meaning to write you ever since you mentioned How Appealing appearing on the syllabus of a law and economics course. I start law school this fall, and have settled on How Appealing as my primary summer reading to prepare for it. I actually discovered [name of another law blog deleted] before I discovered How Appealing, and tried to read it consistently, but your blog is much more accessible and entertaining. I'm now wholly addicted. It remains to be seen just how well How Appealing is preparing me for my impending legal education, but I'll be certain to let you know either way.

As an aside, I had been reading How Appealing for over two months before I discovered how sharply your politics differed from mine. I have to commend you on the magnificent job you do of keeping partisan rhetoric out of your blog.
Thanks for those kind words; they are much appreciated.
Posted at 17:24 by Howard Bashman



"Lawyers Commission Wants Appointed Judges": Gina Holland of The Associated Press has this report.
Posted at 17:18 by Howard Bashman



Is the Committee for Justice's poll of Hispanics biased? GMU Law Professor David Bernstein says yes. Update: Yesterday, Reuters had an article entitled "Poll: Hispanics Back Bush's Estrada Nomination."
Posted at 16:41 by Howard Bashman



"Is Pryor's Sincerity Enough to Make him a Good Judge?" Yale Law Professor Jack M. Balkin says no.
Posted at 16:10 by Howard Bashman



"Pryor says his beliefs won't interfere with law": Today's edition of The Birmingham News contains this report.
Posted at 16:00 by Howard Bashman



"House OKs Class-Action Suits to Fed Court": Jesse J. Holland of The Associated Press has this report. You can access the official roll call vote tally at this link.
Posted at 15:54 by Howard Bashman



Another error in today's New York Times article covering yesterday's Senate Judiciary Committee confirmation hearing: Neil A. Lewis writes:
In response to a question from Senator Russell D. Feingold, a Wisconsin Democrat, Mr. Pryor confirmed that he had changed the timing of a family vacation to Disney World to avoid being in the state capital during a Gay Pride celebration. "We made a value judgment," he said, noting that he and his wife made the decision to protect his two daughters, who were then 6 and 4 years old.
The use of the phrase "in the state capital" should have been a red flag to whomever was editing that article, because Disney World is located in (well, in truth, near) Orlando, while Florida's state capital is in Tallahassee. One thing's for sure: the Gay Pride celebration that was being avoided was to occur at Disney World, and not in Alabama's state capital, which is located in Montgomery.

Update: As this article from The Associated Press explains in pertinent part:
But Sen. Russ Feingold, D-Wis., suggested Pryor's position against gays is deeper than one brief. He asked about a story that Pryor and his family rescheduled a trip to Disney World to avoid "Gay Day," a weekend festival not sponsored by Disney but with events mainly at the Magic Kingdom theme park. Pryor acknowledged the story was true.
That certainly confirms my point about the error found in the NYT's account.
Posted at 15:46 by Howard Bashman



"Questions and Answers on Monkeypox": A post like this could happen on a day when I'm in the mood to say monkeypox.
Posted at 15:13 by Howard Bashman



Eleventh Circuit concludes that federal supplemental jurisdiction statute overrules decision holding that all class members in diversity case must individually satisfy amount in controversy requirement: And I wholeheartedly agree (sorry, Third Circuit). You can access yesterday's ruling of the U.S. Court of Appeals for the Eleventh Circuit, posted online today, at this link.

The question is whether this federal statute (28 U.S.C. sec. 1367) overrules this opinion of the U.S. Supreme Court (Zahn v. International Paper Co., 414 U.S. 291 (1973)) insofar as it held that each class member in a Rule 23(b)(3) class action must satisfy the jurisdictional amount, and any class member who does not must be dismissed from the case.
Posted at 15:05 by Howard Bashman



Is there a body-language expert in the house? Another report on yesterday's Sixth Circuit en banc hearing:
I attended the same hearing yesterday as did your other correspondent. This is not exactly identifying information as at en bancs, in contrast to regular oral arguments, the relatively small court rooms are packed, mostly with law clerks. There must have been thirty or so there yesterday.

However, my impression regarding Judge Martin were quite different. While verbally he was his usual jovial self on the bench, the body language was quite different. Being the chief, he of course sat in the middle of the panel. He was flanked by the two next most senior judges, Boggs and Batchelder, the author of the now-infamous report. It spoke volumes about Judge Martin's hurt feelings that he edged his chair so far away from Judge Batchelder that he practically sat in the lap of Judge Boggs. And that despite the fact that it was Judge Boggs who had written the procedural appendix which brought Judge Martin's interesting use of the circuit rules to the public's attention. I appear not to have been the only one to notice this as I overheard other attendees remarking on the same fact as I was leaving.

As for Judge Cook, I agree entirely with your other correspondent. My first impression, never having seen Judge Cook before, was "My, Judge Krupanski sure has changed!" It turned out that she merely sat behind his name tag. Senior Judge Krupanski was unable to attend in person and instead participated by telephone conference call.
Thanks for the report.
Posted at 14:45 by Howard Bashman



California Supreme Court Justice Janice Rogers Brown issues interesting decision in insurance coverage dispute: Writing on behalf of a total of four Justices on the seven member Supreme Court of California, Justice Brown's opinion issued today begins:
The insurance policy in this case defined "collapse" as "actually fallen down or fallen to pieces." However, sound public policy, the Court of Appeal concluded, requires coverage for imminent, as well as actual, collapse, lest dangerous conditions go uncorrected. By failing to apply the plain, unambiguous language of the policy, the Court of Appeal erred.
Later, Justice Brown's opinion explains:
Applying the same logic, with the same lack of restraint, courts could convert life insurance into health insurance. In rewriting the coverage provision to conform to their notions of sound public policy, the trial court and the Court of Appeal exceeded their authority, disregarding the clear language of the policy and the equally clear holdings of this court.
You can access the complete decision at this link.
Posted at 14:21 by Howard Bashman



My June 2003 appellate column is now available online: The June 2003 installment of my monthly appellate column -- which appeared in print on June 9, 2003 in The Legal Intelligencer -- is now available online. This month's column is entitled "U.S. Supreme Court Vacancies On The Horizon: What To Expect This Summer If One Or Two Vacancies Arise On The Court," and you can access it here.
Posted at 14:21 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Denies Appeal by Max Factor Heir"; here "GOP Wants Feds to Get Class-Action Suits"; here "Fake Terror Plot Records to Be Expunged"; here "L.A. Agrees to Pay $75G in Skid Row Suit"; and here "Sen. Craig Clears Air Force Promotions."
Posted at 14:12 by Howard Bashman



In news from Pittsburgh: The Pittsburgh Post-Gazette reports here that "Pennsylvania's highest ranking judge could be the next chairman of the University of Pittsburgh's board of trustees."

In other news, an article reports that "Courts seeking more black jurors." Relatedly, The Associated Press reports here that "Judge Halts Trial to Add Blacks to Jury."
Posted at 13:46 by Howard Bashman



"Senators Hasten Agenda To Gird for Court Fight": Today's edition of The Wall Street Journal contains this report.
Posted at 13:30 by Howard Bashman



At the end of the day, the Sixth Circuit is just one happy family: Here's some pleasant news from source who happened to be in attendance at yesterday's Sixth Circuit en banc hearing:
All the judges looked to be in good spirits. Judge Martin was his usual jovial self. Even in the most heated moments of judicial arguing, everybody was completely civil.

Judges Sutton and Cook looked SO young (Judge Cook is quite a striking woman). Of course, I thought Judges Gibbons and Rogers looked young too. As you moved in from the ends of the bench, the gray hairs grew in number! But I suppose that's how you mark the passage of time on these courts. Eventually, Judges Sutton and Cook will be in the middle of the bench, and some new upstarts will be sitting for the first time on the ends. It really made me realize how important this institution is -- and how much I hope the fallout from recent events doesn't harm it too much.

Sutton and Cook both asked questions, and Judge Sutton even cracked a very funny joke which brought down the house. Judge Martin said something along the lines, "And now we know Judge Sutton has arrived!"
Thanks much to my anonymous Sixth Circuit correspondent for sending this along.
Posted at 11:56 by Howard Bashman



Who, precisely, wasn't there? Neil A. Lewis of The New York Times generally does a bang-up job covering the more controversial federal judicial nominations. But his article in today's newspaper, appearing under the headline "Conservative Asserts Views Would Stay Off the Bench," contains a flat-out inaccuracy toward its end. The final two sentences of the article state:
Senator Specter, who is a member of the committee, did not appear at today's hearing. Interviewed in a Capitol hallway, he said he had concerns about Mr. Pryor's nomination and had not yet decided how to vote.
U.S. Senator Arlen Specter (R-PA) in fact did attend a portion of the hearing and, while present, questioned Eleventh Circuit nominee William H. Pryor, Jr. You can even hear an exchange between Senator Specter and Attorney General Pryor at four minutes into this audio report from NPR correspondent Nina Totenberg. The report originally aired during yesterday's All Things Considered program.
Posted at 11:47 by Howard Bashman



"The Nominee Who Won't Back Down: Alabama's Bill Pryor faces Senate Democrats." Byron York has this essay today at National Review Online.
Posted at 11:34 by Howard Bashman



Some news from Salt Lake City: The Salt Lake Tribune today reports that "ACLU Won't Rush to Sue Over City's Plaza Decision." Also in that newspaper, columnist Robert Kirby provides "A Brief History of the Plaza." Meanwhile, The Associated Press has an article entitled "Utah ACLU: Suit Possible Over Sidewalk."
Posted at 08:41 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "Curbs on Class Action Lawsuits Urged." In other news, "Lawsuit Against Title IX Dismissed." An article reports that "Malvo Judge Looks at Venues; Southeastern Va. A Possibility if Trial Is Moved." You can access here an article that begins, "The Maryland Attorney Grievance Commission has decided not to reprimand or otherwise punish Senate President Thomas V. Mike Miller Jr. for phoning two judges on the state's highest court last spring to discuss a pending dispute over legislative redistricting maps." You can access here an article headlined "Code Orange for Liberty: Post-9/11, ACLU Chief Is Alert to New Threats." In entertainment news, "Reality Bites: Law Firm Drops 'Love or Money' Bachelor." An article reports on "A Legal Process That's Welcoming: Naturalization Days Bring Rare Smiles to Courthouse." And a letter to the editor appears under the heading "Wearing the Veil."

The New York Times reports here that "House Expected to Pass Bill to Rewrite the Rules on Class-Action Lawsuits." In other news, "Unlikely Allies Seek Better Enforcement of Firearms Statutes." From Utah comes word that "Land Deal Seems to Resolve Salt Lake City Plaza Dispute."

Finally for now, today's edition of The Christian Science Monitor contains an article headlined "'The Matrix' made me do it."
Posted at 06:30 by Howard Bashman



"Senate GOP eyes high court strategy": This article appears in today's edition of The Washington Times.
Posted at 06:29 by Howard Bashman



"Pryor's backers are pleased; 'Nobody laid a glove on him,' says Sessions of Senate panel's hearing": Today's edition of The Mobile Register contains this report. And The Washington Times reports here that "Court nominee calls abortion 'murder.'"
Posted at 06:27 by Howard Bashman



"Court to hear 'enemy combatant' appeal": CNN.com has this news from the Second Circuit.
Posted at 06:12 by Howard Bashman



Wednesday, June 11, 2003
"Conservative Asserts Views Would Stay Off the Bench": Neil A. Lewis will have this article in tomorrow's edition of The New York Times.
Posted at 23:45 by Howard Bashman



"Pryor restraint: Hard to recognize attorney general amid attacks." This editorial appears in today's edition of The Birmingham News.
Posted at 23:44 by Howard Bashman



"Judicial Nominee Admits Mistake; Pryor Regrets 'Octogenarian' Comment": Thursday's edition of The Washington Post will contain this report. Of course, as I previously explained here, this won't be the first time someone from Alabama has called another an octogenarian only to regret it later.
Posted at 23:36 by Howard Bashman



"Appeals Court's Feud in Mich. Case Grows; Senior Judge Decries Charges of 'Rigging'": Charles Lane will have this report regarding the U.S. Court of Appeals for the Sixth Circuit in Thursday's edition of The Washington Post.
Posted at 23:29 by Howard Bashman



Available online at law.com: A Miami-based federal district judge whose case, in which she is the plaintiff, is on appeal to the U.S. Court of Appeals for the Eleventh Circuit has suggested that all active and senior Eleventh Circuit judges recuse themselves, this article reports. Tony Mauro has an article entitled "Law's Smallest Club: Ruth Bader Ginsburg and Sandra Day O'Connor are polar opposites with abiding bonds." Jason Hoppin reports that "Milberg Weiss Firm to Split With Lerach; An East-West division seen for the 220-lawyer securities class action shop executives love to hate." And thanks, as always, to Bill Kisliuk for his mention of "How Appealing."
Posted at 23:02 by Howard Bashman



Hot or not? David Kravets of The Associated Press has a report from California that "High court agrees to review cosmetic executive spat." The Recorder also covers the story in a subscription only article; the article's summary states that "Elysa Yanowitz claims she began getting hostile work evaluations soon after refusing to fire a female employee because a male executive felt the employee wasn't 'hot' enough to work at cosmetics giant L'Oreal. Yanowitz, a regional sales manager, eventually went on stress leave and sued for unlawful retaliation under the state's Fair Employment and Housing Act. On Wednesday, the California Supreme Court voted 6-1 to hear the case."
Posted at 22:50 by Howard Bashman



Tenth Circuit Judge Michael W. McConnell reinstates prisoner's civil rights suit dismissed for perceived discovery violations: You can access today's ruling of a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit at this link.
Posted at 22:47 by Howard Bashman



The Hill examines tort reform: Check out this very interesting special section from today's issue. (Thanks to Adam White of the Harvard Law School Federalist Society blog "Ex Parte" for the pointer via email.)
Posted at 22:39 by Howard Bashman



Today's FindLaw columnists: Get your dose of Dorf on the rational basis test (yes, I know you were hoping for "on Golf") via an essay entitled "The Unanimous Supreme Court Decision in The Iowa Gambling Case: When Is a Difference Also an Inequality?" And Gina Dizzia, all bundled up for winter, has an essay entitled "The FCC's New Media Ownership Rules: Why They Are Likely to Survive Court Challenges."
Posted at 22:34 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Boston Globe reports here that "Ontario court OK's same-sex marriage." An editorial is entitled "Racial Balance in Lynn." And columnist Derrick Z. Jackson has an essay entitled "Ashcroft's backtrack on gay pride at Justice."

Finally for now, The Los Angeles Times contains letters to the editor that appear under the heading "Rehnquist Put Politics Before Law."
Posted at 22:22 by Howard Bashman



The Eleventh Circuit has how many vacancies? The U.S. Court of Appeals for the Eleventh Circuit is based in Atlanta. And so is The Atlanta Journal-Constitution, one of the southeast's leading newspapers. Today that newspaper ran an editorial entitled "Unappealing choice for judgeship." The editorial concluded with the following paragraph:
The 11th Circuit bench is now well-balanced, with six judges appointed by Republican presidents and five by Democrats. The court has two vacancies for Bush to fill; the addition of an extremist such as Pryor could be the beginning of an unhealthy lurch to the extreme right.
In truth, however, the Eleventh Circuit is only allotted a total of twelve judges, and thus it now has only one vacancy. Thanks to a judge currently serving on the Eleventh Circuit for drawing this error to my attention via email.
Posted at 22:14 by Howard Bashman



Thanks to Jonathan H. Adler of National Review Online's "The Corner" for his kind words: See for yourself.
Posted at 21:57 by Howard Bashman



"GOP Renews Push for Entangled Judicial Nominees": FOXNews provides this report.
Posted at 20:56 by Howard Bashman



Congratulations to Mark R. Kravitz on his confirmation as U.S. District Judge for the District of Connecticut: You can access the official roll call vote here (97-0). I finally had the pleasure of meeting soon-to-be Judge Kravitz yesterday, after having admired his work as appellate columnist for The National Law Journal from afar for quite some time, and I'm glad to see that the congratulations I offered him yesterday on his confirmation only proved to be premature by a single day.
Posted at 19:58 by Howard Bashman



Nina Totenberg reports on today's Senate Judiciary Committee hearing for Eleventh Circuit nominee William H. Pryor, Jr.: You can access her NPR wrap-up here (Real Player required).

Meanwhile, Political Science Professor Brett Marston discusses whether Senator Edward M. Kennedy (D-MA) properly took General Pryor to task for having engaged on various occasions in pointed public criticism of the U.S. Supreme Court.
Posted at 19:53 by Howard Bashman



"Hispanic Poll Shows Judges Issue Benefits Republicans": The Committee for Justice today issued this press release. And don't miss the links at the bottom of the page to the supporting materials.
Posted at 19:36 by Howard Bashman



C-SPAN2 plans to broadcast today's Senate Judiciary Committee hearing tonight at 9:27 pm eastern time: See the schedule here. Sometime thereafter, I would expect the video to be available for on-demand online viewing via C-SPAN's Web site.
Posted at 19:34 by Howard Bashman



"Court of Appeals quarrel goes public": Yesterday's edition of The Kentucky Post contained this report. And could this story be back in the news tomorrow? Stay tuned and see for yourself.
Posted at 19:32 by Howard Bashman



D.C. federal district court rejects male athletes' challenge to Title IX, which prohibits sex discrimination in education: Today's ruling of the U.S. District Court for the District of Columbia begins:
Plaintiffs, National Wrestling Coaches Association ("NWCA"), Committee to Save Bucknell Wrestling ("CSBW"), Marquette Wrestling Club ("MWC"), Yale Wrestling Association ("YWA"), and College Sports Council ("CSC") are associations representing male intercollegiate and scholastic athletes, coaches, and alumni. They commenced this action for declaratory judgment and injunctive relief to enjoin the U.S. Department of Education ("DoE") from enforcing Title IX, which prohibits sex discrimination in education, in a manner they contend results in discrimination against male athletes. Specifically, plaintiffs maintain that the Department's current enforcement policies lead educational institutions to cut men's sports teams, artificially limit the number of participants on men's teams, and otherwise impermissibly discriminate against men based on sex in the provision of athletic opportunities, thereby denying male athletes and other interested parties the equal protection of laws.
The court, in a 119-page decision, dismissed the case in its entirety. Update: And The Associated Press reports here that "Athlete Discrimination Suit Dismissed."
Posted at 17:32 by Howard Bashman



"Democrats Grill Appeals Nominee Pryor": Here's a revised article from The Associated Press. And while I'm on the topic of the Senate Judiciary Committee, The AP is also reporting that "Sen. Hatch Earns $20,000 From Songwriting."
Posted at 17:29 by Howard Bashman



"Democrats grill Pryor in confirmation hearing": The Associated Press has this report. (Six days ago I pointed out that The Washington Times had an op-ed from Senator John Cornyn (R-TX) that, in its byline (since corrected in the online version), somehow managed to leave off the final "n" in his last name. The AP's article made doubly sure that didn't happen.)
Posted at 15:53 by Howard Bashman



Access online the texts of the statements of Senators Hatch and Leahy at today's Senate Judiciary Committee hearing: You can access them here and here.
Posted at 15:49 by Howard Bashman



"What Would Jesus Do? Sock It to Alabama's Corporate Landowners": Adam Cohen had this Editorial Observer column in yesterday's edition of The New York Times.
Posted at 15:34 by Howard Bashman



Newsday is reporting: You can access here an article entitled "Schumer Offers List of Court Nominees" and here an article entitled "Judge Nominee Faces Broad Opposition."
Posted at 15:26 by Howard Bashman



Fourth Circuit affirms dismissal of invasion of privacy claim brought by sexual abuse victim against The Associated Press: The unanimous decision of a three-judge Fourth Circuit panel begins:
Plaintiff John Doe 2 brought suit against the Associated Press ("the AP") seeking damages for emotional distress inflicted by the AP's public identification of him as a sexual abuse victim. The district court dismissed plaintiff's complaint on the pleadings. Because plaintiff fails to state a viable claim under South Carolina state law, we affirm.
You can access the complete opinion at this link.
Posted at 15:01 by Howard Bashman



Judge Posner and the good Samaritan: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an interesting decision, written by Circuit Judge Richard A. Posner, about the scope of good Samaritan liability under Indiana law, made applicable via the Federal Tort Claims Act. As Judge Posner's opinion explains towards its outset:
The common law traditionally took a hard line, rejecting any legal duty to be a good Samaritan. If A saw that B was about to be struck on the head by a flowerpot thrown from a tenth-story window, and A knew that B was unaware of the impending catastrophe and also knew that he could save B with a shout, yet he did nothing and as a result B was killed, still, A's inaction, though gratuitous (there was no risk or other nontrivial cost to A) and even reprehensible, would not be actionable.
You can access the entire opinion here.
Posted at 14:26 by Howard Bashman



Don't underestimate the power of Satan: The Associated Press reports here that "Iowa Court Revives Suit Over Satan Remark." And you can access today's ruling of the Supreme Court of Iowa at this link.
Posted at 13:34 by Howard Bashman



Supreme Court of Ohio rules that rules "cash advances" against civil judgments are illegal, void: You can access today's ruling at this link (MS Word document).
Posted at 13:01 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Jurors May Question Witnesses, Court Says" (and today's ruling of the Supreme Court of Ohio is accessible here (MS Word document)) and here an article entitled "Woman Fined for Writing Comment on Check."
Posted at 12:59 by Howard Bashman



Eighth Circuit upholds Lincoln, Nebraska's ordinances regulating nude dancing and public nudity: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link. According to the opinion, one of the plaintiff's arguments was that "this statute treats men and women differently because men may expose their breasts, but women may not."
Posted at 12:27 by Howard Bashman



The U.S. Senate has confirmed Richard C. Wesley by a vote of 96-0 to serve on the U.S. Court of Appeals for the Second Circuit: You can access the official roll call vote here.
Posted at 12:18 by Howard Bashman



Answering the question "What is a Temporary Judgeship?" in an Article III federal court: From the May 2003 issue of "The Third Branch":
There is no "temporary judge" in courts with temporary judgeships. The judges have Article III status with lifetime appointments, are eligible to become chief judge, and can take senior status in the same manner as all other Article III judges. Courts with temporary judgeships are distinct, however, because of the possibility that a future judgeship vacancy cannot be filled, thereby reducing the number of authorized judgeships. Vacancies in courts with only permanent judgeships can be filled regardless of when they occur. In courts with a temporary judgeship, the date when the vacancy occurs determines whether it can be filled.

In March 2003, the Judicial Conference submitted a request to Congress for an additional 29 permanent and 17 temporary judgeships for the U.S. district courts. Seven temporary judgeships were created in November 2002, by the 21st Century Department of Justice Appropriations Authorization Act (P.L. No. 107-273), which also created eight permanent judgeships. For the seven district courts receiving a temporary judgeship, the law states that the first vacancy occurring 10 years after a judge is confirmed for the newly created position cannot be filled. For example, if a nominee for the temporary judgeship in the District of Arizona is confirmed on July 15, 2003, any vacancies that occur between July 15, 2003 and July 14, 2013 can be filled. The first vacancy occurring July 15, 2013 or later, however, cannot be filled, and the number of authorized judgeships will be reduced by one. In the district courts that received the eight permanent judgeships, all future vacancies can be filled.

The "life span" of temporary judgeships is specified at the time the judgeships are authorized; however, subsequent legislation often converts them to permanent status.
You can access here the document containing this explanation.
Posted at 11:51 by Howard Bashman



"Supreme Court watchers wonder who might retire; Departure of justices could swing decisions on abortion, death penalty": Today's issue of The Baltimore Sun contains this report.
Posted at 11:47 by Howard Bashman



"Taking blood samples by force is illegal, court rules; Decision striking down sheriff's policy overturns conviction of man in crash that killed woman, son." Today's edition of The Indianapolis Star contains this report. And you can access the opinion of the Court of Appeals of Indiana at this link. (Link to opinion via "The Indiana Law Blog.")
Posted at 11:20 by Howard Bashman



"ACLU cites concerns over Ashcroft for membership boost": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 10:39 by Howard Bashman



Available at National Review Online: Jim Boulet Jr. has an essay entitled "Why They Hate Bill Pryor: Follow the money." And Peter N. Kirsanow, who serves as a commissioner on the U.S. Commission on Civil Rights, has an essay entitled "Michigan Fallout: What Happens Next?"
Posted at 10:27 by Howard Bashman



Nina Totenberg of NPR previews today's Senate Judiciary Committee hearing for Eleventh Circuit nominee William H. Pryor, Jr.: You can access the audio of the NPR segment here (Real Player required). And you can access the live audio feed of the hearing, underway now, at this link.
Posted at 10:17 by Howard Bashman



"Another NYT error": A reader whose military rank is "Major General, USA (Ret.)" and who for the past dozen years has held a position of great importance in the Third Branch of the federal government emails this morning to say:
I review your blog every morning and frequently find worthwhile information. Many thanks for your efforts.

I noticed a NYT piece this morning with the kind of error you apparently like to note. In the article "An Officer and a Gentleman? 50 Women Would Disagree," the Times quoted "a spokesman for the Army's 18th Airborne Corps." Excuse me, it is the "XVIIIth Airborne Corps." We also have the "101st Airborne Division" and the "Fifth Army." These numerical designations are not accidental. Perhaps the Times should hire some military veterans for assistance.
You can access the article in question at this link.
Posted at 09:51 by Howard Bashman



Outcome of Court-packing plan not known in Mississippi? Thanks to the law clerk for a judge on the D.C. Circuit for pointing out via email that this article from today's edition of The Clarion-Ledger contains the following paragraph:
But now the White House is concerned there may be a retirement on the Supreme Court, Perry said. Speculation has been high since President Bush took office that one of the 12 justices will retire during his term, and that kind of talk usually grows as the high court finishes its work each July. Bush is thought to have a better chance of appointing a justice because several are aged or have had health problems.
Twelve Justices indeed.
Posted at 09:47 by Howard Bashman



Listen live to today's Senate Judiciary Committee hearing: Via this link (Real Player required).

Also, today's meeting of the Senate Judiciary Committee has been moved to Room G50 of the Senate Dirksen Building. That's what happens when a big crowd is anticipated.
Posted at 09:25 by Howard Bashman



"Death Penalty Attacked in N.E. Case": The Associated Press has this report.
Posted at 06:59 by Howard Bashman



"Man was slave in 1960s, lawyers say; Assertion made in reparations suit": Yesterday's edition of The Chicago Tribune contained an article that begins, "Lawyers seeking reparations for African-American descendants of slaves say they have located a 104-year-old man in rural Louisiana who says that he and his children were enslaved throughout much of the 20th Century and even during the civil rights movement of the 1960s."
Posted at 06:50 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Neil A. Lewis reports that "Senate Judicial Panel to Weigh Another Contentious Nomination." In a correction (second item), the newspaper finally gets around to correcting an error that I pointed out here way back in December 2002. In other news, "Law Firm Famed in Stockholder Suits May Split in Two." An article reports that "Court Affirms Need to Limit Judges' Rights to Free Speech." You can access here an article headlined "An Officer and a Gentleman? 50 Women Would Disagree." The op-ed page today is chock full of essays concerning the judicial nominations imbroglio, but that doesn't seem to have produced a diversity of viewpoints. David A. Schkade and Cass R. Sunstein are co-authors of an essay entitled "Judging by Where You Sit." It will be interesting to see whether the evidence with which they support their opinions stands up to outside scrutiny. Judith Resnik has an op-ed entitled "Supermajority Rule." And Stephen Gillers has an op-ed entitled "Make a List."

Finally for now, in The Washington Times, Frank J. Murray reports that "Supreme Court vacancy looks less likely this year."
Posted at 06:25 by Howard Bashman



Senator Schumer publicly proposes some potential U.S. Supreme Court nominees to President Bush: I first mentioned this item last night, in a post you can access here. Here's an excerpt from U.S. Senator Charles E. Schumer's (D-NY) letter dated yesterday:
While there are scores of Democrats whom I would hope you would consider, I am offering only individuals who either are Republicans or have previously been nominated by Republican Presidents. The candidates I would advise you to consider are:

The Honorable Arlen Specter, Republican Senator from Pennsylvania.

The Honorable Ann Williams, Judge, Seventh Circuit Court of Appeals, nominated by President Ronald Reagan to the Northern District of Illinois.

The Honorable Edward Prado. Judge, Fifth Circuit Court of Appeals, nominated by you and unanimously confirmed by the 108th Senate.

The Honorable Michael Mukasey, Judge, Southern District of New York, nominated by President Ronald Reagan.

The Honorable Stanley Marcus, Judge, Eleventh Circuit Court of Appeals, nominated by President Ronald Reagan.
What's interesting is that while Senator Schumer's letter implicitly acknowledges that Seventh Circuit Judge Ann Claire Williams did not receive her nomination to the Seventh Circuit from a Republican President, no similar implicit acknowledgement exists for Eleventh Circuit Judge Stanley Marcus, even though the same is true for him. It was President William J. Clinton who nominated both of these individuals to serve on the federal appellate courts on which they currently sit.
Posted at 06:12 by Howard Bashman



On the agenda: At 9:30 a.m. today, the Senate Judiciary Committee will begin the confirmation hearing for Eleventh Circuit nominee William H. Pryor, Jr. It promises to be interesting. Stay tuned for audio and video links to the hearing.

Today's edition of The Mobile Register reports here that "Bar group split on Pryor for judgeship; Still, 'substantial majority' of committee rates Alabama attorney general as qualified for federal bench; Senate hearing starts today." And today's issue of The Atlanta Journal-Constitution contains an editorial entitled "Unappealing choice for judgeship."

Later this morning, the full U.S. Senate is scheduled to vote (see page 2 of this PDF document) to confirm Richard C. Wesley to serve on the U.S. Court of Appeals for the Second Circuit. It will be interesting to see how many times U.S. Senator Charles E. Schumer (D-NY) says today that we need more nominees like Judge Wesley and far fewer like Attorney General Pryor.
Posted at 06:00 by Howard Bashman



"Pickering's nomination effort slows; Judge's son says White House shifting concern to Supreme Court vacancy": Today's edition of The Clarion-Ledger contains this report.
Posted at 06:00 by Howard Bashman



Tuesday, June 10, 2003
U.S. Supreme Court round-up for Monday, June 9, 2003: How is it that each Term the Supreme Court of the United States saves for the final days the announcement of its decisions in the most difficult and important argued cases on its docket? Yesterday's five decisions in argued cases provide one possible explanation, because the Court certainly cleared away a bunch of the underbrush that was still pending.

Yesterday's decisions can best be described as four opinions and one punt. The decision to punt came in the Vietnam veterans-Agent Orange case, in which Justice John Paul Stevens was recused. The Court disposed of Dow Chemical Co. v. Stephenson, No. 02-271 (U.S. June 9, 2003) (per curiam), by means of a two-paragraph per curiam opinion. The first paragraph was a GVR (grant, vacate, and remand) in light of a decision that the Court issued back in early November 2002 (access my summary of it here) suggesting that at least a portion of today's case may not have been properly pending in federal court. The second paragraph announced that the Court was evenly divided as to the claims of various other individuals in the case. To me, this two paragraph decision doesn't constitute a formal "opinion," and therefore I'm not treating it as such. Ironically, this decision was the only one issued yesterday that NPR found to merit coverage (Real Player required).

Of the four other case in which actual opinions issued yesterday, three originated from the U.S. Court of Appeals for the Ninth Circuit. In the words of Circuit Judge Alex Kozinski (see page 41 of this PDF document), "It's two-for-one day at Circuit Split Emporium."

1. Both Guam and the Northern Mariana Islands are located quite far away from the mainland United States, and someone who resides on either of those two islands has quite a substantial head-start in traveling to the other. No doubt recognizing that fact, and in an effort to reach out to the federal district judges serving on those two islands to make them feel a part of the glorious Ninth Circuit family, the Ninth Circuit's chief judge invited a federal district judge from Guam to sit on a Ninth Circuit panel on the Northern Mariana Islands and a federal district judge from the Northern Mariana Islands to sit on a Ninth Circuit panel hearing appeals on Guam. After the fact, it is my sad duty to report, everyone recognized that this "feel good" gesture wasn't kosher. You see, federal district judges who serve on Guam and on the Northern Mariana Islands are not life-tenured Article III judges. Instead, they are Article IV judges who serve ten-year terms and who can be removed from office by the President for cause even before the expiration of that term.

Criminal defendants convicted in Guam on narcotics charges appealed to the Ninth Circuit to challenge those convictions. A three-judge panel of the Ninth Circuit, consisting of the court's chief judge, a senior circuit judge, and the chief judge of the District Court for the Northern Mariana Islands, unanimously affirmed the convictions. Thereafter, the defendants filed a cert. petition challenging the presence of a non-Article III judge on the panel. Before filing that cert. petition, the defendants had not objected to the composition of the Ninth Circuit panel. Yesterday, in Nguyen v. United States, No. 01-10873 (U.S. June 9, 2003), the Supreme Court ruled by a margin of 5-4 that the defendants were entitled to have the affirmance of their convictions set aside and have their appeal heard by a properly constituted panel of the Ninth Circuit consisting of three Article III judges. Now there's a feel-good gesture for you.

All nine Justices, and both the defendants and the federal government, were in agreement that an Article IV territorial court judge had no business sitting by designation on a Ninth Circuit panel. The majority, in an opinion by Justice John Paul Stevens, resolved that question as a matter of statutory construction. Justices Sandra Day O'Connor, Anthony M. Kennedy, David H. Souter, and Clarence Thomas joined in Justice Stevens' majority opinion. The majority disagreed with the dissent over whether the defendants were entitled to relief even though they had not objected to the composition of the Ninth Circuit panel at any time before filing a cert. petition in the U.S. Supreme Court. The majority held that the objection was not waived.

Chief Justice William H. Rehnquist delivered a dissenting opinion, in which Justices Antonin Scalia, Ruth Bader Ginsburg, and Stephen G. Breyer joined. The Chief Justice's dissent argued that the defendants had waived their objection by not asserting it earlier, as they could have. The dissent therefore viewed the case as governed by the plain error doctrine. In a somewhat amusing passage, the dissent states that under the plain error doctrine it must therefore examine the merits of the defendants' constitutional objections, which the majority had refrained from doing. But then, in a seeming slight of hand, the dissent explained that because defendants didn't raise their first constitutional objection in their cert. petition, it was waived. And the second constitutional issue didn't qualify as plain error because even assuming that it had merit, there was overwhelming evidence of the defendants' guilt.

As a result, the Supreme Court vacated and remanded the Ninth Circuit's judgment, requiring the Ninth Circuit to assign the appeal to a properly constituted panel consisting exclusively of Article III judges. Any of my Ninth Circuit friends ready for a bonus trip to Guam?

2. Sometimes the "Circuit Split Emporium" produces a result that even Judge Kozinski might condemn as wrong and yet the U.S. Supreme Court might find, unanimously, to be correct. That's what happened yesterday when the Court announced its ruling in Desert Palace, Inc. v. Costa, No. 02-679 (U.S. June 9, 2003). You see, back in August 2002, an eleven-judge en banc panel of the Ninth Circuit ruled 7-4 that direct evidence of discrimination was not required for a plaintiff to possess a valid mixed-motive sex discrimination claim under Title VII. The Ninth Circuit's more liberal judges were among the seven, and its more conservative judges were among the four. And all other circuits to have considered the question had resolved it contrary to the result the en banc Ninth Circuit majority reached. Yesterday, however, in a unanimous opinion written by Justice Clarence Thomas, the Supreme Court ruled that the en banc Ninth Circuit majority had arrived at the correct result. I kid you not.

3. Let's take a brief respite from the Ninth Circuit to journey to the Nation's heartland. In Fitzgerald v. Racing Assn. of Central Iowa, No. 02-695 (U.S. June 9, 2003), the question presented was whether the Supreme Court of Iowa had correctly determined that Iowa acted in violation of the Equal Protection Clause of the Fourteenth Amendment when it decided to impose a twenty-percent tax on riverboat slot machines and a thirty-six-percent tax on slot machines located at racetracks.

No one is sure what the justices on Iowa's highest court were thinking when they decided this case, because yesterday a unanimous U.S. Supreme Court, in an opinion by Justice Stephen G. Breyer, demonstrated that this case was far from a close call. Differences in slot machine taxation rates is not a suspect classification, and therefore it is governed by the minimum rationality test, which allows a court to invent rational reasons a legislature may have had for differences in tax rates. Accordingly, because racetracks don't float down a river, the tax is constitutional.

4. As tempting as it might be to try to milk yesterday's final decision for as many laughs as possible, the hour is late. In Hillside Dairy Inc. v. Lyons, No. 01-950 (U.S. June 9, 2003), the Court confronted two questions:
(1) whether sec. 144 of the Federal Agriculture Improvement and Reform Act of 1996 * * * exempts California's milk pricing and pooling regulations from scrutiny under the Commerce Clause; and (2) whether the individual petitioners' claim under the Privileges and Immunities Clause is foreclosed because those regulations do not discriminate on their face on the basis of state citizenship or state residence.
Justice Stevens delivered the opinion of the Court, in which all the other Justices joined in full except for Justice Thomas, who dissented from the Commerce Clause ruling on the ground that he doesn't recognize any such animal as the negative Commerce Clause. The rest of the Court answered question one in the negative, and the entire Court answered question two also in the negative. Because the Ninth Circuit had answered both questions in the affirmative, I'm not going to be able to count this as an affirmance. Thus, yesterday's Ninth Circuit record before the Big Nine turned out to be one affirmance and two non-affirmances. Of course, that statistic is only relevant to those who view the Supreme Court as the source of binding precedent. For those who take a contrary view, nevermind. The decision in Hillside is also noteworthy because it defines the term "milk solids-not-fat." Who says you can't learn important stuff reading these opinions?

* * * * * * * * * *

The Court will next issue opinions and orders on Monday, June 16, 2003. Prepare for more wheat, less chaff.
Posted at 23:20 by Howard Bashman



"Pryor, another contentious Bush nominee, faces hearing": Wednesday's edition of The Atlanta Journal-Constitution will contain this report. Relatedly, today's edition of that newspaper contained an op-ed by Jim Wooten entitled "Nominees come under heavy ire." Meanwhile, The Associated Press reports here that "Opposition groups mobilize as Pryor goes for confirmation hearing."

The American Bar Association has announced its rating for Eleventh Circuit nominee William H. Pryor, Jr. A substantial majority rated him "qualified" and a minority rated him "unqualified." That's exactly the same rating that was received by Timothy M. Tymkovich, whom the U.S. Senate earlier this year confirmed to sit on the U.S. Court of Appeals for the Tenth Circuit.

Finally, Earthjustice and Community Rights Counsel are both opposed to Pryor's confirmation, and you can access the reasons why via this link.
Posted at 22:34 by Howard Bashman



Available online at law.com: Shannon P. Duffy reports that "High Court Paves Easier Road to Jury for Discrimination Plaintiffs." Free access is now available to the article headlined "Michael Chertoff's Closing Argument: With judgeship around the corner, DOJ chief tackles one last case." And in news from New York, "State Limits on Judicial Speech Survive Constitutional Scrutiny; Restrictions on campaign statements help assure judges are free of bias."
Posted at 21:59 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Workers Trying to Prove Job Bias Win More Leeway From Justices" and here that "Clean-Air Challenge to Get Day in Court; Industry is fighting a push in the Los Angeles area for cleaner-burning buses, other vehicles." In other news, "Supreme Court Revives Challenge to California Milk Regulations; The lawsuits claim that the pricing system discriminates against out-of-state dairies." And Bloomberg News reports that "High Court Refuses Sex.com Suit; A $65-million judgment will stand in a case over a stolen domain name." An article reports that "Appeals Court May Hear Copyright Case." From Houston comes news that "Former INS Agents Guilty of Neglecting Man's Injuries; A jury finds the three men let a migrant with a broken neck wait seven hours for medical help." From Washington comes news of "Senator's One-Man Air Force Blockade; An Idaho Republican halts the promotions of at least 212 officers over what he contends was a commitment to add planes to a Boise base." And in local news, you can access here an article headlined "New Limits on Strip Clubs Go to Council; Panel approves a ban on lap dancing, any other contact between patrons and entertainers. Adult businesses say measure is unconstitutional" and here an article headlined "Junior High Student Takes Aim at NRA Ad in School Yearbook."

In USA Today, Joan Biskupic reports here that "High court rules unanimously against casino in sex bias case; Justices say worker did not need 'direct evidence'" and here that "Justice stays out of case on veterans, Agent Orange."

In The Washington Times, Frank J. Murray reports that "Court allows veterans to reopen chemical cases." And an op-ed by Bruce Fein is entitled "Fidelity to federalism."

Finally, The Boston Globe reports here that "SJC to name chief administrator; Critics cite selection process as hasty, brief."
Posted at 21:37 by Howard Bashman



"Laws Against Campaigning Judges Upheld": The Associated Press has this report. You can access today's unanimous rulings of the Court of Appeals of New York -- that State's highest court -- here and here.
Posted at 21:30 by Howard Bashman



Still to come tonight: My summary of yesterday's U.S. Supreme Court opinions.
Posted at 20:47 by Howard Bashman



Tomorrow the U.S. Senate will vote to confirm Richard C. Wesley to serve on the U.S. Court of Appeals for the Second Circuit: A vote is scheduled for 11:15 a.m. tomorrow morning (see page 2 of this PDF document). Confirmation by a wide margin (perhaps unanimously) is anticipated.
Posted at 20:43 by Howard Bashman



U.S. Department of Justice reverses decision to ban gay pride event: Human Rights Campaign has issued this press release. Update: And The Associated Press reports here that "Gov't Changes Mind on Gay Employee Event."
Posted at 19:19 by Howard Bashman



"Schumer Pushes Specter for Supreme Court": The Associated Press provides this report. You can access the letter that U.S. Senator Charles E. Schumer (D-NY) sent to President Bush today at this link. Senator Schumer's Web site also offers this related press release.
Posted at 19:14 by Howard Bashman



"Court lets Vietnam veteran file claim": The Orlando Sentinel today has this report on one of yesterday's rulings from the U.S. Supreme Court.
Posted at 16:50 by Howard Bashman



"Bill Pryor: A Public Official Dedicated to Following the Law": The Committee for Justice has today issued this report.
Posted at 16:38 by Howard Bashman



No slight to Mr. Potato Head was intended: A reader who is a student at Harvard Law School emails:
Caught your link to the first paragraph of that 7th Circuit decision that began with the reference to a 2 million mile accident-free driving record not being matched by an equivalent theft-free driving record.

I think the funniest part of the opinion is actually on p4 of the pdf document:
Although it is true that a rational person is unlikely to steal an older, loaner vehicle while the owner of the loaner is repairing his new vehicle, the court was not obliged to find that Smith was acting as a rational person would act. Smith, after all, was caught in the dead of night selling hot Mr. Potato Heads out of the back of a truck in order to support his crack cocaine habit.
(And thus, the court affirmed the district court's finding that Smith had the intent to steal the truck itself, not just the toys being hauled inside the truck.)

Anyway, also wanted to say that I am just one in the growing crowd of daily How Appealing readers!
Thanks much for sending that along.
Posted at 16:30 by Howard Bashman



"A trailer containing approximately 132,000 pieces of Connecticut-bound women's underwear was stolen." That's how this opinion issued today by the U.S. Court of Appeals for the Eleventh Circuit begins. Fortunately, many women heading for Connecticut were able to make other arrangements.
Posted at 16:00 by Howard Bashman



"Library bias suit decision upheld": Today's edition of The Atlanta Journal-Constitution contains this report on last Friday's ruling of the U.S. Court of Appeals for the Eleventh Circuit. Of course, I first reported on and linked to the ruling back on Friday night.
Posted at 15:50 by Howard Bashman



"Hispanics Demand a Vote on Estrada": That's what The Committee for Justice -- in this media alert -- says polling results to be released tomorrow indicate.
Posted at 15:36 by Howard Bashman



"Chertoff wins Senate confirmation for circuit court seat": Today's edition of The Newark Star-Ledger contains this report. Meanwhile, The New York Post reports here that "Bitter Hill Lone Nay Vs. Judge."
Posted at 15:08 by Howard Bashman



"A lot of talk but no vacancy": Peter Roff, UPI national political analyst, had this essay yesterday.
Posted at 15:04 by Howard Bashman



"From freebooter to filibuster: Fight over judges sees the coming of age of a parliamentary tool": Today's edition of The Hill contains this report.
Posted at 15:01 by Howard Bashman



"Pryor blasted by critics in twin reports; Senate Judiciary Committee to begin hearing Wednesday on Alabama attorney general's nomination to federal bench": Today's edition of The Mobile Register contains this article. Interested instead in a pro-Pryor report? One should be available soon, I'm reliably advised.
Posted at 14:59 by Howard Bashman



Unpublished and non-precedential need not mean all-but-unavailable: I'm reliably advised, and quite pleased to report, that the U.S. Court of Appeals for the Fifth Circuit is on the verge of making its non-precedential opinions available online at its Web site as they are issued by that court.
Posted at 14:51 by Howard Bashman



"Miss Kansas winner begins reign with round of LSATs": Yesterday's edition of The Wichita Eagle contained this report. (Via "JD2B.")
Posted at 14:32 by Howard Bashman



Accident-free, yes; theft-free, no: Here's a nominee for best first paragraph of a federal appellate court opinion issued today:
ROVNER, Circuit Judge. Curtis Smith is a truck driver with a two million mile accident-free driving record. Unfortunately, his record for theft-free driving is considerably less impressive. Smith pled guilty to one count of theft of interstate freight in violation of 18 U.S.C. sec. 659. He now raises several challenges to his sentence, and we vacate and remand for re-sentencing.
You can access the entire ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 14:05 by Howard Bashman



The Ninth Circuit delivers bad news for single moms: As they lose their effort to fight the power.
Posted at 13:39 by Howard Bashman



A fascinating attorney malpractice case involving incorrect settlement-related tax advice: Thanks to an esteemed fan of the blog from Pittsburgh who this morning passed along news of this fascinating decision issued yesterday by the California Court of Appeal, Fourth Appellate District, Division Three. Who says that all tax law must be boring? Not me.

To make a long story short, a plaintiff in a race and sex harassment case sued her own lawyer after he achieved a $2.75 million settlement. Unfortunately, he had incorrectly told her that she would only pay tax on the net amount of the settlement after the lawyer's attorneys' fees had been deducted. As the opinion explains:
Since it strikes most people as highly counterintuitive (a fancy way of saying unfair) that a civil rights plaintiff should not be able to either exclude the fees she pays her contingency-fee attorney from her gross income, or at least get a deduction for those fees, it is worth taking a small detour to understand the problem that got Root into trouble.

The culprit is the alternative minimum tax (Int. Rev. Code, secs. 55-59). The alternative minimum tax was originally designed to insure that millionaires (back when millionaires were really millionaires) couldn't use itemized deductions and tax credits to shield themselves entirely from federal taxes. (See Kristina Maynard, The Fruit Does Not Fall Far from the Tree: The Unresolved Tax Treatment of Contingent Attorney's Fees (2002) 33 Loy. U. Chi. L.J. 991, 1010-1011.) However, it has metamorphosed into a terror for civil rights plaintiffs. (See Laura Sager & Stephen Cohen, How the Income Tax Undermines Civil Rights Law, supra, 73 So.Cal.L.Rev. at p. 1078 ["We believe that the AMTís disallowance of deductions for attorney's fees in these instances is wrong as a matter of tax policy."].)
A short while later, the court explains:
The whole area is tailor-made for a national moot court competition, since it involves a substantial split in the federal appellate courts, and ultimately turns on a common law doctrine (the "assignment of income" doctrine) on which reasonable minds could differ, depending on how you see contingency fee agreements. (See e.g., Edward A. Morse, Taxing Plaintiffs: A Look at Tax Accounting for Attorney's Fees and Litigation Costs, supra, 107 Dick. L. Rev. at p. 500 ["Tax avoidance concerns, which are at the core of the assignment principle, hardly seem applicable here."]; Lauren E. Sheridan, Trees in the Orchard or Fruit from the Trees?: The Case for Excluding Attorneys' Contingent Fees from the Client's Gross Income, supra, 36 Ga. L.Rev. at pp. 309-310 [noting various reasons why application of the assignment-of-income doctrine to contingent attorney fees makes no sense].) It is enough to say here that for Jalali to have successfully excluded Root's fee from her gross income would have required nonmoot participation in the real world equivalent of such a competition at the highest possible level.
The bad tax advice cost the plaintiff some $310,000, and a jury in a later malpractice action against the attorney who secured the original settlement awarded $310,000 to the plaintiff. In the opinion issued yesterday -- which is especially well-written and interesting -- the California Court of Appeal reversed and ordered the entry of judgment in the attorney's favor.
Posted at 13:16 by Howard Bashman



An "in Chambers" opinion that Justice John Paul Stevens issued late yesterday: Thanks to a friend with The Associated Press for passing along news of this "Opinion in Chambers."
Posted at 13:06 by Howard Bashman



Hold that thought: One week from today, on Tuesday, June 17, 2003, the Senate Rules Committee will hold a "Hearing on Senate Resolution 151, requiring public disclosure of notices of objections ('holds') to proceedings to motions or measures in the Senate." Holds tend to be a secret method through which U.S. Senators can block the consideration of an executive nominee without having to engage in the public act of filibustering. When one party controls the White House and another controls the U.S. Senate, holds, rather than filibusters, are employed, but to the same pernicious effect. You can learn more about next week's hearing at this link.
Posted at 12:19 by Howard Bashman



"Successor to Judge Matsch nominated; Figa nomination must be OK'd by U.S. Senate": Today's edition of The Denver Post contains this report.
Posted at 12:11 by Howard Bashman



"Canada Court Redefines Marriage to Include Gays": Reuters has this report. And you can access today's ruling of the Court of Appeal for Ontario at this link.
Posted at 12:05 by Howard Bashman



USA v. Rasheed Rashad: The U.S. Court of Appeals for the D.C. Circuit today issued its decision in an appeal bearing that caption. The decision wouldn't be worthy of mention except for the fact that the other day, thanks to the power of Google News, I learned of an individual residing in South Africa whose first name is Bashman.
Posted at 11:25 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Abortion Rights Groups Call for March"; here "Guantanamo Eyes Possible Execution Chamber"; and here "Hearing Delayed for Bomb Suspect Rudolph."
Posted at 11:19 by Howard Bashman



Today's FindLaw commentator: Joanne Mariner has an essay entitled "Rebellious Judges," and I think she agrees with my recent op-ed published in The Los Angeles Times.

This subject was brought up at breakfast by one of the federal appellate judges with whom I was sitting. Another of the judges at the table was the aforementioned Ninth Circuit judge, and when I mentioned that I recently had an op-ed about this in The LATimes, his response was -- "Oh, that was you."
Posted at 10:53 by Howard Bashman



My amazing morning: I had the pleasure this morning of attending a part of the federal Judicial Conference's Standing Committee meeting, which is taking place in Philadelphia yesterday and today.

One of the federal appellate judges in attendance from out of town is a fan of the blog, and he invited me down for breakfast. At breakfast I had the pleasure of meeting federal appellate and trial court judges from throughout the Nation who happen to be admirers of "How Appealing." One Ninth Circuit judge said that he hadn't yet checked out the site himself, but his law clerks are big fans. Fortunately, a law professor in attendance had given him the site's address last night at dinner, and he plans to take a look when he returns back home. It was my great pleasure to say hello to all of the judges, law professors, and lawyers at the meeting who enjoy this site so much.

And now for a few tidbits of news. Yesterday the Standing Committee approved for publication the proposed rule that will allow citation in all federal appellate courts of those courts' not-for-publication/non-precedential opinions. Also yesterday, if I heard correctly, the Standing Committee approved for publication a nationwide rule that would prohibit the counting of recused active judges as votes against rehearing en banc. (For more on this recusal/en banc issue, see my monthly appellate column from April 2001, accessible here.) I strongly support both of these proposed amendments, as you can see from perusing past installments of my monthly appellate column.

The meeting was also significant for another reason. This was the final meeting of the Standing Committee at which Third Circuit Judge Anthony J. Scirica will be serving as the committee's chair. Last month Scirica became the Third Circuit's Chief Judge, and as a result he can no longer serve as the Standing Committee's chair. Chief Judge Scirica has done an exceptionally fine job heading up the federal judiciary's rules project for some years now, and both the federal judiciary and lawyers who practice in the federal court system owe him a tremendous debt of gratitude for his service in that regard. Fortunately, the high quality of the other judges who serve on the committee gives me hope that a suitable replacement can and will be selected. By the way, I'd be saying all of these nice things -- because they are true -- even if Chief Judge Scirica hadn't said a few kind words of welcome to me and several other guests upon calling the meeting to order.

All in all, it made for a quite wonderful morning.
Posted at 10:34 by Howard Bashman



Op-eds of interest from today's edition of The Wall Street Journal: C. Boyden Gray has an op-ed entitled "A Filibuster Without Precedent." And Douglas W. Kmiec has an op-ed entitled "Bill Pryor's Turn."
Posted at 10:14 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports that "Supreme Court Allows Agent Orange Suit; Vietnam Veterans With Recently Diagnosed Ailments Can Sue Despite 1985 Settlement." An article reports that "Md. Court Assails Tax Shelters; Ruling Undercuts Use of Delaware Holding Companies." In local news, "Trust Put in Dog Trainer After 9/11, Jury Told; Touted Animals Flunked Covert Explosives-Sniffing Test, Prosecution Says." And columnist Richard Cohen has an op-ed entitled "Ashcroft's Attitude Problem."

In The New York Times, Linda Greenhouse reports that "Justices Provide a Victory to One Category of Job-Bias Plaintiffs." An article speaks of "Pressure on Senator for Blocking Promotions." And an editorial is entitled "Diverting the War on Terrorism."

The Christian Science Monitor contains an article headlined "Now, trial lawyers could use a good lawyer; The long-maligned group faces a host of legislative moves to curb its influence." In other news, "Wild West: Drug cartels thrive in US national parks." And an op-ed by Dante Chinni is entitled "Media drop the ball on FCC rules changes."

Finally for now, Eugene Volokh has an op-ed online at OpinionJournal entitled "This Old Church: Historic sites deserve federal funds--even if they're churches."
Posted at 00:13 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Vets Win Chance at Agent Orange Damages" and has a separate article headlined "O'Connor and Ginsburg: Together and Apart; A close look at the high court's first two female justices shows common experiences and approaches to the law."

Jason Hoppin has an article that bears the headline "Supreme Court: Territory Judges Can't Sit on Circuits." Marcia Coyle reports that "9th Circuit Spurns U.S. Over Alien Tort Claims; A big Unocal case is still to be argued." In other news, "California Justices Give Lawyers a Pass on Punitives."

You can access here an article entitled "Michael Chertoff's Closing Argument: With judgeship near, DOJ chief tackles one last case." In commentary, Peter H. Schuck has an essay entitled "Judges Are Different: Even affirmative action foes find a way to justify racial and ethnic criteria in filling the Supreme Court bench," and Roger Clegg has an essay entitled "Praying on the Job: There's no need for a new workplace law to treat religion like a disability."
Posted at 00:04 by Howard Bashman



Monday, June 09, 2003
Elsewhere in Monday's newspapers: The Los Angeles Times contains an article headlined "Anger in Puerto Rico Over Death Penalty Case; The federal murder trial of reputed gang leaders becomes a new rallying point for demanding a change in island's status." An article reports that "In Germany, Video Games Showing Frontal Nudity Are OK, but Blood Is Verboten; The country's decency standards make it one of the trickiest markets for software makers." An op-ed by Jonathan Turley is entitled "Crooked Arm of the Law." The newspaper also publishes two related op-eds concerning a case now pending en banc before the U.S. Court of Appeals for the Ninth Circuit. Ka Hsaw Wa has an op-ed entitled "Court Is Villagers' Only Hope: The Justice Department and Unocal oppose a suit brought by alleged victims of abuse in Burma," while Michael O'Donnell has an op-ed entitled "Capitalism vs. Conscience: Companies abuse human rights and the feds don't care." And letters to the editor appear under the headings "House Votes to Outlaw 'Partial Birth' Abortion" and "Flag of Freedom."

You can access here part two of The Boston Globe's two part series on the deadly Rhode Island nightclub fire.

The Washington Times contains an op-ed by Nat Hentoff that begins, "Adding to the Senate Democrats' attacks on the president's nominations to federal appeals courts, George W. Bush has given his filibustering opponents welcome ammunition by his remarkably misguided nomination of Alabama Attorney General Bill Pryor to the 11th Circuit Court of Appeals."

And USA Today contains an editorial entitled "Portable cellphone numbers."
Posted at 23:53 by Howard Bashman



"Former Clinton Investigator Confirmed as Judge": Reuters has this report.
Posted at 23:51 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Bush Moves to Fill Judicial Vacancies" and here an article entitled "Removal of Commandments Protested in Ohio."
Posted at 19:52 by Howard Bashman



U.S. Senate confirms Michael Chertoff to serve on the U.S. Court of Appeals for the Third Circuit by a vote of 88-1: The lone Senator voting no was Hillary Rodham Clinton (D-NY). You can access the official record of the roll call vote here.
Posted at 19:49 by Howard Bashman



"People For" are against Eleventh Circuit nominee William H. Pryor, Jr.: Today People For the American Way issued a 43-page report setting forth the reasons why it opposes the confirmation of Alabama Attorney General William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit. (Via "Southern Appeal.")
Posted at 17:11 by Howard Bashman



In other wire services reports from the U.S. Supreme Court: James Vicini of Reuters reports here that "Supreme Court Allows Circumstantial Sex Bias Cases." Reuters also reports that "Supreme Court Splits on Agent Orange Lawsuit"; "High Court to Decide Local Diesel Vehicle Ban"; and "Supreme Court Rejects Drug-Free Neighborhood Law."

Elsewhere, Michael Kirkland, UPI Legal Affairs correspondent, reports that "Justices delay controversial cases."
Posted at 15:46 by Howard Bashman



"Casino Loses Sex-Discrimination Case": The Associated Press provides this report.
Posted at 15:27 by Howard Bashman



"Burning down the house" of worship: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision that begins:
Once again we are asked to delineate the appropriate scope of criminal law power as it is reposed within the federal government: this time, whether, under the general federal arson statute, setting fire to a church constitutes a federal offense. We hold that ordinarily it does not.
You can access Circuit Judge Stephen Reinhardt's opinion for the court at this link. (This post's title inspired by the Talking Heads.)
Posted at 13:35 by Howard Bashman



An interesting ruling from the Supreme Court of California involving punitive damages and attorney malpractice: Today the Supreme Court of California ruled that an attorney whose negligence allegedly causes his client to lose a claim for punitive damages against a third party cannot be held liable to his client for the lost punitive damages. Associate Justice Janice Rogers Brown delivered the majority opinion, in which a total of four justices joined. Three other justices concurred in the judgment by means of a separate opinion. You can access the complete ruling at this link.
Posted at 13:31 by Howard Bashman



"High Court Deadlocks on Agent Orange Case": Gina Holland of The Associated Press has this report.
Posted at 11:38 by Howard Bashman



The Supreme Court stands up for Article III of the U.S. Constitution: Although it's early to declare my favorite among the five decisions issued in argued cases today, the current front-runner is the Court's decision in Nguyen v. United States. The Court ruled 5-4 that a Ninth Circuit panel consisting of two Article III judges and one Article IV territorial-court judge -- the Chief Judge of the District Court for the Northern Mariana Islands -- lacked the power to sit as a panel of the Ninth Circuit and, as a remedy, the defendant was entitled to have his appeal considered by a properly constituted three-judge panel.

The Court's line-up also qualifies as rather unusual. Justice John Paul Stevens wrote the majority opinion, in which Justices O'Connor, Kennedy, Souter, and Thomas joined. Chief Justice William H. Rehnquist wrote a dissenting opinion, in which Justices Scalia, Ginsburg, and Breyer joined.

I will have a more complete summary of this decision (along with the other opinions issued today) posted perhaps as early as tonight.
Posted at 11:01 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: The Supreme Court of the United States today issued its decision in the following five argued cases: (1) Desert Palace, Inc. v. Costa (syllabus here; unanimous opinion of the Court here; and concurring opinion here); (2) Hillside Dairy Inc. v. Lyons (syllabus here; majority opinion here; opinion concurring in part and dissenting in part here); (3) Khanh Phuong Nguyen v. United States (syllabus here; majority opinion here; dissenting opinion here); (4). Fitzgerald v. Racing Assn. of Central Iowa (syllabus here; unanimous opinion of the Court here); and, lastly, (5) Dow Chemical Co. v. Stephenson (per curiam disposition here).

You can access today's order list at this link. The Court granted review in two cases.

The Court will next issue opinions and orders on Monday, June 16, 2003.
Posted at 10:00 by Howard Bashman



"The New York Times has some Second Amendment issues": Dave Kopel and Paul H. Blackman today have this essay at National Review Online.
Posted at 09:32 by Howard Bashman



More on Mississippi's judicial corruption probe: Yesterday's edition of The Biloxi Sun Herald contained this detailed report. (Via "InstaPundit.")
Posted at 08:54 by Howard Bashman



Also on today's agenda: The U.S. Senate is scheduled to vote this evening (see page 2 of this PDF document) to confirm Michael Chertoff to serve on the U.S. Court of Appeals for the Third Circuit. He is expected to achieve confirmation by a wide margin. Following a favorable confirmation vote, the Third Circuit will once again have twelve active judges and two vacancies.
Posted at 08:52 by Howard Bashman



"Admissions lawsuits update": The Michigan Daily -- the University of Michigan's student newspaper -- today provides this summary.
Posted at 08:34 by Howard Bashman



"'Fetal rights' renew old feud": Today's edition of The Orlando Sentinel contains this report.
Posted at 08:29 by Howard Bashman



"Pryor to face U.S. Senate committee Wednesday": This article appears in today's edition of The Birmingham News. (Via "Southern Appeal.")
Posted at 08:27 by Howard Bashman



"Federal death penalty use grows; Terror could tip scale in bombings": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 08:25 by Howard Bashman



"Diverse view of college diversity": This front page article appears in today's edition of The Philadelphia Inquirer.
Posted at 08:17 by Howard Bashman



"Hatch Is No Longer Big Fan of Filibusters": Today's edition of The Salt Lake Tribune contains this report.
Posted at 06:24 by Howard Bashman



For those who would prefer to read Professor Lessig's blog in Japanese: Be sure to check this out. Meanwhile, I have been considering an offer I've received to translate my blog into English.
Posted at 00:34 by Howard Bashman



On the agenda: At 10 a.m. eastern time today, the U.S. Supreme Court is scheduled to issue opinions and orders.
Posted at 00:29 by Howard Bashman



In Monday's newspapers: The Christian Science Monitor reports here that "Texas tilts right on abortion and other issues; With three bills that herald sweeping restrictions, one state's debate sheds light on a national struggle."

The Washington Post reports here that "Ruling Expected on Library Internet Filters." A front page article bears the headline "The Noses Didn't Notice; Bomb Dog Trainer Faces Fraud Trial." And in other news, "Foreign Students Navigate Labyrinth of New Laws; Slip-Ups Overlooked Before 9/11 Now Grounds for Deportation."

In The New York Times, Adam Liptak reports that "Prosecutions Are a Focus in Houston DNA Scandal." In local news, "Judge to Be Arraigned Today, Probably Without TV Cameras." And Amy Ziebarth has an op-ed entitled "Solving the Diversity Dilemma."

Finally for now, OpinionJournal offers an op-ed by Bradford A. Berenson and Richard Klingler entitled "Justice Served; Nabbing illegal aliens isn't a violation of civil rights."
Posted at 00:01 by Howard Bashman



Sunday, June 08, 2003
"The Moussaoui Case: Nothing Comes Easy; The case is a Pandora's box of legal nightmares": The June 16, 2003 issue of Time magazine contains this item.
Posted at 23:27 by Howard Bashman



A closer look at Friday's Ninth Circuit en banc decision addressing whether transporting drugs over international waters from California to Guam constitutes "importation" within the meaning of 21 U.S.C. sec. 952: Section 952 of Title 21, United States Code, provides in pertinent part that "It shall be unlawful * * * to import into the United States from any place outside thereof, any controlled substance * * *." On Friday, an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit split 6-5 over whether someone who transports illegal drugs from California to Guam on a nonstop airline flight has committed the offense described in Section 952.

Back on Wednesday, November 6, 2002, when the Ninth Circuit entered an order granting rehearing en banc in this case, I described the case as presenting "a very, very interesting question." The Ninth Circuit's en banc ruling, which issued two days ago, confirmed my suspicion. If anything, that opinion demonstrates that the case is even more interesting than I had anticipated. Of course, the fact that the decision features an amazing dissent by Circuit Judge Alex Kozinski was something that even I could not anticipate back on November 6, 2002, because the en banc panel hadn't yet been selected or announced as of that date.

The majority opinion reaches the commonsense conclusion that the transportation by nonstop airliner of drugs from one point in the United States (California, to be exact) over international waters to another place in the United States (here, it was Guam, but in another case it could have been Alaska or Hawaii) does not constitute the importation of drugs into the United States from "any place outside thereof." Circuit Judge Raymond C. Fisher wrote the majority opinion, in which Chief Judge Mary M. Schroeder and Circuit Judges Andrew J. Kleinfeld, Michael Daly Hawkins, William A. Fletcher, and Richard A. Paez joined.

Joining in Judge Kozinski's exceptionally well done dissent were Circuit Judges Diarmuid F. O'Scannlain, Susan P. Graber, M. Margaret McKeown, and Richard C. Tallman. The judges who joined in the dissent are generally viewed as residing within the Ninth Circuit's moderate to conservative wing. And had the dissent been able to attract the vote of Judge Kleinfeld, a conservative/libertarian appointee of the first President Bush who voted with the majority, then Judge Kozinski would have been writing the majority opinion instead of the dissent.

The first incredibly interesting aspect of the decision arises on page 14 of the PDF file, where the Ninth Circuit explains that it has located a portion of Puerto Rico that even the U.S. Court of Appeals for the First Circuit -- the federal appellate court with jurisdiction over Puerto Rico -- has somehow managed to overlook. The majority writes:
Moreover, even if we were to accept the dissent's contention that Congress intended to invoke the 12-mile limit, and thus that it would have been possible in 1970, as it is today, to violate clause 1 (and not clause 2) by transporting drugs from St. Thomas to Puerto Rico, we still would be hard pressed to find a plausible legislative purpose for clause 1. Under the government's interpretation of the second clause of sec. 952(a), the only conduct that clause 1 would prohibit that would not be prohibited by clause 2, even under the broader 12-mile limit, is the drug trade from the Virgin Islands to Puerto Rico. This lone point of contiguity between the customs territory and the noncustoms territory exists only by virtue of the location of tiny islands that are so obscure that even the First Circuit -- the very Court of Appeals that has jurisdiction over Puerto Rico -- is seemingly unaware of them. See Ramirez-Ferrer, 82 F.3d at 1138 (stating that "there is no 'place' just outside of the jurisdictional limits of the customs territory of the United States, that is also within the United States. Any place that is just outside the customs territory . . . is international waters"). So too, apparently, is the government, which has not thought to invoke the Culebra-St. Thomas aberration in support of its construction of the statute. That the government still has not managed to appreciate the relevant geographic nuances only serves to underscore the improbability that Congress was aware of them, let alone motivated by them, as the dissent would have us believe.
You can access the First Circuit's 4-3 en banc ruling in United States v. Ramirez-Ferrer (which in 1996 reached the same result that the en banc Ninth Circuit just reached) at this link.

Judge Kozinski's dissent is best described as classic Judge Kozinski. In concluding the introduction to his dissenting opinion, he describes what the majority has done as "the triumph of judicial will over innocent words that have no way to fight back."

Later, in concluding the statutory plain language portion of his analysis, Judge Kozinski writes:
The majority's insuperable problem is that the distinction it draws finds no anchor in the words of the statute it purports to interpret. The statute says nothing about planes, boats, trains or automobiles; it only says "from," an entirely neutral term. To reach the result consistent with the majority's policy preferences, the statute cannot be "interpreted" in any meaningful sense of the term; it must be rewritten. This is not a case where we must deform the English language to save the statute from unconstitutionality. See, e.g., United States v. X-Citement Video, Inc., 513 U.S. 64, 78 (1994). Rather, the majority simply rewrites the statute because it likes it better this way. That is a function entrusted by the Constitution to Congress and the President, branches of government whose job it is to make such quintessentially political choices. By usurping it, my unelected colleagues have assumed powers inconsistent with our judicial role.
Next, Judge Kozinski turns to examine the changes that Congress had made to the statute in question, noting that "Congress added the words 'from any place outside thereof' when it amended the statute in 1970." Judge Kozinski concludes that portion of his dissent by writing:
The majority hands Congress a catch-22: If it uses simple language, judges will find hidden within it all sorts of implicit limitations, but if it adds language to underscore that a statute should be given a broad, literal compass, judges will point to the redundancy as a justification for a narrower reading--because, after all, the literal meaning would have been implicit in the unadorned text. This judicial three card monte is useful in letting us reach whatever result we please, but I suspect Congress would prefer we take it at its word.
Next, Judge Kozinski turns to address the First Circuit's en banc ruling in United States v. Ramirez-Ferrer. My readers from the First Circuit are cordially invited to stop reading here in the interest of maintaining cordial inter-circuit relations. Okay, you've been fairly warned, so here goes. Judge Kozinski writes:
[W]hen Ramirez-Ferrer claimed that "any contraband shipped from a place inside the United States (but not within the customs territory . . . ) would first pass through international waters before it entered into the customs territory of the United States," 82 F.3d at 1138, it was wrong. When it claimed that "[a]ny place that is just outside the customs territory of the United States is international waters," id., it was wrong. When it claimed that an individual entering the customs territory "would always be directly shipping from international waters," id., it was wrong. When it spent two pages hammering away at this single point--the crown jewel of its analysis--it was actually driving the nails into its own jurisprudential coffin.

* * *

The majority's second effort to glue Ramirez-Ferrer's pieces back together consists of the theory that, even if Puerto Rico and the Virgin Islands were contiguous, Congress didn't know or didn't care. Maj. op. at 7592. But this stands the canon against surplusage on its head. It's one thing to give a statutory provision a strained construction to avoid what would otherwise be a genuine redundancy. It's another thing altogether to do so after manufacturing a redundancy by assuming Congress either didn't know or didn't care about the real world circumstances that give the language in question independent force. Presuming that Congress must have been confused about the details of American geography just because a bunch of federal judges and government lawyers were ignorant strikes me as very close to the classic definition of chutzpah. See Alex Kozinski and Eugene Volokh, Lawsuit, Shmawsuit, 103 Yale L.J. 463 (1993).

That Congress went to the trouble of including the somewhat convoluted phrase "into the customs territory of the United States from any place outside thereof (but within the United States)" shows it was focused on a very specific problem. There aren't many noncustoms territories to begin with; almost all the significant ones (Guam, the Marianas and Samoa) are way out in the Pacific, about 3000 miles from the nearest customs border. After that, we get into some pretty obscure places. See, e.g., Farrell v. United States, 313 F.3d 1214, 1215 (9th Cir. 2002) (locating Johnston Island 700 miles west-southwest of Hawaii and providing helpful tax advice to its thousand or so residents). But there is one significant exception: the Virgin Islands, situated in the midst of the Caribbean, cheek-to-jowl with Puerto Rico. It is within easy reach of drug manufacturing sources in Central and South America, and an ideal launching pad for smuggling into Puerto Rico, which is only a few minutes away by plane and, at most, a couple of hours by boat. Ignoring this border because it's the "lone point of contiguity," Maj. op. at 7592, is like telling the little Dutch boy he can go home because the dike only has one leak.

Without the first clause of section 952(a), it would be impossible to prosecute as importation drug shipments from St. Thomas to Puerto Rico. Because the two territories are contiguous, any boat or plane carrying drugs across the Virgin Passage would not be "import[ing] into the United States from any place outside thereof." This is not some well-kept secret; it is obvious from even the most cursory glance at a nautical chart. Coast Guard and customs officers use those charts daily, and if there's a hole in the customs net where drugs slip through, they have every incentive to bring that fact to Congress's attention. The statute's first clause is absolutely necessary to render this traffic illegal.
Next, Judge Kozinski hypothesizes about why the majority may have decided to rule the way it did:
Now for the other side of the scale--the majority's conceit that it achieves greater fairness and consistency with its tortured interpretation. The majority laments that "a passenger who carries a bag of marijuana on a flight from Portland to Anchorage has committed the crime of importation, while a drug-carrying traveler who departs from the same terminal at the Portland airport is guilty only of mere possession . . . if his flight lands in Phoenix rather than Anchorage." Maj. op. at 7596. We are not dealing here with a statute that criminalizes otherwise innocent conduct; the difference in treatment is at best a sentencing disparity. Possession of illegal narcotics is already a serious offense, and taking narcotics on a commercial airliner--where even the wrong pair of toenail clippers means serious trouble--is not only illegal but incredibly stupid. This may be a form of stupidity that strikes close to home--the criminals the majority purports to spare today are not the usual inner-city casualties of draconian drug laws, cf. Bonin v. Calderon, 59 F.3d 815, 851 & n.2 (9th Cir. 1995) (Kozinski, J., concurring), but interstate passengers on commercial flights who look a lot like our own sons and daughters coming home from college. The majority's concern for criminal defendants we can easily identify with is touching, but should we really be rewriting the nation's drug laws just because a group we happen to favor might be treated too harshly?
After all this, you'd expect a rousing conclusion. Fortunately, Judge Kozinski doesn't disappoint:
This abortive attempt to redraft the statute teaches several lessons, the most important of which is that arbitrarily disparate treatment of closely situated individuals is all but inevitable. It may well be that there is no "articulable legislative purpose for punishing the transport of drugs on a domestic flight that passes through international airspace more severely than the identical conduct on a flight that travels entirely within United States airspace." Maj. op. at 7596. But there is certainly an articulable purpose for treating border-crossing with drugs in general more severely than mere possession. Seemingly arbitrary treatment in a particular case is not a valid reason to disregard a statute's terms; there is no free-floating "narrow tailoring" principle of statutory construction. If Congress enacts a prescription drug benefit for people over sixty-five, a sixty year old can't qualify even if he proves his unique health problems make him constructively five years older. And if Congress bans drunk driving in national parks, a motorist can't defend himself by showing that his superior skills made up for his inebriation. And if it imposes an age of majority requirement, we don't waive it for precocious seventeen year olds. All these distinctions may seem arbitrary on their particular facts, but they are all consistent with the text of the statutes and their underlying logic.

The majority's interpretive method is to ask whether a defendant poses a greater menace than some hypothetical person not covered by the statute and, if not, to conclude that the defendant must be exempt as well. There are obvious reasons we don't interpret statutes this way. Judges often disagree about what Congress's purposes are and how particular conduct implicates them. Two defendants may seem similarly situated to one judge but night and day to another. Once we discard the statute's text as the acid test of its coverage, we lose it as a justification for our authority. If the college student who flies to Anchorage gets a few more years than the one who flies to Phoenix and wants to know why, we can point to the text and say, "Because you entered the United States 'from a place outside thereof,' and Congress made that a more serious crime." But if the one who drives home gets a few more years than the one who flies, what can the majority possibly say to convince him he is not a victim of judicial caprice? That "from" means one thing for planes and something else for cars?

* * *

Seemingly arbitrary distinctions are an inevitable consequence of the rule of law. The costs of governing prospectively by the written word, however, are more bearable than those of a judiciary of retrospective equity-brokers. In its quest for the holy grail of fairness in the drug laws, the majority cuts a swath of destruction through statutory text and precedent, and makes the government's already hard job of policing our borders much more difficult. Because I view our role as the more limited one of applying statutes as written and leaving questions of fairness to the political--and politically accountable--branches of government, I respectfully dissent.
I tend to agree fully with the philosophy that Judge Kozinski's dissent espouses. That agreement, however, does nothing to make this an easy case, for the majority's outcome does seem to make the most sense under the circumstances presented.
Posted at 22:03 by Howard Bashman



"An intensely personal choice": Today's edition of The Racine Journal Times contains this article about abortion and possible vacancies at the U.S. Supreme Court.
Posted at 17:14 by Howard Bashman



Is the proposed federal statute banning partial birth abortion constitutional? "No" is the answer that Yale Law Professor Jack M. Balkin provides here, at his blog "Balkinization."
Posted at 17:12 by Howard Bashman



"This ruling is in favor of O'Connor's discourse": Today's edition of The Ft. Worth Star-Telegram contains this review by Cornell Thomas of Justice Sandra Day O'Connor's new book.
Posted at 17:09 by Howard Bashman



In news from New Jersey: Today's edition of The Trenton Times contains an article that begins, "Years of built-up Republican furor will likely be on display tomorrow when the Senate Judiciary Committee considers granting Deborah Poritz a second term as chief justice of the state Supreme Court." And this past Thursday's edition of The Newark Star-Ledger contained an article entitled "Chertoff cleared of accusations."
Posted at 17:06 by Howard Bashman



High school drug testing -- pro and con: Today's edition of The Atlanta Journal-Constitution contains an item entitled "Random drug screenings move into the locker-lined halls of learning." You can access an essay in favor of such testing here, and against here.
Posted at 17:04 by Howard Bashman



"High Court's Freshman Awaits New Member": Gina Holland of The Associated Press has this report. Relatedly, you can access here a "Glance at Stephen Gerald Breyer." Justice Breyer has been the "junior Justice" for nearly nine years, which is one of the longest periods without turnover at the Court in the history of the Nation.
Posted at 16:13 by Howard Bashman



In Sunday's newspapers: In The Los Angeles Times, David G. Savage reports that "Rehnquist Revival Is Near End; Chief justice may retire soon, but he has ensured his legacy by sticking to his conservative ideals." An article reports that "Some Detained After Sept. 11 Going Public About Treatment." An article from The Associated Press reports that "Dragging Death Haunts Quiet Texas Town; Five years after James Byrd Jr. was slain, racial divisions continue in Jasper as two of three convicted killers await execution." A second AP article reports that "Mormon Church, Utah Still Seen as Too Chummy; Many residents would like to banish the stereotype that the LDS rules the state. But most politicians are members of the faith." And a letter to the editor appears under the heading "Medical Marijuana."

The Washington Times reports here that "Battle for top court likely." In op-eds, David Marion writes of "John Marshall's ghost and Rehnquist's court," and Jennifer Watson and Bruce Fein address "A stain on our asylum law?"

In The New York Times, Adam Liptak has an article that bears the headline "The Pursuit of Immigrants in America After Sept. 11." An article reports that "U.S. to Keep Hitler's Art." The first item in this round-up of the past week's news bears the heading "Good times for abortion foes." You can access here Carol Berkin's review of the book "Gentleman Revolutionary: Gouverneur Morris, the Rake Who Wrote the Constitution," by Richard Brookhiser (and the first chapter is available online here). And a letter to the editor appears under the heading "Banning Flag Burning."

The Washington Post reports here that "Mass. 'Clean Elections' May Be Doomed." You can access here an article headlined "Confederate Monument: A Descendant's Crusade." An op-ed by Simon Lazarus is entitled "The Pragmatic Chief Justice: He'll Look Better When He's Gone." And an op-ed by David Cole is entitled "We've Aimed, Detained and Missed Before."

Today's edition of The Boston Globe contains an article that bears the headline "Here come the brides: Massachusetts's highest court may legalize same-sex marriage this summer. But whatever the ruling, the marriage revolution is already underway." In news from Moscow, "A Harvard student seeks Russian justice; Smuggling charges provoke outcry from legislators." An article reports that "Hidden treasures draw attention in Philadelphia; Black college confronts loss of an art legacy." And the first half of a two-part series about the recent, deadly nightclub fire in Rhode Island bears the headline "Deception, missteps sparked a tragedy."
Posted at 14:56 by Howard Bashman



Are lawyers too negative? Yes, and often doubly, triply, and quadruply so, Dusty Horwitt argues in this op-ed in Sunday's edition of The Washington Post.
Posted at 00:28 by Howard Bashman



The New York Times charts possible U.S. Supreme Court nominees: You can access the graphic here. And I'm pleased to report that The Times has corrected its earlier error with respect to Justice Souter's middle initial. You can still see the original text, which contains the error in its final paragraph, here.
Posted at 00:21 by Howard Bashman



Saturday, June 07, 2003
"Group Warns About Roe v. Wade in Ads": The Associated Press provides this coverage.
Posted at 23:31 by Howard Bashman



"US abortion ban sets stage for court battle; Pro-choice lobby suffers biggest blow in 30 years": Yesterday's edition of The Guardian (UK) contained this report.
Posted at 23:07 by Howard Bashman



"Justice Dept. Draws Heavy Criticism Over Cancelled Gay Rights Event": This article appears in today's edition of The New York Times. And you can access the letter that U.S. Senator Frank R. Lautenberg (D-NJ) sent yesterday to Attorney General John Ashcroft at this link.
Posted at 23:05 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times reports here that "Boxer, Feinstein Jointly Oppose L.A. Judge's U.S. Court Nomination; Citing a Senate tradition of deferring to views of a nominee's home-state politicians, the senators urge 'no further action' on appointment." You can access here an article entitled "Veiled Driver's Photo Disallowed; Citing public safety concerns, a Florida judge rules against a Muslim woman who wanted a license that shows only her eyes." In business news, "Cell Users May Keep Numbers, Court Says." In media news, "A defining moment for a media watcher: His posts on the New York Times scandal have made Jim Romenesko's Web site a key stop for journalists." And letters to the editor appear under the headings "9/11 Deportations" and "'Diaper Baby' Series Doesn't Need Changing."

The Boston Globe reports here that "Judge OK's use of race in school assigning." And in other local news, "Conduct panel reaches deal with Lopez."
Posted at 20:39 by Howard Bashman



"Lobbying Starts as Groups Foresee Supreme Court Vacancy": Sunday's edition of The New York Times will contain this article. The last paragraph of the article mentions "Justice David J. Souter." Justice Souter's actual middle name is "Hackett," making "J" an unlikely candidate for his middle initial.
Posted at 18:43 by Howard Bashman



In Saturday's newspapers: The Washington Post reports here that "Cell Users Can Keep Numbers; Court Affirms FCC Rule." In news involving the death penalty, "Jury to Be Killer's Arbiter, Court Says; Under Va. Ruling, Panel Must Decide if Man Is Mentally Retarded." And in media news, "Putting Diversity In the Line Of Firing; Minority Staffers at The Times Feel the Loss And Fear the Fallout."

The New York Times contains an article about the Ten Commandments entitled "Rules, but With a Dash of Mysticism." From Boston comes news that "Court Backs Town's Policy Desegregating Its Schools." In news from Oregon, "As Budgets Shrink, Cities See an Impact on Criminal Justice." An article reports that "More Than 13,000 May Face Deportation." You can access here an editorial entitled "Let Cameras in the Courtroom." And Lloyd Cutler and Alan K. Simpson have an op-ed entitled "Constitutional Crises."
Posted at 16:44 by Howard Bashman



"'The artist' pleads guilty in counterfeiting scheme; Baltimore man, 41, gains reputation for intricately drawn watermark on bills": Today's edition of The Baltimore Sun contains this article.
Posted at 16:34 by Howard Bashman



"Bill Pryor Senate Confirmation Hearing: Alabama attorney general's Judiciary Committee hearing set to begin Wednesday": Today's issue of The Mobile Register contains this report.
Posted at 11:55 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Convictions of Calif. Dealers Overturned" and here an article entitled "Inmate Gets 20 Years in Judge Death Plot."
Posted at 11:52 by Howard Bashman



Friday, June 06, 2003
"Judges Spar Over Affirmative Action": Charles Lane has this report in Saturday's issue of The Washington Post. The article supplies the answer to a question that has puzzled me for quite some time now:
Yesterday's uproar also revealed previously undisclosed details about the never-decided undergraduate case.

The nine judges who heard it at the 6th Circuit took a tentative vote after oral argument, and based on that, Martin, who favored the policy, undertook to write an opinion for the court. But the judge said yesterday that he was unable to secure the necessary five votes by December 2002, when the Supreme Court announced that it would take over the matter.

This likely means that at least one of the five 6th Circuit judges who voted for the law school policy, which aims to enroll a "critical mass" of African Americans, Latinos and Native American students, balked at the undergraduate policy, which awarded extra points to members of those groups on a 150-point scale used to rank applicants.
This on-the-record disclosure of what happened behind the scenes in the Gratz case is quite remarkable.
Posted at 23:21 by Howard Bashman



C-SPAN provides archived video of yesterday's Senate Rules Committee hearing on whether to abolish filibustering of judicial nominees: You can view the hearing online, on demand, at this link (Real Player required). I found the hearing to be one of the more interesting Senate hearings I have seen in quite some time. And Pejman Yousefzadeh shares his views on the hearing and the possible amendment of the Senate's filibuster rules here.
Posted at 23:19 by Howard Bashman



"Court Report Faults Chief Judge in University Admissions Case": Adam Liptak has this report in Saturday's edition of The New York Times. Stay tuned for even more coverage from another leading newspaper momentarily.
Posted at 23:12 by Howard Bashman



Eleventh Circuit affirms $17 million judgment entered against Atlanta-Fulton Public Library System in suit brought by white librarians alleging race-based transfers: You can access today's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 22:58 by Howard Bashman



Available online at law.com: Jonathan Groner and Tony Mauro have an article headlined "Supreme Seat Up for Grabs?" From Texas comes news that "Superintendent Didn't Meet Burden in Religious Freedom Case; Teacher didn't need to send kids to public school to be eligible for promotion." In news from New York, you can access here an article entitled "Judge Walker Details Court Space Problems" and here an article entitled "Former State Bar President Warns of Risks To Judicial Independence in Recent Cases." And everyone's favorite judicial humorist, California Court of Appeal Associate Justice William W. Bedsworth, has a brand new essay entitled "We, the People of the State of . . . Mmm . . . Uh . . . : The case of the purloined preamble."
Posted at 22:40 by Howard Bashman



"Officer Cleared in Shuttle Looting Case": The Associated Press provides this report.
Posted at 22:28 by Howard Bashman



And on rare occasion, this blog provides news of rulings from the U.S. Court of Appeals for the Federal Circuit: Today the U.S. Court of Appeals for the Federal Circuit issued its eagerly awaited ruling in Integra Lifesciences v. Merck. The opinion of Circuit Judge Pauline Newman concurring in part and dissenting in part begins:
This case raises a question of the nature and application of the common law research exemption, an exemption from infringement that arose in judge-made law almost two centuries ago, and that recently has come into sharper focus. Its correct treatment can affect research institutions, research-dependent industry, and scientific progress.

The question is whether, and to what extent, the patentee's permission is required in order to study that which is patented. For the Scripps/Merck research, the panel majority holds that all of the activity at Scripps during 1995-1998 was "discovery-based research" and that there is no right to conduct such research, under either the common law research exemption or the statutory immunity established in 35 U.S.C. sec. 271(e)(1). However, neither law nor policy requires that conclusion, and both law and policy have long required a different conclusion in implementation of the purpose of the patent system.

The purpose of a patent system is not only to provide a financial incentive to create new knowledge and bring it to public benefit through new products; it also serves to add to the body of published scientific/technologic knowledge. The requirement of disclosure of the details of patented inventions facilitates further knowledge and understanding of what was done by the patentee, and may lead to further technologic advance. The right to conduct research to achieve such knowledge need not, and should not, await expiration of the patent. That is not the law, and it would be a practice impossible to administer. Yet today the court disapproves and essentially eliminates the common law research exemption. This change of law is ill-suited to today's research-founded, technology-based economy. I must, respectfully, dissent.
You can access the complete ruling at this link (MS Word document).
Posted at 18:57 by Howard Bashman



Virginia state court jury to decide whether Daryl Atkins is retarded and thus not subject to death penalty: You can access today's ruling of the Supreme Court of Virginia at this link (MS Word document). You can access last year's ruling of the Supreme Court of the United States in this very same case here. And The Washington Post reports here that "Jury to Decide Whether Man Can Be Executed, Va. High Court Rules; If Man Is Found to Be Mentally Retarded, U.S. Supreme Court Ruling Says He Cannot Get Death Penalty."
Posted at 18:30 by Howard Bashman



"Federal Judge Disputes Misconduct Claim": Gina Holland of The Associated Press has the latest news from the Sixth Circuit.
Posted at 17:25 by Howard Bashman



"Federal appeals court stays Abdur'Rahman execution": The Associated Press has this report on the grant of rehearing en banc by the U.S. Court of Appeals for the Sixth Circuit. And The Tennessean provides additional coverage here.
Posted at 17:20 by Howard Bashman



Public school or house of worship? Today the U.S. Court of Appeals for the Second Circuit issued a ruling that fans of the First Amendment are likely to find of interest. The majority's opinion begins:
This appeal concerns the proposed use of a public school building for Sunday worship services by an evangelical Christian church. Courts often struggle to reconcile the principle of equal access to government buildings with a competing principle of American public life, that is, the separation of church and state. In the case before us, the district court resolved this tension in favor of allowing religious speech on public property. Recent Supreme Court precedent requires that we affirm.
Senior Circuit Judge Roger J. Miner dissented in an opinion that begins:
Today, the Majority permits a public school building in the Bronx to be designated "Middle School 206B and The Bronx Household of Faith." For more than sixty years, the sovereign State of New York has not included religious worship services in the list of uses permitted in public school buildings. The Board of Education of the City of New York and Community School District No. 10 (collectively, the "School Board") have specifically excluded such usage. More than five years ago, in a case brought by the same parties as those before us today concerning the use of the same public school facilities, a panel of this court unanimously held that this longstanding legislative policy did not violate the Free Speech Clause of the First Amendment. Review of our decision was sought in the Supreme Court, and that request for review was denied. In concluding that Plaintiffs have a clear or substantial likelihood of succeeding on the merits of their First Amendment claim, the Majority thwarts the will of the people of the State and City of New York to regulate a sphere of public life that has been traditionally left to state and local democratically elected bodies, as well as casts aside a binding precedent of this court. The sole justification offered by the Majority for these actions is that facts from the rather undeveloped record in the case before us parallel those in a Supreme Court decision involving religious instruction. Because I believe that, on the record before us, such a parallel does not exist, I respectfully dissent.
You can access the majority opinion here and the dissenting opinion here.
Posted at 17:08 by Howard Bashman



A dissenting view regarding the Sixth Circuit's decision in In re: Complaint of Judicial Misconduct: Last night I reported here on a decision that the U.S. Court of Appeals for the Sixth Circuit issued in a matter known as In re: Complaint of Judicial Misconduct. Today attorney Mark Pickrell, a former law clerk to Sixth Circuit Chief Judge Boyce F. Martin, Jr., emails:
I'm a great fan of your site. It is the Inside Baseball of appellate law. Because you are such a focus for appellate work, I wanted to respond to the articles today regarding Chief Judge Martin of the Sixth Circuit with a full discussion of the problem.

For what it's worth, I clerked for Chief Judge Martin over ten years ago. Also, I represented the Center for Equal Opportunity, the American Civil Rights Institute, and the Independent Womens' Forum (who oppose the use of race preferences) as amici before the Sixth Circuit and the Supreme Court in Grutter and before the Supreme Court in Gratz. The majority of my practice for the last six years has been as an appellate lawyer in the Sixth Circuit.

That being said, I wanted to make a number of points regarding the allegations against Chief Judge Martin:

1. With regard to the allegations that Judge Martin manipulated the panel:

Sixth Circuit I.O.P. 34 governs the assignment of cases for argument and the assignment of panels. IOP 34 is premised on the following: 1) Cases are grouped together by the clerk so that groups of (usually) six cases of different types are selected; 2) Panels are selected by the circuit executive (i.e., not the clerk), under the direction of the Chief Judge, so that the circuit's judges sit with each other on a rotating basis (along with district and visiting judges); and 3) "Calendars for oral argument sessions are drafted prior to the time the clerk is advised of the composition of the panel to be assigned for a given session" (so that cases are not intended to appear before any particular judge or panel). By pairing cases that have been first collected by the clerk with panels that have been selected by the circuit executive, neither the clerk nor the circuit executive determine which judge or judges will decide which cases.

The process gets more complicated when a case, like Grutter, returns to the Court. In Grutter, certain students sought leave to intervene in the lawsuit. The district judge denied their motion, but they appealed. Judges Daughtrey, Moore, and a visiting judge overruled the district court. Therefore, after the district court tried the case and ruled against the UofM, an appeal returned to the Sixth Circuit. Under IOP 34(b)(2), Judges Daughtrey and Moore decided: 1) whether they should decide the appeal or a new panel should be assigned "at random," and 2) if they were to rehear the case, whether to recall the visiting judge. When the decision was made to not assign a new panel and to not to recall the visiting judge, 34(b)(2) required that a new Circuit Judge be "drawn" to fill out the panel. It's important here to note that the rule uses different language for assigning a panel, where it uses the language "at random," and selecting judges for a panel, where no comparable language is used. That distinction makes sense because the composition of panels is made by "The circuit executive, at the direction of the Chief Judge." The decision to fill in a spot for one judge is not a random event, and the rules do not intend for it to be a random event, because this decision involves scheduling travel, scheduling workload, and mixing members of the Court, among other considerations. When Judge Martin placed himself on the panel, he was executing Rule 34 the way it was written (and, by the way, it's been applied by previous Chief Judges of the Court). In deciding to terminate Judicial Watch's complaint against Chief Judge Martin, Judge Batchelder clearly did not parse the statute for the simple reason that the Court apparently has reached a consensus about the procedures that should be used in the future. In my opinion, however, it is clear that Judge Martin did not deviate from the rules as they are written.

2. With regard to the Petition for Initial Consideration En Banc:

FRAP 35 governs both Petitions for Rehearing En Banc and Petitions for Initial Hearing En Banc. It does not prescribe the number of copies to be served or the method for the court to consider these petitions. The Sixth Circuit's IOP for Rule 35, however, provide direction regarding the Court's consideration of Petitions for Rehearing En Banc, but not for Initial Hearing En Banc. This distinction is crucial, because it means that the rules for a petition for rehearing en banc are different from the rules for initial hearing en banc. For a rehearing, Sixth Cir. Rule 35 and IOP 35 requires twenty-five copies of the petition, which are then sent to the "panel that issued the decision for review," and then to the entire court. For initial hearing en banc, however, IOP 35 does not apply. Instead, the petition is a motion that must be submitted either to the motions panel or, if a panel has been assigned, to the panel, based on FRAP 35, Sixth Circuit Rule 35, and IOP 35. In Grutter, because a panel had already been assigned, the petition for initial consideration en banc was properly before the panel, not the entire Court. See FRAP 27, Sixth Circuit Rule 27, and IOP 27. Judge Martin simply complied with the applicable procedural rules by sending the appellee's petition for initial hearing en banc to the panel and not to the entire court.

Again, Judge Batchelder's order, reported on your website, does not even attempt to parse out FRAP 35, Sixth Circuit Rule 35, and IOP 35, or to coordinate them with FRAP 27, Rule 27, and IOP 27.

Personal Observations:

Although the implications of the parsing of the rules is murky for all but the most stalwart appellate practitioners, I would like to add a few ordinary personal opinions. In my opinion, Judge Martin was not trying to manipulate the outcome of Grutter either by placing himself on the panel or by assigning the petition for initial en banc consideration to the panel. He executed the Rules as they are written, based on his 25 years' experience as an appellate judge. I fear that the emotion over race preferences has made rational consideration of Judge Martin's execution of these appellate rules, in light of their murky nature, virtually impossible. It is clear to me that, when a senior judge questioned Judge Martin's application of the applicable rules, Judge Martin did the right thing by seeking then to have the case decided initially en banc. But the subsequent events cannot be a reason to avoid a close analysis of rules 34, 35 and 27. Chief Judge Martin's reputation is at stake.

Furthermore, even though it is adverse to the position of my clients, the Sixth Circuit's decision in Grutter has shortened the resolution of the issues that have flowed from the Supreme Court's 4-4-1 Bakke desision. By squarely disagreeing with the Fifth Circuit's Hopwood decision, the Sixth Circuit has hastened the day that Bakke is resolved, if the Supreme Court will simply take the opportunity this month to write a clear decision.
I am advised that this matter will be receiving coverage tomorrow in one or more of the Nation's leading general circulation newspapers.
Posted at 16:20 by Howard Bashman



Today's veil wearing driver's license photo decision from Florida: You can access it here, via Court TV.
Posted at 15:50 by Howard Bashman



"Court: Consumers Can Keep Phone Numbers": The Associated Press offers this report on today's ruling by the D.C. Circuit.
Posted at 15:11 by Howard Bashman



"Imprisoned physicist allowed to refuse medication": The Globe and Mail has this report on a decision that the Supreme Court of Canada issued today.
Posted at 15:03 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge: Woman Can't Wear Veil in ID Photo" and here an article entitled "Former Yale Worker Jailed in Bomb Probe." And today's edition of The New Haven Register contains an article entitled "Hamden man isn't bomber, lawyer says."
Posted at 14:00 by Howard Bashman



The U.S. Court of Appeals for the Ninth Circuit has issued two en banc decisions today: Today the U.S. Court of Appeals for the Ninth Circuit issued two en banc rulings. The first case presents quite an interesting question. The majority opinion in that 6-5 decision begins:
Appellants James, Richard and Roy Cabaccang appeal their convictions on a variety of charges relating to their involvement in a drug trafficking ring that transported large quantities of methamphetamine from California to Guam in the early and mid-1990s. The Cabaccangs' primary contention on appeal is that the transport of drugs on a nonstop flight from one location within the United States to another does not constitute importation within the meaning of 21 U.S.C. sec. 952(a), even though the flight traveled through international airspace. We agree, and therefore we reverse the appellants' convictions on all importation-related counts.
Circuit Judge Raymond C. Fisher wrote the majority opinion, in which Chief Judge Mary M. Schroeder and Circuit Judges Andrew J. Kleinfeld, Michael Daly Hawkins, William A. Fletcher, and Richard A. Paez joined. Circuit Judge Alex Kozinski wrote a dissenting opinion, in which Circuit Judges Diarmuid F. O'Scannlain, Susan P. Graber, M. Margaret McKeown, and Richard C. Tallman joined. You can access the entire decision at this link.

In the second case, the majority opinion describes the question presented in the following manner:
It has long been the rule in the federal courts that, where a habeas petitioner raises a claim of ineffective assistance of counsel, he waives the attorney-client privilege as to all communications with his allegedly ineffective lawyer. See, e.g., Wharton v. Calderon, 127 F.3d 1201, 1203 (9th Cir. 1997); Tasby v. United States, 504 F.2d 332, 336 (8th Cir. 1974); Laughner v. United States, 373 F.2d 326, 327 (5th Cir. 1967). The question presented to us is the scope of the habeas petitioner's waiver: Does it extend only to litigation of the federal habeas petition, or is the attorney-client privilege waived for all time and all purposes--including the possible retrial of the petitioner, should he succeed in setting aside his original conviction or sentence?
A largely unanimous eleven-judge panel (a total of nine judges joined in Circuit Judge Alex Kozinski's majority opinion, and two judge concurred in the judgment in a separate opinion by Circuit Judge Diarmuid F. O'Scannlain) ruled that the waiver in question extends only to the federal habeas proceeding. You can access the entire decision at this link.
Posted at 13:33 by Howard Bashman



"Justice Dept. Bans Event by Gay Staff": Today's edition of The New York Times contains this report. The "blueblanketblog" (affiliated with the wonderful Dahlia Lithwick Internet shrine) provides more coverage here -- simply scroll down a bit. (Thanks to the federal appellate law clerk who emailed to draw this news article to my attention.)
Posted at 13:07 by Howard Bashman



Ethics and more: Please welcome the law blog "ethicalEsq?" It's "advocating client-centered legal ethics."

And the author of the blog "Life, Law, Libido" is having a bit of fun this morning with what qualifies as an instant classic "How Appealing" post from last night, entitled "Shizzle my nizzle: lyrics leave judge lost for words." They'll always be an England, the saying goes.
Posted at 12:41 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Navajo President Backs Death Penalty" and here an article entitled "Court Upholds Removal of Feeding Tube."
Posted at 11:12 by Howard Bashman



Today's rulings of note from the U.S. Court of Appeals for the D.C. Circuit: In a ruling you can access here, the court rejected a constitutional challenge to a federal statute that favored Native American-owned companies in the awarding of certain Defense Department contracts.

And in a ruling you can access here, the court upheld the Federal Communication Commission's refusal to permanently forbear from enforcing a rule that requires "wireless carriers to provide 'number portability' -- the ability of consumers to keep their phone numbers when they switch wireless carriers." This is big news in our cell phone-obsessed world.
Posted at 10:19 by Howard Bashman



"Senate Committee Unanimously Approves Wesley": The New York Law Journal reports here that "By a 19-0 vote, the U.S. Senate Judiciary Committee Thursday advanced the nomination of Richard C. Wesley for the 2nd U.S. Circuit Court of Appeals."
Posted at 10:01 by Howard Bashman



NPR's Nina Totenberg reports on the U.S. Senate's consideration of a change to its filibuster rule: You can access her audio report here (Real Player required).
Posted at 09:35 by Howard Bashman



"Miller rips power of filibuster": This article appears in today's edition of The Atlanta Journal-Constitution.
Posted at 08:37 by Howard Bashman



"Report Calls Health Department Inspector General a Poor Manager": Today's edition of The New York Times contains this report about former Department of Health and Human Services Inspector General Janet Rehnquist.
Posted at 08:36 by Howard Bashman



Available at National Review Online: Byron York has an essay entitled "Klayman vs. Chertoff: The head of Judicial Watch tries to stop a Bush judicial nominee." And Michael S. Greve has an essay entitled "Viewing the Bench: Constitutional principle for conservatives."
Posted at 08:30 by Howard Bashman



"Pryor likely in for bruising fight in confirmation hearing; Several opposition groups are readying reports to document what they label as Alabama attorney general's record of extremism": The Mobile Register contains this report. (Via "Southern Appeal."
Posted at 08:30 by Howard Bashman



Elsewhere in Friday's newspapers: The Washington Times reports here that "Senate leaders eye ban of filibusters." Frank J. Murray has an article headlined "Justices cut vacation to take up case of political funds." And an article reports that "Ashcroft wants powers expanded to fight terror."

In The Los Angeles Times, David G. Savage reports that "Justices Aim for Early Resolution to 'Soft Money' Fight; The high court will hear challenges to campaign finance reform in September. The hope is to clear up issue before the 2004 election cycle." An article reports that "Stiffer Terror Laws Urged; Despite a rebuke of his department, Ashcroft calls for an increase in crimes punishable by life terms or death and new power to deny bail." In other news, "Test Applied to DNA Isn't Always A-OK; A UC Irvine expert is a formidable foe of any claim that the growing practice is foolproof." An article is entitled "FYI: yr e-mail can haunt u 4ever; A word to the unwary: Private missives don't belong on the Internet." Tim Rutten's Regarding Media column bears the headline "Information Superhighway Carried Raines to His Exit." In op-eds, Stephen M. Bainbridge writes that "The SEC Goes Out on a Legal Limb in Its Bid to Net Martha Stewart; Even the Justice Department avoided stretching insider-trading laws that far"; Catherine Cooper is "Lamenting Miranda's fall"; and Charles J. Unger writes that "The government puts a 'Big Spin' on forfeiture laws."

In The Boston Globe, Lyle Denniston reports that "Review of campaign-finance law delayed." And you can access here an article headlined "Ashcroft seeks to expand terror law; Some lawmakers talk of an erosion of civil liberties."

Finally for now, USA Today reports here that "Ashcroft defends Justice Dept.'s anti-terror actions; Lawmakers say agency's pattern challenges rights and due process."
Posted at 08:14 by Howard Bashman



"What got into Chief Justice Rehnquist?" Columnist James J. Kilpatrick addresses the question.
Posted at 07:59 by Howard Bashman



"Tearful Jaffe gets 27 months in jail; Ex-judge extorted cash from lawyer": Today's edition of The Pittsburgh Post-Gazette contains this report.
Posted at 07:58 by Howard Bashman



On the horizon: The June 2003 installment of my monthly appellate column is scheduled to appear in The Legal Intelligencer on Monday, June 9, 2003. This month's column provisionally bears the title "U.S. Supreme Court Vacancies On The Horizon: What To Expect This Summer If One Or Two Vacancies Arise On The Court." If you'd like to sign-up to receive my monthly column in PDF format via email on the day of its publication on the second Monday of each month, there's a free and easy sign-up form available here.
Posted at 07:05 by Howard Bashman



"The Big Lie": Greg Beato takes a left-leaning look at what Hugh Hewitt has called "The Big Four." Plus, be sure not to miss the comments.
Posted at 06:43 by Howard Bashman



"Judge's misconduct cited in U-M case; Appeals court admits mistakes that could have steered outcome": Today's edition of The Detroit News contains this report. And The Detroit Free Press reports here that "Court faults judge's role in U-M appeals case; Jurist improperly took part in panel, review concludes." For my earlier coverage of this matter, see this post from last night.

Update: A reader emails to note that The Detroit Free Press article states: "The judges in the majority [in the University of Michigan Law School en banc ruling] were all appointed by Democratic presidents and the dissenting judges by Republican presidents." My correspondent then goes on to note, correctly, that Circuit Judge Ronald Lee Gilman was among the dissenters, and Judge Gilman was nominated to the Sixth Circuit by President Clinton.
Posted at 06:27 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Filibuster Rule Change Is Urgent, Frist Says; Daschle Calls Proposal A GOP 'Overreaction.'" Charles Lane reports that "Court to Hear Campaign Finance Arguments Sept. 8; Justices Alter Schedule to Expedite Challenges in McCain-Feingold Law Case." In other news, "Ashcroft Wants Stronger Patriot Act; Expanded Death Penalty and Bond Changes Sought." And this article reports that "Verizon Identifies Download Suspects; Firm Says Fight Goes On to Guard Privacy."

The New York Times reports here that "Vote Nears on Bid to Ease Rules to End Filibusters." An article reports that "Finance Law to Be Argued in September." You can access here an article bearing the headline "Martha Stewart Uses Web to Tell Her Side of Story." An article reports that "Ashcroft Seeks More Power to Pursue Terror Suspects." In somewhat related news, "Man Acquitted in Terror Case Says Co-Defendants Will Be Cleared." And in media news, you can access here an article headlined "Times's 2 Top Editors Resign After Furor on Writer's Fraud" and here "A Formidable Run Undone by Scandal and Discontent." And an editorial is entitled "Leadership at The Times."

Finally for now, The Christian Science Monitor contains an article bearing the headline "How 'partial birth' bill fits into shifting abortion wars; With Wednesday's vote, antiabortion forces score a win and Bush hones his support base."
Posted at 06:04 by Howard Bashman



Thursday, June 05, 2003
U.S. Supreme Court offers Web page dedicated to Bipartisan Campaign Reform Act cases: You can access it here.
Posted at 22:39 by Howard Bashman



Available online at law.com: Tony Mauro reports here on the financial disclosure forms recently filed by Justices serving on the Supreme Court of the United States. Shannon P. Duffy has an article headlined "Wireless Phone Co. Argues Wrong Numbers; 3rd Circuit rejects Omnipoint statistics in bid for new tower." And here's an item entitled "Planning Your Clerkship Application Strategy: The change requires adjustments for everyone involved, especially law students preparing to apply."
Posted at 22:34 by Howard Bashman



"Judge Reviewed in Affirmative Action Case": Gina Holland of The Associated Press has this report. You can access the adjudication of the Sixth Circuit in In re: Complaint of Judicial Misconduct at this link.

This is a most remarkable development. You can access additional background material here (Wall Street Journal op-ed), here (Charles Lane writing in The Washington Post), and here (yours truly reporting on the Sixth Circuit's en banc University of Michigan Law School racial preferences in admissions ruling).

To the extent that the Sixth Circuit's order speaks of "the imminent operation of 28 U.S.C. sec. 45(a)(3)(A)," what it means is that the term of that court's current chief judge is about to expire (see the statute here).
Posted at 21:07 by Howard Bashman



"Shizzle my nizzle: lyrics leave judge lost for words": The Independent (UK) has this report. Elsewhere, The Times of London reports here that "Rap is a foreign language, rules rueful judge." BBC News reports here that "Rap lyrics confound judge." The Telegraph answers here "So what exactly is shizzle my nizzle?" And The Daily Record reports here that "Rap Act's Lyrics Cause Judge to Wig Out."

The Times of London's article is a must read. Here's a sample: "But at the end of the day, all efforts to bridge the linguistic divide between Queenís Counsel English and the patois of young black England essentially ended in dreadlock."
Posted at 20:32 by Howard Bashman



"GOP, Democrats Clash Over Filibuster Rule": The Associated Press provides this coverage.
Posted at 19:19 by Howard Bashman



"Court to Hear Campaign Finance Challenge": Anne Gearan of The Associated Press has this report.
Posted at 17:30 by Howard Bashman



Odds? What are the odds of getting one or two new U.S. Supreme Court Justices nominated and confirmed between Monday, June 30, 2003 and Monday, September 8, 2003? In my view, anyone who thinks that a Justice will change his or her retirement plans because of the McCain-Feingold campaign finance case is sadly mistaken.
Posted at 17:25 by Howard Bashman



"In first use of jurisdiction act, USAF spouse to be tried in husband's death": Stars and Stripes has this report. (Via "The JAG Hunter.")
Posted at 17:16 by Howard Bashman



"Ex-GOP Senator Doesn't Regret Switch": The Associated Press provides this report.
Posted at 17:13 by Howard Bashman



The U.S. Supreme Court has issued its scheduling order in the McCain-Feingold campaign finance cases: The order states:
In these cases probable jurisdiction is noted. The cases are consolidated and a total of four hours is allotted for oral argument. The briefs of the parties who were plaintiffs in the District Court are to address the questions presented in the jurisdictional statements and are to be filed with the Clerk of the Court and served upon the parties who were defendants in the District Court on or before 3 p.m., Tuesday, July 8, 2003. The briefs of the parties who were defendants in the District Court are to be filed with the Clerk of the Court and served upon the parties who were plaintiffs in the District Court on or before 3 p.m., Tuesday, August 5, 2003. Any reply briefs by parties who were plaintiffs in the District Court are to be filed with the Clerk of the Court and served upon parties who were defendants in the District Court on or before 3 p.m., Thursday, August 21, 2003. The cases are set for oral argument at 10:00 a.m., Monday, September 8, 2003.
A separate letter to counsel states:
Counsel of Record,

Attached is the order noting probable jurisdiction in Nos. 02-1674, et al., setting the briefing schedule, and setting argument for September 8, 2003. The order does not address the page limitations for briefs. Page limits for briefs will presumptively be those provided for in the Court's Rules. Longer briefs may be allowed if combinations of parties agree to submit common briefs on particular issues; and shorter briefs may be prescribed for certain issues.

Counsel are directed to file with the Clerk of the Court a coordinated proposal by noon, Tuesday, June 10, 2003. The proposal shall:

A. Identify issues upon which two or more parties can present a common position;

B. Propose a page limit on the portion of briefs addressing each such issue on behalf of parties with a common position; and

C. Identify issues upon which there is no common position, with the parties' suggestions for brief pages necessary to address them.

Please, be certain to acknowledge receipt of this transmission via e-mail. If you have any questions or desire assistance please contact me at 202-479-****, or Chris Vasil at 202-479-****.

Sincerely,

Merits Cases Clerk,
Denise J. McNerney
fax no. 202-479-****
You can access the order quoted above at pages 3 and 4 of this PDF file.
Posted at 17:02 by Howard Bashman



Aimee Deep shares her views on yesterday's Aimster/Madster oral argument in the Seventh Circuit: You can access her post here.
Posted at 16:44 by Howard Bashman



"Ashcroft Seeks Expanded Death Penalty": Here's the latest from The AP.
Posted at 15:43 by Howard Bashman



"Court Rules for Woman Fired When Pregnant": The Associated Press has this report. You can access today's ruling of the Court of Appeals of New York, that State's highest court, at this link.
Posted at 15:17 by Howard Bashman



"Of Blogs, Bloggers and Blawgs": The Law Practice Management Section of the American Bar Association posts this article, which originally appeared in the Oklahoma Bar Journal.
Posted at 15:03 by Howard Bashman



"U. of Georgia Losing Diversity Battle": The Associated Press has this report.
Posted at 14:34 by Howard Bashman



Filibuster buster: Watch live online today's Senate Rules Committee hearing, underway now, at this link (Real Player required).
Posted at 14:11 by Howard Bashman



The Ninth Circuit examines whether the The Commonwealth of Northern Mariana Islands can claim sovereign immunity from suit brought under federal law: The result is a very interesting opinion issued today that appears to perpetuate a circuit split, given the manner in which the First Circuit has resolved the question with respect to Puerto Rico.
Posted at 13:32 by Howard Bashman



"Gag Rules? Bloggers Report Anyway": My friend Denise Howell of the "Bag and Baggage" blog is in the news -- Wired News, that is. By the way, the headline I've quoted strikes me as misleading, because everyone concedes that the "gag rules" only applied to established journalists and did not apply to pure bloggers.
Posted at 13:09 by Howard Bashman



In news from Pittsburgh: The Post-Gazette reports here that "Amish to appeal ruling in horse dispute" and here that "Judge Jaffe gets 27 months in prison for extortion."
Posted at 13:05 by Howard Bashman



The Associated Press is reporting: You can access here an article bearing the headline "Ashcroft Wants Broader Anti-Terror Powers"; here "Retarded Man Won't Be Retried for Murder"; and here "Pa. Town Won't Let Amish Men Keep Horses."
Posted at 13:01 by Howard Bashman



Executive Editor Howell Raines and Managing Editor Gerald Boyd have resigned from The New York Times: CNN.com is reporting. And The NYTimes has this report. Update: Also, here's the official press release (via "NRO's The Corner").
Posted at 11:08 by Howard Bashman



The thirteenth contributor to "The Volokh Conspiracy" is quite the catch: At 4:25 a.m. eastern daylight time today, Eugene Volokh announced that Law Professor Randy E. Barnett has become a co-blogger at "The Volokh Conspiracy." I better hurry-up and join before all the good co-blogger identification colors are taken.
Posted at 10:35 by Howard Bashman



"British Judge Says Nizzle-Shizzling Not an Offense": Reuters has this report.
Posted at 10:27 by Howard Bashman



Attorney General John Ashcroft is testifying now before the House Judiciary Committee about the Patriot Act: You can watch it live online here, now.
Posted at 10:16 by Howard Bashman



Goodbye, filibuster? The U.S. Senate's Committee of Rules and Administration is scheduled to hold a hearing today at 2 p.m. on Senate Rule 22 (or, for those who prefer Roman numerals, XXII). C-SPAN3 plans to televise the hearing live, which will allow the hearing to be viewed online via this link. Relatedly, today's edition of The Washington Times contains an op-ed by U.S. Senator John Cornyn (R-TX) entitled "A broken tradition." Take a look soon before The Washington Times decides to add the final "n" to the Senator's last name in the op-ed's byline. (Some of the foregoing links via "The Indiana Law Blog.")
Posted at 10:14 by Howard Bashman



Elsewhere in today's edition of The New York Times: Linda Greenhouse reports here that " Justices to Rule on Schedule of Campaign Finance Case." You can access here an article bearing the headline "From One Esteemed Corner, a Lesson About the Senate's Filibuster Rule." An article reports that "Verizon to Reveal Customers in Piracy Case." In other business news, "Senators Move to Restore F.C.C. Limits on the Media." An article reports that "California Marijuana Grower Sentenced to a Day in Prison." And a proposed constitutional amendment is the subject of an article headlined "Panel Calls for Amendment to Fill House Seats in Emergency."
Posted at 09:53 by Howard Bashman



NPR covers yesterday's Eleventh Circuit oral argument in Alabama the Ten Commandments monument case: You can access the audio clip here (Real Player required).
Posted at 09:43 by Howard Bashman



"Guess Who's Coming to Study": Law Professor James F. Blumstein has this op-ed concerning the University of Michigan racial preferences in student admissions cases in today's edition of The Wall Street Journal.
Posted at 09:38 by Howard Bashman



"Legal aid for poor still has big gaps": Today's edition of The Atlanta Journal-Constitution contains an article that begins, "Many state courts in Georgia are not complying with a landmark U.S. Supreme Court ruling that protects poor criminal defendants' access to legal counsel in minor cases."
Posted at 09:33 by Howard Bashman



"2 hit Taco Bell jackpot; Ka-ching! Talking dog nets men $30.2 million": Today's edition of The Detroit Free Press contains this report.
Posted at 07:01 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Probe clears judicial pick Chertoff." In other news, "House OKs ban on partial-birth abortion." You can access here an article headlined "Constitution change urged." And an op-ed by Paul Craig Roberts is entitled "Farewell to rights."

The Los Angeles Times reports here that "House Votes to Ban 'Partial Birth' Abortions; Rights activists promise an immediate appeal. The constitutionality of bill is also in question." An article reports that "The 'Guru of Ganja' Gets a Day in Jail; A judge frees activist who has become a symbol in a clash with the federal government over California's medical marijuana laws." You can access here an article headlined "Same-Sex Couples Rights Bill Passed by Assembly." And in local news, you can access here an article that bears the headline "New Trial for O.C. Migrant; Judge Scolded; Appellate panel says Superior Court judge prejudiced jury against illegal immigrant" and here "Panel Torn Over Fate of 'Super Diaper Baby'; Some Riverside school committee members dislike the potty humor but oppose censorship."

The Boston Globe reports here that "House votes to ban an abortion method." And in other news, "Dismissal sought in case vs. Little League mom."

Finally for now, USA Today reports here that "House votes to ban 'partial birth' abortion procedure; Bush pledges to sign bill, but court battle likely; doctors could face jail." And you can access here an op-ed by John C. Tucker entitled "Career taught me value of diversity."
Posted at 06:46 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "Va. Appeals Court May Surprise in Terror Case; Despite Pro-Government, Conservative Reputation, Moussaoui Panel Could Rule Either Way." A related editorial is entitled "No Exceptions to Rights." In other news, "House Votes to Restrict Abortions; Bill Would Ban Method Foes Call 'Partial Birth.'" An article reports that "Hatch Calls for Compromise on Asbestos." And you can access here an article bearing the headline "One Jail Day for Marijuana Felony; Jurors Rebelled at Own Verdict on Medicinal Use Advocate."

The New York Times reports here that "Measure Banning Abortion Method Wins House Vote." In business news, "Senators Move to Restore F.C.C. Limits on the Media." And you can access here an article headlined "On Video Games, the Jury Is Out and Confused."
Posted at 00:03 by Howard Bashman



Wednesday, June 04, 2003
Another download option for audiotape of today's Aimster/Madster oral argument: If you're having difficulty downloading it from the Seventh Circuit's Web site using my instructions posted earlier this evening, you can access a mirrored copy of the audiotape via this link, courtesy of "WrenBlog."
Posted at 23:56 by Howard Bashman



"Request Rejected in Music Download Case": The Associated Press has this news from the U.S. Court of Appeals for the D.C. Circuit.
Posted at 23:50 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "Religious Monument Draws Fire at 11th Circuit; Alabama courthouse display of Ten Commandments is at stake." Jason Hoppin has an article that bears the headline "Smoke Clears in Pot Case; Hard-fought federal prosecution ends with one-day sentence for medical marijuana grower." In other news, "Mediators Divided on Confidentiality; Association files amicus in closely watched California Supreme Court case." And Alan B. Morrison has a commentary entitled "Your Money or Your Life."
Posted at 22:12 by Howard Bashman



"House Passes 'Partial Birth' Abortion Ban": Reuters provides this report.
Posted at 22:08 by Howard Bashman



This should prove to be quite interesting: The Senate Judiciary Committee has scheduled the confirmation hearing of Eleventh Circuit nominee William H. Pryor, Jr. for the morning of Wednesday, June 11, 2003. (Via "Southern Appeal.")
Posted at 20:34 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Supreme Court Justices Hit Road in 2002." And in other news, "Moussaoui Lawyers Claim Misleading Info."
Posted at 19:58 by Howard Bashman



Hear for yourself: Let's say you're one of the many people who are wondering what happened today at the U.S. Court of Appeals for the Seventh Circuit during oral argument in the case of Recording Industry Association of America, Inc. v. John Deep, also known as the Aimster/Madster appeal. Thanks to the Seventh Circuit's amazing Web site, you can listen to an audio file of today's oral argument via this link. Trading of this audio file is permitted as best as I can tell. Also, you can access the briefs filed in the appeal via this link.
Posted at 19:30 by Howard Bashman



"Judges ask questions in Moore hearing": The Montgomery Advertiser provides this report on today's Eleventh Circuit oral argument in the Ten Commandments monument in the Alabama Judicial Building case.
Posted at 19:26 by Howard Bashman



"Hatch, Leahy Issue Joint Statement on Judicial Watch Allegations Against Michael Chertoff": You can access the joint statement here.

In response, the organization Judicial Watch has issued a press release entitled "Senate Whitewashes Probe of Chertoff; Judiciary Committee Dodges Responsibility Concerning Former Senate Colleague, Fearing Political Consequences of Honest Investigation."
Posted at 17:31 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Mexican Abductee Wins Right to Seek Damages; Appeals court sides with doctor kidnapped in 1990 on DEA orders and later acquitted." Bloomberg News reports that "Age Limit for Violent Video Games Struck Down." You can access here an article headlined "Two Guilty in Terrorism Trial; Jury in Detroit convicts the Arab immigrants of aiding terror in the first major case tied to 9/11. Two others are cleared of conspiracy charges." An article reports that "House Backs Amendment to Outlaw Flag Desecration; It's the 5th such vote in 8 years, despite a high court ruling. Senate seems less willing to act." In local news, "Man With Corpse in Car Is Arrested." An editorial is entitled "Justice Crosses a Line." And in letters to the editor, "Far Too Little Value Put on the Jury System" and "Snooping on Readers Puts Freedom at Risk."

USA Today reports here that "Moussaoui clash hits appeals court: U.S. cites security; defense argues for suspect's rights." And you can access here an article headlined "Two found guilty in Detroit terror trial; Two acquitted of conspiracy."

Finally for now, The Boston Globe reports here that "House close to abortion procedure ban; Challenge against 1st federal curb vowed."
Posted at 17:15 by Howard Bashman



On the agenda for tomorrow's business meeting of the Senate Judiciary Committee: You can access the tentative agenda here. Second Circuit nominee Richard C. Wesley is the only federal appellate court nominee scheduled to receive a vote at tomorrow's meeting.
Posted at 17:05 by Howard Bashman



Attacked from the left and the right: White House Counsel Alberto R. Gonzales could very well be the first Hispanic to serve on the Supreme Court of the United States. And a Supreme Court vacancy may be announced when the Court wraps-up delivering its decisions in argued cases later this month. As a result, it's not surprising that Gonzales has begun to experience what could be described as attacks from both the left and the right.

The June 2003 issue of Texas Monthly contains an article -- not currently available online -- described as follows: "Is 'Al Gonzales' Spanish For 'Stealth Liberal'? Conservatives fear that the White House counsel is another David Souter, but he's close enough to George W. that he'll probably get a Supreme Court seat anyway--and make history." And the July/August 2003 issue of The Atlantic Monthly will contain an article described as follows: "The Texas Clemency Memos: As the legal counsel to Texas Governor George W. Bush, Alberto R. Gonzales--now the White House counsel, and widely regarded as a likely future Supreme Court nominee--prepared fifty-seven confidential death-penalty memoranda for Bush's review. Never before discussed publicly, the memoranda suggest that Gonzales repeatedly failed to apprise Bush of some of the most salient issues in the cases at hand."
Posted at 16:16 by Howard Bashman



Judicial sound effects not appreciated in Florida: The Associated Press reports here that "Fla. Judge Gets Reprimand for Behavior."
Posted at 15:43 by Howard Bashman



"Appeals court hears Ten Commandments arguments": The Associated Press offers this recap of today's oral argument before the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 15:36 by Howard Bashman



You heard it here first: Back on the night of December 11, 2002, I wrote the following blog post here:
Fifth Circuit panel expresses disagreement with binding circuit law requiring estate of deceased criminal to continue paying restitution under federal statute: The case law on this issue throughout the Nation has been a mess for quite a while -- as today's Fifth Circuit ruling makes clear -- and I hope the U.S. Supreme Court finds the time to get it sorted out soon. In the interim, rehearing en banc in the Fifth Circuit is a good possibility in this case in which a three-judge panel issued its opinion today.
In an order entered yesterday and posted online today, the Fifth Circuit did grant rehearing en banc in this matter. The order further shows that Circuit Judge Edward C. Prado took part in the vote. No doubt Judge Prado is now hard at work looking for an appropriate sound system to allow the broadcasting of humorous bits in each of the Fifth Circuit's various courtrooms.
Posted at 15:24 by Howard Bashman



"Marijuana 'Guru' Walks Free in Calif.": The Associated Press has this report.
Posted at 15:03 by Howard Bashman



"Tussle likely in filling judgeship; Kohl, Feingold to fight for use of commission": Today's edition of The Milwaukee Journal Sentinel contains this report about an impending vacancy on the U.S. Court of Appeals for the Seventh Circuit.
Posted at 14:45 by Howard Bashman



Eighth Circuit announces ruling in appeals involving management of the Missouri River: The cases on appeal involved disputes between several States and the Army Corps of Engineers. Today's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit begins:
This case arises out of the management of the Missouri River, which runs through seven states in its journey from Montana to Missouri. The United States Army Corps of Engineers is charged with the responsibility of managing this river and its attendant reservoirs. In carrying out this charge, the Corps must strike a balance among many interests, including flood control, navigation, and recreation. In good times, the Corps can accommodate all such interests, but, when facing a continuous drought, the Corps is forced to make hard choices. In the Spring of 2002, the Missouri River Basin was in the midst of just such a prolonged drought. The Corps decided to release water from a single reservoir, Lake Oahe, to maintain downstream river flow. The State of South Dakota, where Lake Oahe is located, sought and received an injunction barring this release. This action led other states to seek similar injunctions. Within a period of days, courts had put four of the six mainstem reservoirs off limits for releases. The State of Nebraska then sought and received an injunction requiring the Corps to maintain downstream river flow.

In this case we review the decisions of three district courts to issue preliminary injunctions binding the Corps. District Courts in North Dakota and South Dakota enjoined the Corps from drawing down reservoirs located in their states for short periods of time, and a Nebraska District Court ordered the Corps to abide by its governing Missouri River operations manual. We reverse the judgments of the District Courts in North Dakota and South Dakota and affirm the judgment of the Nebraska District Court.
You can access the complete ruling at this link.
Posted at 11:29 by Howard Bashman



"Mexican kidnapped for DEA can bring suit against U.S.": Bob Egelko has this article in today's edition of The San Francisco Chronicle.
Posted at 10:39 by Howard Bashman



From the current issue of The Village Voice: You can access here an essay entitled "What Gay-Friendly Republicans? Homos Get the Glad Hand, Phobes Get the Power." According to the essay, "The most vivid proof is Bush's willingness to nominate men with anti-gay records to lifetime terms on the federal bench. Rick Santorum's wrath is nothing compared with the impact of these and other right-wing appointments. Bush's judicial agenda could pose the greatest threat to gay rights in a generation."

Elsewhere, an article is entitled "A Lifetime in Limbo: Why the "Dirty Bomber" Case Threatens Everyone's Rights." And Nat Hentoff has an essay entitled "100th Civil Liberties Safe Zone! Hawaii Is the First State to Defy Ashcroft."
Posted at 09:26 by Howard Bashman



In terrorism trial-related news from Detroit: The Detroit Free Press contains an article entitled "Convictions and Acquittals: Verdict doesn't end debate; Victory claimed by both sides in terrorism case." You can access here an article entitled "Legal Strategy: Case is a blueprint for others; Both sides reviewing successes, setbacks" and here an article entitled "The Acquitted: Friends' convictions cast a pall over celebration." A list of the defendants is available here, and a list showing how the jury ruled is available here.

The Detroit News contains an article entitled "Feds: Guilty verdicts validate terror hunt; Critics: Split convictions point to weak evidence." You can access here an article entitled "Experts: Civil rights preserved; Jurors showed they could fairly examine terrorism case, carefully weigh evidence"; here "Jury weighs key witness testimony lightly; Jurors examined case on its merit, ignored the charged national backdrop, they said"; here "'I was living in terror,' acquitted defendant says; 22-year-old Ali-Haimoud describes his 14-month ordeal"; and here "Reaction is muted among Metro Arabs; Concern centers on peace in Mideast and their daily lives." You can access here background on the defendants. And an editorial is entitled "Terrorism Trial: Verdicts send mixed signals on justice and rights."
Posted at 09:04 by Howard Bashman



"Moussaoui's access to witness argued": This article appears in today's edition of The Richmond Times-Dispatch. And The Knight Ridder News Service reports that "Panel hears Moussaoui issue; It's right to fair trial vs. national security over calling of foreign witness." The three-judge Fourth Circuit panel assigned to decide the merits of the appeal consists of Chief Judge William W. Wilkins and Circuit Judges Karen J. Williams and Roger L. Gregory.
Posted at 08:40 by Howard Bashman



"Ten Commandments appeal to start today": The Birmingham News has this report. And The Associated Press provides an article entitled "Moore: Commandments monument should stay."
Posted at 08:40 by Howard Bashman



"Committee: Bill Pryor's hearing date getting close": Today's edition of The Mobile Register contains this report.
Posted at 08:32 by Howard Bashman



"'Politics' overrides 'principle'": Sunday's edition of The Hattiesburg American contained this editorial.
Posted at 08:31 by Howard Bashman



"Feinstein seizes the middle ground; Senator finds allies on both sides of aisle": Monday's edition of The San Francisco Chronicle contained this article, which includes discussion of filibustering judicial nominees.
Posted at 08:25 by Howard Bashman



Available online at law.com: Jason Hoppin reports that "6-5 Ruling Allows Mexican to Sue U.S. for Having Him Kidnapped." And Jonathan Groner has an article entitled "D.C. Circuit: Plowing Ahead Amid Judicial Confirmation Furor; National security, Internet cases obscured by nomination fights."
Posted at 08:23 by Howard Bashman



"Gay Rights Go to Court: Sodomy laws, same-sex marriage, and the future of homosexual rights." Cathy Young has this essay at Reason.
Posted at 07:05 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Rules Vs. U.S. in Mexican Kidnap"; here "Court Backs Government on Coal Rules"; here "House Approves Ban on Burning U.S. Flag"; here "House Nears 'Partial-Birth' Abortion Ban"; here "Killer of R.F. Kennedy Wants Appeal Moved"; here "Alleged Sniper Associate Is Sentenced"; and here "Woman Cited for Riding Train Topless."
Posted at 06:56 by Howard Bashman



"Court refuses fetus guardian for a 3rd time": This article appears in today's edition of The Orlando Sentinel.
Posted at 06:51 by Howard Bashman



"Moore, attorneys ready for Commandments appeal": Today's edition of The Montgomery Advertiser provides this report. Oral argument is scheduled to get underway before a three-judge panel of the Eleventh Circuit at 9 a.m. central time in Montgomery, Alabama.
Posted at 06:46 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Adam Liptak reports that "Ruling Awaited on Display of Commandments at Court." An article covering yesterday's Fourth Circuit oral argument in the Zacarias Moussaoui case is entitled "Justice Dept. Warns of Risk to Prosecution and Security." From Detroit comes a report that "2 Arabs Convicted and 2 Cleared of Terrorist Plot Against the U.S." Prohibiting flag burning is the subject of an article entitled "Given New Legs, an Old Idea Is Back." An obituary is entitled "Shirley B. Stamps, Who Won '54 Desegregation Case, Dies at 59." And an editorial is entitled "'Partial Birth' Mendacity, Again."

The Washington Post reports here that "Appeals Panel Hears Arguments on Deposition Sought by Moussaoui." In other news, "Jury Splits Verdict in Terror Trial; Two Men Convicted in Alleged 'Sleeper Cell' Plot; One Is Acquitted." And Ruth Marcus has an op-ed entitled "'Partial Birth,' Partial Truths."

The Christian Science Monitor reports here that "Detainees get boost from Justice review." And a related editorial is entitled "Treat Detainees Right."
Posted at 06:36 by Howard Bashman



"In the latest 'investigation,' the joke's on Democrats": Byron York has this essay today in The Hill. Byron's column begins, "For a while, it looked like smooth sailing for Michael Chertoff."
Posted at 06:23 by Howard Bashman



Tuesday, June 03, 2003
U.S. Supreme Court round-up for Monday, June 2, 2003: The Supreme Court of the United States yesterday issued three decisions in argued cases. Two of the three decisions were unanimous, and the third was decided by a margin of 7-2. Additionally, the Court summarily and unanimously reversed a ruling of the Supreme Court of Alabama in a case involving -- what else -- the Federal Arbitration Act. And now, on to the nitty-gritty details (at least in several instances).

1. The Court's most noteworthy ruling issued yesterday came in the case of