How Appealing

Thursday, July 31, 2003
"Battle over Gay Marriages Heats Up": This evening's edition of NPR's "All Things Considered" contained this audio report (Real Player required; 7 minutes and 30 seconds).
Posted at 23:54 by Howard Bashman



Stymied: Tomorrow's issue of The Atlanta Journal-Constitution reports here that "Democrats stymie Pryor." And tomorrow's issue of The Washington Post reports here that "GOP Senators Claim Anti-Catholic Bias; Democrats Furious at Charge Over Blocking of Appeals Judge Nomination."

On deck as tomorrow's filibusteree, Ninth Circuit prospect Carolyn B. Kuhl. Stay tuned for complete details.
Posted at 23:46 by Howard Bashman



Recusal is for the dogs: The Associated Press reports here that "U.K. Judge Quits Case Featuring His Dog."
Posted at 23:35 by Howard Bashman



In Thursday's newspapers: In The Washington Post, a front page article reports that "Sodomy Ruling Fuels Battle Over Gay Marriage." An article reports that "Tax Court Nominee Queried; Hill Staff Finds Improper Deductions Over Three Years." In other news, "Seizure of Business Records Is Challenged; ACLU and Arab American Groups File Lawsuit Over Element of USA Patriot Act." You can access here an article headlined "Judge Bars POW Claims To Frozen Iraqi Assets." And in local news, "Md. Election Ruling Gives Minor Parties a Boost."

In The New York Times, Neil A. Lewis reports that "Bush Backs Bid to Block Gays From Marrying." In related news, "Vatican Says Lawmakers Have Duty to Oppose Gay Marriage." And an editorial is entitled "Playing It Safe on Gays." An article reports that "Suit Challenges Constitutionality of Powers in Antiterrorism Law." Adam Liptak reports here that "17 Ex-P.O.W.'s Won't Get Part of Seized Iraq Assets, Judge Says." In local news, "Judge Orders Inmate Freed or Retried in '87 Sex Case." And a letter to the editor appears under the heading "A Step Back for Victims."

The Washington Times, with scare quotes in full effect, offers an article headlined "Bush vows no 'compromise' on gay 'marriage.'" An article reports that "Gay-rights bills may boost recall push." In other news, "ACLU sues over Patriot Act, says FBI has too much power." You can access here an article headlined "Blacks back affirmative action in poll." In somewhat related news, "Michigan GOP leaders oppose race initiative for Bush's sake." And an article reports that "Lawmakers see loophole in alien visa revocation."

The Boston Globe reports here that "Bush backs efforts to bar gay marriage." Lyle Denniston reports that "Arab groups in US file lawsuit seeking to curb Patriot Act." The Associated Press reports here that "Bush taps Weston lawyer for bench." You can access here an article headlined "On the road for a bobblehead" that may bring back memories of a certain recent eBay auction. And columnist Ellen Goodman has an op-ed entitled "Rethinking the rape shield."

USA Today reports here that "President moves to define marriage; Legislation in works to deny right to gays." In other news, "ACLU sues over Patriot Act seizures provision; Group says secret confiscation of personal records unlawful." And an article reports that "Media fight order in Bryant case; Judge puts limits on what can be covered."

The Los Angeles Times reports here that "Police Abuse Case Will Be Retried; D.A. calls the decision easy, since seven jurors considered the former Inglewood officer guilty. One panelist wonders if unanimity is possible." In other news, "Media Request Considered; News organizations want the court files in the Bryant sexual assault case to be made public. An Eagle County judge will hear arguments today." An article reports that "Ventura County Deputy Used Excessive Force, Jurors Find; Federal panel says civil rights of a retired Fillmore officer were violated when he was shot in 2000. Trial moves to the penalty phase." An obituary is entitled "M. Peter Katsufrakis, 83; Judge Advocated for the Little Guy." An editorial is entitled "A Goal for Police." James Q. Wilson has an op-ed entitled "Colorblind Versus Blindfolded." Erwin Chemerinsky has an op-ed entitled "Law and Logic Should Delay Measure on Race." And a letter to the editor appears under the heading "Irresponsible Judges Are at Fault in Killing."
Posted at 22:39 by Howard Bashman



"Federal Judges Find Courts Short of Money to Pay Jurors": Adam Liptak will have this article in Friday's issue of The New York Times.
Posted at 22:37 by Howard Bashman



"Jury Clears Philip Morris in Smoker Suit": The Associated Press has this report from Los Angeles.
Posted at 22:35 by Howard Bashman



"ms. morality: Moral reflections on life and politics from an attorney-turned-homemaker." Here's an interesting new blog featured in Denise Howell's recent round-up. Denise also recommended checking out ms. morality's essay, available separately here, entitled "Beyond the Empty Promises: The Realities of Being Pregnant in a Large Law Firm."
Posted at 22:33 by Howard Bashman



"Judge takes case to high court; Pat Kinsey continues to fight ethics charges": The Pensacola News Journal last week had an article reporting that "Attorney Roy Kinsey is asking the U.S. Supreme Court to review a state ethics ruling against his wife, Escambia County Judge Pat Kinsey."
Posted at 22:17 by Howard Bashman



"GOP Forces Unwinnable Judicial Votes": Jesse J. Holland of The Associated Press has this report. Of course, each of the four nominees currently being filibustered would attain confirmation by a majority vote if confirmation votes were allowed to occur.
Posted at 17:23 by Howard Bashman



Ten Commandments news from here and there: Today's issue of The Philadelphia Inquirer reports here that "Atheists want rehearing in Commandments case." In related news, The Daily Local reports here that "ACLU requests appeal in plaque case."

From Pittsburgh comes Ten Commandments-related news, via The Tribune-Review, that "Group considers appeal." And The Post-Gazette yesterday contained an editorial entitled "Thou shalt be sensible; The county dodges a Ten Commandments suit."

From Alabama, The Associated Press reported here last night that "11th Circuit returns commandments case to Thompson."

Finally for now, tomorrow's issue of The Forward contains an article entitled "House Takes Aim at Judiciary on Church-State Cases; Representatives Vote To Block Enforcement."
Posted at 17:09 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Dispute Ends Over Affirmative Action Case"; here "Constitution Center Mishap Due to Bolts"; here "Gay Marriage Legalization Facing Backlash"; and here "Calif. Faculty Backs Academic Freedom."
Posted at 17:01 by Howard Bashman



News from Texas: The Supreme Court of Texas issued a press release today that begins, "Texas Supreme Court Justice Craig Enoch announced Thursday (July 31) that he has advised Chief Justice Thomas R. Phillips, the members of the Court and Gov. Rick Perry that he will not seek re-election to a third term on the Court and that he intends to step down before the end of the year."
Posted at 16:28 by Howard Bashman



Sometimes the Sixth Circuit takes a case en banc too slowly, and other times it takes a case en banc too quickly: In both instances, judges who happen to be on senior status when the case goes en banc are the ones who lose out. See this very interesting published order accompanied by a concurrence and a dissent, which issued a bit later than the Sixth Circuit's other opinions from today.

Circuit Judge Eric L. Clay's concurrence seems to endorse my recently-expressed view that senior circuit judges should not be issuing opinions in matters as to which they do not possess a vote.
Posted at 15:59 by Howard Bashman



Sixth Circuit Judicial Council announces its decision on claims of judicial misconduct in the handling of University of Michigan racial preferences in student admissions cases: You can access today's decision at this link. It's not every day that Sixth Circuit Judge Julia Smith Gibbons, who joined that court in late July 2002, gets to serve as Acting Chief Judge. Judicial Watch, the organization that initiated the judicial misconduct proceedings, has issued a press release concerning today's decision, and that press release is available here.

Update: The press release from Judicial Watch seems to suggest that the Judicial Council has upheld or left undisturbed findings of judicial misconduct against Sixth Circuit Chief Judge Boyce F. Martin, Jr. in connection with the University of Michigan cases. My reading of the Judicial Council's ruling, however, causes me to conclude that the council refrained from deciding one way or the other whether Chief Judge Martin committed misconduct or whether the factual allegations that had led to the earlier finding that the record supported an inference of misconduct were or were not well-founded. Admittedly, much reading between the lines is required to understand the council's ruling, and its lack of clarity is certainly a thing of beauty and perhaps quite intentional.
Posted at 13:29 by Howard Bashman



"Librarians Chafe Under USA Patriot Act": The Associated Press has this report.
Posted at 13:20 by Howard Bashman



"Bryant case documents hearing going ahead": CNN.com reports here that "A hearing on whether to unseal court files in the Kobe Bryant sexual assault case will go on as scheduled Thursday, despite a motion from the prosecution for a continuance."
Posted at 12:05 by Howard Bashman



"GOP Loses Pryor Vote in Senate": Jesse J. Holland of The Associated Press provides this report.
Posted at 11:50 by Howard Bashman



Must acquit: Will Baude writes that "Small parts of the blogosphere are now roiling with discontent about Tyler Cowen's place in the Volokh Conspiracy." On the other hand, I sometimes have readers email to complain that my blog is too interesting and that it prevents them from getting important other stuff done. Such readers might welcome my inviting in of a co-blogger whose posts they could blithely ignore. (P.S. I don't mean to imply that Tyler's posts are never interesting; for example, I found this to be interesting.)
Posted at 11:38 by Howard Bashman



The U.S. Senate has failed to invoke cloture in the debate over the nomination of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit: This morning's vote was 53 in favor of cloture, and 44 against. Sixty votes "for" are necessary to invoke cloture. Filibuster number three is officially underway. Update: You can now access the official roll call vote tally at this link.
Posted at 10:31 by Howard Bashman



"Judging judges: Conservatives, Catholics needn’t apply." Today's edition of The Union Leader of Manchester, New Hampshire contains this editorial.

Relatedly, the cloture vote on Eleventh Circuit nominee William H. Pryor, Jr. has just begun. Stay tuned for the result.
Posted at 10:06 by Howard Bashman



"'Progressive' Lawyers Organize in D.C." Gina Holland of The Associated Press has this report.
Posted at 09:45 by Howard Bashman



U.S. Senate begins hour of debate preceding cloture vote on nomination of William H. Pryor, Jr. to the U.S. Court of Appeals for the Eleventh Circuit: You can watch the debate live online now at this link, and stay tuned for the cloture vote scheduled to follow at 10 a.m. this morning.
Posted at 09:01 by Howard Bashman



"Must U.S. Supreme Court Nominees First Serve on Federal Courts of Appeals? The Case of Janice Rogers Brown." Law Professor Trevor Morrison has this essay today at FindLaw. Update: A reader emails to observe that the article contains a rather significant error about the Chief Justice's judicial experience before joining the U.S. Supreme Court.
Posted at 08:15 by Howard Bashman



"Plaintiffs to get $6.54 each in Bakker lawsuit": This article appears in today's issue of The Asheville Citizen-Times. Here's hoping that none of the plaintiffs expected to clear enough cash to purchase a Bobble-Chief on eBay.
Posted at 08:11 by Howard Bashman



"Senator bends rule for judge; Michigan nominee is given U.S. hearing": Today's issue of The Detroit Free Press contains this report.
Posted at 06:30 by Howard Bashman



On the agenda: This morning, Senate Republicans will attempt for the first time to end the filibuster preventing confirmation of Eleventh Circuit nominee William H. Pryor, Jr. According to page 2 of this PDF document, on unanimous consent in the U.S. Senate, it is:
Ordered, That at 9:00 a.m. on Thursday, July 31, 2003, the Senate begin debate in relation to the cloture motion, on the nomination of William H. Pryor, Jr., of Alabama, to be United States Circuit Judge for the Eleventh Circuit, for 60 minutes with the time equally divided between the Chairman of the Committee on the Judiciary (Mr. Hatch) and the Ranking Member (Mr. Leahy) or their designees; provided further, that at 10:00 a.m. the Senate vote on the motion to invoke cloture.
Stay tuned here for complete coverage.
Posted at 06:25 by Howard Bashman



Available in today's edition of The Montgomery Advertiser: You can access here an article entitled "Democrats maneuver to delay Pryor vote" and here an article entitled "Judge slows display removal."
Posted at 06:21 by Howard Bashman



"Saad nomination stalls amid finger-pointing": This article appears in today's issue of The Washington Times.
Posted at 06:20 by Howard Bashman



"Pryor Faces Filibuster Threat in Senate": Jesse J. Holland of The Associated Press has this report.
Posted at 06:18 by Howard Bashman



Available online at law.com: Shannon P. Duffy reports here that "Smokers' Antitrust Challenge Rejected; Both companies, state officials protected by 'Noerr-Pennington'" and here that "Suit Over Litigation Tactics Revived; Immunity finding is rejected in abuse of process case." Jonathan Ringel reports here that "Lawyers Gauge Effect of Sheriff Immunity Ruling." Finally, an article reports that "Picketing Off-Duty County Employee Not Protected by First Amendment."
Posted at 00:06 by Howard Bashman



Wednesday, July 30, 2003
"Battle Over Judges Continues; Michigan Senators Object to Four Nominees for Appeals Court": Thursday's edition of The Washington Post will contain this article. And Thursday's edition of The Atlanta Journal-Constitution reports here that "Black leaders in state divided over Bill Pryor; Fight over Bush judicial pick just 1 of several."
Posted at 23:59 by Howard Bashman



"Court orders monument removed; Alabama justice may have 15 days to take down Commandments": Tomorrow's issue of The Atlanta Journal-Constitution contains this report.
Posted at 23:56 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Mistrial Declared in Inglewood Police Case; An ex-officer was charged with assault for slamming a youth onto a car trunk and hitting him. Partner is cleared of writing a false report." An article reports that "Bryant Prosecution Adds Personnel, Money." Tim Rutten's "Regarding Media" column today is entitled "Restraint is essential in covering assaults; The life of the law, as Justice Holmes once said, is experience." An editorial is entitled "Bring 'Papa' Back for Ill Boy." And David Shaw has an essay entitled "I'll have three Big Macs, two large fries and a lawyer."

The Boston Globe reports here that "LA officer's beating trial ends in hung jury; Verdict met calmly as leaders issue call to reject violence." And in local news, "Student journalists are suing Harvard."

The Washington Times reports here that "Homosexuality seen as accepted by media."

Finally for now, Law Professor Jonathan Turley has an op-ed in USA Today entitled "Don't let jobs grow on family trees."
Posted at 23:33 by Howard Bashman



Chief Justice Rehnquist bobblehead doll ends up fetching $320 on eBay: The auction has ended. In a world of inflated lawyer salaries and amazingly high legal fees (it's true, I can't afford myself), nothing surprises me any more when it comes to money.
Posted at 23:30 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Energy Debate Stalled by Judge Dispute"; here "Pressure Building to Settle Indian Suit"; here "Justice Dept. Honors Terror Prosecutors"; here "D.A. to Seek Retrial in Police Video Case"; here "Court: Laci Peterson Files Stay Sealed"; here "Pardons Recommended in Texas Drug Cases"; and here "Senator Holds Up Nominee in River Dispute."
Posted at 21:40 by Howard Bashman



Salvaging a cite at "How Appealing": Short of quoting Dr. Seuss or engaging in a lengthy exegesis over whether something can simultaneously be a rock and an island, how might one go about getting an otherwise mundane opinion cited here at "How Appealing"? Let me just say that Ninth Circuit Judge Ronald M. Gould was on the right track when he began an opinion today by tracing the history of salvage rights back to the fourth century B.C.
Posted at 21:29 by Howard Bashman



"Rape Nuts: Kobe Bryant's trial will showcase our mixed-up rape laws." Dahlia Lithwick has this essay just posted online at Slate. In other news, I declare the official court Web site devoted to People v. Bryant to be suitably boring.
Posted at 19:24 by Howard Bashman



"From Lafayette to the federal bench": This article appears in today's issue of The Virginia Gazette.
Posted at 19:00 by Howard Bashman



"Panel Democrats Shrug at Bush Nominee": FOXNews offers this article, which begins "President Bush's judicial nominee Henry Saad appeared before the Senate Judiciary Committee Wednesday but faced no questioning from panel Democrats."
Posted at 18:58 by Howard Bashman



"Tax Court Nominee Used Improper Deductions": The Associated Press provides this report.
Posted at 18:54 by Howard Bashman



Available online from National Journal: Jonathan Rauch has an essay entitled "The Supreme Court Ruled for Privacy--Not for Gay Marriage. In Lawrence v. Texas, the Court didn't create a new right. It just said it wasn't kidding about an old one." And Stuart Taylor Jr. has an essay entitled "Guantanamo: A Betrayal of What America Stands For. Bush has deprived hundreds of quite possibly innocent men of liberty for far too long."
Posted at 17:25 by Howard Bashman



The U.S. Senate's Republican Policy Committee examines "The Threat to Marriage from the Courts": This 12-page policy paper (PDF file) issued yesterday looks to be an interesting read.
Posted at 16:53 by Howard Bashman



"GOP Fails to Move Hispanic Nominee": Jesse J. Holland of The Associated Press has this report. Tomorrow it will be Eleventh Circuit nominee William H. Pryor, Jr.'s turn to lose a cloture vote, and then Ninth Circuit nominee Carolyn B. Kuhl will have her turn on Friday. For Pryor and Kuhl, those will be the very first cloture votes their nominations have endured. It will be interesting to see how many votes shy of cloture each turns out to be.
Posted at 16:41 by Howard Bashman



"School courts shame in case against f-word": Denver Post columnist Diane Carman today has this essay about a court filing that I mentioned here the other day.
Posted at 16:19 by Howard Bashman



Controversy in Portland, Oregon over proposed renovations to the Pioneer Courthouse: Law Professor Jack Bogdanski has details here at "Jack Bog's Blog."
Posted at 16:08 by Howard Bashman



"Twist Comic Book Case Sent Back to Trial": The Associated Press provides this report. And the blog "Sophoristically Speaking" offers some more details, plus a link to the ruling, here.
Posted at 15:51 by Howard Bashman



Bobble-Chief: Thanks to Law Professor Joe Miller, today I had the pleasure of seeing in person for the very first time one of the limited edition Chief Justice Rehnquist bobblehead dolls. That book the Chief is holding is volume 529 of United States Reports. What I believe to be the first eBay auction of a Bobble-Chief is due to wrap-up this evening, and the price has remained stalled at $255 for days now. Will a bidding war break out in the final moments? Only time will tell.
Posted at 15:45 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge: Ex-POWs Cannot Access Iraqi Assets" (plus, view the ruling itself at this link) and here an article entitled "ACLU, Arab Groups Challenge Patriot Act."
Posted at 15:38 by Howard Bashman



Third Circuit affirms dismissal of suit alleging that Pennsylvania's participation in the multi-billion dollar national tobacco settlement violates federal statutory and constitutional law: You can access today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 15:07 by Howard Bashman



The U.S. Senate has again failed to invoke cloture on the debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit: This afternoon's vote was 55 in favor of cloture, and 43 against. Sixty votes "for" are necessary to invoke cloture. Update: You can now access the official roll call vote tally at this link. In case anyone is curious, none of the seven cloture votes on this nomination has produced more than 55 votes in favor of cloture.
Posted at 14:09 by Howard Bashman



The Ninth Circuit delivers more bad news for police patrol supervisor Ben Chavez: Back on May 27, 2003, the U.S. Supreme Court ruled, in a decision you can access here, that Chavez was entitled to qualified immunity on a claim alleging violation of an arrestee's Fifth Amendment rights. Although Justice Clarence Thomas delivered the Court's lead opinion on that point, Justice David H. Souter delivered a separate opinion, one paragraph of which also represented the opinion of the Court.

That one paragraph from Justice Souter allowed the Ninth Circuit on remand to consider whether the Chavez was entitled to qualified immunity on the arrestee's substantive due process claim. Today, a unanimous three-judge panel of the Ninth Circuit ruled, in a very short per curiam order you can access here, that Chavez is not entitled to qualified immunity on the arrestee's Fourteenth Amendment substantive due process claim.
Posted at 13:49 by Howard Bashman



The U.S. Senate is currently in the midst of voting on the seventh Miguel A. Estrada cloture motion: Stay tuned for the outcome.

As for today's confirmation hearing for Sixth Circuit nominee Henry W. Saad, I am reliably advised that no Democratic U.S. Senators asked any questions of him. While sometimes that can be a positive sign, I don't view it as such in this instance.
Posted at 13:36 by Howard Bashman



"Ill. Judges Fight for Pay Raises": The Associated Press provides this report.
Posted at 13:16 by Howard Bashman



What do Michigan's U.S. Senators want in exchange for allowing Sixth Circuit nominees from Michigan to be confirmed? The statements from both of Michigan's U.S. Senators at today's Senate Judiciary Committee hearing have just concluded. They are asking that the White House agree to use a bipartisan commission to recommend candidates from Michigan to serve on the Sixth Circuit. Whatever the merits and/or demerits of that proposal, it is impossible for the White House to agree to that procedure without withdrawing the four nominees whom the White House has already put forward. And I just don't see that happening. What today's hearing has suggested, however, is that the Democratic leadership in the U.S. Senate likely will be supporting Michigan's Senators on this point. If that proves to be correct, then expect the current stalemate to continue.
Posted at 11:47 by Howard Bashman



"Bush Shuns Calls to Legalize Gay Marriage": The Associated Press offers this report.
Posted at 11:40 by Howard Bashman



"Judging the Courts: Ninth Circuit strikes out." Susan Blake and Charles Hobson had this op-ed in yesterday's issue of The San Francisco Chronicle.
Posted at 11:06 by Howard Bashman



The Senators from Michigan are about to speak at today's Senate Judiciary Committee hearing: You can listen live here. Today's consideration of Sixth Circuit nominee Henry W. Saad is taking place despite the fact that both U.S. Senators from Michigan have returned negative blue slips as to him (and the three other Michigan-based Sixth Circuit nominees). Update: Senator Carl Levin (D-MI) has begun his remarks at 11:22 a.m.
Posted at 10:54 by Howard Bashman



Also available at National Review Online: Matthew J. Franck has an essay entitled "All I Really Need to Know About Law I Learned in Kindergarten: Wrongheaded analysis of Scalia's Lawrence dissent." And Jack Dunphy has an essay entitled "A Mixed Verdict: There's peace in L.A., but was there justice?"
Posted at 10:33 by Howard Bashman



For those interested in learning when the U.S. Senate will vote for the seventh time on whether to invoke cloture in the debate over Miguel A. Estrada's nomination to serve on the D.C. Circuit: The U.S. Senate's Web site (see the right-hand column of this page) suggests that the cloture vote will occur early this afternoon.
Posted at 10:08 by Howard Bashman



Both of Michigan's U.S. Senators are on the agenda to speak at this morning's Senate Judiciary Committee hearing to consider the nomination of Henry W. Saad to the Sixth Circuit: Meanwhile, the committee's video hook-up is currently broadcasting country music from a Washington, D.C. radio station. Update at 10:20 a.m.: Sad news for fans of country music (but happy news for fans of Judge Saad) -- the video hook-up is now broadcasting live audio of the hearing.
Posted at 10:02 by Howard Bashman



Michigan's U.S. Senators have failed to prevent David W. McKeague from serving on the U.S. Court of Appeals for the Sixth Circuit: See this ruling posted online today at the Sixth Circuit's Web site.
Posted at 09:37 by Howard Bashman



"Catholics Need Not Apply? The GOP crosses a line in the fight over the Pryor nomination." Byron York has this essay today at National Review Online.
Posted at 09:29 by Howard Bashman



News and commentary pertaining to Eleventh Circuit nominee William H. Pryor, Jr.: Today's edition of The Mobile Register reports here that "Democrats expected to unite against Pryor; Alabama attorney general's judicial nomination could face Senate filibuster." Today's edition of The Birmingham News reports here that "Pryor gets first vote Thursday; Republicans expect Democrat filibuster." The Montgomery Advertiser today reports here that "GOP nears Pryor showdown" and offers here an editorial entitled "Show nominees more objectivity."

The Washington Times today reports that "Pryor to be filibustered, Schumer pledges." Newsday reports here that "Democrats Rebuff Bias Accusations." And today's issue of The Baltimore Sun contains an editorial entitled "Injudicious tactics."
Posted at 07:49 by Howard Bashman



On the agenda: Today at 10 a.m., the Senate Judiciary Committee will begin a confirmation hearing at which Sixth Circuit nominee Henry W. Saad will testify. Because both U.S. Senators from Michigan, the State in which Judge Saad resides, have returned negative Blue Slips as to all Michigan-based Sixth Circuit nominees, this has the potential to be interesting. A live Webcast of the hearing should be available here once the hearing is about to begin.

Also today, the full U.S. Senate is scheduled to vote for a seventh time to invoke cloture in the debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. The unanimous consent order (see page 2 of this PDF document) states:
Ordered, That on Wednesday July 30, 2003, following the vote on Amendment No. 886, the Senate proceed to executive session for 60 minutes of debate on the nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit, equally divided between the Senator from Vermont (Mr. Leahy) and the Senator from Kentucky (Mr. McConnell), and that the Senate then vote on the motion to invoke cloture.
Stay tuned throughout the day for complete coverage.
Posted at 07:01 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports here that "GOP Presses for Votes on Judges; Senate Republicans Force New Vote on One Nominee, but Democrats Vow to Prevail." A front page article -- and the second article in a two-part series -- bears the headline "Prosecuting Terror: Enemy Combatant Vanishes Into a 'Legal Black Hole.'" In other news, "Calif. Jury Deadlocks In Teen Beating; Videotape of Arrest Failed to Persuade." An article reports that "Judge Orders Man's Release; Prosecutors Prepare Appeal of Overturned Slaying Verdict." In other local news, "Visitation Fight Overlaps Va. Slaying Case." An obituary is entitled "Charles Rhyne; Argued Landmark Voting Case." And a letter to the editor appears under the heading "Unconstitutional Representation."

In The New York Times, Adam Liptak reports that "Judge Warns Against Naming the Accuser of Kobe Bryant." A fascinating article featuring Senior U.S. District Judge Jack B. Weinstein is headlined "Unbelievable Stories (Just Ask the Judge)." An article reports that "New Jersey Court Hears Fight Over $25 Million Lottery Ticket." From California comes news that "Brutality Trial for Officer Concludes in Hung Jury." In local news, "Prosecutors Prepare to Indict Brooklyn Judge in Bribery." In other local news, "Death Penalty to Be Sought in the Killing of 2 Detectives."

The Christian Science Monitor reports here that "On Chicago streets, cameras are watching; Critics see the trend as an example of privacy rights sacrificed for security." One editorial is entitled "Pryor Notice," while another bears the heading "Prison Alternatives." Finally for now, an op-ed by Susan DeMersseman is headlined "Remembering Kenzo, and still trying to change gun law."
Posted at 06:32 by Howard Bashman



Tuesday, July 29, 2003
This Ring is for the future, not the past: An eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit continues to wrestle with the question "May Ring v. Arizona, 122 S.Ct. 2428 (2002) be applied retroactively? Ring overruled Walton v. Arizona, 497 U.S. 639 (1990) to the extent it allows a sentencing judge, sitting without a jury, to find an aggravating circumstance necessary to impose the death penalty." Meanwhile, today a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit answered that very question in the negative, holding that retroactive application of Ring's holding was not allowed on habeas corpus review, in an opinion you can access here.
Posted at 23:15 by Howard Bashman



In the fight against child pornography, "Unknownuser" rides to the rescue again: See this unanimous ruling that a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued today. Unknown's first appearance was in connection with a criminal prosecution that earlier this year produced this decision from the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 23:13 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Los Angeles Times reports here that "Combatant Loses Bid for Freedom; Court in terrorism case has no jurisdiction since the U.S. has designated Qatari man an enemy. Judge calls government's move 'unseemly.'" In other news, "Planned Sequel to Patriot Act Losing Audience; As congressional critics of 'sneak-and-peek' searches gain ground, the Justice Department may shelve requests for expanded powers." An article reports that "Inglewood Is Expected to Take Verdict Calmly; As jurors deliberate on an officer charged in a beating, few people expect civil unrest." In other local news, "Luster Victim Testifies in Civil Court; The woman, 23, is one of two from the Ventura County criminal trial who are now suing the convicted rapist for damages." And letters to the editor appear under the heading "Concealing the Names of Alleged Rape Victims."

USA Today reports here that "Future of gay marriage lies in Mass.; State ruling could help legalize it nationwide." A front page article reports that "Americans less tolerant on gay issues; Poll indicates backlash." And you can access here an article headlined "Lives in Eagle, Colo., turned upside down; Teenager, misidentified as the accuser of Kobe Bryant, is horrified to discover her name smeared across the Internet."

The Washington Times reports here that "House targets judicial 'errors' with a new strategy." Frank J. Murray reports here that "DNA clears death-row inmate of murder." And an op-ed by Gary J. Andres and Michael McKenna entitled "A question for the left" begins, "While it is clear that the Supreme Court's recent decision overturning the Texas sodomy law hastens the arrival of the debate about gay marriage, what that discussion will mean in the larger political universe is a little murkier."

Finally for now, The Boston Globe reports here that "VA nurse drops murder appeal; Cites fear of death penalty if granted a new trial."
Posted at 22:58 by Howard Bashman



"Ideology and the Courts": William F. Buckley Jr. has an op-ed bearing this title online here.
Posted at 22:58 by Howard Bashman



"GOP fails third try to force Owen vote": This article will appear in tomorrow's edition of The Atlanta Journal-Constitution.
Posted at 22:52 by Howard Bashman



"Dems plan Pryor filibuster; Assail GOP charge of anti-Catholic bias by opponents": Tomorrow's issue of The Hill will contain this report.
Posted at 22:33 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Ill. Rape Law Says People Can Change Mind"; here "Ala. Trial of Bombing Suspect Delayed"; here "Feds: Deny Damages to Former Iraqi POWs"; here "Hung Jury in Calif. Police Brutality Case"; and here "Okla. Executes Man Who Bludgeoned Couple."
Posted at 22:22 by Howard Bashman



"Madigan asks justices to nix raises": Today's issue of The Chicago Sun-Times reports here that "Illinois Attorney General Lisa Madigan asked the state supreme court Monday to change its mind about judicial pay raises."
Posted at 21:04 by Howard Bashman



"Charges may alter opinions of Miss. judiciary; Justice charged with felony steps aside; judicial watchdog still could seek suspension": Sunday's edition of The Clarion-Ledger contained this report.
Posted at 21:03 by Howard Bashman



"A view from Alabama: Pryor's record gets distorted." Quin Hillyer today has this op-ed in The Shreveport Times. (Via "Southern Appeal.")
Posted at 17:24 by Howard Bashman



"Pope to MPs: Stop gay marriage. Cauchon undeterred: Vatican directive comes as Commons to hold free vote on new marriage law." The National Post has this report from Canada.
Posted at 17:22 by Howard Bashman



"Experts say high court should not rehear its decision; Counsel says another impasse unlikely": This article appears in today's issue of The Las Vegas Review-Journal.
Posted at 17:16 by Howard Bashman



"Not without my baby: Russian defies deportation." Tomorrow's edition of The Sydney Morning Herald contains this report.
Posted at 17:15 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Acceptance of Gay Rights Appears to Stall"; here "Part of Death Penalty Reform Is Vetoed"; here "Highlights of Ill. Death Penalty Reform"; here "Governor Calls Tax Hike Christian Duty"; here "Michigan Paroles 13 Prisoners Too Early"; and here "Calif. Recall Facing 3 Legal Challenges."
Posted at 16:54 by Howard Bashman



"Horse before cart in recall challenges": Law Professor Rick Hasen has this op-ed in today's issue of The Sacramento Bee. Rick also is the author of an amicus brief filed in the Supreme Court of the United States in the BCRA cases.
Posted at 16:47 by Howard Bashman



"Federal judge strikes down portion of state's recall law": The Associated Press has this news from California.
Posted at 16:44 by Howard Bashman



Reports of no confirmation hearing this week for Sixth Circuit nominee Henry W. Saad were sadly mistaken: The hearing has officially been rescheduled to take place tomorrow at 10 a.m., according to this announcement just posted to the Senate Judiciary Committee's Web site. Traditionally, a State's U.S. Senators appear at the hearing to speak in favor of a nominee from their State. Something tells me not to expect that on Judge Saad's behalf tomorrow, I'm sad to say.
Posted at 15:54 by Howard Bashman



"Senate Democrats again stop Texas judge's nomination to federal court": Jesse J. Holland of The Associated Press has this report. (Attention headline writers -- she has already been nominated; it's the confirmation that's been stalled in its tracks.)
Posted at 15:49 by Howard Bashman



"Earthjustice Takes to the Airwaves in Opposition to William Pryor Nomination; Earthjustice launches radio campaign urging listeners to oppose nomination of William Pryor": The full text of the press release, and a link to an audio file of the radio ad, are both accessible here.
Posted at 15:42 by Howard Bashman



Imagine a Web log devoted to debating the topic of same-sex marriage: Well, one actually exists, and you can access it here. (Thanks to Eve Tushnet for the pointer via email.)
Posted at 15:20 by Howard Bashman



"Court Web Site To Devote Page To Kobe's Case; Judge Issues Order To Reporters": Denver's ABC 7 has this report. The Web site won't be up and running until tomorrow, when it should be accessible via this link.
Posted at 15:02 by Howard Bashman



"GOP sets vote on U.S. judicial nominee; Mich. judge caught in Democrats' objections": This article appears in today's issue of The Detroit Free Press. The article's headline is, dare I say, sadly mistaken in stating that a vote has been scheduled, when in fact all that will be occurring this week is a confirmation hearing on the nominee in question.
Posted at 13:52 by Howard Bashman



"Judge lashes native-only fisheries; Charges against 130 non-native fishermen tossed out because rights were violated": The Province provides this report from Vancouver.
Posted at 13:45 by Howard Bashman



The U.S. Senate has failed to invoke cloture on the debate over the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit: The vote was 53 in favor of cloture, and 43 against. Sixty votes "for" are necessary to invoke cloture. Update: You can now access the official roll call vote tally at this link.
Posted at 12:54 by Howard Bashman



"Are Bill Pryor’s Opponents Anti-Catholic Bigots?" "Juan Non-Volokh" addresses that question here.
Posted at 12:48 by Howard Bashman



"Illinois Overhauls Death Penalty Law": The Associated Press has the story here.
Posted at 12:41 by Howard Bashman



"Judge: State can't charge for abortion literature." The Birmingham News provides this report from Alabama.
Posted at 12:37 by Howard Bashman



"Experts: Use of religion in Pryor debate something new; Supporters charge that foes have singled out judicial nominee because of his Catholic beliefs." This article appears in today's issue of The Mobile Register.
Posted at 12:32 by Howard Bashman



"Leaders to fight for monument": Today's issue of The Montgomery Advertiser reports here that "With the likely court-ordered removal of the Ten Commandments monument drawing near, religious leaders on Monday called for large-scale civil disobedience to stop the display from being taken from the state Judicial Building."
Posted at 12:29 by Howard Bashman



Voting on the Owen cloture motion has just begun: Results should be available sometime soon.
Posted at 12:22 by Howard Bashman



The U.S. Senate has begun its consideration of a motion to invoke cloture on the debate over whether Priscilla R. Owen should be confirmed to the Fifth Circuit: This is the third attempt to invoke cloture to allow a vote on the merits of the Owen nomination. The cloture vote is scheduled to begin at 12:15 p.m. today, and sixty votes are required to invoke cloture. You can watch the debate at this link, via C-SPAN2.

Update: Did U.S. Senator John Cornyn (R-TX) just quote blogger James Lileks in support of Justice Owen's confirmation? I think so.

Second update: U.S. Senator Patrick J. Leahy (D-VT) has just stated that when the Senate confirms someone like Sixth Circuit Judge Jeffrey S. Sutton by a mere 52 votes "for," it sends the wrong signal to the people residing in the circuit in question. In fairness, though, I must note that there were only 41 votes "against."
Posted at 11:23 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Calif. Recall Try Faces Legal Challenges"; here "Pa. Gov. Bars Gender ID Discrimination"; here "Mormon Church Controls Salt Lake Block"; here "Lawyer Suspended for Client Sexual Contact"; and here "Dems Flee to Protest Texas Redistricting."
Posted at 10:28 by Howard Bashman



"Moral Federalism and H.R. 760: What's wrong -- and right -- with the House ban on partial-birth abortion." Kimberly Hendrickson yesterday had this essay at National Review Online.
Posted at 08:55 by Howard Bashman



No nukes: The Hill today reports here that "Senate Republican leaders have shelved their plans to exercise a 'nuclear option' to break free stalled judicial nominees -- at least for now."
Posted at 08:41 by Howard Bashman



"Death-row case could be DNA first; It would be the first Pennsylvania death sentence overturned by such evidence. Prosecutors haven't agreed yet." Today's issue of The Philadelphia Inquirer contains this report.
Posted at 08:39 by Howard Bashman



It's better to be pissed-off than . . . . The Toledo Blade today reports here that "Suspended employee sues county over sticker; Free-speech issue, or is it 'offensive'?"
Posted at 08:24 by Howard Bashman



"Governor stalls execution; DNA will be tested. Darnell Williams had been scheduled to die Friday for 1986 murder of Gary couple." This article appears today in The Indianapolis Star.
Posted at 08:20 by Howard Bashman



"Norman Roettger, judge, dies at 72; Sat on federal bench 31 years": Today's issue of The Miami Herald contains this obituary.
Posted at 08:19 by Howard Bashman



"Study sees racial bias in courts; Blacks face harsher time, scholars say": The Courier-Journal today provides this news.
Posted at 08:15 by Howard Bashman



"Allegheny County Courthouse can keep Ten Commandments posted": Today's issue of The Pittsburgh Post-Gazette contains this report.
Posted at 08:12 by Howard Bashman



"Senate may fill vacancy on busy Appeals Court; 16-member panel has four openings, backlog of cases": This article appears in today's issue of The Detroit News.
Posted at 06:22 by Howard Bashman



"US judge rules venue wrong in detainee's case": Reuters provides this report. And The Associated Press has an article headlined "Judge: Case involving 'enemy combatant' belongs in S.C."
Posted at 06:20 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Adam Liptak reports that "U.S. Fights Verdict Backing Ex-P.O.W.'s." An article headlined "Bush Takes On Challenge of Trying to Woo Black Voters" mentions the issue of judicial selections. In other news, "Justices in Illinois Order Increases in Their Salaries." An article reports that "Father Asks To See Son Held by U.S." You can access here an article headlined "A Suicide or a Lynching? Answers Sought in Florida." In news from New Jersey, "School District Is Held Liable For Principal." An editorial is entitled "More Conservatives for the Courts." And a letter to the editor appears under the heading "The Moussaoui Case."

In The Washington Post, you can access here a front page article (and the first of a two-part series) entitled "Prosecuting Terror: No Choice but Guilty -- Lackawanna Case Highlights Legal Tilt." A Style section article entitled "Justice Executed, Texas-Style" concludes, "After reading Berlow's article, and Wassdorf's letter, it's hard not to conclude that both Gonzales and Bush were rather callous, even cavalier, about the most profound decision any government official can make -- the decision to kill another human being." An article reports that "Indiana Governor Delays Execution for DNA Testing." In other news, "Group Sues for Access to Experimental Drugs." In local news, "Ruling on Rosecroft Raceway Deal Appealed" and "Death Penalty Sought in Deputies' Slayings; Adelphi Man's Attorneys Mount Insanity Defense." And Metro columnist Marc Fisher has an essay entitled "A Portrait Of Injustice in Black and White."

The Christian Science Monitor reports here that "Utah law tests limits of gun culture in West." Even Yale University must market itself is the conclusion of an article headlined "Applicants at the gates." And an op-ed by Geneva Overholser is entitled "Name accuser as well as accused in rape cases."
Posted at 00:23 by Howard Bashman



Monday, July 28, 2003
Tomorrow Senate Republicans attempt for a third time to end the filibuster preventing confirmation of Fifth Circuit nominee Priscilla R. Owen: According to page 2 of this PDF document, on unanimous consent in the U.S. Senate, it is:
Ordered, That at 11:15 a.m. on Tuesday July 29, 2003, notwithstanding Rule XXII, there be one hour of debate divided equally between the Chairman of the Committee on the Judiciary (Mr. Hatch) and the Ranking Member, (Mr. Leahy) or their designees; further, that at 12:15 p.m. the Senate proceed to the vote to invoke cloture on the nomination of Priscilla Richman Owen, of Texas, to be United States Circuit Judge for the Fifth Circuit.
Stay tuned here for complete coverage tomorrow.
Posted at 23:11 by Howard Bashman



Another glimmer of hope for Saad: Only time will tell whether Sixth Circuit nominee Henry W. Saad will receive a hearing from the Senate Judiciary Committee before I run out of puns about him for blog post titles. Tonight a law professor based in Ann Arbor emails:
Word on the Michigan street is that Judge Henry Saad and the district court nominees who originally were set for hearing before the Senate Judiciary Committee tomorrow (Tuesday) will go on Wednesday instead. I'm not sure why the notice isn't posted yet on the Judiciary Committee's page. But you'll see that this Wednesday's hearing on the Equal Opportunity to Govern Amendment has been marked as postponed, and a business meeting was just noticed today for Thursday, July 31. The apparent plan is to hear the nominees on Wednesday and then have a Committee vote on Thursday. Of course, we can expect the Committee Democrats to push Saad back until the next meeting, which won't be scheduled until after the August recess. So no chance of a confirmation vote (and filibuster) until September.
I'm not predicting a filibuster for Judge Saad, but I've probably been wrong before.
Posted at 22:44 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "U.S. House Takes On Ten Commandments Ruling; Case prompts 'power of the purse' arguments." From New York comes word that "Government Argues Jose Padilla Has Few Rights." In other news, "DOJ Seeks Dismissal of POW Award Against Iraq."

In The National Law Journal, Marcia Coyle has an article headlined "Can this wine travel? State trade bans could be headed for the Supreme Court." In other news, "Two setbacks for lawsuit financing; But the practice is still alive and well." An essay by Peter A. Steinmeyer is entitled "California Spammin' -- Opening the e-mail spigot." And Deborah L. Rhode has an essay entitled "Ladies Day -- Beyond just potty parity."
Posted at 22:37 by Howard Bashman



Person, place, or thing: "The Indiana Law Blog" reports here that Indiana's highest court has answered the Seventh Circuit's certified question requesting the definition of the word "person" as used in that State's political advertising statute.
Posted at 22:31 by Howard Bashman



"Pryor tightens lips, but loosens his belt a little": This article appears in today's issue of The Montgomery Advertiser.
Posted at 22:28 by Howard Bashman



Elsewhere in Monday's newspapers: Today's issue of The Boston Globe contains an editorial entitled "Pryor's bad-faith backers."

In The Washington Times, Frank J. Murray reports that "Justice fights to keep Clinton monument edicts intact." And in other news, "Malvo attorneys call brainwashing theory backed."

In USA Today, an article reports that "Gay rights tough to sharpen into political 'wedge issue'; Shifting attitudes highlight risks for both parties."

In The Los Angeles Times, Michael Hiltzik's "Golden State" column today is entitled "Complicated Milk-Pricing System Leaves a Sour Taste." And an op-ed by Thomas Vanes is entitled "Let DNA Close Door on Doubt in Murder Cases; Before a prisoner is executed, justice often demands that critical test."
Posted at 22:26 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Jury Rejects Some Smokers' Claims in La." and here an article entitled "Democratic Lawmakers Flee Texas Again."
Posted at 20:53 by Howard Bashman



Alleged prosecutorial misconduct: Two instances of alleged prosecutorial misconduct are worth mentioning this evening. First, Seventh Circuit Judge Richard A. Posner, on behalf of a unanimous three-judge panel, today issued a very interesting decision in a habeas corpus appeal. According to Judge Posner's opinion:
Smith, who is black, contends that he was denied due process of law at his criminal trial because of prosecutorial misconduct during selection of what turned out to be an all-white jury. He contends that during the jury voir dire the prosecutor drew swastikas on the case files that were lying on the counsel table in front of him and that his action was visible to the jury; that the judge summoned both counsel to the bench to admonish the prosecutor; and that the prosecutor said to the judge in the hearing of the jury, "Is it all right if I draw a little old lady and a house?" There is no corroboration of these contentions, but for the moment we shall assume that they are true.
Smith was convicted of felony murder following the killing of a little old lady in a house. In any event, Judge Posner's opinion later gives several reasons why the Seventh Circuit has decided to affirm the denial of habeas relief:
The first is that he has failed to substantiate his allegations of prosecutorial misconduct. Ordinarily an affidavit alleging matters that are both within the personal knowledge of the affiant and germane to a vital issue creates a genuine issue of material fact, but not where the allegations are so far improbable as to verge on the fantastic and could if true be corroborated but no effort at corroboration is made. Smith should long ago have sought supporting affidavits from his trial counsel, the trial judge, and the jurors. His failure to do so, when coupled with the fact that the trial transcript provides no support for his allegations, is strongly suggestive of fabrication. It is highly unlikely that a prosecutor however unscrupulous would suppose that his cause would be advanced by exhibiting swastikas to prospective jurors. Nazis are not popular in Illinois and a prosecutor who identified himself as one to jurors would be impairing rather than promoting the likelihood of a conviction.
In the conclusion to his opinion, Judge Posner writes [all case cites have been omitted]:
We are mindful that a prosecutorial tactic that invokes or relies on racial prejudice, such as striking prospective jurors on racial grounds, is reversible error without regard to the effect on the outcome. But if the alleged displaying of swastikas to jurors be deemed a racist tactic, on the ground that Nazis are notoriously racist, still the appeal to racial prejudice was too attenuated to preclude a determination of harmless error under the normal standard applicable to state trial errors challenged by means of federal habeas corpus. It is not as if the prosecutor had been wearing a white hood and singing "The Old Rugged Cross." A prejudiced remark or its symbolic equivalent is not a per se ground for reversal, as the cases we have just cited show and others as well. Even if as we doubt the swastika incident actually occurred, still it was harmless so far as the outcome of the trial was concerned.
In a totally unrelated matter, those whom the failed NBC series A.U.S.A. rubbed the wrong way (see my post from February 2003 for one reader's quite unfavorable review) will see in this news report from Seattle that they are, so it is alleged, not alone. (Link to news report via "Sugar, Mr. Poon?")
Posted at 19:57 by Howard Bashman



"Felonious Bunk: Why ex-cons should be given the vote." Matt Welch has this essay online at Reason.
Posted at 18:11 by Howard Bashman



"GOP to Push Most of Their Court Nominees": Jesse J. Holland of The Associated Press has this report.
Posted at 18:10 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Mo. Death Row Inmate Released From Jail" and here an article entitled "Two Dozen Join Rally for Deported Woman."
Posted at 17:22 by Howard Bashman



Mimicry and mockery: So "Crescat Sententia" merits a blog devoted to mimicking and mocking it? Well, in this post from the blog whose name I can't repeat here, you'll even find (if you scroll down far enough) discussion of the Bill Pryor confirmation debate.
Posted at 16:30 by Howard Bashman



"New Lawsuit Being Filed in California Supreme Court over Including the Ward Connerly Initiative on the Same Ballot as the Recall": Law Professor Rick Hasen has details here at the "Election Law" blog.
Posted at 15:33 by Howard Bashman



En banc Eleventh Circuit again considers Georgia sheriffs and liability under the federal civil rights statute: For the second time this month (see here for the earlier en banc ruling in the other case), today a sharply divided en banc U.S. Court of Appeals for the Eleventh Circuit has considered the liability of sheriffs in Georgia for damages under 42 U.S.C. sec. 1983. Today's en banc majority opinion begins:
In this sec. 1983 excessive force case, Willie Santonio Manders sued Sheriff Winston Peterson in his official capacity for injuries allegedly caused by the Sheriff's use-of-force policy at the jail and failure to train and discipline his deputies in that regard. We conclude that Sheriff Peterson functions as an "arm of the State" in establishing use-of-force policy at the jail and in training and disciplining his deputies in that regard, and is entitled to Eleventh Amendment immunity for these particular functions. Thus, we reverse the district court's denial of summary judgment for Sheriff Peterson.
You can access today's complete decision, including the dissenting opinions, at this link.
Posted at 15:18 by Howard Bashman



"The Smoking Gun" Web site announces the winner of its "prestigious 2003 Legal Document of the Year award": The winner is not for the faint of heart, because in it the Colorado State Public Defender's office provides what possibly may be the most comprehensive history of the "F-word" one could ever hope to find.
Posted at 14:57 by Howard Bashman



Denise Howell invokes Lady Liberty in the cause of "20 questions for the appellate judge": You can access her very kind post here.
Posted at 14:35 by Howard Bashman



Divided Ninth Circuit panel rejects First Amendment challenge to Arizona law that requires sexually-oriented businesses to close at 1 a.m. each day: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 14:20 by Howard Bashman



Who can explain this for me? It's rare that a procedural oddity in a case pending in a federal appellate court throws me for a loop, but today it has happened. Back on February 25, 2003, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision in which the court held that a prison reception center's housing policy, which uses race as one factor in assigning a new inmate's initial cell mate for 60 days, does not thereby violate the U.S. Constitution's equal protection clause. (You can access my original report on that ruling at this link.)

Today the Ninth Circuit issued an order denying a petition for rehearing en banc in that case over the recorded dissents of four judges. One of those four judges wrote a dissenting opinion in which the other three joined. My difficulty is that the author of the dissenting opinion and one of the three judges joining in it are Senior Status Ninth Circuit judges who were not on the original three-judge panel and who had no ability, under the governing federal statute, to participate in a vote on whether or not to grant rehearing en banc.

Ninth Circuit General Order 5.1.(b)(3) provides:
The en banc coordinator will record the en banc votes and circulate the final tally to the court. Orders rejecting or accepting cases for en banc consideration shall not specify the vote tally. Any judge eligible to vote may direct that his or her dissent from a failure to accept a case for en banc consideration be incorporated in the order.
The clear implication from that rule is that judges not eligible to vote on whether to grant rehearing en banc are not entitled to note their dissent from an order denying rehearing en banc. In any event, I'm not sure that I have ever seen a senior circuit judge who was not on the original three-judge panel file a dissent from a denial of rehearing en banc. Am I missing something here, and, if not, what's going on?
Posted at 13:28 by Howard Bashman



"N.Y. to Open 1st Public Gay High School": The AP has this report.
Posted at 13:27 by Howard Bashman



"Telemarketers Sue Over Do-Not-Call List": The Associated Press provides this coverage.
Posted at 12:37 by Howard Bashman



"Gay-marriage debate simmers: The Supreme Court has overturned anti-sodomy laws, but experts say it may take decades for the struggle over nuptials to reach a resolution." Yesterday's issue of The Chicago Tribune contained this report.
Posted at 12:02 by Howard Bashman



"Republicans see win-win with Saad": This article appears in today's issue of The Washington Times.
Posted at 11:39 by Howard Bashman



In significant prisoners' civil rights ruling, divided Sixth Circuit panel holds that a prisoner's untimely attempt to exhaust remedies available under prison grievance system sufficiently exhausts such remedies so as to allow federal court to consider merits of prisoner's civil rights complaint: Today a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued a very significant ruling concerning prisoners' civil rights claims. Circuit Judge Karen Nelson Moore's opinion for the court begins:
Congress's passage of the Prison Litigation Reform Act ("PLRA") was an attempt to curb rampant prison litigation in the federal courts, but its enactment did not erode the role of the federal courts as vindicators of federal rights. The PLRA explicitly requires an inmate seeking to challenge prison conditions in federal court to exhaust any available administrative remedies, but the statute's text does not condition access to the federal courts on satisfying the procedures and timelines of prison administrators. Thus, this case turns not on whether exhaustion is required, the answer to which is well settled, but on what exhaustion requires. We answer that question in light of Congress's purpose in passing the PLRA and Supreme Court precedent regarding the exhaustion doctrine's oft-stated purpose: to give prison officials the first opportunity to address inmate complaints according to their rules and procedures without letting those timetables dictate the outcomes of sec. 1983 actions. Accordingly, we hold that so long as an inmate presents his or her grievance to prison officials and appeals through the available procedures, the inmate has exhausted his or her administrative remedies, and a prison's decision not to address the grievance because it was untimely under prison rules shall not bar the federal suit.
Circuit Judge Ronald Lee Gilman issued a concurring opinion that states toward its outset:
To begin with, I must confess that I find the question of whether a prisoner must comply with the prison's administrative deadlines as a precondition to filing a sec. 1983 action in federal court to be extremely difficult. I have indeed flip-flopped on this issue during the course of extensive deliberations with my two erudite colleagues, no doubt to the frustration of them both. The assertiveness of Judge Rosen's opinion is more than sufficient to give anyone pause, especially his accusations that we have issued an "invitation to chaos and delay" (Dissenting Op. at 30), "abandon[ed] all notions of judicial restraint" (id. at 31), provided "a classic example of judicial meddling" (id. at 31), and engaged in "thinly-veiled policymaking" (id. at 32). In the end, however, I find that these sweeping generalizations generate more heat than light, and that his position is actually the more "activist" in an expansive interpretation of the PLRA beyond Congress's language and the Supreme Court's precedents.
District Judge Gerald E. Rosen of the U.S. District Court for the Eastern District of Michigan sat by designation on the panel and issued an opinion dissenting in part that begins:
With one bold stroke, the lead opinion stands much of this Circuit's existing precedent on administrative exhaustion on its head, holding that administratively established filing deadlines mean nothing in a prisoner's effort to exhaust his remedies before commencing a sec. 1983 suit. By permitting inmates to thumb their noses at such time limits, the lead opinion thoroughly disables prison grievance systems as meaningful tools for dispute resolution -- a result deemed unacceptable by every other Circuit that has addressed the timeliness issue to date. More importantly, this result is wholly at odds with Congress's intent in enacting the Prison Litigation Reform Act ("PLRA") and amending 42 U.S.C. sec. 1997e(a) to establish a strict, mandatory exhaustion requirement for prisoner sec. 1983 suits.
You can access the complete opinion at this link. And while this opinion issued just moments ago, it would seem that rehearing en banc is a distinct possibility.
Posted at 09:45 by Howard Bashman



"Black Like Me: Winks and nods as admissions policy." Peter N. Kirsanow, a commissioner serving on the U.S. Commission on Civil Rights, today has this essay at National Review Online.
Posted at 09:24 by Howard Bashman



"Court sketching fun for mother-daughter team": This article appears in today's issue of The Journal News.
Posted at 09:12 by Howard Bashman



My law firm has revamped its Web site: The archive of my monthly appellate columns has a new address. And attorney bios now feature pictures.
Posted at 08:57 by Howard Bashman



"20 questions for the appellate judge" update: Instead of constantly posting reminders that I am seeking additional federal and state court appellate judges to participate as interviewees in this Web log's very popular monthly feature "20 questions for the appellate judge," such reminders will now appear online here only once a month. And those monthly reminders will appear exactly one week before the next installment of the "20 questions" feature is due to be posted online. It just so happens that today is one week before the August 2003 installment of "20 questions for the appellate judge" will appear online here, so this post will be the first monthly reminder that I am seeking additional appellate judge interviewees to participate in the "20 questions" feature.

The "20 questions" feature had its debut in February 2003 with my interview of Fifth Circuit Judge Jerry E. Smith. The March 2003 interviewee was Ninth Circuit Judge Diarmuid F. O'Scannlain. In April 2003, I interviewed Justice Kay B. Cobb of the Supreme Court of Mississippi. My interviewee in May 2003 was Ninth Circuit Judge Andrew J. Kleinfeld. The June 2003 interviewee was Ninth Circuit Judge Michael Daly Hawkins. And, of course, my July 2003 interviewee was Senior Third Circuit Judge Ruggero J. Aldisert.

One week from today, I will be posting online here the August 2003 installment of "20 questions for the appellate judge." August's interviewee is Eleventh Circuit Judge Gerald Bard Tjoflat. September's interviewee will be Federal Circuit Judge William Curtis Bryson. And October's interviewee will be Eleventh Circuit Judge Stanley F. Birch, Jr.

Because a personalized set of "20 questions" is forwarded to the judicial interviewee midway through the month before his or her interview appears online, it is necessary for me to book interviewees at least one month in advance of the publication date for each interview. And I obtain interviewees when federal or state appellate judges, or their law clerks, email me to volunteer to participate. This method provides each and every federal and state appellate judge with an equal opportunity to take part in the feature. Interviews are scheduled on a first-come, first-served basis, so that the next volunteer will have his or her interview appear online in early November 2003.

I am willing to keep the monthly "20 questions" feature going for as long as there are federal and/or state court appellate judges who are willing to participate as interviewees. However, if a month were to arrive for which there is no interviewee, then the feature will come to a permanent end. And, as explained above, it is necessary for an interviewee to volunteer at least one month before his or her interview appears online. Thus, unless a federal or state court judge volunteers before October 1, 2003 to be the November 2003 participant in "20 questions for the appellate judge," the October 2003 interview will be the final installment of the "20 questions" feature. As additional volunteer interviewees come forward, I will so note on this Web log. But you won't have to endure another post requesting volunteers until late August 2003.
Posted at 08:16 by Howard Bashman



Time to round-up a fresh crop of law blogs? Denise Howell of the "Bag and Baggage" blog says yes. You can access here the latest newcomers to Denise's very comprehensive list of blawgs.
Posted at 06:25 by Howard Bashman



The inaugural American Constitution Society National Convention: A reader emails:
In case you'd like to let your readers know, the inaugural ACS National Convention will be held this weekend.

Here are the details:

The American Constitution Society for Law and Policy First Annual National Convention; Aug 1-3 (Friday-Sunday); Capital Hilton, Washington DC.

Relevant links: general info; brochure (PDF document); speaker schedule; online registration.

The first National Convention features addresses by Justice Ruth Bader Ginsburg and Senator Hillary Rodham Clinton. Janet Reno will also be speaking during weekend, in addition to serving as host of "Janet Reno's Dance Party" on Saturday night (I kid you not).
Thanks much for sending this along. The list of speakers and other participants is quite impressive.
Posted at 00:41 by Howard Bashman



In Monday's newspapers: The Washington Post contains an article headlined "Supreme Court Independence, by the Numbers." A front page article reports that "Immigrants Fear Deportation After Registration; Number of Mideast, Muslim Men Expelled Rises Sharply." In other front page news, "Legal System Struggles With Dementia Patients." You can access here an article headlined "Bedtime Stories on Tape, From Prison; Reading Program Gets Mothers Reconnected." Today's "Washington Hearsay" column is entitled "There's Still a Lot of Money to Be Made When a Company Goes Bankrupt." And an editorial is entitled "All in the Family."

The New York Times reports here that "Study Finds 2.6% Increase in U.S. Prison Population." In other news, "As Trial in Taped Beating Nears End in Los Angeles, Groups Join to Prevent Repeated Riots." Editorials are entitled "The Trial of Zacarias Moussaoui" and "New York's Fake Conventions." Law Professors Shaun P. Martin and Frank Partnoy have an op-ed entitled "Want to Vote? Answer This . . . ," while FCC Chairman Michael K. Powell has an op-ed entitled "New Rules, Old Rhetoric."

Finally for now, The Christian Science Monitor reports here that "Number of malpractice cases spikes ... for pets; Animal owners are suing vets for emotional damages, testing the legal definition of 'pets' as property."
Posted at 00:01 by Howard Bashman



Sunday, July 27, 2003
"Senate committee ready to consider Michigan nominee; Panel disregarding Stabenow, Levin stance on matter": This article appears in today's issue of The Lansing State Journal. The information conveyed in this news report may no longer be accurate, as I noted last night in a post entitled "Some Saad news."

Today's edition of The Lansing State Journal also contains an article about another Sixth Circuit nominee from Michigan entitled "Bush nominee has local support; Appeals court choice is sound, his backers say."

In a final bit of news relating to the so-called "Michigan four," The Traverse City Record-Eagle reported here last Tuesday that "TC's Griffin frustrated by delays in nomination."
Posted at 23:04 by Howard Bashman



Tonight's installment of the Decalogue blog: Concerning Alabama, The Birmingham News reports here that "House won't let marshals take it; Christian groups vow to protest if necessary." The Associated Press reports here that "U.S. House bill would prevent removal of monument." And The Montgomery Advertiser today contains an editorial entitled "House disgraces self with amendment."

Concerning Arizona, today Arizona Republic columnist E.J. Montini has an essay entitled "Stone cold tablets carved by a hack."

Concerning Indiana, The Palladium-Item reports here that "Dedication is planned; Marker was moved to bank property in June" and here that "Commandments marker rededicated; Richmond: Around 60 gather for event at Wayne Bank and Trust." And The AP reports that "Marker dedicated after move to bank; Ten Commandments monument had been ordered removed from its spot at courthouse."

Concerning Kansas, The AP reports that "Ten Commandments to be moved." And The Kansas City Star contains an editorial entitled "A win for religious freedom."

Concerning Montana, The AP reports that "Group told monument must go."

Concerning Pennsylvania, Philadelphia Inquirer columnist John Grogan recently had an essay entitled "Thou shalt not ruin connection to past."

Concerning the State of Washington, The Seattle Times reports here that "$1 lawsuit filed over Everett's Ten Commandments." The AP reports that "Group sues Everett over Ten Commandments display." And The Daily Herald reports here that "Views split over Everett monument."

Finally, concerning Wisconsin, The La Crosse Tribune contains an article headlined "Judge: No trial for damages in monument case" and reports here that "Eagles weighing options on monument."

In the category of general commentary, Slate offers "Summer of Decalogues: When is a Ten Commandments display unconstitutional?" And Hans Zeiger has an essay entitled "The Ten Commandments Exterminators."
Posted at 19:50 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports here that "Suit Pans Director's Publicity Stunt; A Ten Commandments tablet used to promote a Cecil De Mille movie is the subject of legal action in Everett, Wash." You can access here an article headlined "Corporate Reform's Baby Steps: The law to clean up Wall Street's worst abuses is getting mixed reviews a year after its enactment. But some elements are a work in progress." An obituary is entitled "Phil Halpin, 65; Prosecuted 'Night Stalker,' 'Onion Field' Cases." In other news, "College Board Scores With Critics of SAT Analogies." And David Shaw's "Media Matters" column is entitled "If the accused is named, the accuser should be too."

Finally for now, in The Washington Times Frank J. Murray reports that "McCain-Feingold's opponents fight for time in court."
Posted at 19:17 by Howard Bashman



News that fits: "Juan Non-Volokh" takes issue with Neil A. Lewis's article in yesterday's issue of The New York Times reporting on the two most recent D.C. Circuit nominees.

While I'm on the subject, Lewis's article also failed to note California Supreme Court Justice Janice Rogers Brown's condescending attitude toward a certain student law review note, as reflected in her dissenting opinion in a case that addressed the circumstances in which a criminal defendant can be required to wear a stun-belt at trial. I first noted this matter here, back in September 2002. The court's original opinion in which Justice Brown seemed to take a swipe at St. Mary's University School of Law of San Antonio, Texas can be accessed here (see page 40 of the PDF file); an amendment to the original opinion deleting that swipe can be accessed here.
Posted at 16:49 by Howard Bashman



"No defense for Pryor's convictions": Randy Schultz, editorial page editor for The Palm Beach Post, today has this op-ed in that newspaper.
Posted at 14:55 by Howard Bashman



Does the U.S. Constitution prohibit a state court from disciplining a lawyer for including in an appellate brief a footnote advancing the sort of argument one sometimes finds in a dissenting opinion by Justice Antonin Scalia? The Indiana Law Blog reports here (in a post that supplies all the relevant links) that Justice Scalia and his colleagues are now considering a petition for writ of certiorari raising that very question.
Posted at 14:05 by Howard Bashman



Chapter two: An early draft of Chapter 2 of Seventh Circuit Judge Richard A. Posner's new book "Law, Pragmatism, and Democracy" is available online here (48-page PDF document). It makes me wish that I owned a complete copy of the book. It's at least some consolation that, thanks to my colleague from down the hall, I possess a signed copy of "Breaking the Deadlock: The 2000 Election, the Constitution, and the Courts."
Posted at 10:59 by Howard Bashman



Eponymous federal courthouses: Apparently there's no end to the federal courthouses that happen to be named after judges who are still hard at work inside those buildings. My blog entry from last night requesting additional examples has yielded two more responses this morning.

One reader emails, "Senior District Judge William J. Nealon of the Middle District of Pennsylvania has his chambers in the William J. Nealon Federal Building in Scranton, Pa., right up I-81 from Wilkes-Barre and Judge Rosenn's chambers." Photos of that building are available here.

Another reader emails, "Construction is nearing completion (now scheduled for October) on the new federal courthouse in Columbia, S.C.: the 'Matthew J. Perry, Jr. United States Courthouse.' In that courthouse, Senior District Judge Matthew J. Perry, Jr. will sit." You can learn more about this courthouse here.

Update: Here are two more. District Judge G. Ross Anderson, Jr. has his chambers in the G. Ross Anderson, Jr. Federal Building and United States Court House in Anderson, South Carolina. And Senior District Judge Lloyd D. George has his chambers in the Lloyd D. George Federal Courthouse in Las Vegas, Nevada (even more info on the building is available here). I appreciate the emails that report on lobbies or grand jury rooms named after currently-serving judges, but the arbitrary rules of this competition only allow for the recognition of names given to entire courthouses. Finally, the email entitled "Chambers' chambers in Chambers Courthouse," while cleverly titled, fails to qualify because the judge in question is deceased.
Posted at 10:52 by Howard Bashman



"White House plays favorites with judge job": Columnists Cary Spivak and Dan Bice had this essay about a forthcoming Seventh Circuit vacancy in yesterday's issue of The Milwaukee Journal Sentinel.
Posted at 10:36 by Howard Bashman



In Sunday's newspapers: In The New York Times, Adam Liptak has an article headlined "Defending Those Who Defend Terrorists" in the Week in Review section. In other news, you can access here an article headlined "How to Vote? Let Us Count the Ways." And letters to the editor appear under the headings "Case Against Pryor Isn't His Faith" and "Cures for the Malpractice System."

The Washington Post reports here that "Va. GOP Reclaims Naming Of Judges; Legislators Move To Preempt Warner."

Finally for now, Walter Olson of Overlawyered.com has an op-ed entitled "The Shakedown State: California trial lawyers turn scandal into gold" online at OpinionJournal.
Posted at 08:04 by Howard Bashman



Headline error: The Web site for California's KCBS news radio currently contains an article headlined "President Bush Nominates Controversial Candidate to California Supreme Court." Um, not exactly.
Posted at 07:49 by Howard Bashman



Saturday, July 26, 2003
"GOP group plans to turn up scrutiny on federal judges": Political columnist Todd J. Gillman will have this essay in Sunday's issue of The Dallas Morning News.
Posted at 23:28 by Howard Bashman



"Judge for all seasons": Today's edition of The Capital Times of Madison, Wisconsin contains this profile of Senior Seventh Circuit Judge Thomas E. Fairchild, who is still working at the age of 90. The article states that "Although four other living appeals judges have served a few years longer than Fairchild, his Dec. 25, 1912, birth date makes him the country's oldest living federal appeals judge, according to federal judiciary Web site records."

Unfortunately, the claim that Judge Fairchild is now "the country's oldest living federal appeals judge" is incorrect, because Senior Third Circuit Judge Max Rosenn was born in 1910 and is still getting the job done (and done well), writing opinions and participating vigorously at oral argument. Indeed, Judge Rosenn was 90 years old way back in July 2000 when The Third Branch newsletter featured him in an article entitled "Senior Judges Give New Meaning to 'Volunteer.'" I'm reluctant even to claim that Judge Rosenn is currently the oldest living federal appellate judge, because I haven't conducted a search for others who might be even older. However, other "Notable Records of Judicial Service" are available here via the Federal Judicial Center's Web site.

Update: One of the benefits of remaining a federal judge for many years is that you may end up having the courthouse in which you work named after you. Thus, as this slightly outdated Third Circuit phone directory reveals, Senior Circuit Judge Max Rosenn has his chambers in the Max Rosenn U.S. Courthouse in Wilkes-Barre, Pennsylvania. Does any other federal judge have his or her chambers in a federal courthouse that bears his or her name? As always, responses will be accepted via email.

Second update: Anyone preparing a list of federal judges who work in federal courthouses named after themselves should be sure to include Senior District Judge James Lawrence King of the U.S. District Court for the Southern District of Florida (confirmation available here and here).
Posted at 20:59 by Howard Bashman



And in other federal judicial confirmation-related news: Today's issue of The Birmingham News reports here that "Debate begins on Pryor." The Montgomery Advertiser reports here that "Senate opens discussions about Pryor." The Mobile Register reports here that "Democrats mum on whether they will filibuster Pryor vote; Republicans continue push for Alabama attorney general." In somewhat related news, Sunday's issue of The New York Times will contain an article headlined "Accusation of Bias Angers Democrats."

Finally for now, The Associated Press reports here that "GOP to force vote on Owen; Party hopes to break Democratic filibuster over judicial nominee."
Posted at 19:35 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "U.S. Judge Blocks Iowa Sex Offender Law" and here an article entitled "Court Revives Wash. Inmate Voting Case."
Posted at 19:28 by Howard Bashman



In Saturday's newspapers: In The New York Times, Adam Liptak reports that "Court Rejects Bid to Halt Recall Vote." From Atlanta comes news that "A Cherished Civil Rights Site Faces Its Doom." In news from New Jersey, "Judge Dismisses Lawyer's Suit Challenging New Civil Case Fees." And an editorial is entitled "California Chaos."

The Washington Post reports here that "Bryant Faces Tough Law In Colorado Rape Case; Severe Penalties, Sympathetic Juries." An article reports that "Judge Frees 4th Va. Jihad Suspect; Prosecutors Tried to Show Direct Link to al Qaeda Member." In local news, "Evidence Ban Not Enforced, Lawyers Say; Jurors in Disappearance Case Saw Items Judge Ruled Out." In other local news, "Diamond Cab Co. Held Responsible In Bias Lawsuit." An editorial about the battle to confirm Eleventh Circuit nominee William H. Pryor, Jr. is entitled "Beyond the Pale." And columnist Ellen Goodman has an op-ed entitled "The Fat Environment."

The Los Angeles Times reports here that "The Internet Is Reshaping Bryant Story; Web gossip about the athlete and his accuser is driving competition, even among mainstream media. Some outlets retain strict limits." In local news, "Man Freed Amid Court Backlog Is Murder Suspect; A county prosecutor's group files a complaint against three judges who chose not to arraign the suspected carjacker, forcing his release." In other local news, "In Quake Lawsuit, Judge Not Moved; Seismic engineers say their L.A. offices are not earthquake safe. A jurist gives owner time to retrofit." And an op-ed by Debra Anne Davis is entitled "Rape Victims Need Privacy to Regain Power."

The Washington Times reports here that "Prosecutors say details prove Malvo wasn't brainwashed." And an editorial is entitled "Judicial foolishness."

Finally for now, The Boston Globe contains an op-ed by Geri Denterlein entitled "The thin line between law and public opinion."
Posted at 19:07 by Howard Bashman



Some Saad news: The Senate Judiciary Committee's Web site suggests that the confirmation hearing previously scheduled for July 29, 2003 for Sixth Circuit nominee Henry W. Saad of Michigan has been canceled (see this list of announcements of upcoming hearings). My earlier post taking notice of the scheduling of a hearing for Judge Saad to occur on July 29th is accessible here. If anyone has more details about what's going on, I'm all ears.
Posted at 16:37 by Howard Bashman



"GOP blocking judge": Columnist Robert Novak has this essay online today at Town Hall.
Posted at 16:33 by Howard Bashman



Cowabunga, dude! Today's issue of The National Post contains an article headlined "Bovine triathlon - icy swim, road run, crash - ends up in N.B. court."
Posted at 16:23 by Howard Bashman



"Library loses bias suit ruling": Today's issue of The Atlanta Journal-Constitution has this report about an order the U.S. Court of Appeals for the Eleventh Circuit issued yesterday denying a petition for rehearing en banc.
Posted at 14:21 by Howard Bashman



"The Proceedings of the Old Bailey London 1674 to 1834": Who says the Internet doesn't contain enough useless information?
Posted at 14:19 by Howard Bashman



"Old European tongue brings chaos to newest Asian nation": Today's edition of The Sydney Morning Herald reports here that "A ruling by East Timor's only Supreme Court judge that national law should be based on Portuguese, not Indonesian, law threatens to plunge the legal system into chaos. The Portuguese-trained Claudio Ximenes, who took office last month, has ruled that because Indonesia's occupation was unlawful, the United Nations-drafted legal system adopted after independence was invalid."
Posted at 14:18 by Howard Bashman



Hit counter news: As I mentioned a while back, the newly-revamped Bravenet hit counter service no longer permits me to safeguard reader privacy by keeping hit count statistics private. And, as others have noticed, the Bravenet service also no longer appears to be providing reliable hit count statistics. So, today I have installed three additional, non-password-protected hit counters. All four hit counters can be found at the bottom of the right-hand column of this page. As of this morning, the Bravenet hit counter stated that "How Appealing" had 1,746,699 "unique visitors" since May 7, 2002.
Posted at 13:08 by Howard Bashman



In news from Mississippi: The Clarion-Ledger today reports that "Justice, 4 others indicted." In related news, "Merits, motive of case debated." You can access here an article headlined "Indictment alleges loans and paybacks" and here an article headlined "Charges expected to chill donations; Trial lawyers may hesitate to give, politicians may hesitate to receive." Two other related items are entitled "Indictments" and "Events timeline."
Posted at 12:56 by Howard Bashman



"Bush Selects 2 for Bench, Adding Fuel to Senate Fire": Neil A. Lewis has this article in today's issue of The New York Times. In California, The San Francisco Chronicle contains a lengthy front page article headlined "State justice picked for U.S. court; Conservatives cheer Bush's nomination to federal bench." And The Los Angeles Times reports here that "State Supreme Court Justice Nominated to Appellate Post."
Posted at 10:03 by Howard Bashman



"GOP Escalates Push for Nominees": Today's edition of The Washington Post reports here that "Senate Republicans plan a series of votes next week aimed at turning up the heat on Democrats for filibustering two of President Bush's appeals court nominations and for weighing similar moves to block at least two others." In somewhat related news, The Mercury News today reports that "State justice nominated for D.C. court seat; Successor May Be Chosen By Recall Election Victor."
Posted at 08:48 by Howard Bashman



Friday, July 25, 2003
Thanks to presidential candidate Howard Dean: Law Professor Larry Lessig's blog now has a new address.
Posted at 23:27 by Howard Bashman



"Bush Nominates Conservatives As Judges": The Associated Press has this report.
Posted at 23:25 by Howard Bashman



Available online at law.com: Jason Hoppin reports here that "California Supreme Court Justice Officially Tapped for D.C. Circuit" and has a second article headlined "The High Cost of Giving Away Sex.com." And in other news, "Jewell Back in Court, Wants Atlanta Newspaper's Sources; Judge must apply appellate court's new analysis."
Posted at 23:21 by Howard Bashman



"Top court orders pay increase for judges, feeding legal debate": This article appears in today's issue of The Chicago Sun-Times.
Posted at 23:17 by Howard Bashman



Nuns receive lighter sentences: The Associated Press provides this report.
Posted at 23:16 by Howard Bashman



Available online at The Village Voice: Nat Hentoff has an essay entitled "Who Made George W. Bush Our King? He Can Designate Any of Us an Enemy Combatant." And Judith Levine has an essay entitled "Stop the Wedding! Why Gay Marriage Isn't Radical Enough."
Posted at 23:12 by Howard Bashman



Elsewhere in Friday's newspapers: In The Los Angeles Times, you can access here an article headlined "Oxnard Campus' Supreme Tribute; Justice Thurgood Marshall's presence can be felt everywhere at the new namesake elementary school." In other news, "Also on Ballot: Initiative to Restrict Racial Data." An article reports that "Recall Vote Set for Oct. 7; Names of potential successors will be on the ballot too. Candidates have only 16 days to decide whether to enter the historic race." In related news, "Court Challenges Could Enter Uncharted Territory." Another article reports that "Swift Currents of Historic Race Are Quickly Crowded." And a news analysis is entitled "Government of, by Ballot Box: Vox populism reaches its logical extension in the recall of a recently elected governor." In business news, "FCC Rule May Bring a Veto Standoff; A House vote to restore a media ownership cap puts GOP lawmakers at odds with the president." In other business news, "Tire Maker to Add Safety Features to Settle Suits; Bridgestone/Firestone also agrees to fund a $15-million consumer education campaign." An article reports that "Many Indians Exempt From State Taxes, Fees; California tribes' sovereignty frustrates beleaguered state and local officials seeking to fill yawning budget gaps." In sports news, "D.A. Fights Media Request; News organizations want court documents in Bryant sexual assault case unsealed. Judge issues gag order." In local news, "County yet to appeal Colonies ruling; Officials still 'exploring options' after being ordered to pay developer for flood-control upgrades." In other local news, "Judge Stops Count of Votes on Barricades; Temporary restraining order is issued to keep Santa Ana from opening ballots in neighborhood election held to decide fate of traffic barriers." An editorial is entitled "Dangerous Detentions." An op-ed by Laura A. Ahearn is entitled "Nightmare for Child Abuse Victims Begins Anew." Religious leaders address "Was Robertson wrong to pray for retirement of justices?" And an essay by Charles J. Unger is entitled "Court system might seem unfair, even when upholding law."

USA Today reports here that "Davis has 75 days until Calif. recall vote; Challengers must file by Aug. 9." An editorial about the selection of federal judges is entitled "Here's one unemployment problem Congress can solve." You can access here a related "Vacancy scoreboard." In response, John A. Nowacki has an op-ed entitled "Democrats do not cooperate."

The Washington Times reports here that "GOP wants elections after disaster." In other news, "Californians to decide Oct. 7 whether Gov. Davis will stay." An article reports that "Lawyers scream about ice cream." In local news, "Malvo guards tell of youth's boast." And an op-ed by Linda Chavez is entitled "Gun control maneuvers."

The Boston Globe reports here that "Bryant case revives victim privacy issue." In other news, "Shock tactics: Participants mobilize via website, then pull their stunts with element of surprise." And an editorial is entitled "California scheming."
Posted at 22:25 by Howard Bashman



Let's talk about sex[.com]: Wired News reports here that "Sex.com Prevails in Domain Suit." c|net News.Com reports here that "VeriSign to face Sex.com lawsuit." The Mercury News reports here that "Verisign loses appeal in dispute over sex.com address." And The Associated Press reports here that "Web registry may be liable for 'sex.com.'"

Now where on the Web could one find the very first report on today's ruling by the U.S. Court of Appeals for the Ninth Circuit in this case? Why, here at "How Appealing," of course.
Posted at 20:56 by Howard Bashman



"Miss. Supreme Court Justice Indicted": The Associated Press has this report. And The Clarion-Ledger reports here that "Mississippi judge, prominent coast attorney indicted on federal charges."
Posted at 20:02 by Howard Bashman



That didn't take very long: The group People For the American Way this evening has issued a press release entitled "PFAW Opposes Latest Right-Wing Judicial Nominations."
Posted at 19:59 by Howard Bashman



"Owner of Stolen 'Sex.com' Can Sue VeriSign-Court": Reuters provides this report.
Posted at 17:58 by Howard Bashman



It's official: President Bush today has nominated Janice Rogers Brown and Brett M. Kavanaugh to fill the eleventh and twelfth seats on the U.S. Court of Appeals for the D.C. Circuit. Of course, my prediction remains that Justice Brown will end up being confirmed by the U.S. Senate for the tenth seat on the D.C. Circuit, thus leaving nominees Miguel A. Estrada and Kavanaugh to suffer the consequences of Senior Circuit Judge Laurence H. Silberman's repeated statements that the D.C. Circuit should not have more than ten active judges.
Posted at 17:38 by Howard Bashman



Update on the cases involving the U.S. Army Corps of Engineers' management of the Missouri River: In an interesting turn of events, this morning the U.S. Court of Appeals for the Eighth Circuit issued an order which clarified that the Corps was never faced with conflicting injunctions issued by federal district courts in Nebraska and Washington D.C., because the Eighth Circuit's stay of the Nebraska injunction was still in effect. Even though the Eighth Circuit's recent opinion stated that "the stay entered by this Court is vacated," South Dakota v. Ubbelohde, 330 F.3d 1014, 1033 (8th Cir. 2003), the Eighth Circuit hasn't yet issued its mandate in that case. Accordingly, plaintiffs in the case that was formerly pending in the D.C. district court could now file an emergency motion requesting that Senior District Judge Paul A. Magnuson of the U.S. District Court for the District of Minnesota lift the fourteen-day stay that he issued yesterday (see this AP report).
Posted at 17:10 by Howard Bashman



D.C. federal district court, in first substantive decision in 9/11 lawsuits brought by victims and their families, grants in part and denies in part motions to dismiss four defendants: Today's decision by District Judge James Robertson of the U.S. District Court for the District of Columbia begins:
In this action, more than two thousand victims, family members of victims or representatives of victims of the terrorist attacks of September 11, 2001, seek to hold accountable the persons and entities that funded and supported the international terrorist organization known as al Qaeda, which is now generally understood to have carried out the attacks. Plaintiffs have sued nearly two hundred entities or persons -- governments, government agencies, banks, charitable foundations, and individuals, including members of the Saudi royal family -- broadly alleging that each of them, in one way or another, directly or indirectly, provided material support, aided and abetted, or conspired with the terrorists who perpetrated the attacks. The Third Amended Complaint ("3AC") asserts claims under the Foreign Sovereign Immunities Act (FSIA), 28 U.S.C. sec. 1602 et seq., the Torture Victim Protection Act (TVPA), 28 U.S.C. sec. 1350 note, the Antiterrorism Act (ATA), 18 U.S.C. sec. 2331 et seq., the Alien Tort Claims Act (ATCA), 28 U.S.C. sec. 1350, the Racketeer Influenced and Corrupt Organizations Act (RICO), 18 U.S.C. sec. 1961 et seq., and the common law theories of aiding and abetting, conspiracy, wrongful death, survival, intentional infliction of emotional distress, negligence, and negligent infliction of emotional distress. Plaintiffs demand damages, including punitive damages, in excess of one trillion dollars.
You can access the complete decision at this link.
Posted at 16:52 by Howard Bashman



"Calif. Court Won't Halt Recall Election": David Kravets of The Associated Press reports here that "The California Supreme Court declined Friday to halt the recall vote of Gov. Gray Davis." Law Professor Rick Hasen of the "Election Law" blog provides the text of the court's order here.
Posted at 15:03 by Howard Bashman



"Al-Arian Fires Attorneys to Represent Himself": From Tampa, Florida, The AP reports here that "Despite a judge's warning that he was making a foolish and potentially disastrous move, a former professor indicted on terrorism charges fired his attorneys Friday and will represent himself."
Posted at 14:37 by Howard Bashman



"Judge Issues Stay of Mo. River Sanctions": The Associated Press offers this report.
Posted at 14:27 by Howard Bashman



"Judicial Misconduct in the Sixth Circuit: Another Reason to Free the Michigan Four." Todd F. Gaziano, Director of the Center for Legal and Judicial Studies at The Heritage Foundation, has this essay online today at Town Hall.
Posted at 14:12 by Howard Bashman



"Lawyers, Blogs, Money, And Stone Cold": Denise Howell has a truly excellent post addressing (and linking to) a brand new ABA Journal eReport about lawyers who have Web logs. Update: And the author of the "SW Virginia law blog" has this to say.
Posted at 14:09 by Howard Bashman



Ninth Circuit issues important Voting Rights Act decision addressing whether Washington State's felon disenfranchisement provision may constitute an improper race-based denial of the right to vote: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins:
Plaintiffs appeal the district court’s grant of summary judgment dismissing their claim that Washington state's felon disenfranchisement scheme constitutes improper race-based vote denial in violation of Section 2 of the Voting Rights Act ("Section 2"), 42 U.S.C. sec. 1973. Upon conviction of an infamous crime in the state of Washington, each plaintiff was disenfranchised, and none has had his voting rights restored.

The district court determined that although Washington's felon disenfranchisement scheme disenfranchises a disproportionate number of African-American, Hispanic-American, and Native-American minorities, the cause of this disparate impact on their right to vote was external to the felon disenfranchisement provision itself and therefore could not provide the requisite causal link between the voting qualification and the prohibited discriminatory result.

* * *

* * * Because a Section 2 analysis clearly requires that we consider factors external to the challenged voting mechanism itself, we hold that evidence of discrimination within the criminal justice system can be relevant to a Section 2 analysis. In light of the district court's having improperly disregarded this evidence, combined with its assessment that Plaintiffs' evidence of discrimination in Washington's criminal justice system was "compelling," we reverse and remand for further proceedings.
You can access the complete decision at this link.
Posted at 13:46 by Howard Bashman



In the latest installment of the sex.com battle, Ninth Circuit holds that Network Solutions may be held liable for conversion if it wrongfully reassigned that domain name: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion by Circuit Judge Alex Kozinski that begins:
We decide whether Network Solutions may be liable for giving away a registrant’s domain name on the basis of a forged letter.

Background

"Sex on the Internet?," they all said. "That'll never make any money." But computer-geek-turned-entrepreneur Gary Kremen knew an opportunity when he saw it. The year was 1994; domain names were free for the asking, and it would be several years yet before Henry Blodget and hordes of eager NASDAQ day traders would turn the Internet into the Dutch tulip craze of our times. With a quick e-mail to the domain name registrar Network Solutions, Kremen became the proud owner of sex.com. He registered the name to his business, Online Classifieds, and listed himself as the contact.
You can access the complete opinion at this link.

By the way, the August 2003 issue of Wired Magazine contains an article entitled "The Prisoner of Sex.com: Gary Kremen started Match.com but ended up with chump change. Then he got caught up in Sex.com, where success left him lying on his back in the gutter."
Posted at 13:33 by Howard Bashman



"Pryor vote could come Tuesday": This article appears in today's issue of The Montgomery Advertiser. Elsewhere, The Birmingham News today contains an article headlined "Sessions: Pryor flap much ado about faith." And the Web log for Christianity Today Magazine yesterday had a post entitled "Religious Fight Erupts in Judicial Confirmation Hearings."
Posted at 12:11 by Howard Bashman



"EPA Held in Contempt By Judge": As noted below, today's issue of The Washington Post contains this report. You can access yesterday's contempt ruling of the U.S. District Court for the District of Columbia at this link.
Posted at 11:42 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Louisiana Jury Considers Tobacco Lawsuit" and here an article entitled "Sniper Suspect Reportedly Targeted Boy."
Posted at 10:05 by Howard Bashman



"Mistrial declared in professor's libel suit; Jury deadlocks on claim against Fox News": The Cincinnati Enquirer today provides this report.
Posted at 10:04 by Howard Bashman



"Bring on the filibuster against ultraconservative": This editorial appears in today's issue of The Atlanta Journal-Constitution.
Posted at 06:57 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "Opposition to Gay Marriage Is Declining, Study Finds." An article reports that "Haitians Are Held in U.S. Despite Grant of Asylum." In local news, "No Model Inmate, but Quite a Source." And an obituary is entitled "Stanley Fuld, a Former Judge, Dies at 99."

The Washington Post reports here that "Guards Say Malvo Described Near Hits; Loaded School Bus Targeted, Teen Said." In other news, "Vote on Calif. Governor's Recall to Be Oct. 7; Three Have Declared for Race, But Many Others Are Considering Running." An article reports that "EPA Held in Contempt By Judge." In local news, "Judge Orders Release of Va. Jihad Suspect." And an article reports that "FCC Chairman's Star a Little Dimmer; Defeat on Capitol Hill Raises Questions About Powell's Political Savvy."

Finally for now, OpinionJournal offers an op-ed by Kay Daly entitled "Judge for Yourself: Are Senate Democrats determined to keep believers off the bench?"
Posted at 06:47 by Howard Bashman



Today's FindLaw columnists: Vikram David Amar and Alan Brownstein have an essay entitled "Why An Important Part of the California Recall Process Is Unconstitutional, According to U.S. Supreme Court Precedent."
Posted at 06:38 by Howard Bashman



"Pryor's nomination hangs in balance as Democrats ponder filibuster": The AP provides this report.
Posted at 00:02 by Howard Bashman



Thursday, July 24, 2003
"Missouri River Fight Transferred to Minn." The Associated Press has this report. More information on the Judicial Panel on Multidistrict Litigation is available here.
Posted at 23:22 by Howard Bashman



Available online at law.com: Law Professor Jonathan Turley has an essay entitled "Sex and the Supreme Court." And Evan P. Schultz has an essay entitled "A More Perfect Union: Will Lawrence lead to gay marriage?"
Posted at 23:20 by Howard Bashman



"Appeals court strikes contempt ruling": The Cleveland Plain Dealer reports here on the reversal of a contempt conviction for a man who wrote a choice epithet on a check to pay court costs.
Posted at 23:09 by Howard Bashman



Invaluable: I had a hunch last night that the Chief Justice Rehnquist bobblehead doll available for purchase on eBay would end up selling for somewhere between $250 and $500, but to see the price already at $255 really amazes me. In largely unrelated news, let me express my sincere thanks to Law Professor Joe Miller for some very pleasant news he so kindly delivered via email today.
Posted at 23:04 by Howard Bashman



Congrats to Feddie of "Southern Appeal" on the birth of his daughter: Details here.
Posted at 22:51 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports that "Fight Gets Political Over Religion; Senate panel narrowly approves Bush's pick for an appeals court judge, but GOP charges of an anti-Catholic agenda outrage Democrats." An article reports that "24 Child Molesters Released; Inmates convicted of sex crimes against minors go free. More such cases are expected because of a high court ruling on delayed prosecutions." In other news, "Davis Recall Qualifies for Fall Ballot; Governor Vows to 'Fight Like a Bengal Tiger' to Remain in Office." You can access here a list of "Events Leading to Ruling on Recall." Relatedly, an article reports that "In Capital, a Week for the Books." In other news, "House Votes to Restore Media Ownership Cap; Lawmakers reject the FCC's move to relax restrictions on big broadcasters." A related article reports that "Media Owners May Have to Sell; If Congress overturns new FCC ownership rules, Viacom and News Corp. could be forced to divest TV stations." From Orange County comes news that "Judge OKs Release of Accused Bomber." Editorials are entitled "State's Crisis Compounded" and "Prisons and Honest Work." An op-ed by Jonathan Shapiro is entitled "Mug Shot Decision Flies in Face of Justice; Post-arrest photos tend to incriminate; it's not a good idea to make them freely available." Bill Maher has an op-ed entitled "Recalls Are for Cars, Not California Governors: When did the Target parking lot replace the voting booth?" And letters to the editor appear under the heading "Ramirez Cartoon Draws Secret Service Visit."

The Boston Globe reports here that "Court says no Miranda requirement for schools." In other news, "House bucks FCC on media ownership; Votes to overturn key part of rules change." In local news, "Conley challenge targets prosecutor; Hypnosis testimony might have helped case, lawyer says." And an op-ed by Jim Ward is entitled "Rights of disabled are in jeopardy."

The Washington Times reports here that "FBI chief praises the Patriot Act." In other news, "'Political' professors rife, Hill interns say." An op-ed by Clint Bolick is entitled "Anti-school choice lacks standing," while Gary J. Andres has an op-ed entitled "Mutant tort bills."

USA Today reports here that "Vote to recall Calif. governor gets on ballot." And an editorial is entitled "Code-red cartoonists."
Posted at 22:06 by Howard Bashman



Tonight's music selection: "Heaven," by Live (listen here -- Real Player required).
Posted at 22:06 by Howard Bashman



"Hostettler Amendments Prohibit Funds to Enforce Court Decisions Against Pledge, Ten Commandments": Thanks to the readers who emailed to draw my attention to a press release that U.S. Representative John N. Hostettler (R-IN) issued yesterday. The press release begins, "In an effort to block the enforcement of two recent Federal Court decisions regarding the Pledge of Allegiance and the Ten Commandments, the House has adopted two amendments offered by Rep. John Hostettler. The amendments to the Commerce, Justice, State and the Judiciary appropriations bill would block federal funds from being used to enforce court decisions that found the use of 'under God' in the Pledge of Allegiance unconstitutional and ordered the Chief Justice of the Alabama Supreme Court to remove the Ten Commandments from the courthouse."
Posted at 19:49 by Howard Bashman



Today's installment of the Decalogue blog, featuring the States of Alabama, Arizona, Georgia, Washington, and Wisconsin: Today's edition of The Daily Herald of Everett, Washington reports here that "Lawsuit fights monument; Display of Ten Commandments at old Everett City Hall at issue." From Georgia, today's issue of The Gwinnett Daily Post reports here that "Barrow braces for ACLU fight." And yesterday's edition of The Athens Banner-Herald reported here that "Barrow sees court battle over display; County expecting ACLU to file Commandments suit." The La Crosse Tribune, in an article headlined "Council to discuss monument options at special meeting," reports today that "La Crosse officials have set a special meeting for Aug. 12 to consider whether to appeal a federal court order to remove the Ten Commandments monument from its downtown location."

The Arizona Republic reported here yesterday that "Battle over plaza monument likely; Suit vowed over Ten Commandments." On Tuesday, that newspaper reported that "ACLU, governor in no hurry on Ten Commandments issue." The Arizona Daily Sun reported here on Tuesday that "Ten Commandments stay in plaza for now." And on Monday, Eleanor Eisenberg, executive director of the Arizona Civil Liberties Union, had an op-ed in The Arizona Republic entitled "Religion is not the issue."

On Wednesday, The Birmingham News reported here that "Moore resorts to high court; Plans to appeal religion ruling." The Crimson White reported here that "Moore to appeal decision to high court." The Associated Press reported here that "Moore plans appeal to high court." And The Huntsville Times reported here that "Moore to take monument case to highest court; Chief justice will skip hearing by full 11th Circuit Court."

In today's issue of The Atlanta Journal-Constitution, Lee McAuliffe Rambo has an op-ed entitled "Halt judge's high-handed campaign to push religion," while Richard Thompson argues that "ACLU aiming to de-Christianize nation."

Finally, no mention of the Decalogue would be complete without noting yesterday's news that "Bush gives Heston medal."

Update: Via "Balasubramania's Mania" I have learned that today's edition of The Seattle Post-Intelligencer reports here that "Ten Commandments tablet sparks lawsuit."
Posted at 17:05 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Guard: Malvo Shot Teen to Anger Police"; here "Ind. Charges Five With Donating Bad Blood"; here "Fla. to Restore Felons' Voting Rights"; and here "Cities Curb Access in Wake of Shooting."
Posted at 16:51 by Howard Bashman



"Ashcroft's Folly: How the attorney general lost the Moussaoui trial before it began." Dahlia Lithwick is back, with this essay just posted online at Slate. And while you're at it, go buy her book; you can get many copies for the cost of just one Chief Justice Rehnquist bobblehead doll, and the book is quite funny, which more than makes up for its lack of bobbleheadedness.
Posted at 16:45 by Howard Bashman



"20 questions for the appellate judge" update: When this week began, I expressed my hope that before the end of this week three additional federal or state appellate court judges would volunteer to participate as interviewees in this Web log's very popular monthly feature, "20 questions for the appellate judge." Since then, one federal appellate judge has volunteered for the October 2003 interview slot. Thus, I still need two additional appellate judge volunteers to ensure that the "20 questions" feature survives through the end of 2003. And while it is gratifying to be one-third of the way toward meeting my goal, even Meat Loaf by implication seems to believe that one out of three is not good.

I'm aware that many readers are currently working behind the scenes to convince additional federal and state appellate court judges that they should participate as interviewees, and if more than two additional interviewees come forward, the "20 questions" feature will continue into 2004. Indeed, some readers have suggested that I keep the monthly "20 questions" feature in existence for as long as the Web log "How Appealing" continues to exist, and I'm agreeable to doing that. How does a federal or state judge volunteer to be an interviewee? It's easy -- just send me an email, and interview slots will be assigned on a first-come, first-served basis.
Posted at 16:04 by Howard Bashman



More Pryor coverage: Today's issue of Newsday contains an article headlined "Rancorous Debate on U.S. Judge Nominee." WSFA reports that "A.G. Bill Pryor Speaks About Nomination." Last night's edition of The NewsHour with Jim Lehrer contained a segment entitled "Bench Battle" (transcript here). The Portland Press Herald today reports that "Ad puts pressure on Maine senators." MSNBC's Tom Curry reports that "Catholics at stake in Senate fracas; GOP set to use filibusters of Catholic nominees as campaign issue." Finally for now, Robert A. Martin, the Editor and Publisher of The Montgomery Independent, has an op-ed entitled "'Pryor' restraint."
Posted at 14:17 by Howard Bashman



"Adult video can't keep juror awake - mistrial": Today's edition of The Cincinnati Enquirer provides this additional coverage of a story I reported on here yesterday.
Posted at 14:03 by Howard Bashman



"Federal Court Postpones Ohio Execution": The Associated Press provides this report.
Posted at 13:57 by Howard Bashman



"U.S. Satisfies Australia on Possible Terror Trial": Today's issue of The New York Times contains this report from Neil A. Lewis.
Posted at 13:23 by Howard Bashman



"Davis Will Face Recall Election Oct. 7": The Associated Press has this report from Sacramento.
Posted at 13:21 by Howard Bashman



Leave it to NPR to generate humor in the battle to confirm Alabama Attorney General William H. Pryor, Jr. to the Eleventh Circuit: A librarian who works for a very large federal appellate court based in the western United States emails: "Comedian Richard Pryor nominated to Eleventh Circuit? According to the written summary for this NPR Morning Edition report he is." To preserve the entry in question, which is likely to change once NPR learns of the error, it reads:
Democrats on the Senate Judiciary Committee are being called anti-Catholic after Appeals Court nominee Richard Pryor was asked about his faith at hearings. Democrats are saying the charges are absurd. NPR Legal Affairs Correspondent Nina Totenberg explains the controversy surrounding nominee Richard Pryor.
This of course simply raises the question "Would someone who set himself on fire more than twenty years ago while allegedly freebasing cocaine qualify for confirmation to a federal appellate court in 2003?"

Update: Well, the error won't be so easily expunged, because host Bob Edwards refers to the nominee as "Richard Pryor" in his intro to Nina Totenberg's report (which you can listen to here (Real Player required)).

Second update: As feared, NPR has corrected the error in the written summary for the segment, but the error is still there in the intro to the audio.
Posted at 11:30 by Howard Bashman



Gennifer Flowers v. Hillary Rodham Clinton: Yesterday The Associated Press reported here that "A federal judge refused to release Sen. Hillary Rodham Clinton from a lawsuit by Gennifer Flowers which accuses the senator of masterminding a campaign to discredit Flowers' claim of an affair with Bill Clinton." Courtesy of FindLaw, you can now access online (via this very slow-loading link) Monday's ruling by Chief Judge Philip M. Pro of the U.S. District Court for the District of Nevada.

I haven't yet had the chance to check and see whether Chief Judge Pro's opinion includes a gratuitous reference to the Monica Lewinsky matter, which one can find on page 12 of this PDF file containing Ninth Circuit's earlier ruling in this case. Longtime readers of this blog will recall that that reference spawned quite a bit of commentary (see here, here, and here) back in November 2002.
Posted at 10:55 by Howard Bashman



"Blogging for Business": Congratulations to blawger Denise Howell for the mention she received in this Inc. magazine article.
Posted at 10:53 by Howard Bashman



When claiming you've been fired due to religious discrimination, it helps to have been fired: See this opinion that Circuit Judge Danny J. Boggs issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.

Fans of Judge Boggs may also enjoy matching wits with his clerkship quiz.
Posted at 10:27 by Howard Bashman



"Necessary Amendment: On gay marriage." The August 11, 2003 issue of National Review magazine contains this editorial.
Posted at 10:14 by Howard Bashman



Blawgsploitation: Sure it's gratifying to have one of the most popular and trusted law-related Web logs in existence, but sometimes even I have to shake my head in wonderment over the power of "How Appealing." Here are two quick examples.

A little while ago, I mentioned that the Second Circuit's Web site should begin listing newly-issued opinions by case name instead of only by docket number. As of this morning, that change has occurred. (From the Web site's entry page, click on the links for "Decisions" and then "New Opinions" to see for yourself.) Now, that court simply needs to add back in the designation for whether the opinion in question is precedential or not.

In completely unrelated news, late last night I linked to an item just posted on eBay where someone is auctioning-off one of the limited edition Chief Justice Rehnquist bobblehead dolls. Since that time, the eBay page in question has been accessed hundreds of times, and the auction price has skyrocketed from $15.00 to $150.00. Fans of "How Appealing" with excess cash (you know who you are) should refrain from purchasing a Rehnquist bobblehead for me, because while it is true that I don't have one yet, I have taken the steps necessary to obtain one at a price far less than what the eBay auction already reflects. And of course this blog is not being operated for personal financial gain but as a free service to you, the reader.
Posted at 10:12 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Ruling Leads to Offenders' Release"; here "Condemned Indiana Inmate Seeks DNA Test"; here "Senate to Consider Media Ownership Rules"; here "Man Who Shot Gun Dealer Executed in Texas"; here "Feds Criticize Patriot Act Searches Vote"; here "Panel Approves Tex. Redistricting Bill"; here "Child Killer Susan Smith Pulls Online Ad"; and here "Advocates Laud Post for Gay Announcement."
Posted at 09:59 by Howard Bashman



Pulitzer Prize-winning author Garry Wills reviews Senator Hillary Rodham Clinton's new book, Living History: You can access the review, which appears in the August 14, 2003 issue of The New York Review of Books, at this link.
Posted at 09:47 by Howard Bashman



"The Blogfather": The Summer 2003 issue of the Yale Law Report contains this profile of Glenn Harlan Reynolds of "InstaPundit." The document also includes a sidebar that mentions many other Yale Law School-related bloggers. (Thanks much to Peter Goldberger (YLS '75) for sending along word of this article.)
Posted at 07:00 by Howard Bashman



Even more coverage of yesterday's Senate Judiciary Committee vote in favor of Eleventh Circuit nominee William H. Pryor, Jr.: The Montgomery Advertiser reports here that "Senate fight next for Pryor" and here that "Committee's vote pleases Pryor." The Birmingham News reports here that "Senate panel OKs Pryor in 10-9 vote; Democrats may use filibuster to block judicial confirmation." The Mobile Register reports here that "Panel OKs Pryor, but battle ahead; Showdown likely in the full Senate over his nomination." Jan Crawford Greenburg of The Chicago Tribune reports here that "Fractious Senate panel OKs Pryor." The Washington Times reports here that "Pryor's religion triggers debate." The Dallas Morning News reports here that "Controversial nomination sent to Senate; Democrats apologize for seeking Cornyn's recusal from vote." The Philadelphia Inquirer reports here that "Specter's vote advances a disputed judicial nomination." Finally for now, The Pittsburgh Post-Gazette reports here that "Specter backs sending Pryor vote to full Senate."
Posted at 06:35 by Howard Bashman



In Thursday's newspapers: In The New York Times, Neil A. Lewis reports that "Judicial Nominee Advances Amid Dispute Over Religion." Adam Liptak reports that "Death Row Inmate Gets Support for DNA Test From Unlikely Source." From Sacramento comes news that "A Recall Vote Seems Certain for California." A related article reports that "Questions and Assumptions Surround Recall Process." In business news, "F.C.C. Media Rule Blocked in House in a 400-to-21 Vote." Relatedly, Jennifer 8. Lee reports that "F.C.C. Chairman Endures Rebuke, Despite Putting Law Above Politics." In other news, "Cleared of Aiding Terrorism, Lawyer Disputes That Her Client Is a Terrorist." An article reports that "Court Orders Accountant to Name Shelter Investors," and you can access yesterday's ruling by the U.S. Court of Appeals for the Seventh Circuit at this link. From New Jersey comes news that "High Court Again Freezes Aid to 30 Poorest School Districts." In other local news, "Judge's Role Questioned in Bid to Sell a Home." Alan B. Krueger's "Economic Scene" column is entitled "Why Affirmative Action Matters." And columnist William Safire has an op-ed entitled "Bush's Four Horsemen."

The Washington Post reports here that "Election Officials Finish Verifying Names in Calif. Recall Effort." An article reports that "House Votes to Overturn TV Rule; Bill Would Keep Ownership Limit At 35% of Markets." In other news, "Disclosures May Help Malvo Team; 6 Witnesses Described Teenager's Obedience." In sports-related news, "Judge Nears Ruling in Redskins Name Fight." You can access here an article entitled "Judge's Image Aside, Dismissal a Surprise; Lawyer Says Lee Seeks 'Honest Result.'" And columnist George F. Will has an op-ed entitled "A Questionable Kind Of Conservatism."
Posted at 00:00 by Howard Bashman



Wednesday, July 23, 2003
"Senate Panel Approves Appeals Court Nominee Pryor": NPR's Nina Totenberg had this report (Real Player required) on this evening's edition of "All Things Considered."
Posted at 23:56 by Howard Bashman



"Bitterly divided": Thursday's edition of The Washington Post reports here that "Pryor Nomination Survives on 10-9 Vote." Tomorrow's edition of The Atlanta Journal-Constitution reports here that "Pryor clears judicial panel." Both reports describe the committee as "bitterly divided," which may in fact be an understatement.
Posted at 23:49 by Howard Bashman



Available online at law.com: Jonathan Ringel reports that "Split Vote Takes 11th Circuit Nomination to Senate; Religion, fund raising spark debate on Alabama AG's bid for seat." In other news, "Terror Case Could Redraw Lines of Power; Role of branches at stake in turf war between judge, United States." Finally, from Florida comes word that "Widow Seeks Reinstatement of Tobacco Verdict Award."
Posted at 23:47 by Howard Bashman



Chief Justice Rehnquist for sale? Yes, if it's the bobblehead version you desire. The eBay listing is here. If I possessed a Chief Justice Rehnquist bobblehead doll, I'm not sure there'd be any price at which I'd voluntarily part with it.
Posted at 23:44 by Howard Bashman



"ADL, B'nai B'rith Join Fight Against Judicial Nominee": The July 25, 2003 issue of The Forward will contain this report.
Posted at 22:11 by Howard Bashman



"Sen. Hatch and Judiciary Committee Allies Sink to New Low: GOP Members Continue Unconscionable Claims of Religious Bias, Trash Committee Rules, Send Pryor Nomination to Senate Floor." The group People For the American Way has issued this press release.
Posted at 20:01 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge OKs Suit Against Sen. Clinton" and here an article entitled "Moussaoui Wants Jury to See Testimony."
Posted at 19:58 by Howard Bashman



Florida's Third District Court of Appeal holds that a defendant's "conviction and sentence for the unlawful display of authorized indicia of law enforcement authority" violates First Amendment: You can access today's ruling at this link. And The Associated Press reports here that "Court Throws Out Fla. Law on Police Gear."
Posted at 16:34 by Howard Bashman



More coverage of the sleeping Cincinnati juror: The Cincinnati Post reports here that "Porn case film puts juror to sleep; Judge declares a second mistrial."
Posted at 16:07 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Blocks Miss. Death Row Reforms"; here "Two Jurors Cause Mistrial in Cincinnati"; here "Calif. Official May Hold Off on Successor"; here "Woman Sentenced in Attacks Fraud Case"; and here "House Votes to Block Expanded FCC Limits."
Posted at 15:39 by Howard Bashman



Publishing a party's social security number in a court's opinion: A reader has emailed to note that a Ninth Circuit opinion to which I linked earlier today appears to quote a letter that reveals the plaintiff's social security number. I'm not an expert on the Privacy Act nor am I up to date on the harm that can befall one if his or her social security number were to find its way into the wrong hands, and thus I ask -- Is the publication of the plaintiff's social security number something the court should not have done? In the context of the opinion, it appears that the social security number was not a centrally-relevant part of the quoted letter.

Update: A second reader emails:
I suspect the inclusion of the Social Security number in the Ninth Circuit opinion runs afoul of the Judicial Conference's Policy on Privacy and Public Access to Electronic Case Files. Many district courts specifically tell counsel to redact such information from filings and, presumably, courts should be doing the same in opinions.
The Report of the Judicial Conference Committee on Court Administration and Case Management on Privacy and Public Access to Electronic Case Files can be accessed here.
Posted at 15:17 by Howard Bashman



Access online yesterday's contempt ruling of the U.S. District Court for the District of Columbia in the Missouri River case: The decision is available online here.
Posted at 14:51 by Howard Bashman



"Split Senate Panel Backs Pryor for Judicial Post": Reuters offers this report.
Posted at 14:07 by Howard Bashman



"Docents Help Make History Come Alive for Visitors to Court of Appeals": The Ninth Circuit's Public Information Office has issued this press release.
Posted at 14:04 by Howard Bashman



Divided three-judge Ninth Circuit panel denies summary judgment to Chevron in Echazabal case on remand from U.S. Supreme Court: On June 10, 2002, the Supreme Court of the United States issued its ruling in Chevron U.S.A. Inc. v. Echazabal. Later that day, in a post you can access here, I provided the following summary of that ruling:
DON'T SEEK PERMISSION TO KILL YOURSELF FROM US: The Americans with Disabilities Act does not require an employer to allow an employee with a liver condition that makes it especially dangerous to be exposed to certain toxins to work in a job requiring exposure to such toxins, the Court unanimously ruled in a decision by Justice Souter. The employee, in essence, was arguing that the ADA gave him the right to work in a job that was especially dangerous to him because the employer couldn't take into account his disability that made the job so dangerous. The Court unanimously refused to facilitate the employee's self-destruction, so the employee will simply have to enjoy whatever perverse pleasure losing in the U.S. Supreme Court can provide.
Today, on remand from the Supreme Court's ruling last year, a Ninth Circuit panel ruled 2-1 that a genuine issue of material fact exists concerning "whether Chevron has met the requirements for assertion of the direct threat defense." Accordingly, the plaintiff's ADA claim against Chevron will go to trial. In dissent, Circuit Judge Stephen S. Trott writes:
At this juncture in this litigation ordeal, I vote to affirm the district court across the board. I cannot imagine what would have happened to Chevron under these circumstances had Mr. Saner hired this applicant against the recommendation of his own and Chevron's doctors and the applicant's condition had then deteriorated -- or then again, maybe I can. I would hope that the law is not a heads-I-win, tails-you-lose game. The purpose of summary judgment is to put an early end to lawsuits not supported by facts. That should be the fate of this one. Instead, the remand is for a trial where the issue will involve conflicting medical opinions regarding hepatotoxins, or a battle of experts, rather than what it should be: whether or not Chevron unlawfully discriminated against this plaintiff.
You can access both the majority and dissenting opinions issued today at this link.
Posted at 13:29 by Howard Bashman



"Judge tosses tobacco firms' suit over ads": Today's issue of The Sacramento Bee contains this report. You can access the ruling at this link.
Posted at 13:27 by Howard Bashman



"Senate Panel Approves Pryor Nomination": Jesse J. Holland of The Associated Press has this report.
Posted at 12:57 by Howard Bashman



"Couple sue over message on brick; Parks reject their 'Jesus' inscription": This article appears in today's issue of The Chicago Tribune. (Maybe I missed this class at J-school -- which is quite possible, because I didn't attend J-school -- but since when do headlines treat the word "couple" as though it is a plural noun?)
Posted at 12:17 by Howard Bashman



Toucan play at this game: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit has affirmed a federal trial court's ruling that the word-mark "Toucan Gold" for golf clubs does not impermissibly infringe on the word-mark "Toucan Sam," which Kellogg Company uses to market a sugared cereal. In the opinion, Senior Circuit Judge Richard F. Suhrheinrich explains:
Toucan Sam is an anthropomorphic cartoon toucan. He is short and stout and walks upright. He is nearly always smiling with a pleasant and cheery demeanor, but looking nothing similar to a real toucan. He has a royal and powder blue body and an elongated and oversized striped beak, colored shades of orange, red, pink, and black. He has human features, such as fingers and toes, and only exhibits his wings while flying. Moreover, in television advertisements over the past forty years, Toucan Sam has been given a voice. He speaks with a British accent, allowing him to fervently sing the praises of the cereal he represents, and to entice several generations of children to "follow his nose" because "it always knows" where to find the Froot Loops.
You can access the complete opinion at this link.
Posted at 11:59 by Howard Bashman



The Senate Judiciary Committee has voted 10-9 to recommend confirmation of Eleventh Circuit nominee William H. Pryor, Jr.: All of the nine Democratic votes against were registered "under protest for violation of Rule IV." You can see the post immediately below this one for details on what that means. Thus, Pryor today moves one step closer to joining the ranks of actively-filibustered federal appellate court nominees.
Posted at 11:48 by Howard Bashman



Senate Judiciary Committee business meeting update: Senator Patrick J. Leahy (D-VT) has just objected to holding a vote on William H. Pryor, Jr.'s nomination under Rule IV of the Senate Judiciary Committee. Rule IV provides:
The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a rollcall vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.
Senator Dianne Feinstein (D-CA) enthusiastically agrees with Senator Leahy's understanding of the rule, that a vote on Pryor's nomination cannot occur unless one of the Democrats on the committee agrees. Committee chairman Senator Orrin G. Hatch (R-UT) does not agree, and now the members are arguing over this point.
Posted at 11:42 by Howard Bashman



Senator Arlen Specter (R-PA) has just said he is voting in favor of William H. Pryor, Jr. in the Senate Judiciary Committee: But Senator Specter says that he is reserving the right to change his mind depending on any additional information that comes forth before a vote on the floor of the U.S. Senate occurs. So, even though the vote has not occurred, Pryor's nomination to serve on the Eleventh Circuit will be approved in the Judiciary Committee by a vote of 10-9.
Posted at 11:26 by Howard Bashman



William H. Pryor, Jr. Senate Judiciary Committee business meeting update: Today's business meeting of the Senate Judiciary Committee, at which the committee is scheduled to vote on Eleventh Circuit nominee William H. Pryor, Jr., has now been underway for over an hour and a half. Many members of the committee desire to be heard on the nomination. But committee chairman Senator Orrin G. Hatch (R-UT) continues to press for a vote, which suggests that he is confident that the nomination will receive a favorable (but presumably party-line) vote.
Posted at 10:48 by Howard Bashman



"Cornyn brings Texas side-step to D.C.": Columnist Cragg Hines has this essay in today's edition of The Houston Chronicle.
Posted at 10:33 by Howard Bashman



"Fat Chance": The Wall Street Journal today contains this editorial about obesity-related litigation.
Posted at 09:57 by Howard Bashman



Yesterday's decision dismissing two terrorism charges against attorney Lynne Stewart is now available online: You can access yesterday's opinion issued by District Judge John G. Koeltl of the U.S. District Court for the Southern District of New York at this link.
Posted at 09:43 by Howard Bashman



"Wiccan witch seeks right to open board meeting with prayer": The Associated Press provides this report from Richmond, Virginia. And yesterday The Richmond Times-Dispatch reported here that "Wiccan Prayer Suit In Court."
Posted at 09:24 by Howard Bashman



On the agenda: Scheduled to get underway momentarily is the continuation of the Senate Judiciary Committee's business meeting from last week. The key item on this morning's agenda is the committee's vote on the nomination of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit. A live video feed of this morning's business meeting is accessible at this link (Real Player required).
Posted at 09:00 by Howard Bashman



Elsewhere in Wednesday's newspapers: The New York Times reports here that "Schumer Strikes Deal on Filling Court Vacancies." And in other news, "9/11 Payment Issues Are Argued in Appeal."

The Boston Globe reports here that "'Blogs' shake the political discourse." In other news, "Court workers cite lawless parking lot." And an editorial is entitled "Tickets to fix."

The Los Angeles Times reports here that "Cigarette Makers Lose Suit; A federal judge rules that California can keep using tobacco tax funds to pay for anti-smoking ads. The plaintiffs plan to appeal." An article reports that "Numbers Add Up to Fall Recall Election; A Times survey finds that county officials have verified more than enough signatures to force a vote on removing Gov. Davis from office." From New York comes news that "Judge Tosses Out Terror Conspiracy Counts Against Lawyer, 2 Others; The ruling says that the Justice Department's charges were too vague to be constitutional." A front page article bears the headline "The FBI's Least Wanted: The high cost of living is driving agents from some of the largest, most important cities. A few who stayed have gone on food stamps." In news from Glendale, California, "City still mulling appeal of verdict; Amount awarded to one female officer reduced. Both sides still preparing post-trial motions." Tim Rutten's "Regarding Media" column today is entitled "Presumption of innocence sidelined: If Scott Peterson is keeping score, he should award Kobe Bryant an assist." And Robert A. Ricker has an op-ed entitled "Democrats Are Playing NRA Roulette."

In The Washington Times, Frank J. Murray reports that "Obscenity law in Ohio targeted by lawyer." In other news, "U.S. judge overturns conviction of Lentz." Jonah Goldberg has an op-ed entitled "Ashcroft gets bad rap." And Robert A. Levy and Gene Healy have an op-ed entitled "Battle of the gun ban."
Posted at 08:40 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Sniper Trials May Boost Local Economies"; here "Virginia, Oklahoma Killers Executed"; and here "Third Election Try Settled in Georgia."
Posted at 08:37 by Howard Bashman



"Pryor faces panel vote for federal bench": This article appears in today's edition of The Birmingham News.
Posted at 08:19 by Howard Bashman



"Accord on Judicial Nominees for NY": Today's issue of Newsday provides this report.
Posted at 06:32 by Howard Bashman



"Pressure building as Pryor vote nears": This article appears in today's edition of The Montgomery Advertiser.
Posted at 06:29 by Howard Bashman



"Moore vows to fight ruling": The Montgomery Advertiser provides this news from Alabama relating to the Ten Commandments monument in the Alabama Judicial Building.
Posted at 06:27 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, a front page article reports that "Jury's Verdict In Death Reversed; Judge Discounts Kidnapping Theory." In other news, "Major Terror Charges Dropped for Lawyer." An article reports that "Virginia Executes Man for '97 Death; Young Mother Had Been Raped." In business news, "States' Role In Doubt on Wall Street; House to Vote Soon on Bill to Affirm Ultimate Power of SEC." And letters to the editor appear under the heading "Gay Marriage Considerations."

The New York Times reports here that "Judge Dismisses Terror Charges Against Lawyer." And an article reports that "Death Penalty Ruled Out for British Detainees."
Posted at 00:00 by Howard Bashman



Tuesday, July 22, 2003
In case anyone has forgotten where The New York Times stands on Bill Pryor's judicial nomination: Tomorrow's edition of The New York Times will contain an editorial entitled "An Extremist Judicial Nominee." The editorial's final paragraph, in its current form, experiments with a couple of different spellings for the last name of U.S. Senator Arlen Specter (R-PA).
Posted at 23:25 by Howard Bashman



No one knows what tomorrow will bring: But one thing is certain -- at 9 a.m. on Wednesday, July 23, 2003, the Senate Judiciary Committee will resume the executive business meeting that began last week. And the main item remaining on the agenda is the committee's vote on Eleventh Circuit nominee William H. Pryor, Jr. Stay tuned for complete coverage tomorrow morning.
Posted at 23:12 by Howard Bashman



Available online at law.com: An article reports that "9th Circuit Slams Circuit City." In news from the Second Circuit, "Panel Hears Two Theories on Twin Tower Attacks." Shannon P. Duffy reports that "Attorney Clears Hurdle in Defamation Action Against ABA." In news from New York, "Bipartisan Deal Clears Way For 10 U.S. Judge Nominees"; "Judge Narrows Charges Against Lynne Stewart"; and "Making a Criminal Case Over Selection of Judges in Brooklyn." Finally, in news from New Jersey, "Hospital Patients Sue Reality TV Show for Fraud."
Posted at 22:58 by Howard Bashman



Quin Hillyer is also guest blogging at "Southern Appeal": With such big-name celebrities filling in, some may begin to wish that "Feddie" were absent more often. (Of course, I wouldn't wish that Feddie were ever absent, but being absent because Mrs. Feddie is scheduled to give birth to child number two seems as good of an excuse as any for being away for a bit.)
Posted at 22:54 by Howard Bashman



Collecting on a judgment of $188.2 million against Iran isn't easy: The U.S. District Court for the District of Columbia has recently issued a series of rulings that have awarded very large damages awards to plaintiffs injured in terror-related lawsuits. As this opinion issued today demonstrates, collecting on such judgments is not so easy to do.
Posted at 22:45 by Howard Bashman



"Federal judge dismisses tobacco lawsuit to stop state ads": The Associated Press has this report from California. And tonight a newspaper reporter emailed to ask how it was that the first place this ruling was mentioned happened to be here at "How Appealing"? To which I replied, it never hurts to have sources.
Posted at 22:31 by Howard Bashman



I'm not usually one who gins up controversy: Over at "The Volokh Conspiracy" -- where I continue to excel at the game "Will Tyler Cowen ever have a post that interests me?" -- I was surprised today to spot two errors. Randy Barnett has fessed-up for his "gins" for "guns" post, and who doesn't have a typo from time to time while blogging. Second, Eugene does not deserve all the blame for mistaking (in a post you can access here) The Concord Monitor, a New Hampshire newspaper, for The Christian Science Monitor, when the error clearly originated with Andrew Sullivan.
Posted at 22:25 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Feds in Contempt Over Missouri River Flap"; here "Federal Judge Acquits in Kidnapping Case"; here "Judge Won't Dismiss Suit Against FEC"; here "Rabbi Sues Over Poland Holocaust Memorial"; here "Lawmaker: Cartoonist Questioning Wrong"; and here "House GOP Drops Push to Back FCC Limits."
Posted at 20:38 by Howard Bashman



Update three of the "judicial names" post is now available, below: And it features the federal appellate equivalent of the "full Nelson."
Posted at 20:16 by Howard Bashman



Fifth Circuit grants rehearing en banc in two cases: Today the U.S. Court of Appeals for the Fifth Circuit posted online at its Web site two orders issued last week that granted rehearing en banc in two different cases.

One case presents a very interesting issue of waiver in the context of Eleventh Amendment sovereign immunity law as to which a circuit split already exists. The question presented asks: does a State that agrees to waive sovereign immunity in exchange for receiving federal funding do so knowingly and voluntarily if the State incorrectly but reasonably believed that Congress had already abrogated its sovereign immunity under Section Five of the Fourteenth Amendment. You can access the original three-judge panel's ruling here and the order granting rehearing en banc here.

In the other case, the full Fifth Circuit will consider whether, in a criminal proceeding, a federal district court's failure to afford the defendant his right of "allocution" -- which provides the defendant with the opportunity to address the trial judge at sentencing -- requires automatic reversal. You can access the three-judge panel's opinion here and the order granting rehearing en banc here.
Posted at 19:56 by Howard Bashman



Four U.S. Senators request investigation into possibly unlawful "smear campaign" against Eleventh Circuit nominee William H. Pryor, Jr.: Here is the text of today's letter:
July 22, 2003

The Honorable Orrin G. Hatch
Chairman
Committee on the Judiciary
United States Senate
224 Dirksen Senate Office Building
Washington, DC 20510

Dear Chairman Hatch:

We are greatly troubled by recent developments respecting the nomination of William H. Pryor, Jr., to the U.S. Court of Appeals for the Eleventh Circuit, a nomination which has been pending before the Senate Judiciary Committee for some time now. We are especially troubled because, according to press accounts and other reports, some of General Pryor's opponents may have engaged in criminal activities in support of a campaign to smear a good and honest man. Some of these activities may have even involved the participation of individuals employed by the United States Senate. These are serious matters that warrant a formal investigation by this committee or by some other appropriate entity.

During the 107th Congress, at least one Democratic member of the committee bemoaned the fact that, in the past, when some Senators opposed a judicial nominee on ideological grounds, rather than present their actual concerns in a straightforward, honest, and open manner, they would instead resort to subterfuge and employ some other method to oppose that individual's confirmation, such as introducing allegations of ethical improprieties of one sort or another. In his words, "[t]his 'gotcha' politics has warped the confirmation process and harmed the Senate’s reputation."

We believe that the Senate should focus on a judicial nominee's legal skill, competence, and commitment to interpreting rather than making law, and not on a nominee's ideology. And we certainly agree that "gotcha" politics only discredits the judicial confirmation process and dishonors the United States Senate.

Yet this form of destructive politics is precisely what we are witnessing today, and that is especially so with respect to the recent disclosure of documents alleged to describe certain fundraising activities organized by the Republican National Committee. As was revealed during last week's executive business meeting, at least some committee Democrats knew about these documents as early as June 11, the date of General Pryor's confirmation hearing before this committee. These same documents were only just recently made available to committee Republicans, however. Notably, these documents purport to describe only lawful campaign activities, and committee Democrats acknowledge they find no fault with those activities. Instead, these documents appear to have been used both to set potential perjury traps for a witness who in fact has answered every question honestly and forthrightly, and to attempt to justify (wrongly in our view) further investigation and further delay of the judicial confirmation process.

What's worse is that, by all accounts, it appears that these documents became available to the committee only as the result of theft. No alternative explanation as to the source of these documents has been offered to date by any member of this committee. The individual who originally handed these documents to committee Democrats is apparently a disgruntled contract employee who was fired by the organization, and who according to press accounts may be motivated by revenge on behalf of a friend who pleaded guilty just last month following a bribery investigation conducted by General Pryor and federal prosecutors. As was noted last week, she has refused repeated opportunities to explain to bipartisan committee investigators how she could have lawfully possessed the documents. Moreover, the individual has refused to explain fully how she was first contacted by the committee, forcing observers of the Senate's badly broken judicial confirmation process to wonder whether any member of the Senate staff may have conspired with her to engage in any unlawful conduct.

The integrity and credibility of the United States Senate and the judicial confirmation process cannot remain under this cloud for long without suffering serious damage. Accordingly, we ask that you open a formal committee investigation (or request an investigation by some other appropriate entity) to determine how these documents came into the possession of this committee, and to report any findings of criminal activity, including any such activity by any individual employed by the United States Senate, to the appropriate law enforcement authorities. Nothing less than the reputation of the Senate is at stake.

Yours truly,

John Cornyn
Jon Kyl
Larry Craig
Lindsey Graham
Thanks much to the reader who forwarded this to me for posting here.
Posted at 19:43 by Howard Bashman



Law Professor Jonathan H. Adler is guest-blogging at "Southern Appeal": Details here and here.
Posted at 19:36 by Howard Bashman



More happy news for Judge Saad as Senate Judiciary Committee disregards blockade of Sixth Circuit nominees from Michigan: The agenda for the Senate Judiciary Committee's hearing scheduled to occur on Tuesday, July 29, 2003 is now available at this link, and Sixth Circuit nominee Henry W. Saad of Michigan finally will receive a confirmation hearing.
Posted at 18:53 by Howard Bashman



"Foes on right, left await Specter's vote on federal judge": Yesterday's issue of The Philadelphia Inquirer contained this report. And on Sunday, The Pittsburgh Post-Gazette published an editorial entitled "Not fit for the bench; Alabama's Pryor is a walking stereotype."
Posted at 17:48 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Senate GOP Set for Showdown on Judiciary"; here "2 Counts Tossed in Terror Case Vs. Lawyer"; here "Mich. Court Won't Hear 'Jenny Jones' Case"; and here "National Hispanic Leader Decries Bush."
Posted at 17:45 by Howard Bashman



"Schumer strikes deal to fill every federal judge slot in state": The Associated Press provides this report.
Posted at 17:37 by Howard Bashman



"Court Kills Tribe Dispute Decision; Unanimous Vote Clears The Way For Schaghticoke Suit": This article appears in today's issue of The New London (Conn.) Day.
Posted at 17:34 by Howard Bashman



"Judge Dave and the Arroyo Toads": Plainsman of the "Sub Judice" blog has a very interesting post about today's denial of rehearing en banc in the D.C. Circuit. His point about Circuit Judge John G. Roberts, Jr.'s dissent is one that crossed my mind earlier today, and I'm glad someone had a chance to blog about it. So, leave it to me to point out something a bit more obvious (courtesy of one of several readers who have emailed on this point): "You might be interested to know that today's D.C. Circuit opinion by John G. Roberts dissenting from denial of rehearing en banc (to which you linked earlier) is, I believe, his first as a Circuit Judge. It was a long time coming."
Posted at 17:21 by Howard Bashman



And in other ABA judicial ratings news: Today the The Standing Committee on Federal Judiciary of the American Bar Association released ratings for two federal appellate court nominees. Both Fourth Circuit nominee Claude A. Allen and Ninth Circuit nominee Carlos T. Bea received ratings of "qualified" from a substantial majority of the committee and "not qualified" from a minority of the committee. You can access the ratings yourself via this link.
Posted at 17:11 by Howard Bashman



California Court of Appeal affirms conviction of man charged with killing Leo the dog in road rage incident: You can access today's ruling at this link. And you can access some of the press coverage the case has previously received here (via The Mercury News), here (see eight item, via The Honolulu Star-Bulletin), and here (via KPIX-TV).
Posted at 16:33 by Howard Bashman



Before: SMITH, SMITH, and SMITH, Circuit Judges. Now that there are three U.S. Circuit Judges in regular active service with the last name Smith (see here, here, and here), such a panel is theoretically possible. What leads me onto this tangent, though, is that today the U.S. Court of Appeals for the Eleventh Circuit issued an opinion in which two of the three judges on the panel had the last name Carnes. I had the pleasure of meeting Circuit Judge Ed Carnes recently in Philadelphia, and during law school I worked in the U.S. Attorney's Office for the Northern District of Georgia, where I had the pleasure of meeting District Judge-to-be Julie E. Carnes. Fans of Circuit Judge Carnes should be sure not to miss this other opinion issued today, even though the three-judge panel in the case includes only one judge with that last name.

Update: As a reader has emailed to note, the Second Circuit's Parker brothers (no relation, see here and here) must regularly deal with this issue and have adopted the practice of using their first and middle initials on opinions. Second update: And let's not overlook the two Judge Arnolds on the Eighth Circuit, who actually are related, the two Judge Fletchers on the Ninth Circuit, also related, and the two Judge Woods on the Seventh Circuit, not related. Third update: One reader points out that looking no further than the Sixth and Ninth Circuits, one could assemble the federal appellate equivalent of the "full Nelson" with Senior Sixth Circuit Judge David A. Nelson, Ninth Circuit Judge Thomas G. Nelson, and Senior Ninth Circuit Judge Dorothy W. Nelson. The Fifth Circuit, meanwhile, offers two Judge Garzas (no relation). Finally, a reader in-the-know points out that in footnote one of this per curiam opinion from 1995, an Eleventh Circuit panel that included Circuit Judge Ed Carnes issued a footnote that stated, "Judge Julie Carnes of the United States District Court for the Northern District of Georgia and Judge Ed Carnes of this Court are not related within the seventh degree, or within any degree known to either of them. All further references in this opinion to 'Judge Carnes' are to Judge Julie Carnes."
Posted at 15:32 by Howard Bashman



Sacramento-based federal district judge rejects effort by tobacco giants to strike down California's anti-smoking campaign financed by tax on wholesale tobacco sales in that State: The opinion that Senior District Judge Lawrence K. Karlton of the U.S. District Court for the Eastern District of California issued today states, in part:
The tobacco companies argue that a crucial difference between this case and others in which the courts have applied the government speech doctrine is that, here, the state is using taxes paid by a specific industry to finance advertising that condemns that very industry. Again, one may understand the plaintiffs' discomfort, but the Supreme Court has never suggested that the government speech doctrine applies only to speech funded with general tax revenues. On the contrary, it seems clear that speech by the government is government speech, however funded. That is, given that the tax is lawfully imposed, the money collected becomes the government’s to expend as it sees fit, so long as those expenditures fall within legal limits.
You can access this very interesting opinion at this link. And you can access here, via The Sacramento Bee, an article reporting on last month's oral argument on the motions that give rise to today's ruling.
Posted at 14:19 by Howard Bashman



A law review article concerning law-related Web logs: The Spring 2003 issue of Journal of Appellate Practice and Process has just issued, and it contains an article by Gary O'Connor and Stephanie Tai about law-related Web logs. You can access the article online at this link.
Posted at 14:16 by Howard Bashman



"As the Jim Crow Flies; Court art attracts heat but no media light": The July 10, 2003 issue of Houston Press contained this report.
Posted at 14:05 by Howard Bashman



Circuit City still has a bit more revising to do before the Ninth Circuit will allow that company to enforce agreements to arbitrate employment-related disputes: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 13:33 by Howard Bashman



"All ayes on new U.S. judge; Democrats and Republicans in rare accord about Livonia's Richard Wesley": This article about the newest judge to join the U.S. Court of Appeals for the Second Circuit appears in today's issue of The Rochester Democrat and Chronicle.
Posted at 13:28 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Developer Loses Endangered Toad Case" and here an article entitled "Clinton Haters Look to Mock His Library."
Posted at 12:41 by Howard Bashman



"20 questions for the appellate judge" update, part two: Good news -- a federal appellate judge has just volunteered and received the October 2003 interview slot. So now I'm seeking two additional federal or state appellate court judge volunteer interviewees. The first to volunteer will receive the November 2003 interview slot, while the second to volunteer will have his or her "20 questions" interview appear online here in December 2003. More details are available here and here.
Posted at 12:38 by Howard Bashman



American Bar Association joins Association of the Bar of the City of New York in rating Dora L. Irizarry unqualified to serve on the U.S. District Court for the Eastern District of New York: The New York Law Journal has this report (first item), which states that "The latest determination could pose a quandary for Democratic U.S. Senator Charles E. Schumer, a member of the judiciary committee, who has supported Ms. Irizarry but denounced the Bush administration's decision to no longer ask the ABA to evaluate judicial candidates before they are publicly announced."
Posted at 12:01 by Howard Bashman



"The Hatch Asbestos Trust: Cleaning up the asbestos mess." Michelle J. White today has this essay at National Review Online.
Posted at 11:45 by Howard Bashman



"20 questions for the appellate judge" update: Yesterday's call for three additional federal or state appellate court judges willing to participate in this Web log's popular monthly feature "20 questions for the appellate judge" produced no additional volunteer interviewees. Given the large number of federal and state appellate court judges who read "How Appealing," it's easy to think that "There's no need for me to volunteer because someone else is bound to do so instead." Yesterday established the falsity of that theory.

Additional information about the "20 questions" feature is available here, and to volunteer all a federal or state appellate judge needs to do is send me an email, which can easily be accomplished by clicking on this link. The next appellate judge to volunteer will have his or her interview appear online here in early October 2003, and later months will be assigned on a first-come, first-served basis.
Posted at 11:33 by Howard Bashman



"U.S. Prosecutor to Be Judicial Nominee": The Associated Press provides this report.
Posted at 10:59 by Howard Bashman



Eighth Circuit nominee Steven M. Colloton's testimony at this morning's Senate Judiciary Committee hearing has concluded: None of the Democratic members of the committee had any questions for him during the hearing, suggesting that this nominee will be confirmed without substantial opposition.
Posted at 10:55 by Howard Bashman



By a vote of 7-2, D.C. Circuit denies rehearing en banc petition that sought reconsideration of whether the intrastate "taking" of a non-commercial species of fauna may be regulated by the federal government under its Commerce Clause authority: Circuit Judges David B. Sentelle and John G. Roberts, Jr. filed dissents from the order denying rehearing en banc, and you can access that order and those dissents at this link.
Posted at 10:21 by Howard Bashman



Watch live online this morning's Senate Judiciary Committee confirmation hearing: You can view the hearing at this link (Real Player required). The agenda is accessible here.
Posted at 10:02 by Howard Bashman



As Jesse Jackson once said, "The question is moot": The Las Vegas Review-Journal reports here that both houses of Nevada's State Legislature approved a tax increase by the constitutionally-required two-thirds margin. In related news, "Republicans ask Supreme Court to revisit decision on taxes."
Posted at 09:55 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Former Beauty Queen Drops Lawsuit"; here "Nevada Lawmakers Approve $836M Tax Plan"; here "Man Moons Jury, Found Guilty of Battery"; here "Tribe Doesn't Have to Pay Property Taxes"; and here "Civil Rights Restaurant to Be Demolished."
Posted at 09:51 by Howard Bashman



Today's FindLaw columnists: Julie Hilden has an essay entitled "Does A Photographer's Attempt to Sell Cameron Diaz's Topless Photos Back to Her Constitute Extortion?" And Law Professor Richard L. Hasen of the "Election Law" blog has an essay entitled "The California Gubernatorial Recall Debate and the Courts: Why Litigation Has Begun (and Likely Will Continue)."
Posted at 09:47 by Howard Bashman



Today's Town Hall columnists: Armstrong Williams has an essay entitled "The Supreme Court and the Culture War," and Phyllis Schlafly has an essay entitled "Bush administration forfeits to feminists on college playing fields."
Posted at 09:39 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Washington Times reports here that "Judge dismisses suit against gun makers." An article reports that "U.S. probes Patriot Act complaints, substantiates few." Frank J. Murray reports that "Scholar says Hatch, NRA 'sabotage' suit to end D.C. gun ban." In local news, "Malvo's attorneys eye help in funds." Paul Greenberg has an op-ed entitled "The moral of the litigation story," while Bruce Fein has an op-ed entitled "Ownership follies."

The Los Angeles Times reports here that "Decision Time Nears for Recall Campaign; As Davis' backers ask court for a last-minute delay in the process, those who hope to run for governor may have only days to file for race." An article reports that "Cartoon in Times Prompts Inquiry by Secret Service." The controversial cartoon in question can be viewed here. An op-ed by Law Professor Erwin Chemerinsky is entitled "Place to Pass Judgment on Kobe Bryant Is in Court," while Andrea Barthwell has an op-ed entitled "A Haze of Misinformation Clouds Issue of Medical Marijuana."

The Boston Globe reports here that "Judge to hear firefighter hiring dispute; 4 white applicants demanding jobs." And the final article in the "Speed Trap" series bears the headline "Troopers fair, tough in traffic encounters."
Posted at 06:56 by Howard Bashman



"State high court says Prop. 36 not retroactive for drug offenders": David Kravets of The Associated Press has this report from San Francisco.
Posted at 06:44 by Howard Bashman



On the agenda: At 10 a.m. this morning, the Senate Judiciary Committee will hold a confirmation hearing at which various judicial nominees, including Eighth Circuit nominee Steven M. Colloton, are scheduled to testify. More details are available in a blog post you can access here.
Posted at 06:42 by Howard Bashman



In Tuesday's newspapers: The New York Times reports here that "Suit Against Gun Makers Is Dismissed on Technical Grounds." In other news, "Martha Stewart Lawyer Seeks an Inquiry on Possible Leaks." An article reports that "U.S. Sues 3 Businesses That Refuse to Withhold Taxes." You can access here an article headlined "The Gorge-Yourself Environment." And David B. Rivkin Jr. and Lee A. Casey have an op-ed entitled "Crimes Outside the World's Jurisdiction."

The Washington Post reports here that "Malvo Attorneys Seek Federal Funds." And letters to the editor appear under the headings "The Moussaoui Muddle" and "Sen. Hatch's Full Throttle."
Posted at 00:23 by Howard Bashman



Monday, July 21, 2003
"In New Ads, Judicial Battle Is a Matter of Faith": Tuesday's issue of The Washington Post will contain this report. You can view the ads in question here and here (PDF documents).
Posted at 23:47 by Howard Bashman



Appellants fail to strike gold in Tenth Circuit appeal: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued an opinion by Circuit Judge Michael W. McConnell that begins:
Like miners brawling over tiny flecks of gold from the remains of a once-promising strike, Appellants come to this Court for the third time, seeking to extract a few pennies more from their investment in a gold mine venture that failed almost twenty years ago. Resurrecting legal arguments rejected at earlier stages of this litigation, contradicting their own contemporaneous valuations of the assets at issue, and presenting a view of the record with as much resemblance to reality as an ancient prospector's memories of what might have been, Appellants ask this Court to shield them from the consequences of their own folly (and worse). We compliment the district court for extracting a fair result from the evidentiary detritus put forward by these appellants, and now bring the legal saga of the Telegraph Gold Mine to a close. The judgment of the district court is AFFIRMED.
The opinion is also noteworthy for how it concludes, with an order directed to appellants' counsel "to show cause why monetary sanctions should not be imposed on him personally." I seem to remember that in answer to the eleventh of twenty questions directed to me, I opined several months ago that Judge McConnell likely would be the source of noteworthy judicial opinions.
Posted at 23:28 by Howard Bashman



"Demos target Pryor judgeship; Filibuster feared on Senate floor": Today's edition of The Birmingham Post-Herald contains this report (see second item) from the Scripps Howard News Service.
Posted at 23:13 by Howard Bashman



"Moore, Pryor capable of doing their jobs": Tomorrow's issue of The Sand Mountain Reporter will contain this essay by columnist Trisha Forsythe.
Posted at 23:11 by Howard Bashman



"Bush packs US federal courts with right-wing ideologues": So says The World Socialist Web Site in an essay posted late last month.
Posted at 23:08 by Howard Bashman



Available online at law.com: From California comes news that "Prop 36 Isn't Retroactive, Justices Rule." Possible D.C. Circuit nominee Janice Rogers Brown was the lone dissenter from the ruling. From New York comes news that "Handgun Industry Found Not Liable." A intermediate state appellate court in Texas has ruled, according to this article, that "Insuring for Punitive Damages Doesn't Violate Public Policy." And an article reports that "Debate Begins Over DOJ Civil Rights Pick; Nominee draws attention of Bush administration's liberal critics and conservative allies."
Posted at 23:04 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge: Army Corps Flouting River Orders" and here an article entitled "Death Penalty Sought in Ky. Dorm Fire."
Posted at 22:59 by Howard Bashman



"Hawaii needs to fill its federal judicial vacancy": Chief Judge David Alan Ezra of the U.S. District Court for the District of Hawaii had this letter to the editor published last week in The Honolulu Star-Bulletin.
Posted at 22:48 by Howard Bashman



Elsewhere in Monday's newspapers: USA Today reports here that "Moussaoui clash tests future of terror trials."

The Washington Times reports here that "Fall vote eyed for California ban on race-data collection." In other news, "Abortion bill faces conference setbacks." An article reports that "Communities shun Patriot Act." And columnist Nat Hentoff has an op-ed entitled "Military tribunals circumvent due process."

The Los Angeles Times reports here that "In gyms, few are smiling for the camera; Cell phones that also take pictures raise concerns about privacy in L.A.'s health clubs." Columnist Michael Hiltzik writes that "Consumer-Protection Law Abused in Legal Shakedown." And Law Professor Jonathan Turley has an op-ed entitled "Naked Power, Arbitrary Rule."

The Boston Globe, in part two of its "Speed Trap" series, reports that "Punishment varies by town and officer." And an editorial is entitled "Environmental evasion."
Posted at 17:41 by Howard Bashman



"The Prisoner of Sex.com: Gary Kremen started Match.com but ended up with chump change. Then he got caught up in Sex.com, where success left him lying on his back in the gutter." The August 2003 edition of Wired Magazine contains this report.
Posted at 17:28 by Howard Bashman



Stanford doesn't want to host Governor Dean's blogging: What does it mean for one to "think like a lawyer"? For me it meant wondering, when I first heard that Larry Lessig's blog was going to be hosting presidential candidate Howard Dean, how Stanford University (the Web host of Larry's blog) would react. Now I see that I wasn't far off base, as Larry today reports here that "I've been requested by the University to move my blog to a personal server."
Posted at 16:51 by Howard Bashman



Access online the decision dismissing the NAACP's suit against handgun makers: You can access today's ruling of the U.S. District Court for the Eastern District of New York at this link.
Posted at 15:51 by Howard Bashman



Even more nude dancing jurisprudence from the U.S. Court of Appeals for the Eleventh Circuit: The City of Cocoa Beach, Florida would prefer to be home to no more than three nude dancing establishments. Now we learn, in an opinion you can access here, that the U.S. Constitution doesn't allow Cocoa Beach to pursue that goal in the manner it has selected.
Posted at 15:47 by Howard Bashman



Now available at National Review Online: Byron York this afternoon has an essay entitled "A GOP Breakthrough? Republicans try to run over a Democratic roadblock on judges." And James Justin Wilson has an essay entitled "Battling the Fat Suits: Congress poised to debate restricting food litigation."
Posted at 14:49 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Pledge Spurs Family Feud in High Court." In other news, you can access here an article headlined "Hatch Pushes for Bush Judicial Nominees"; here "Judge OKs Torture Lawsuit Against Libya"; here "Errors Force 3rd Ga. Election in a Year"; and here "Davis Recall Effort Nets 1.6M Signatures."
Posted at 14:45 by Howard Bashman



Reason, new and old: Reason has today posted online an essay by Brian Doherty entitled "Suspected Terrorist: Multimillionaire John Gilmore is suing the government to remain anonymous. Is this the last stand for privacy?" Last Thursday, Ronald Bailey had an essay entitled "Ambulance Chasers II: Why tort reform is still a good idea." And back in April 2001, Steve Kurtz conducted an interview of Seventh Circuit Judge Richard A. Posner that still remains quite interesting to read. (True fans of Judge Posner may also enjoy re-reading Larissa MacFarquhar's profile of him from the December 10, 2001 issue of The New Yorker.)
Posted at 13:40 by Howard Bashman



"Porn Sites May Stream No More": Wired News recently provided this report on a case pending in the U.S. District Court for the Central District of California. And a previous article is entitled "Web Porn Pushers in Patent Fight."
Posted at 13:36 by Howard Bashman



"Homage to Blogalonia": Eric Weinberger has this essay online today at Salon.com.
Posted at 13:22 by Howard Bashman



"How Appealing" is today seeking additional interviewees to participate in this Web log's monthly feature "20 questions for the appellate judge": All the details are available in a post you can access here.
Posted at 12:28 by Howard Bashman



In Defense of Lawrence: Andrew Sullivan has this essay in The New Republic.
Posted at 12:03 by Howard Bashman



Today's FindLaw columnist: Joanne Mariner has an essay entitled "Monsieur Moussaoui (And How a Defendant's Nationality May Determine the Quality of his Trial)."
Posted at 11:21 by Howard Bashman



"NAACP Suit Against Gun Makers Dismissed": The Associated Press has this report.
Posted at 11:19 by Howard Bashman



Ward Connerly and Congressman John D. Dingell (D-MI) exchange written pleasantries: On July 9, 2003, Congressman Dingell sent this letter to Connerly. Today, Connerly has dispatched this response. And National Review Online guest columnist Peter Wood offers more, here.
Posted at 10:16 by Howard Bashman



"No Charity for the Boy Scouts": Hans Zeiger has this op-ed online today at Town Hall.
Posted at 10:04 by Howard Bashman



"Monroe man eyes federal judgeship": Friday's issue of The Monroe (Wis.) Times contained this report about one of the applicants to fill a forthcoming Seventh Circuit vacancy.
Posted at 09:45 by Howard Bashman



Today's forthcoming Supreme Court of California decision: The Supreme Court of California is one of a relatively small group of appellate courts that gives the public advance notice of the cases that it will be deciding on a given day. (The Supreme Judicial Court of Massachusetts is another such court, so some advance notice of a forthcoming decision in the gay marriage case should be available to those who know where to look.)

Today the Supreme Court of California is scheduled to issue a decision in an appeal that presents the following issues:
(1) Does the Substance Abuse and Crime Prevention Act of 2000 (Prop. 36, General Elec. (Nov. 7, 2000)), which requires probation and drug treatment rather than incarceration for defendants convicted of specified non-violent drug offenses, apply to defendants who were convicted and sentenced prior to the Act's effective date of July 1, 2001, but whose convictions were pending on appeal when the Act became effective, or only to defendants convicted or sentenced on or after July 1, 2001? (2) If the latter, does limiting the application of Proposition 36 in this fashion deny a defendant whose conviction was pending on appeal on that date the constitutional right to equal protection of the law?
The decision will be available at 10 a.m. pacific daylight time via this link.
Posted at 09:33 by Howard Bashman



Available online from The National Law Journal: You can access here an article headlined "Puerto Rico fights death penalty: Islanders clash with U.S., Pennsylvania." At the time I am making this post, that article's Web page contains the text of an article headlined "General counsel compensation increased by 9 percent; Average salary and bonus for biggest earners exceeded $1M." Nevertheless, it's great to see that corporate life is treating my former Columbia Spectator colleague Julius Genachowski so very well.

In other news, you can access here an article headlined "Ohio justices--all of them--bow out; Supreme Court member gets the bench to recuse itself for her petition." And you can access here an article headlined "A twist on the 'Batson' jury rule: State high court reverses on improperly allowing black juror to serve."
Posted at 09:11 by Howard Bashman



"WTC Leaseholder Faces Court Showdown": Reuters offers this preview of an appeal to be argued tomorrow in the U.S. Court of Appeals for the Second Circuit.
Posted at 08:35 by Howard Bashman



"Judge OKs $1.1 billion Microsoft deal": Declan McCullagh of c|net news.com provides this report.
Posted at 08:29 by Howard Bashman



This morning's news concerning Eleventh Circuit nominee William H. Pryor, Jr.: The Green Bay News-Chronicle reports here that "Kohl, Feingold troubled by Pryor nomination." And The Washington Times reports here that "Court nominee's enemy is linked to attacks on him."
Posted at 06:32 by Howard Bashman



In Monday's newspapers: The Washington Post reports here that "Pro-Gun Groups Split on Tactics; Cato Institute, NRA Quarrel Over Challenges to D.C. Law." In other news, "Family Fights for Visitation With Victim's 2 Daughters." An editorial is entitled "The Cost for the Clintons." Another editorial is entitled "Gunning for D.C." And columnist William Raspberry has an op-ed entitled "Homeland Security Sales Pitch."

In The New York Times, you can access here an article headlined "Accusations of Abuse in Report on USA Patriot Act." Philip K. Howard has an op-ed entitled "The Best Course of Treatment." And a letter to the editor is entitled "Death Penalty and DNA."
Posted at 00:08 by Howard Bashman



Sunday, July 20, 2003
A look ahead to the August and September installments of "20 questions for the appellate judge," and my request for additional volunteers: Readers of "How Appealing" love this blog's "20 questions for the appellate judge" feature. And while the feature takes a bit more effort from me than the usual blog post, I really enjoy it as well. You could say that the feature makes the effort involved in keeping this blog going worthwhile.

Let's begin by taking a look ahead. August's interviewee formerly was chief judge of the U.S. Court of Appeals on which he or she serves, and he or she continues to serve as a judge in regular active service on that court. Also, the federal appellate court on which August's interviewee serves has not produced any previous participants in the "20 questions" feature.

In September, the "20 questions" interviewee joined the federal appellate court on which he or she works as a nominee of President Clinton, and that federal appellate court is based in Washington, D.C.

I need to line up additional volunteer interviewees for the "20 questions for the appellate judge" feature for the remainder of the 2003 calendar year. So, if you are a federal or state court appellate judge, please volunteer to participate in a future month's installment of "20 questions for the appellate judge" by sending me an email now. You can do so by clicking on this link. And if you are the law clerk to a federal or state court appellate judge and would like to see your judge participate, please convince him or her to do so.

After the six wonderful interviews that have already occurred and the two equally fine interviews that are forthcoming, I don't think that anyone would like to see the "20 questions for the appellate judge" feature meet a premature demise after the September 2003 interview appears. When I first launched this feature, a bunch of federal and state court appellate judges promptly volunteered to participate. Now, for the first time since the feature debuted, I'm on the verge of reaching the point where my inventory of volunteers will drop below the level at which I feel comfortable. The "20 questions" feature has been regularly cited by legal journalists and has received much praise across the Internet. Most importantly, all of the six previous participants seem to have had a really great time taking part.

The entire interview occurs in writing via email. I provide the "20 questions" in the middle of the month before the interview is scheduled to appear online, and the participant emails his or her responses back to me in sufficient time for them to appear online on the first Monday of the month in which the interview is scheduled to be posted online. Interviews will occur in the order that appellate judges volunteer, and the next vacancy currently is in October 2003. As judges volunteer, I try to note online promptly that additional interview slots have been filled, so that future interviewees can gauge when their interviews are likely to appear. But I'll email to each volunteer participant a prompt confirmation of the month he or she has been assigned once I receive an email volunteering to participate. Anyone who is a judge on a federal or state appellate court is free to volunteer, and interview slots are assigned on a first-come, first-served basis. The archive of prior "20 questions for the appellate judge" interviews probably contains the answers to many other questions, but I'll be more than happy to address via email any other questions that may exist.

In closing, the August and September 2003 installments of "20 questions for the appellate judge" promise to be as wonderful as past months' installments have been. But I and very many readers of this Web log would like to see that interview feature continue to exist for much, much longer. To ensure that happens, I would greatly appreciate hearing via email from additional volunteer interviewees in the very near future.
Posted at 23:11 by Howard Bashman



Senate Judiciary Committee hearing for Eighth Circuit nominee Steven M. Colloton postponed again: The Senate Judiciary Committee's confirmation hearing for Eighth Circuit nominee Steven M. Colloton is now scheduled to begin at 10 a.m. on Tuesday, July 22, 2003. Colloton currently serves as U.S. Attorney for the Southern District of Iowa, and you can access his bio here and his resume here. The Alliance for Justice, a group that opposes many of President Bush's federal appellate court nominees, offers this report on the nomination.

The committee of the American Bar Association that rates federal judicial nominees reports here that Colloton is rated "qualified" by a substantial majority of the committee, "well qualified" by a minority of the committee, and "not qualified" by a minority of the committee. Colloton is unlikely to receive a vote in favor of his nomination from Senator Hillary Rodham Clinton (D-NY) due to the work he performed in Little Rock for Independent Counsel Kenneth W. Starr. As the final paragraphs of this Washington Post article explain, "In another development, Bush last night nominated a member of former Whitewater independent counsel Kenneth W. Starr's team to the U.S. Court of Appeals for the 8th Circuit, based in St. Louis. The nominee, Steven M. Colloton of Iowa, was a law clerk for Chief Justice William H. Rehnquist. Democrats had wanted Bush to nominate Missouri Supreme Court Judge Ronnie White, a witness for the opposition during Attorney General John D. Ashcroft's confirmation battle."

Will Colloton be confirmed? Probably so.
Posted at 22:19 by Howard Bashman



Trenton Thunder trounces Harrisburg Senators: Except for the very hot weather, it's difficult to find anything bad to say about today's Trenton Thunder game. The Thunder beat the Harrisburg Senators 13-6 (recap here; box score here). For being in the right place at the right time, my son was asked to go onto the field before the game and be the youngster at today's game who yells "play ball" into the Public Address microphone before the game got underway. In exchange for that, he received a bunch of player autographs and a regulation baseball from the field. In memory of recent events in Milwaukee (see here and here), during the game I enjoyed a grilled Italian sausage with grilled sweet peppers and onions. It was delicious with a bit of yellow mustard.
Posted at 22:17 by Howard Bashman



"Race: Just the Beginning." The July 28, 2003 issue of Newsweek will contain this Periscope item.
Posted at 20:24 by Howard Bashman



"Issue of public prayer is challenge for courts": This article appears in today's issue of The Sarasota Herald-Tribune.
Posted at 20:20 by Howard Bashman



"Pryor foes shift focus to attack character": Today's edition of The Birmingham News contains this report.
Posted at 20:18 by Howard Bashman



On the agenda -- Baseball times two: Moments from now the family and I will be heading out the door to see the Trenton Thunder play the Harrisburg Senators. Then, tomorrow night, I'll be going to see the Philadelphia Phillies play the New York Mets.
Posted at 11:58 by Howard Bashman



"Beaumont known for torts": This article appears in today's edition of The Dallas Morning News.
Posted at 10:02 by Howard Bashman



"Suspect Surrenders After Deputy Barks": The Associated Press provides this report.
Posted at 09:46 by Howard Bashman



In Sunday's newspapers: In today's issue of The New York Times, the Week in Review section contains an item headlined "In Changing the Law of the Land, Six Justices Turned to Its History." Adam Liptak has an article headlined "Facing a Jury of (Some of) One's Peers." An article reports that "F.B.I. Is Accused of Bias by Arab-American Agent." A follow-up report bears the headline "The Needle Swappers Are Still Wary." In local news, "Picking Judges: Party Machines, Rubber Stamps." And New York's Attorney General, Eliot Spitzer, has an op-ed entitled "Testing Our Leadership."

The Washington Post reports here that "Native Hawaiians Reclaim Heritage; Group Seeks Rights as Indigenous People." An article reports that "Muhammad Judge Known For Fairness; Lawyers Call Millette Unflappable in Court." In other news, "3 Wanted Men Arrested In Virginia Jihad Case." An article reports that "DNA Tests Create Clues In Cold Cases, Officials Say." From Virginia comes news that "Road to Courthouse Likely Still on Docket; Muhammad Trial Doesn't Alter Plans." An editorial about a Virginia prisoner's death sentence is entitled "A Washing of Hands." And an op-ed by Lee Ellen Helfrich is entitled "An Interior Case That Lays Bare Government as Usual."

In The Washington Times, you can access here an article headlined "Pot paradox" and here an article headlined "Nevada grower set to branch out with pot sales." And an op-ed by Paul Greenberg is entitled "How diversity became Orwellian."

The Boston Globe reports here that "Race, sex, and age drive ticketing; Minorities and men least likely to receive warnings." And columnist Ellen Goodman has an op-ed entitled "Blonde ambition."

The Los Angeles Times reports here that "Lawyers Hope DNA Testing Clears Convict; If the court-ordered testing clears a Hesperia man convicted of killing his wife, it will be a first for the California Innocence Project." And letters to the editor appear under the heading "Asking for God's Help With the High Court."
Posted at 09:08 by Howard Bashman



"Analysis: 'Soft' money ban on the edge." Michael Kirkland, UPI Legal Affairs correspondent, offers this news analysis.
Posted at 09:02 by Howard Bashman



"Justices: When in Rome, do as the Romans do." David Keene had this op-ed last week in The Hill.
Posted at 09:01 by Howard Bashman



"My Turn: Creative interpretations." Anthony J. Mirabella had this op-ed in Friday's issue of The Juneau Empire.
Posted at 09:00 by Howard Bashman



"Photos tell of court's quieter moments": Friday's edition of The Lawrence Journal-World contained this report.
Posted at 08:57 by Howard Bashman



"Sarbanes, Mikulski protest nomination of U.S. appeals judge; Marylander should fill vacancy created by death of Murnaghan, they say": This article appeared in Friday's issue of The Baltimore Sun.
Posted at 01:05 by Howard Bashman



"Anti-sodomy dissent mirrors justification for slavery, scholars say": The Knight Ridder news service on Friday published this rather provocative article.
Posted at 01:04 by Howard Bashman



"Sandra Day O'Connor's Elitist Decision: Another Three-Card Monte Game." Columnist Nat Hentoff has this essay posted online Friday at The Village Voice's Web site.
Posted at 00:04 by Howard Bashman



Saturday, July 19, 2003
"Senate confirms Duncan for court; Despite other splits, N.C.'s senators see nomination through": This article appeared in Friday's edition of The Charlotte Observer.
Posted at 23:58 by Howard Bashman



"Brown Reportedly to Be Named to D.C. Circuit by Bush": Yesterday's edition of The Metropolitan News-Enterprise contained this article.
Posted at 20:47 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Gore Lawyer Accused of Ethics Violations"; here "Judge Orders U.S. to Retain Iraq Assets"; and here "Arab-American FBI Agent Sues Agency."
Posted at 20:18 by Howard Bashman



"Analysis -- O'Connor: A mighty swing": Last Sunday's issue of The Arizona Republic contained this report.
Posted at 16:10 by Howard Bashman



Decalogue blog -- Arizona edition: Yesterday's issue of The Arizona Republic reported here that "ACLU seeks religion-free Bolin Plaza." Yesterday's edition of The Tucson Citizen contained an article headlined "ACLU says: Thou shalt not ... Monument with Ten Commandments 'offends Constitution,' must go, says civil liberties group." The article also features a large photograph of the monument. Yesterday's edition of The Arizona Daily Sun reported here that "Christian group plans to fight monument's removal." Meanwhile, Thursday's edition of The Daily Sun contained an article entitled "ACLU: Thou shalt not use Ten Commandments monument at State Capitol." And yesterday's issue of The Forward addressed the all important question "Decalogue or Eleven-alogue?"
Posted at 15:53 by Howard Bashman



"Fund-raising questions may hurt Pryor; Analysts say a longer process for Bill Pryor likely will not help him": Today's edition of The Montgomery Advertiser contains this report.
Posted at 10:46 by Howard Bashman



In Saturday's newspapers: The Los Angeles Times reports here that "White House Nod Expected for State Jurist; California Supreme Court Justice Janice Rogers Brown could be tapped for an appellate post -- and get a fight from Democrats." An article reports that "Recall Foes Get Double Setback; Two court rulings, along with a high rate of signature validation, raise the likelihood of a vote on Gov. Davis as early as Sept. 30." In other news, "Contempt Order Denied in Sex Harassment Case; Although a judge rejects a motion sought by U.S. forestry workers, the government is ordered to report its progress on provisions of settlement." Bloomberg News reports that "Judge OKs Microsoft Settlement With Calif." In other business news, "Record Labels Send Flurry of Subpoenas; The industry seeks identities of online song swappers from ISPs. Suits are expected next." And letters to the editor appear under the headings "Connerly's Views on Racial Preferences" and "A Good Asbestos Bill Would Include Research."

The Washington Post reports here that "Contempt Ruling Against Norton Reversed; D.C. Circuit Says Sanction on Interior Chief Not Warranted in Indian Trust Fund Case." In other news, "Bills to Change Fetus's Status Gain Support; Measures Expanding Crime Victim Designation Called Backdoor Curbs on Abortion Rights." An article reports that "Bush Halts Military Proceedings Against 3." And an editorial is entitled "Dissent on Detention."

The Washington Times reports here that "Interior's Norton cleared of contempt." In other news, "Seattle school board targeted for soda pact." And an editorial is entitled "Soda jerk."

The New York Times reports here that "Order Against Interior Dept. Is Overturned." In local news, "For Pornographer, 3-Letter Word Overturns Conviction." An article reports that "Sex Arrests on a Gay Beach Provoke a Hamptons Debate." In business news, "Wealthy Family Is Suing Lawyer Over Tax Plan." An editorial concerning Eleventh Circuit nominee William H. Pryor, Jr. is entitled "The Marketing of Political Clout." And letters to the editor appear under the heading "The Justice Dept. and the Terror Case."

The Boston Globe reports here that "City hasn't hired whites passed over for firefighting jobs." An article reports that "Lawyers back candidates, lobbyists to prevent malpractice award cap." You can access here an article headlined "Recording industry on attack; Subpoenas data on Net music sharers." In local news, "Lawyer's concealed wire prompts convict's appeal." And an editorial is entitled "Malpractice distraction."
Posted at 10:12 by Howard Bashman



Friday, July 18, 2003
Available online at law.com: Tony Mauro reports that "McCain-Feingold Plaintiffs Squabble Over Argument Time." Marcia Coyle reports that "New Standards in Death Penalty Cases Predicted." In news from Pennsylvania, Shannon P. Duffy reports that "Abortion Clinic Can Fight Zoning Law." An article reports that "5th Circuit Rejects Branch Davidians' Federal Tort Case." In news from the Second Circuit, "Deficient Benefit Plan Not Enough to Overcome Denial of Benefits." An article reports that "Miami Judge Rejects Motion to Rehear Bacardi Stock Case." From New York comes news that "Prosecutor Erred, Goldstein's Harass Conviction Reversed." And Tamar M. Meekins has an op-ed entitled "The Supreme Court's Drug Test: Justices leave loophole in ruling on forced medication of defendants."
Posted at 23:27 by Howard Bashman



Making a mockery of the law? Today Slate offers an essay entitled "The People v. Charlie Hustle: Pete Rose gets his day in court." Today's edition of The Cincinnati Enquirer contains an article headlined "Mock verdict: Put Pete in Hall; Rose finally gets his day in court ... sort of." You can access here an article headlined "Chesley: Forget politics, Rose is Hit King; Local lawyer watches ESPN mock trial with disdain." Finally, you can access much, much more information on yesterday's mock trial hosted by ESPN via this link at ESPN.com.
Posted at 23:22 by Howard Bashman



Elsewhere in Friday's newspapers: In USA Today, Joan Biskupic reports that "Court's opinion on gay rights reflects trends; Recent ruling on sodomy laws is one more sign of acceptance by U.S. society." And in other news, "Ill. law 1st to order taping murder confessions; Law meant to limit false convictions."

In The Boston Globe, Lyle Denniston reports that "Ruling delayed on challenge in Moussaoui case." And in local news, "FBI frame-up suit to proceed" and "No wedding bells in jail; Bristol sheriff refuses to grant marriage requests by inmates."

The Los Angeles Times reports here that "Judge Urged Not to Free Man Held as Combatant." In news from California, "Relief Coming for Jurors Ill at Ease With Legalese; A state panel OKs simple civil jury instructions. Criminal courts are next." An article reports that "Court Orders EPA to Reconsider Ethanol Gasoline Requirement." And in other news from California, "Judge Orders New Irrigation Plan for Klamath, Citing a Threat to Salmon; Wildlife officials and water regulators are ordered back to the drawing board. Both sides in the long battle claim partial victory." And from San Francisco comes a report that "UC Bans Dating of Faculty, Students; Professors are barred from having affairs with those they teach or are likely to teach." You can access here commentary in response to the question "Should courts strike down land-use law?" An op-ed by Christopher Uggen and Jeff Manza is entitled "They've Paid Their Debt; Let Them Vote." And a letter to the editor appears under the heading "Clintons Shouldn't Have to Pay Legal Fees."

The Washington Times reports here that "Fast-food suits will go on, say advocates." And an editorial is entitled "Bang, bang... you're alive."
Posted at 22:50 by Howard Bashman



In news from California: "Calblog" reports here that "The Third District Court of Appeal ruled in favor of the Recall Gray Davis committee and against the Secretary of State, ordering counties to count and verify signatures as they come in." You can access the ruling in question at this link.
Posted at 22:49 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge to Issue New Moussaoui Schedule"; here "Nevada Decision Blocking Amendment Upheld"; here "Contempt Hearing in Missouri River Set"; here "Veto of Felon Voting Protested in Alabama"; and here "Report Probes Rights of Native Americans."
Posted at 21:01 by Howard Bashman



Language of the law: William Safire's "On Language" column from this upcoming Sunday's issue of The New York Times Magazine is available online now, and the column addresses "a controversy in protocol: How do you address an attorney general? Or a solicitor general, inspector general or postmaster general? Is the officeholder properly called 'General'?" The column also separately mentions the U.S. Supreme Court's recent ruling in Lawrence v. Texas.
Posted at 16:40 by Howard Bashman



En banc Fourth Circuit reinstates in part sexual harassment verdict in a case where propriety did not permit me to summarize the facts: Today the U.S. Court of Appeals for the Fourth Circuit issued its en banc ruling in Ocheltree v. Scollon Productions, Inc. Back on October 10, 2002, in a post you can access here, I wrote:
A divided Fourth Circuit panel resolved a rather outlandish sexual harassment case today: You can access the court's ruling at this link. (I'd try to summarize the facts and holding, but as you'll see if you look at the case, it's difficult to decide where to begin.)
The ruling's significance did not escape The National Law Journal, which shortly thereafter published an article entitled "Panel reverses sex harassment verdict."

Today, by a vote of 10-2, the en banc Fourth Circuit reinstated the compensatory damages portion of the verdict in plaintiff's favor that the three-judge panel's decision had overturned. You can access the en banc decision at this link.

Update: As several readers have noted via email, this case also was featured in The New York Times Magazine's cover story of March 9, 2003, entitled "The Power of the Fourth." Of course, given the new NYT online archiving policy, you can only freely access online a short summary of that cover story now.
Posted at 14:56 by Howard Bashman



Today's Ninth Circuit round-up, featuring "Goosebumps" and pruno: A dispute between Scholastic Entertainment, Inc. and Fox Entertainment Group involving a television series based on the "Goosebumps" books for children has resulted in a decision that the U.S. Court of Appeals for the Ninth Circuit issued today. The opinion, which you can access here, begins:
We confront one of the "knottiest problems in copyright jurisprudence"--whether a case involving interdependent copyright and contract claims "arises under" the federal copyright laws for the purposes of 28 U.S.C. sec. 1338(a). 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyrights sec. 12.01[A], at 12-14 (2003). The complaint before us essentially alleges copyright infringement for the sole purpose of obtaining a determination of ownership. Because questions regarding the ownership of a copyright are governed by state law, we determine that subject matter jurisdiction is lacking and affirm.
In a separate ruling issued today, the Ninth Circuit considered a California state prison regulation that prevented someone who forfeited 120-days' "good time" credit for drinking pruno -- a fermented drink made by prisoners from scraps of fruit and vegetables -- from recovering back all or part of that "good time" credit following an additional period of good behavior. Because the rules in effect when the prisoner drank the pruno allowed lost "good time" credit to be recovered following additional good behavior, the Ninth Circuit held that the new rule was being employed in a unconstitutionally retroactive manner. You can access this second ruling here.
Posted at 13:47 by Howard Bashman



"The Green Bag" has a new subscriber: This morning I finally got around to becoming a subscriber to "The Green Bag." And while it's too late for you to sign-up and receive the Chief Justice William H. Rehnquist bobble-head doll, by signing-up now you can guarantee yourself a Chief Justice Antonin Scalia or J. Harvie Wilkinson III bobble-head doll if either of those men ever happens to ascend to the post of Chief.
Posted at 12:41 by Howard Bashman



Senior Eighth Circuit Judge, in concurring opinion, condemns consequences of Feeney Amendment to the PROTECT Act: Today Senior Eighth Circuit Judge Myron H. Bright issued a concurring opinion that concludes:
I want to conclude by making a plea to the district judges of this country who feel that they should have some say and some discretion in sentencing. Let your opinions disclose your views about the injustice in the sentencing decision or decisions you are obligated to impose by Congressional mandate and/or the Sentencing Guidelines.

Let me say further that judges generally do not object to appropriate guidelines for sentencing decisions but the time has come for major reform in the system. I say in this concurring opinion, as I have said in other sentencing opinions that I have written, "Is anyone out there listening?" United States v. Alatorre, 207 F.3d 1078, 1080 (8th Cir. 2000) (Bright, J., concurring).
People are listening now, Judge Bright.
Posted at 12:16 by Howard Bashman



"Killer's Sex-Change Suit Gains": Today's issue of Newsday reports here that "In a decision that outraged state officials and prosecutors, a federal judge has ruled that a lawsuit by a convicted murderer who wants the state to pay for an operation to make him a woman can go forward." (Via "Obscure Store.")
Posted at 11:50 by Howard Bashman



Available at National Review Online: Kay R. Daly has an essay entitled "Gone Fishing: The Senate Democrats work to kill Bill Pryor's judicial nomination." And Matthew J. Franck has an essay entitled "The Greenhouse Defect: Reading the SCOTUS wrap-ups."
Posted at 11:37 by Howard Bashman



Law Professor Jack Bogdanski has some prayers of his own concerning the U.S. Supreme Court: Here, at "Jack Bog's Blog."
Posted at 11:34 by Howard Bashman



"Appeals Court Reverses Norton Ruling": The AP provides this coverage (updated link).
Posted at 11:22 by Howard Bashman



Decalogue blog: In news from Wisconsin, The Associated Press reports here that "A federal judge ruled that the city of La Crosse must remove a Ten Commandments monument from a public park, saying it tried to 'disguise its intent' to advance religion by selling the parcel of land to a private group. The display still violates the separation of church and state, U.S. District Judge Barbara Crabb wrote in an opinion handed down Monday." You can access the ruling that Chief Judge Barbara B. Crabb of the U.S. District Court for the Western District of Wisconsin issued Monday at this link.

The La Crosse Tribune has provided extensive local coverage of this matter. On Tuesday, the newspaper reported here that "Judge rules Ten Commandments must be removed" and here that "Local plaintiffs happy with court decision." On Wednesday, the newspaper contained an article headlined "Monumental decision: Council to decide next step on Ten Commandments ruling" and reported here that "Syndicated talk-show host delves into issue." An article published over one year ago when the lawsuit began was entitled "Madison group files suit to remove Ten Commandments." The group in question is the The Freedom From Religion Foundation.

An editorial in response to the ruling is entitled "Find a private home for commandments." Columnist Matt James yesterday had an essay entitled "Monument debate boils down to separation" and today has an essay entitled "Let's talk about the big Ten." Finally, today's newspaper also contains letters to the editor on the matter.
Posted at 10:52 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Man Found Guilty After Mooning Jury" and here an article entitled "Colo. Judge Must Consider E-Mail Mandate."
Posted at 10:32 by Howard Bashman



In Indian Trust litigation, unanimous three-judge D.C. Circuit panel vacates various contempt findings against the federal government and holds that trial court erred in appointing third-party monitor/special master: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit in this extraordinarily contentious case at this link. This ruling appears, at first glance, to be a big win for the federal government.
Posted at 10:18 by Howard Bashman



"Justice Takes a Holiday: Five members of the Supreme Court are off vacationing in Europe. Maybe that explains what's happening to the Constitution." Terry Eastland has this essay online at The Weekly Standard.
Posted at 10:17 by Howard Bashman



"Court Backs Calif. in Gasoline Row with EPA": Reuters has this report. You can access yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:14 by Howard Bashman



A request to my readers in California who have access to the subscriber-only content of The Recorder: The article for which I was interviewed yesterday about my assessment of the Bush Administration's intended nomination of California Supreme Court Justice Janice Rogers Brown to serve on the U.S. Court of Appeals for the D.C. Circuit has turned out to be accessible online only by subscribers of The Recorder, California's law.com affiliate. If someone with online access to the article would be so kind as to cut-and-paste its text into an email to me, I'd be most appreciative. Update: Even though it's still quite early on the west coast, someone has already been kind enough to email the article to me.
Posted at 09:05 by Howard Bashman



Additional coverage of the Senate Judiciary Committee's postponement yesterday of a vote on the nomination of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit: The Montgomery Advertiser reports here that "Democrats succeed in Pryor vote delay; The Senate Judiciary Committee now plans to vote on the appointment Wednesday." The Birmingham News reports here that "Senators squabble over Pryor documents." The Washington Times reports here that "Democrats' call for inquiry delays vote on judge nominee." The Pittsburgh Post-Gazette reports here that "Judicial panel's vote on Pryor delayed again." The Dallas Morning News reports here that "Cornyn defends AG group; Democrats question fund-raising tactics of GOP association." And you can access here a press release entitled "Alliance for Justice Calls for Withdrawal of Alabama Attorney General's Nomination to 11th Circuit."
Posted at 07:06 by Howard Bashman



"Justice Moore decries 'hypocrisy' while defending monument; State's top jurist, during rare televised interview, condemns what he sees as contradictory federal rulings": Yesterday's edition of The Mobile Register contained this report. The Birmingham News reported here yesterday that "Moore's mum on possibilities for monument." The Associated Press reported here that "Chief justice gives first interview since commandments ruling." And an op-ed by Marianne Means that appeared in yesterday's issue of The Seattle Post-Intelligencer was entitled "Commandments will test high court."

You can view online Alabama Public Television's interview earlier this week with Chief Justice Roy Moore of the Supreme Court of Alabama at this link.
Posted at 06:58 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Panel Puts Off Vote on Nominee; Dispute Erupts on Fundraising Issue." An article reports that "Judge Seeks Guidance on Sanctioning U.S. in Terror Case." In other news, "Malvo Was 'Proud' of Shootings; Va. Prosecutors Seek Guards' Testimony." And an article reports that "Iran Must Pay Family of Blast Victim, Court Says; $313 Million Awarded for 1997 Israel Bombing."

In The New York Times, Neil A. Lewis reports that "Democrats Question Fund-Raising by Appeals Court Nominee." In news from California, "Judge Orders Change in Plan to Distribute Klamath River Water." And in local news, "New Court Fees Are Challenged -- in Court."

In The Christian Science Monitor, Warren Richey has an article headlined "In Moussaoui tangle, glimpse of terror's legal tug of war; His case may help determine reliance on courtroom or battlefield tactics." And an editorial is entitled "Miranda Wrongs."
Posted at 06:32 by Howard Bashman



Thursday, July 17, 2003
U.S. Senate confirms Allyson K. Duncan to serve on the U.S. Court of Appeals for the Fourth Circuit by a vote of 93-0: You can access the official roll call tally at this link. Duncan is going to be the first African American female to serve on the Fourth Circuit.
Posted at 22:46 by Howard Bashman



"UC regents approve ban on faculty dating students": The Associated Press provides this news from California. And Reuters reports here, "No sex please, California tells its professors."
Posted at 22:39 by Howard Bashman



"Senate Panel Delays Vote on Pryor Nomination": Reuters offers this report.
Posted at 22:36 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Senate bill bans obesity lawsuits." And in other news, "Muhammad's trial moved."

USA Today reports here that "Justice Dept. delegation to Iraq couldn't work or talk; Participant cites chaos, gag order."

The Boston Globe reports here that "College leaders share affirmative action ideas at Harvard." And in other local news, "Mass. lawyers weigh New York ruling on school funding; See the decision bolstering claim."

The Los Angeles Times reports here that "Illinois Poised to Set Taped Interrogation Rule; Governor is expected to sign nation's first statute mandating recording police interviews. Cases involving coerced confessions led to action." An editorial is entitled "Reaffirm Miranda Rights." And columnist Norah Vincent's op-ed today bears the title "Gays Won't Tear Marriage Asunder."
Posted at 22:27 by Howard Bashman



"Senators Delay Pryor's Court Nomination": Jesse J. Holland of The Associated Press has this late report.
Posted at 22:11 by Howard Bashman



Vote will come later for Pryor: Later as in next Wednesday, at the earliest. Details here via "The Corner."
Posted at 21:16 by Howard Bashman



"Democrats seek delay in Pryor vote": The Montgomery Advertiser provides this updated report. The article states that "Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, gave Democrats only until the end of the day to complete their investigation of Pryor's role in founding the Republican Attorneys General Association. Hatch said he'd schedule a vote on Pryor's nomination after the Senate completes its work today, but admitted that Democrats might boycott the meeting and leave him without a quorum for a vote."

The worry over lack of a quorum may be misplaced, because as I read the Senate Judiciary Committee's Rules, "Ten Members shall constitute a quorum of the Committee when reporting a bill or nomination; provided that proxies shall not be counted in making a quorum." Thus, if all Republicans on the committee are present, a quorum will exist.
Posted at 19:42 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Robertson Clarifies Supreme Court Remarks" and here an article entitled "Gov't Sanctions in Moussaoui Case Delayed."
Posted at 19:41 by Howard Bashman



The Second Amendment rights of teddy bears: It's a law review article that demands to be written, based on material ripped from today's headlines. The Associated Press reports here that "Airport Workers Find Gun in Teddy Bear." Update: A reader emails: "You mean the Second Amendment embraces not only the right to bear arms, but the right to arm bears?"
Posted at 17:37 by Howard Bashman



Why do you characterize it as "a brilliant political move by the Bush Administration"? A short time ago, a newspaper reporter who is writing a follow-up story on the Bush Administration's intention to nominate California Supreme Court Justice Janice Rogers Brown to serve on the U.S. Court of Appeals for the D.C. Circuit interviewed me to learn the thought process behind my comment here last night that "I view this as a brilliant political move by the Bush Administration." If the article uses some of my quotes, and if the article is freely available online, I'll be sure to provide a link to it.
Posted at 17:33 by Howard Bashman



Fat chance: The Associated Press reports here that "Sen. Bill Blocks Weight-Related Lawsuits."
Posted at 17:26 by Howard Bashman



Terrorism doesn't pay: In two separate decisions issued today (see here and here), the U.S. District Court for the District of Columbia has assessed a total of $600 million against Islamic terrorist groups.
Posted at 17:10 by Howard Bashman



Who wants to be a Seventh Circuit judge? Well, I for one did not apply. It sufficiently freaked-out my wife when I mentioned here how much I'd probably enjoy being a judge serving on the U.S. Court of Appeals for the Ninth Circuit. But according to this article that appears in today's issue of The Milwaukee Journal Sentinel, Deputy Solicitor General Paul D. Clement is among twelve individuals who have applied to replace Circuit Judge John L. Coffey of Milwaukee when he takes senior status soon. The names of the eleven other applicants are also set forth in the article, and I'm advised that the bios of many of the applicants are readily available online.
Posted at 16:32 by Howard Bashman



"Senators Delay Pryor's Court Nomination": Jesse J. Holland of The Associated Press has this report. The delay, of course, is only until sometime later today, so stay tuned for more news later.
Posted at 16:09 by Howard Bashman



Eleventh Circuit holds that federal government may lawfully detain inadmissible aliens indefinitely: And thus the circuit split on this issue intensifies further. I had thought that the Supreme Court of the United States would have granted review recently to consider an en banc Sixth Circuit ruling issued earlier this year that reached the opposite conclusion, but review was denied. You can access today's unanimous ruling of a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit at this link. You can access the Solicitor General's cert. petition seeking review of the Sixth Circuit case here, and a reply in support of the petition here.
Posted at 16:00 by Howard Bashman



"Judge names special prosecutor for Bitsky": Today's edition of The Wisconsin State Journal reports here that "The ongoing federal civil rights case against former Adams County Undersheriff Kenneth Bitsky took another twist Wednesday when a federal judge in Madison appointed a special prosecutor to try the case. A UW-Madison law professor said that the only other time in U.S. history this was attempted by a judge was in connection with a Watergate-era case, and that appointment was overturned by a federal appeals court."
Posted at 15:22 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Wis. High Court Drops Suit Against Paper"; here "Former Texas AG Morales Pleads Guilty"; and here "Man Sentenced on Racketeering, Not Terror."
Posted at 15:19 by Howard Bashman



"E-Celebrity": The blog "Life, Law, Libido" has a comment on my appearance in the audience yesterday at the Legal Times event in Washington, D.C.
Posted at 15:08 by Howard Bashman



"Court Dismisses Ohio Man's Guilty Plea": The Associated Press reports here that "A state appeals court on Thursday dismissed the guilty plea of a man imprisoned for writing fictitious stories of child torture and molestation." You can access today's ruling of the Court of Appeals of Ohio, Tenth Appellate District, at this link (Microsoft Word document).

Recently confirmed Sixth Circuit Judge Jeffrey S. Sutton is listed among the attorneys on the winning side of this appeal.
Posted at 14:24 by Howard Bashman



"Pat Robertson: Pray for justices to retire": CNN.com provides this transcript of an interview that Paula Zahn conducted with Robertson.
Posted at 13:00 by Howard Bashman



Congratulations to Walter Olson's Overlawyered.com for being the FOXNews.com blog of the week: Details are available here.
Posted at 12:24 by Howard Bashman



"Appealing to a Higher Power: Why we should pray to God for three Supreme Court justices to retire." Pat Robertson has this op-ed in today's issue of The Los Angeles Times.
Posted at 12:23 by Howard Bashman



Available at National Review Online: Kathryn Jean Lopez has an essay entitled "Pryor Excuse: The Left works to kill a nomination." And John J. Miller has an essay entitled "Betsy’s Choice: Michigan Republicans confront Ward Connerly."
Posted at 12:21 by Howard Bashman



Senate Judiciary Committee play-by-play: The blog "Southern Appeal," which enthusiastically supports the confirmation of Eleventh Circuit nominee William H. Pryor, Jr., is providing a chronicle of this morning's business meeting. And Jonathan H. Adler, over at "The Corner," provides his thoughts.
Posted at 12:06 by Howard Bashman



Eugene Volokh speaks: If you have a spare 20 minutes (yeah, right!), you can listen via this link to an MP3 file consisting of an interview about blogging with UCLA Law Professor Eugene Volokh. The interviewer is Christopher Rotten -- um, make that Christopher Lydon. You can access the interview via this link (scroll down a bit). (Thanks to "Bag and Baggage" for the pointer, and thanks to Prof. Volokh for mentioning that "How Appealing" is a blog he enjoys reading.)
Posted at 08:10 by Howard Bashman



"State to appeal ban on flag pledge law; The attorney general will challenge a judge's ruling on the mandate for student recitation." The Associated Press provides this report from Pennsylvania. You can access here the ruling in question, which the U.S. District Court for the Eastern District of Pennsylvania issued earlier this week.
Posted at 07:06 by Howard Bashman



"Specter Squeezed From Left, Right On Support for Bush's Bench Picks": Tomorrow's edition of The Forward will contain this report.
Posted at 07:00 by Howard Bashman



On the agenda: Today at 9:30 a.m., the Senate Judiciary Committee will hold a business meeting at which Eleventh Circuit nominee William H. Pryor, Jr. is scheduled to receive a vote in committee.

But smooth sailing does not appear to be on the horizon. Today's edition of The Birmingham News reports here that "Demos want more time to study Pryor answers." The Mobile Register reports here that "Dems seek delay in vote on Pryor; Leahy, Kennedy claim GOP leaks to Register columnist have compromised investigation." And The Atlanta Journal-Constitution reports here that "Court nominee's accuracy questioned; Democratic senators attempt to block panel vote set Thursday."
Posted at 06:53 by Howard Bashman



"Chief justice nears decision": The Montgomery Advertiser today offers this report from Alabama.
Posted at 06:52 by Howard Bashman



"State supreme court judge may get nod for D.C. post": Today's issue of The San Jose Mercury News contains this report. You can access my earlier coverage of this matter at this link.
Posted at 06:50 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "2 Democrats Seek Delay in Vote on a Bush Judicial Nominee." Adam Liptak reports here that "Puerto Ricans Angry That U.S. Overrode Death Penalty Ban" and here that "Trial of Older Sniper Defendant Also Moved." In other news, "Illinois Will Require Taping of Homicide Interrogations." And in local news, "Brooklyn Democrats Lift Veil on Judicial Selection."

In The Washington Post, a front page article reports that "GOP Attorneys General Asked For Corporate Contributions." An article reports that "Muhammad Trial Moved Out of N.Va.; Effort to Find Untainted Jurors Puts Sniper Case in Tidewater." You can access here an article headlined "Dean Flaunts His Internet Edge as Guest 'Blogger.'" And an editorial is entitled "More Moussaoui Mess."
Posted at 06:34 by Howard Bashman



Today's and yesterday's FindLaw columnists: Today, Marci Hamilton has an essay entitled "The Case for Abolishing Child Abuse Statutes of Limitations, And For Victims' Forgoing Settlement In Favor of A Jury Trial," and Laura Hodes has an essay entitled "The Recent California Decision On Intel and Email: Less Significant Than It May Seem." Yesterday, Sherry F. Colb had an essay entitled "The New York Racist Float Case: How the First Amendment Does - and Does Not - Protect Racist Cops and Firemen," and Barton Aronson had an essay entitled "Why the Government's Decision to Prosecute Doctors Who Inform Patients of Marijuana's Medical Benefits Is A Blatant First Amendment Violation."
Posted at 06:32 by Howard Bashman



"The Vanishing Black Undergrad: College demographics, post-Michigan." Peter N. Kirsanow, a commissioner on the U.S. Commission on Civil Rights, had this essay yesterday at National Review Online.
Posted at 06:28 by Howard Bashman



Available online at The Hill: An article reports that "Nelson can’t support Bush nominee." And columnist Byron York has an essay entitled "Senator Levin to Michigan: Drop dead."
Posted at 06:25 by Howard Bashman



California Supreme Court Justice Janice Rogers Brown to be nominated to the U.S. Court of Appeals for the D.C. Circuit: As I have noted in posts you can access below, this news has now gone public. You can access here Charles Lane's article in today's edition of The Washington Post, and you can access here an article from The Recorder (which first broke the news online last night).
Posted at 01:28 by Howard Bashman



Now available online: You can now access here the Pledge of Allegiance law ruling of the U.S. District Court for the Eastern District of Pennsylvania and here the ruling of the Supreme Court of Georgia refusing (over the dissent of one justice) to dismiss as moot the case of Perdue v. Baker.
Posted at 01:09 by Howard Bashman



Second Circuit affirms dismissal of civil rights suit filed by Bronx High School of Science teacher after school board fired him for membership in the North American Man/Boy Love Association: You can access Wednesday's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 00:31 by Howard Bashman



More discussion of the ethics of blogging for federal judicial law clerks: Here, via "stickbugblog," and here, via "The Curmudgeonly Clerk."
Posted at 00:22 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Christian Leaders Urge Commandments Rally" and here an article entitled "Judge Moves Sniper Trial to Va. Beach."
Posted at 00:21 by Howard Bashman



Today's the day for Eleventh Circuit nominee William H. Pryor, Jr. to receive a vote in the Senate Judiciary Committee: Today's business meeting of the Senate Judiciary Committee is scheduled to get underway at 9:30 a.m.

Reuters reports here that "Senator Sees Approval of Conservative as Judge." Yesterday's edition of The Pittsburgh Post-Gazette reported here that "Judge vote puts Specter on the spot" and had a second item headlined "Here's how Pryor got his reputation." On the ground in Washington, D.C. yesterday, I was reliably advised that Senator Arlen Specter (R-PA) had decided to vote in favor of Pryor's nomination at the business meeting today. The Associated Press reported here that "Democrats call for another delay on Pryor vote." And in The Mobile Register, columnist Quin Hillyer had an essay entitled "A late attack on Pryor, courtesy of purloined memos." (Links in this paragraph via "Southern Appeal.")
Posted at 00:07 by Howard Bashman



Wednesday, July 16, 2003
"Pledge of Allegiance law rejected; Judge: Pa.'s requirement violated students' rights." This article appeared in today's issue of The Philadelphia Inquirer. And The Philadelphia Daily News reported here that "Schools can't force recitation of Pledge."
Posted at 23:58 by Howard Bashman



"Lawyers challenge tobacco reversal; Motion says ruling parrots the industry": Today's edition of The Miami Herald reports here that "Attorneys for a group of sick Florida smokers today were expected to file a motion accusing three appellate judges of 'judicial plagiarism' in the aftermath of their stunning decision to throw out a $145 billion judgment against top U.S. cigarette makers." Judicial plagiarism is funny in that the lawyers whose work was plagiarized don't complain; rather, it's the opposing lawyers whose work wasn't plagiarized who are upset.
Posted at 23:54 by Howard Bashman



"New justices named to hear O'Connor complaint": The Toledo Blade today provides this report, which begins: "In a highly unusual move, a new Ohio Supreme Court was named yesterday for the sole purpose of considering motions stemming from a judicial conduct complaint filed against one of its own, Justice Maureen O’Connor." (Via "The Paper Chase.")
Posted at 23:53 by Howard Bashman



"Bush May Tap Calif. Justice for Federal Seat; Appointment From State Supreme Court Would Bolster Conservative Tilt in D.C. Circuit": Charles Lane will have this report in Thursday's issue of The Washington Post. The individual in question is California Supreme Court Justice Janice Rogers Brown. Lane writes, "Given the entrenched opposition to both Estrada and Kavanaugh, Brown may have the best shot, sources familiar with the confirmation process say." I agree, and I view this as a brilliant political move by the Bush Administration.
Posted at 23:47 by Howard Bashman



My visit today to Washington, D.C.: I had an absolutely wonderful visit today to the Nation's capital. My visit began late morning at the Supreme Court of the United States, where I received the most comprehensive behind-the-scenes tour imaginable from a law clerk whose year at the Court is due to wrap up in just a few days. I can now confirm first-hand that "How Appealing" is widely-read and admired at the Court, and that news pleases me tremendously.

After lunching with my tour guide at a nearby Thai restaurant, I went on to my next appointment, to meet with some staffers at the Senate Judiciary Committee. Democrats in the U.S. Senate are on the verge of filibustering a total of five federal appellate court nominees (Estrada, Owen, Pickering, Kuhl, and Pryor), and the chances that any of these five nominees will be confirmed are quite remote. Moreover, it's unlikely that the 2004 Senatorial elections will provide a Republican President with a filibuster-proof majority on judicial nominees.

From the Senate, I headed over to Tony Mauro's Legal Times seminar, "Sizing Up a Pivotal Supreme Court Term: A Practitioner's View." I had the pleasure of chatting with both Maureen E. Mahoney and Paul M. Smith in advance of the program. Mahoney argued and won the Grutter v. Bollinger case, and Smith argued and won Lawrence v. Texas. While people certainly can debate at length whether these cases reached legally sound results, both of these talented advocates deserve congratulations for their quite significant victories. The program itself was very interesting, and Tony Mauro was most kind to single me (a mere attendee) out for introduction during his opening remarks. At some point soon, a transcript of the presentation may become available online, and if it does I'll be sure to link to it. It was great to meet so many readers of this Web log at the event.

Finally, I had the pleasure of having dinner with an appellate lawyer whose name has appeared here from time to time but whom I had never previously met. Dinner was wonderful, but entirely off-the-record.

When I started this blog, I had no idea it would generate such an extraordinary following and tremendous amount of positive feedback. But no one is more pleased than I am that it has.
Posted at 23:10 by Howard Bashman



"California Justice on Track for D.C. Circuit": The Bush Administration is on the verge of nominating California Supreme Court Justice Janice Rogers Brown to serve on the U.S. Court of Appeals for the D.C. Circuit, The Recorder reports here. Although Justice Brown's nomination may not be popular with liberal groups, in my view she has a good chance of being confirmed if the nomination occurs.
Posted at 23:08 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "Future of Terror Case Is in Judge's Hands." In other news, "Clintons Must Pay Bulk of Whitewater Legal Fees, Panel Rules." An article reports that "Democratic Candidates Split on Issue of Gay Marriages." From Washington comes news that "U.S. Deports Charity Leader in Visa Dispute." An article reports that "Tribe's Feud With Police Goes to Courts." In local news, "Affirming Increase, Court Rules Fares Are M.T.A.'s Call." An editorial is entitled "New Hope for the Missouri." And a letter to the editor from Mario Cuomo appears under the heading "Death Penalty: Worth the Risk?"

The Washington Post reports here that "Clintons Lose Legal Fees Claim." In other news, "3 Support Same-Sex Marriage; Democrats Appear At Rights Forum." You can access here an article headlined "Opening Up the Panderer's Box." And from New York comes a report headlined "Profiteers Of Pain: Hundreds of People Tried to Capitalize On the 9/11 Tragedy. N.Y. Authorities Are Eagerly Bringing Them to Justice."

Finally for now, OpinionJournal offers an editorial entitled "A Military Commission for Moussaoui: The Justice Department fumbled the case. Let the Pentagon handle it."
Posted at 00:11 by Howard Bashman



Tuesday, July 15, 2003
Road trip: Tomorrow (Wednesday, July 16, 2003), I will have the pleasure of making my first visit to Washington, D.C. since "How Appealing" came into existence back on May 6, 2002. True, I've been to many exotic locations (and even inside of a few prisons -- but just visiting, thank you!) in the interim, but this is my first trip to our Nation's Capital since then. The main reason for my visit is to attend Tony Mauro's presentation of the Legal Times 2002 Term U.S. Supreme Court review, entitled "Sizing Up a Pivotal Supreme Court Term: A Practitioner's View."

But I'll be arriving into town a bit early, and staying a bit late, to accomplish some other fun things while I'm there. What exactly will I be doing? Can't say. But if you were me, think about the people with whom you'd visit and the things you'd try to see while in town. And that's exactly what I'll be doing tomorrow. Because I will be on the road for most of the day, don't expect any new entries to appear between early tomorrow morning and late tomorrow night. See, I'm not necessarily signing-off yet, but soon.
Posted at 23:00 by Howard Bashman



"20 questions for the appellate judge," part seven: The questions that will provide the basis for the seventh installment of "20 questions for the appellate judge" were today dispatched to the seventh judge to have volunteered to take part in this Web log's monthly interview feature. The questions and answers are scheduled to appear online here on Monday, August 4, 2003. The questions turned out quite good, if I may say so myself. And the interview scheduled to run in September 2003 should also be quite good. The interviewees in August and September will each be the first interviewee from his or her respective U.S. Court of Appeals. Operators are standing by to receive word from any federal or state appellate judge who would like for his or her interview to appear here in October 2003. Volunteering is as simple as sending me an email. All six previous installments of the "20 questions for the appellate judge" feature can be accessed at this link.
Posted at 22:50 by Howard Bashman



Available online at law.com: You can access here an article headlined "Chertoff's Wild Ride: A conservative watchdog group spun a phantasmagoric tale in a last-minute effort to block his nomination to 3rd Circuit." Shannon P. Duffy reports that "Federal Judge Strikes Down Pledge and Anthem Law; State statute would have required participation by private and public schools." And in news from New York, you can access here an article entitled "Union Use of Political Posters in Federal Office Is Ruled Illegal"; here "Spargo Argues State Court Ruling Is Wrong"; and here "N.Y. Law Banning Cameras in State Courts Found Constitutional."
Posted at 22:28 by Howard Bashman



Guns, milk, and Indians: Today was just another day in the Wild West for Seventh Circuit Judge Richard A. Posner, as he issued three separate for-publication opinions. The first opinion involves a firearm found by postal workers in the mail, and that decision seems to hold that the Post Office can x-ray without a warrant any piece of mail intended to travel via airplane. The second decision involves government regulation of milk pricing and contains the sort of economic-analysis-of-the-law for which Judge Posner is rightly renowned. Last but not least is an odd case involving a Voting Rights Act claim by an American Indian tribe. Why do I say the case was odd? Well, the second paragraph of Judge Posner's opinion begins, "The oddness of the tribe's claims is made dramatically clear by the facts of the case." Perhaps the "Election Law" blog will have something to say about this particular case sooner or later.
Posted at 22:25 by Howard Bashman



Third Circuit rules student "Bible Club" should have been allowed to meet during school's morning "activity period": A unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued this quite interesting opinion by Senior Circuit Judge Ruggero J. Aldisert. In the opinion, the Ninth Circuit receives a bit of criticism. Elsewhere, Judge Aldisert writes: "Just as putting a 'Horse' sign around a cow's neck does not make a bovine equine, a school's decision that a free-wheeling activity period constitutes actual classroom instructional time does not make it so."
Posted at 22:16 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Gov't Marks 1962 Ole Miss Desegregation" and here an article entitled "Advising Lawyer Named in Terrorism Case." And you can access here an item entitled "Correction: Senate Judges Story."
Posted at 22:06 by Howard Bashman



And in other news of interest: Today the Supreme Court of Georgia denied, over the dissent of a single justice, the Attorney General of Georgia's motion to dismiss the case of Perdue v. Baker. Apparently that case held the prospect of mooting the U.S. Supreme Court's consideration of Georgia v. Ashcroft, but not vice versa. I have a copy of the Georgia Supreme Court's order, but it is not yet available online.

And the U.S. District Court for the Eastern District of Pennsylvania today issued a decision declaring unconstitutional a Pennsylvania state law that requires schools to lead children each day in the recitation of the Pledge of Allegiance. Again, I have a copy of this ruling, but it does not appear to be available yet online.
Posted at 20:20 by Howard Bashman



"Q&A: Moussaoui trial." BBC News provides this report.
Posted at 20:13 by Howard Bashman



"Judge Rules Against Vegan Inmates in N.Y." The AP offers this coverage. In unrelated news, the U.S. Court of Appeals for the Seventh Circuit today upheld Wisconsin's ban on international travel for parolees. The conclusion seems to be that the best way to go where you want to go and eat what you want to eat is to avoid criminal conviction.
Posted at 17:00 by Howard Bashman



"Wis. Court OKs Concealed Arms Exception": The Associated Press provides this report. Eugene Volokh provides more details and a link to the ruling here.
Posted at 16:10 by Howard Bashman



A partial victory for nude dancing in Florida: Today the U.S. Court of Appeals for the Eleventh Circuit issued this ruling. And remember, when in Manatee County, Florida, under the challenged regulations dental floss is fine as a method of oral hygiene but not fine as an article of clothing.
Posted at 15:58 by Howard Bashman



"Operation Supreme Court Freedom": The Christian Broadcasting Network provides here the details of Pat Robertson's prayer pledge drive. (Via "The Academy.")
Posted at 14:53 by Howard Bashman



"Clintons Lose Appeal for Whitewater Legal Fees": Reuters offers this report.
Posted at 14:25 by Howard Bashman



"Court Upholds NYC Transit Fare Hike": The Associated Press provides this report.
Posted at 14:23 by Howard Bashman



Divided three-judge Ninth Circuit panel overturns California death sentence: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. Circuit Judge Stephen Reinhardt wrote the majority opinion, in which Circuit Judge Richard A. Paez joined. Circuit Judge Diarmuid F. O'Scannlain dissented from the judgment insofar as it set aside the death sentence.
Posted at 13:57 by Howard Bashman



"Court delays trial on Gregg suit": SportingNews.com provides this report from Philadelphia.
Posted at 11:50 by Howard Bashman



"Now What? The web the Court has weaved." Roger Clegg has this essay at National Review Online.
Posted at 11:49 by Howard Bashman



"Clintons Lose Whitewater Appeal": More news from The Associated Press. You can scroll down this page or click here to access my coverage of the ruling.
Posted at 11:13 by Howard Bashman



"Starr to offer up views on high court tonight": Today's edition of The Aspen Times contains this report. (Thanks to Rick Hasen for the pointer via email.)
Posted at 10:49 by Howard Bashman



"Court Rejects Davidian Claim Against U.S." The Associated Press provides this report.
Posted at 10:36 by Howard Bashman



Ouch! Today the U.S. Court of Appeals for the D.C. Circuit's Division for the Purpose of Appointing Independent Counsels Ethics in Government Act of 1978, As Amended, issued a per curiam opinion that begins:
William Jefferson Clinton and Hillary Rodham Clinton petition this Court under section 593(f) of the Ethics in Government Act of 1978, as amended, 28 U.S.C. secs. 591–599 (2000) (the Act), for reimbursement of attorneys' fees in the amount of $3,549,561.22 that they incurred during and as a result of the investigation conducted by independent counsel. Because we conclude that the Clintons have not carried their burden of showing that the fees would not have been incurred but for the requirements of the Act, we deny the petition, save for a single unique item.
And the per curiam opinion concludes:
For the reasons set forth above, we allow in part the petition of William Jefferson Clinton and Hillary Rodham Clinton to the extent of ordering reimbursement for attorneys' fees in the amount of $85,312.01. We deny the balance of the petition as not meeting the "‘but for"’ requirement of the Act, 28 U.S.C. sec. 593(f)(1).
You can access the complete opinion at this link.
Posted at 10:28 by Howard Bashman



"Banish the Druids: Consensual sex trumps traditional boundaries." Richard Nadler has this essay today at National Review Online.
Posted at 10:18 by Howard Bashman



"Commercial Speech Impediment: Supreme Court missed chance to 'Just Do It' in Nike Case." Rick Elgendy had this essay yesterday online at Reason.
Posted at 10:05 by Howard Bashman



Finally some happy news for Saad and the three other members of "The Michigan Four": Today's edition of The Washington Times reports here that "Four judicial nominees to get hearings despite 'blue slips.'" The article explains: "The four judicial nominees being blocked are David W. McKeague, federal judge for the Western District of Michigan; Susan Neilson, a state circuit judge; Henry W. Saad, a judge for the Michigan Court of Appeals; and Richard A. Griffin, also a Michigan Court of Appeals judge. If confirmed, Judge Saad would become the first Arab-descent member of the federal judiciary."

The article notes toward its conclusion that "Mr. Hatch has written the White House asking if Mr. Levin and Mrs. Stabenow were adequately consulted before Mr. Bush submitted his nominees. If so, Republicans say, he will proceed with the hearings." As readers of "How Appealing" are well-aware (see my post of Wednesday, April 16, 2003 at this link), this series of communications between Senate Judiciary Committee chairman Orrin G. Hatch (R-UT) and White House Counsel Alberto R. Gonzales has already occurred, and you can read Judge Gonzales' letters on the subject here and here, via "How Appealing Extra."
Posted at 09:15 by Howard Bashman



"Redistricting ruling could shift racial makeup": Here's one last article from today's edition of The Greenville News.
Posted at 08:32 by Howard Bashman



"Supreme Court takes away our right to make laws": Attorney Mark M. Trapp has this op-ed in today's issue of The Greenville News.
Posted at 08:28 by Howard Bashman



"Honeymooners survive crash off coast of Bahamas": Today's edition of The Greenville News contains this report, which begins: "Two Greenville honeymooners -- one of them the son of federal Judge Billy Wilkins -- were among the survivors of a commuter plane crash that left a woman and an infant dead just miles from their destination in the Bahamas Sunday." William W. Wilkins is the Chief Judge of the U.S. Court of Appeals for the Fourth Circuit.
Posted at 08:25 by Howard Bashman



"Changes may loom for state's execution law": This article appears in today's edition of The Indianapolis Star.
Posted at 08:20 by Howard Bashman



"Robertson Calls for Justices' Retirement": The Associated Press reports here that "Religious broadcaster Pat Robertson urged his nationwide audience Monday to pray for God to remove three justices from the Supreme Court so they could be replaced by conservatives." The article goes on to name the Justices whom Robertson likely had in mind.
Posted at 08:18 by Howard Bashman



"Court Overrules Judge on Tobacco Decision": There may be more supersedeas bond-related troubles ahead for Philip Morris USA, The Associated Press reports here.
Posted at 06:30 by Howard Bashman



Today's FindLaw columnists: Joanna Grossman has an essay entitled "Saving Title IX: Recent Developments Spell Good News For The Federal Statute Prohibiting Sex Discrimination in High School and College Athletics." And Phillip Carter has an essay entitled "Judicial Deference to the Military: How It Will Affect Court Cases Involving Gay Rights, and War on Terrorism Policies."
Posted at 06:27 by Howard Bashman



"Biblical verses removed from Grand Canyon": Reuters has this report.
Posted at 06:25 by Howard Bashman



In Tuesday's newspapers: The New York Times reports here that "U.S. Will Defy Court's Order in Terror Case." And in news from California, "Group Is Suing Over Petitions to Recall Gray Davis."

The Washington Post reports here that "Moussaoui Prosecutors Defy Judge; Refusal to Produce Key Witness May Lead to Indictment's Dismissal."

Finally for now, OpinionJournal contains an editorial entitled "Nevada's Judicial Dice-Throwers: And you thought Florida's Supreme court was arrogant."
Posted at 00:22 by Howard Bashman



Monday, July 14, 2003
"Time to open High Court to TV cameras": This editorial appears in today's issue of The Jackson Sun.
Posted at 23:11 by Howard Bashman



"Connerly address draws opposition": Today's issue of The Michigan Daily contains this report. And The Daily Bruin reports here that "Connerly pushes Civil Rights Act in Michigan; Coalition plans boycott against initiative barring race consideration."
Posted at 23:09 by Howard Bashman



Available online at law.com: In news from California, "'Miranda' Violation Voids Conviction." An article reports that "Tribunals Put Defense Bar in a Bind; Military's lead defender calls for volunteers, but many in private bar remain wary." Shannon P. Duffy has an article headlined "De Novo Review Standard for Cases Under IDEA" that reports on a ruling that the Third Circuit issued today. Finally, an article reports, "Breaking Tradition, Cravath Hires Marketer."
Posted at 23:00 by Howard Bashman



Elsewhere in Monday's newspapers: In The Los Angeles Times, David G. Savage reports that "Asbestos Bill Could Be Windfall for Business." And an editorial is entitled "Connerly's Trivial Pursuit."

The Boston Globe reports here that "AG's fight still draws interest; Reilly against Microsoft appeals to other parties." And in other news, "Grieving father targets medical malpractice; Lobbies against bill capping 'pain and suffering' damages."

USA Today reports here that "Some 9/11 families choose lawsuits over federal fund; Relatives say goal isn't just money but to 'get answers.'" An article reports that "Patriot Act battle is fought locally." An editorial asserts that "Tougher penalties for abuses can protect the innocent," while an op-ed by Robert P. McCulloch responds that "Prosecutors fight for justice." And letters to the editor appear under the heading "Gays not a threat to marriage."

Finally for now, The Washington Times contains an op-ed by Frederick R. Lynch entitled "Diversity and preferences" and an op-ed by Duane Parde entitled "Tort law tribulation."
Posted at 22:21 by Howard Bashman



Eugene Volokh goes blog-wild over the recent Nevada tax ruling: Start here and scroll down from there. Now we wait and see whether he'll go whole blog with the topic.
Posted at 22:17 by Howard Bashman



Don't look a gift tax commentator in the mouth: "Jack Bog's Blog" tackles a recent ruling from one of my favorite Seventh Circuit judges.
Posted at 22:13 by Howard Bashman



Is it appropriate for a law clerk to an Article III federal judge to have a Web log that discusses the law, the legal system, or the administration of justice? As I read the applicable canon of the Code of Conduct For Judicial Employees (available for viewing via this link at the blog "The Curmudgeonly Clerk"), the answer would seem to be "no," unless the judge for whom the clerk is working approves after consultation. Moreover, as best as I can tell, blogging anonymously ("I'm a law clerk for some unspecified judge on an unspecified Article III court") doesn't seem to cure the problem. Does anyone reach a different conclusion, and, if so, what's your thought process? No, I don't have the answer for why Seventh Circuit Judge Richard A. Posner can write about nearly any law-related topic that strikes his fancy, but his law clerks cannot (at least without the consent of the judge). But those would appear to be "the rules," and people who work in the judiciary can appreciate that "the rules" are not usually meant to be broken.
Posted at 20:23 by Howard Bashman



Fifth Circuit affirms verdict in favor of federal government in deadly Branch Davidian siege: A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit today issued a unanimous opinion by Circuit Judge Edith H. Jones that begins:
Appellants, some of the survivors and estates of Branch Davidians who died during the 1993 conflict at Mount Carmel near Waco, Texas, attempted to prove at trial that the United States government should be held liable under the Federal Tort Claims Act ("FTCA") for deaths and injuries of Branch Davidian sect members during the siege of their compound outside Waco, Texas on April 19, 1993. The court, after a month-long trial, rejected their case. The court found that the government's planning of the siege -- i.e. the decisions to use tear gas against the Davidians; to insert the tear gas by means of military tanks; and to omit specific planning for the possibility that a fire would erupt -- is within the "discretionary function exception" to the government's waiver of immunity. The court also found that the use of tear gas was not negligent. Further, even if the United States was negligent by causing damage to the compound before the fires broke out, thus either blocking escape routes or enabling the fires to speed faster, such negligence did not legally cause the plaintiffs' injuries because some of the Davidians started the fires. The court found that the FBI's decision not initially to allow fire trucks on the property was reasonable because of the risk of injury or death to firefighters who might encounter hostile gunfire from the Davidian compound.

All of these findings and conclusions, and other claims that the court earlier dismissed, were the subject of intense and provocative dispute before the trial court, as they have more generally been to the public ever since that shameful day in American law enforcement. None of the substantive issues are raised in this appeal, however. Instead, Appellants' only serious contention is that Judge Smith -- on account of his relationships with defendants, defense counsel, and court staff; prior judicial determinations; and comments during Appellants' trial -- should have recused himself from hearing their claims. We conclude that Appellants' allegations do not reflect conduct that would cause a reasonable observer to question Judge Smith's impartiality; they do not necessitate vacatur under the law of judicial recusal and the correct standards of review. This court AFFIRMS the take-nothing judgment.
The Judge Smith in question is Chief Judge Walter S. Smith of the U.S. District Court for the Western District of Texas. You can access the Fifth Circuit's complete opinion at this link.
Posted at 19:58 by Howard Bashman



"Feds refuse Moussaoui access to witness": CNN.com has this report. And The Associated Press reports here that "Feds Refuse to Produce Moussaoui Witness."
Posted at 19:47 by Howard Bashman



Fourth Circuit, by a vote of 7-5, denies federal government's petition for rehearing en banc in Zacarias Moussaoui case: The Fourth Circuit's order, entered late this afternoon, states:
Appellant filed a petition for rehearing and rehearing en banc.

Chief Judge Wilkins and Judges Williams and Gregory voted to deny a panel rehearing.

A member of the Court requested a poll on the petition for rehearing en banc. A majority of the judges in active service voted to deny rehearing en banc. Judges Wilkinson, Widener, Niemeyer, Luttig, and Shedd voted to grant rehearing en banc. Chief Judge Wilkins and Judges Williams, Michael, Motz, Traxler, King, and Gregory voted to deny rehearing en banc. The Court denies the petition for rehearing and rehearing en banc.

Chief Judge Wilkins wrote an opinion concurring in the denial of rehearing en banc, in which Judges Williams, Motz, King, and Gregory joined. Judge Widener wrote a dissenting opinion. Judge Wilkinson wrote a dissenting opinion, in which Judge Niemeyer joined. Judge Luttig wrote a dissenting opinion.

Entered at the direction of Chief Judge Wilkins for the Court.
You can access the order and the opinions concurring in and dissenting from the denial of rehearing en banc at this link.
Posted at 18:33 by Howard Bashman



"Photos Show Supreme Court Chambers": Gina Holland of The Associated Press has this report. Of course, you heard it here first, almost two weeks ago.
Posted at 15:35 by Howard Bashman



Supreme Court of California considers intentional, deliberate violations of a defendant's Miranda rights: And today, in a unanimous ruling, that court holds that the prosecution cannot use for any purpose at trial statements thereby elicited. The U.S. Supreme Court will consider this issue in the 2003 Term (details here and here).
Posted at 15:22 by Howard Bashman



"U.S. Looks to Reverse Mo. River Ruling": The Associated Press provides this report. You can access Saturday's ruling by Judge Gladys Kessler of the U.S. District Court for the District of Columbia at this link.
Posted at 14:37 by Howard Bashman



"Public defender makes sure everyone gets to be heard": Today's edition of The Contra Costa Times contains this profile of the lawyer who represented Marion Stogner in Stogner v. California. (And once again I am reminded of a New Yorker cartoon.)
Posted at 14:28 by Howard Bashman



Character and fitness: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion that begins:
Matthew Hale is a public advocate of white supremacy and the leader of an organization (formerly called the World Church of the Creator [fn.1]) dedicated to racism and anti-Semitism. He comes before us today because he seeks to be admitted to practice law in the state of Illinois. The Illinois State Bar requires applicants not only to demonstrate proficiency in the law on a written bar examination, but also to pass a character and fitness exam. Hale succeeded in satisfying the first of these hurdles, but not the second. His defeat came at the hands of the Committee on Character and Fitness (Committee) appointed by the Illinois Supreme Court, which found him unfit to practice law. Hale challenged that determination both before the Illinois Supreme Court and then the Supreme Court of the United States, claiming among other things that the Committee had violated his First Amendment rights by acting solely on the basis of his viewpoints. Unsuccessful in that effort, he then turned to the U.S. District Court for the Northern District of Illinois with a fresh lawsuit again raising his First Amendment claim, among other constitutional challenges. This time he lost because the district court concluded, in part, that the Rooker-Feldman doctrine did not permit it to review the earlier decision of the Illinois Supreme Court. See Rooker v. Fidelity Trust Co., 263 U.S. 413, 415-16 (1923); District of Columbia Ct. of App. v. Feldman, 460 U.S. 462, 486 (1983). Bearing in mind the unique procedures that the Illinois Supreme Court uses for bar admission decisions (as opposed to its review of litigated cases), we find that Hale has had his day in the state courts, and that the district court correctly dismissed his suit.
-------------------------------------------------------
[fn.1] In TE-TA-MA Truth Foundation-Family of URI, Inc. v. World Church of the Creator, 297 F.3d 662 (7th Cir. 2002), we ordered Hale to rename the organization, formerly known as the World Church of the Creator, for infringing on another group's trade-mark. Hale refused to comply. Earlier this year, Hale was arrested for conspiring to kill the district court judge presiding in the trademark infringement case, and is currently being held without bond. Jodi Wilgoren, White Supremacist is Held in Ordering Judge's Death, N.Y. Times, Jan. 9, 2003, at A1. In light of these events, it is difficult to imagine that the Committee would vote positively today in favor of Hale's character and fitness, though that is not the strict issue before us today.
You can access the complete opinion at this link.
Posted at 13:59 by Howard Bashman



Ninth Circuit rejects due process challenge to "streamlining" of immigration appeals: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 13:43 by Howard Bashman



Some federal judicial nomination and confirmation news: Yesterday's edition of The Milwaukee Journal Sentinel reported here (second item): "The 12 members of the Wisconsin nominating commission set to recommend finalists for a key federal appellate court vacancy come from both parties. But they have at least one thing in common: They're all men."

The Senate Judiciary Committee's next business meeting is scheduled to occur on Thursday, July 17, 2003, at 9:30 a.m. Eleventh Circuit nominee William H. Pryor, Jr. is expected to receive a vote in committee at that time.

And on Friday, July 18, 2003, at 9:30 a.m., the Judiciary Committee will hold a hearing on the nomination of Steven M. Colloton to serve on the U.S. Court of Appeals for the Eighth Circuit. Colloton's background (detailed here) would appear to assure him at least one vote against his confirmation when the nomination comes before the full U.S. Senate. Finally, you can access an updated list of the American Bar Association's ratings of current judicial nominees at this link.
Posted at 13:40 by Howard Bashman



"Critics Blast Lowering of Missouri River": The Associated Press provides this report.
Posted at 13:19 by Howard Bashman



"Regents pass gun ban amid legal controversy": Today's issue of The Minnesota Daily contains this report. For links to commentary relating to this news, see my earlier post here.
Posted at 12:23 by Howard Bashman



Taft honors Taft: Today's issue of The Cincinnati Enquirer reports here that "Governor on hand for debut of Taft marker."
Posted at 11:58 by Howard Bashman



"Pondering parental notification": An editorial in today's edition of The St. Petersburg Times begins:
The Florida Supreme Court on Thursday set aside Florida's 1999 parental notification for abortion law. The 5-1 ruling means minors cannot be compelled by law to notify their parents of their intention to have an abortion.

But this probably is not a closed case. Every justice who heard the case wrote a separate opinion based on a different rationale, and two current justices, both appointed by Gov. Jeb Bush, did not participate in the decision.
You can access the complete editorial at this link.
Posted at 11:56 by Howard Bashman



Law Professor Eugene Volokh opposes the Victims' Rights Amendment: He explains why here.
Posted at 11:53 by Howard Bashman



"Judges raking in campaign funds; Reforms urged to prevent possible conflicts of interest": The Associated Press offers this report from Florida.
Posted at 11:51 by Howard Bashman



Please don't bear your arms here: Today's edition of The Minnesota Daily contains an op-ed entitled "Ban Concealed Weapons at the U" by Earl McDowell, a professor in the Department of Rhetoric. And alumnus Jordan K. Kolar has a letter to the editor entitled "States and the University have the constitutional right to ban guns." The battle over the Second Amendment's meaning rages on.
Posted at 11:37 by Howard Bashman



"Lawyers with heart? It could be a rule; Justices may prod more attorneys to offer free legal help": Today's issue of The Seattle Post-Intelligencer contains this report.
Posted at 11:32 by Howard Bashman



"Islanders' special benefits draw fire; Native Hawaiians were badly treated, some say." This article appears in today's issue of The Philadelphia Inquirer.
Posted at 11:29 by Howard Bashman



"Historic legal reforms unveiled": Reuters offers this report from London. BBC News has an article headlined "Call for US-style court: A senior Scottish lawyer is calling for the creation of a US-style supreme court with powers to strike down laws made at Westminster." And DeHavilland reports here that "New selection process to attract minorities to the bench."
Posted at 11:20 by Howard Bashman



"Gray Davis lags at filling judicial appointments": The San Jose Mercury News today provides this report.
Posted at 11:08 by Howard Bashman



In news from Nevada: Today's edition of The Las Vegas Review-Journal contains an article that begins, "Armed with a controversial state Supreme Court decision, the Assembly voted 26-16 Sunday for a bill that would increase taxes by a record $788 million over the next two years."
Posted at 11:02 by Howard Bashman



Available at National Review Online: Timothy Sandefur has an essay entitled "Throwing Out the Rules; The Nevada supreme court tries legislating"; Maggie Gallagher has an essay entitled "The Stakes; Why we need marriage"; and Kathryn Jean Lopez has an essay entitled "College-Sports Sellout: The Bush administration caves on Title IX reform."
Posted at 10:58 by Howard Bashman



"A Few Good Men: Are there any conservatives who still believe that the gay-marriage battle can--or even should--be won?" Lee Bockhorn has this essay online at The Weekly Standard.
Posted at 10:43 by Howard Bashman



Gerald Ford at 90: Today's issue of The Hartford Courant provides this report.
Posted at 10:39 by Howard Bashman



"No Decision In Mass. Gay Marriage Case": The Associated Press reports here that no ruling will issue today. Massachusetts public radio station WBUR provides an audio report about the case here (Real Player required), entitled "Massachusetts Court Set to Rule on Gay Marriage."
Posted at 10:31 by Howard Bashman



"Supreme Court vacancy could trigger 'judicial Armageddon' battle": This article appeared in yesterday's edition of The Minneapolis Star Tribune.
Posted at 10:27 by Howard Bashman



"NAACP Urges Affirmative Action Policies": The Associated Press has this report.
Posted at 08:36 by Howard Bashman



Today's FindLaw columnist: Anthony J. Sebok has an essay entitled "The New Asbestos Bill, Part One: Why It Is Imperative That It Pass." As the title suggests, this is the first in a two-part series.
Posted at 08:34 by Howard Bashman



"Bones of Contention: Cadaver-sniffing canine's finds are under suspicion; Handler of world-famous dog is charged with planting evidence." The Detroit Free Press offers this report.
Posted at 06:34 by Howard Bashman



"Sodomy ruling may affect military; Gay ex-soldier thinks his case could topple don't-ask, don't-tell policy": This article appears in today's edition of The Houston Chronicle.
Posted at 06:33 by Howard Bashman



"Massachusetts court to rule on same-sex marriages": CNN.com has this report.
Posted at 06:31 by Howard Bashman



In Monday's newspapers: The Washington Post reports here that "Missouri River Flow Cut Back at Judge's Order; Army Corps, Conservation Groups at Odds Over Applying Endangered Species Act." James V. Grimaldi reports that "American Indian Trust Case Has Federal Judge in a Lather." In other news, "Tex. Business Group In Furor Over Fliers; Grand Jury Probes Actions in 2002 Campaign." An editorial is entitled "Name Those Fundraisers (Cont'd)." And columnist Fred Hiatt has an op-ed entitled "Evolution On Gay Marriage?"

The New York Times reports here that "A Muslim Missionary Group Draws New Scrutiny in U.S." Columnist Bob Herbert has an op-ed entitled "Trapped in the System." And a letter to the editor appears under the heading "What Happened to Due Process?"

At OpinionJournal, Melanie Kirkpatrick has an op-ed entitled "Al Qaeda and the Plaintiff's Bar: Trial lawyers pose a threat to homeland security."

Finally for now, The Christian Science Monitor contains an op-ed by Rondi Adamson entitled "Gay marriage - the next just step."
Posted at 00:03 by Howard Bashman



Sunday, July 13, 2003
In exchange for what would you give up blogging? A clerkship with U.S. Supreme Court Justice Anthony M. Kennedy seems a perfectly reasonable answer to the question. So accompany me in wishing Orin Kerr the best as he joins the illustrious ranks of former Third Circuit law clerks who have gone on to clerk at the Big Show. When Orin returns to "The Volokh Conspiracy," he'll have the cachet to demand a more happening name-tag color, such as periwinkle or chartreuse.
Posted at 23:55 by Howard Bashman



Please don't plagiarize your plagiarism explanation: An attorney who practices law in northern New Jersey emails:
Did anybody else notice the funny quote in the Hornstine-Harvard-plagiarism article you linked? Harvard's policy, when a student is accused of plagiarism, is to "first ask a student 'to tell us in his or her own words what happened.'"
You can access The Harvard Crimson article in question at this link.
Posted at 23:41 by Howard Bashman



In Sunday's newspapers: Today's issue of The New York Times contains an article headlined "Going for the Look, but Risking Discrimination." You can access here an article headlined "14 Months of Torment, Indelible After 2 Decades." In the magazine section, an essay asks "2 Fast 4 Safety?" And letters to the editor respond to the recent magazine cover story about sparing the mentally retarded from the death penalty.

The Washington Post reports here that "Suit by Kenyan Victims of Embassy Attack Is Rejected." And an op-ed by Rick Perlstein is entitled "What Gay Studies Taught the Court."

The Washington Times reports here that "Gay 'marriages' ahead." And in other news, "Republicans draw Hispanic voters from Democrats."

The Boston Globe reports here that "Stewart case may hinge on a quiet Newton 'nerd.'"

Finally, The Los Angeles Times contains two op-eds that may be of interest. Law Professor Jonathan Turley writes of "Skewed Justice for Muslims," while John R. Lott Jr. asserts that "Letting Teachers Pack Guns Will Make America's Schools Safer."
Posted at 22:37 by Howard Bashman



Today's Justice Sandra Day O'Connor-nearly-bonked-on-the-head news update: The transcript of the remarks that Justice Sandra Day O'Connor delivered on July 4, 2003 moments before being nearly bonked on the head at the grand opening of the National Constitution Center is available online here. (Link to transcript via "SCOTUSblog.")

And thanks to Justice Stephen G. Breyer, I get to ask the always popular question "French, anyone?"
Posted at 20:21 by Howard Bashman



"Big fight hits small town": And the subject is gay rights. The Orlando Sentinel today provides this report.
Posted at 20:13 by Howard Bashman



Coming soon to a newsstand near you: The July 21, 2003 issue of U.S. News and World Report contains an interview with Ward Connerly that appears under the heading "Racing to End Preferences." And columnist John Leo has an essay entitled "Creeping transnationalism."

Finally for now, the July 21, 2003 issue of Newsweek magazine contains an article entitled "Harvard to Hornstine: No Way; New Jersey's most famous valedictorian loses her dream."
Posted at 19:11 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Controversy Over Calif. Pot Prescriptions" and here an article entitled "Detroit Pays Millions to Settle Lawsuits."
Posted at 17:12 by Howard Bashman



"Controversial treatment: Wife, mother of two says she owes her life to medical marijuana." Today's issue of The Oakland Tribune contains this report about a woman whose case is now pending before the U.S. Court of Appeals for the Ninth Circuit.
Posted at 17:10 by Howard Bashman



"Residents support Moore's fight to display Commandments": This article appears in today's edition of The Mobile Register.
Posted at 14:20 by Howard Bashman



Back in plaque: Thursday's edition of The Philadelphia Inquirer reported here that "Chesco takes the cover off plaque; In June, a court ruled it did not violate the Constitution." The Daily Local News of West Chester, Pa. reported here that "Shroud comes down." And The Associated Press reported here that "Ten Commandments plaque visible again." (This post's title based on a song by AC/DC.)
Posted at 12:32 by Howard Bashman



"Has Ed Carnes positioned himself for a nomination to the U.S. Supreme Court?" Robert A. Martin, editor and publisher of The Montgomery Independent, recently had this op-ed in that publication. I had the pleasure of meeting and speaking with Eleventh Circuit Judge Ed Carnes last month while he was in Philadelphia, and I found Judge Carnes to be a most impressive individual.
Posted at 12:28 by Howard Bashman



And in other Ten Commandments-related news: On Wednesday, July 16, 2003, Alabama Public Television's "For the Record" program will conduct a live interview with Chief Justice Roy Moore of the Supreme Court of Alabama. Chief Justice Moore is also known as "the Ten Commandments judge." According to the program's online description:
Watch Alabama Chief Justice Roy Moore in a rare live television interview on "For The Record" Wednesday July 16th at 6:30pm. Moore's legal battle to keep a Ten Commandments plaque on the wall of an Etowah County courtroom helped propel him to victory in the race for Chief Justice of the state supreme court. Now the much larger Ten Commandments Monument he placed in the State Judicial Building is the focus of a federal court fight, possibly leading to consideration by the U.S. Supreme Court.
At some point after the program airs, you will be able to view the video online via this link.
Posted at 12:10 by Howard Bashman



"Franklin votes to display Ten Commandments; County says courthouse display is constitutional": Today's edition of The Augusta Chronicle contains this report. And yesterday's edition of The Athens Banner-Herald reported here that "Franklin commission blesses Commandments display."
Posted at 12:08 by Howard Bashman



"Small crime, hard time: 33 years and counting for a man who stole a television." This article appears in today's edition of The Raleigh News and Observer.
Posted at 11:55 by Howard Bashman



"Professor refuses to drop lawsuit against state over defunct keg limit": The Associated Press has this report from Ohio. One can debate whether a sufficient number of professors back an individual's right to bear arms, but clearly the world would be a much better place if only more professors stood up for an individual's right to become drunk beyond belief.
Posted at 11:53 by Howard Bashman



Saturday, July 12, 2003
"Fighting for the Right to Communicate": Sunday's issue of The New York Times contains this detailed report on Kourosh Kenneth Hamidi, a party in the case known as Intel Corp. v. Hamidi.
Posted at 23:18 by Howard Bashman



Some commentary on the U.S. Supreme Court and the issue of race: In The Village Voice, columnist Nat Hentoff has an essay entitled "What the Supreme Court Left Out: The Smoking Gun in Grutter v. Bollinger."

Over at The Weekly Standard, Terry Eastland asks "Is O'Connor's Ruling an Oncoming Train . . . or the light at the end of the affirmative-action tunnel?" And an editorial about the ruling in Georgia v. Ashcroft is entitled "Race to the Bottom."
Posted at 22:47 by Howard Bashman



"For Democrats Challenging Bush, Ashcroft Is Exhibit A": This article will appear in Sunday's edition of The New York Times.
Posted at 22:41 by Howard Bashman



Manager of Pittsburgh Pirates calls player's three-game suspension for attack on Italian Sausage "very difficult to swallow": The Milwaukee Journal Sentinel today contains this article. The article also reports that the employee of the Milwaukee Brewers who was wearing the Italian Sausage outfit when the attack occurred has been dissuaded by the team from "making an appearance Sunday at a kiosk at Mayfair Mall to sign shirts proclaiming, 'Don't Whack Our Weiner.'"
Posted at 22:38 by Howard Bashman



Today's Justice Sandra Day O'Connor-nearly-bonked-on-the-head news update: Today's edition of The Philadelphia Inquirer reports here that "Park events could need safety checks; Responding to the Constitution Center accident, the National Park Service may require inspections at Independence Park." I visited the National Constitution Center today and, I'm pleased to report, didn't even come close to being bonked on the head. You can read more about my visit here. And thanks much to the reader who emailed to ask, "Does the NCC have an exhibit where you can view the penumbra and emanations of the Constitution?" The literal answer to that question is of course "no," but the consequences of the penumbra and emanations are certainly there at the Center for all to see.
Posted at 22:20 by Howard Bashman



"That gum you like is going to come back in style." As regular readers of "How Appealing" know well (see here and here), sometimes I go to great lengths to include the gratuitous "Twin Peaks" reference. Thus, I was pleased to learn of this news from Singapore, via "Sugar, Mr. Poon?"
Posted at 21:56 by Howard Bashman



Access the official U.S. Senate roll call vote tally on U.S. Court of Federal Claims nominee Victor J. Wolski: It is available here. Wolski was confirmed by a vote of 54-43, with three Democrats joining all Republicans in voting yea. Three other Democrats were absent from the vote.
Posted at 21:50 by Howard Bashman



More video from the Fourth Circuit's recent Judicial Conference: This evening's episode of C-SPAN's fine program "America and the Courts" consists of a nearly two-hour segment reviewing the U.S. Supreme Court's 2002 Term. You can view the segment online at this link (Real Player required).
Posted at 19:21 by Howard Bashman



From Sunday's edition of The New York Times: You can access here an article headlined "Victims Angered and Upset By Ruling Freeing Molesters." And Neil A. Lewis reports that "Rules for Terror Tribunals May Deter Some Defense Lawyers."
Posted at 19:16 by Howard Bashman



Spitting mad: Perhaps certain other bloggers shouldn't be, Stuart Buck explains here.
Posted at 19:12 by Howard Bashman



"U.S. attorney turns out to be better copy than first thought": Columnist Bill McClellan yesterday had this essay in The St. Louis Post-Dispatch about the recent news from Southern Illinois.
Posted at 15:55 by Howard Bashman



"Texas sodomy ruling applied to soliciting; Judge: High court ruling makes N.C. ban unconstitutional." Wow. Today's edition of The Charlotte Observer contains an article that begins, "A Mecklenburg district judge Friday called North Carolina's sodomy law unconstitutional, as he threw out two charges against a man accused of soliciting sodomy last May in a public park."
Posted at 15:50 by Howard Bashman



Happy and sad news: Denise Howell offers her typically thorough canvass of new law blogs in a post you can access here. Separately, Denise notes some law-blog-related news that I'm saddened to learn.
Posted at 15:44 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Lawmakers Attack Use of Antitorture Law to Block Immigrants' Deportation." In other news, "Bush Administration Says Title IX Should Stay as It Is." Adam Liptak reports that "A Web Site Causes Unease in Police." An article headlined "Here's Uncle Zeus, Aunt Hera, the Twins ..." explains how Senior Second Circuit Judge Jon O. Newman has been spending some of his spare time lately. And an op-ed by Daniel C. Dennett is entitled "The Bright Stuff."

The Washington Post reports here that "Prosecutor Backs Moving Sniper Case; Muhammad Trial Expected to Relocate to Tidewater Area." In other news, "Sex Bias Ban Upheld For School Athletics." An article reports that "Alleged Terrorist to Remain Jailed in Va." And an editorial is entitled "Sniper Justice."

The Boston Globe reports here that "Copyright fight unfolds near campus." In other news, "Harvard said to revoke admission." And an op-ed by Gary Crossen is entitled "When we won't need affirmative action."

In The Los Angeles Times, an article headlined "Ex-Youth Leader Gets Life for Lewd Conduct" begins, "A former Newport Beach youth recreation leader was sentenced Friday to life in prison for sucking the toes of 20 boys under his supervision." And in other news, "O.C. Man Is Sentenced for 50th Strike; The career criminal gets 26 years to life for his latest, a break-in to steal an ex-girlfriend's phone number. He faces trial in L.A. County burglaries."

The Washington Times reports here that "Prosecutor backs move of sniper trial." And in other news, "Title IX rules abandon sex quotas in athletics."
Posted at 15:14 by Howard Bashman



The National Constitution Center is definitely worth a visit: I, my wife, and our eight-year-old son had the pleasure of visiting the National Constitution Center in Philadelphia this morning, and I'm pleased to report that the NCC is definitely worth a visit. As the NCC's Web site explains, "Timed tickets are required to visit the National Constitution Center. Your experience begins with Freedom Rising, a multi-media production in our Kimmel Theater." That multi-media production was most impressive, combining filmed material and an enthusiastic live narrator in a 360-degree theater-in-the-round. From there, visitors emerge on the museum's second floor, where the main exhibit hall is located. The museum's main collection is arranged in chronological order from the birth of the Nation to present time. Anyone who is at all interested in the history of the United States and the functioning of the judicial, legislative, and executive branches of the federal government will find plenty of interest.

As one might expect from a museum that's dedicated to our nation's constitutional history, there's much to see and read. Even though much of the material is above the level of an eight-year-old, my son still had a wonderful time enjoying the many parts of the museum that were child-oriented. For example, a recurring theme is a video/computer monitor display that allows one to determine whether he or she qualified to vote in any given State at various times in U.S. history. Using a touch screen, one answers a list of questions, and once any disqualifying answer is given, the message in large red type "VOTE DENIED" appears. At the very start of the exhibit, there are a series of touch screen monitors that allow children to touch the image of a constitutionally-relevant person or thing and learn about them. My son selected Mickey Mouse (whose description mentioned the Eldred v. Ashcroft decision), Ryan White (the Florida boy who faced exclusion from school in Florida after he was diagnosed as having AIDS), and a few others. He narrowly avoided selecting the image of Larry Flynt, so I can't say how child-friendly that explanation happens to be.

The museum contains an original hand-written opinion from Chief Justice John Marshall, the hand-signed document that President Ronald Reagan used to nominate Sandra Day O'Connor to the U.S. Supreme Court, and many, many other pieces of history. My son also enjoyed the parts of the exhibit where he took the oath of office as President and sat behind a small replica of the U.S. Supreme Court's bench (small because it has only seats for three Justices, instead of nine). The main exhibit concludes with a look at some present-day constitutional controversies, including the legal battle over the Ten Commandments monument in Alabama's Judicial Building. From there, it's off to the room where the framers of the Constitution are all depicted as life-sized bronze statuettes. In that room, one can sign the Constitution, and in the next room one can register his or her signature in an electronic database.

We ended up spending approximately two hours at the Center, and had I attended with other law geeks and without an elementary school-aged child, I'd probably still be there looking around.

No description of the NCC would be complete without mentioning the gift shop. You can purchase a Constitution Center inflatable ball, a Constitution Center football, Constitution Center shot glasses (no doubt in honor of the Twenty-First Amendment), and a full line of shirts, sweatshirts, and caps. The gift shop is also stocked with bobble head dolls depicting many former Presidents, although I didn't see any depicting Chief Justice William H. Rehnquist. Finally, the gift shop offers for sale both of Justice Sandra Day O'Connor's recent books, which is obviously the National Constitution Center's way of saying it's sorry that Justice O'Connor was nearly bonked on the head by a heavy falling wooden frame at the conclusion of the Center's opening ceremony on July 4, 2003.

If you live in or near Philadelphia or are planning to visit, be sure not to miss the wonderful new National Constitution Center.

Update: For another thorough description of the Center, see this very positive architectural review that recently appeared in The New York Times.
Posted at 14:43 by Howard Bashman



Access online the transcript of yesterday's "NOW with Bill Moyers" segment on Eleventh Circuit nominee William H. Pryor, Jr.: The transcript is available here. And you can access more details on last night's segment via this link.
Posted at 08:04 by Howard Bashman



On the agenda: I'll be departing for the National Constitution Center sometime within the next hour, and, unless I receive a severe bonk on the head there, I'll be back later to describe my impressions of Philadelphia's newest visitor attraction.
Posted at 08:00 by Howard Bashman



Friday, July 11, 2003
Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "GOP Faction Breaks Away to Sue for Speedier Recall Count; Leaders of the drive to oust Gov. Davis say the legal filing could backfire." An article reports that "Hells Angels Can't Attend Ventura Fair in Club Garb." In other local news, "3 Molesters Could Be Freed Today; Defense lawyers have requested their release after the U.S. Supreme Court's ruling against a state law." From Santa Barbara comes news that "Activist Not Guilty of Impeding Rat Killings." An article reports that "3 Accused Attorneys Resign From Bar." You can access here an article headlined "Can He Maneuver That Big Rig in Court? An Orange man's whopper RV is so huge it's been classified as a commercial vehicle by the DMV, forcing weigh-station stops. He has filed suit." Columnist Al Martinez has an essay entitled "Tempting fat: Burger and fries for lunch." Kate Michelman has an op-ed entitled "Pro-Choice Advocates Can't Relax; Supreme Court ruling on privacy rights may do little to shield abortion rights from attacks by Bush administration." And letters to the editor appear under the heading "Fast Food, Fast Money and Faster Attorneys."

USA Today reports here that kids don't write good no more. An op-ed by Julianne Malveaux is entitled "Affirmative action wins -- temporarily." And letters to the editor appear under the heading "Justices wrong not to consider foreign views."

Finally for now, The Washington Times reports here that "Study finds gay unions brief."
Posted at 23:02 by Howard Bashman



And speaking of the Italian Sausage: The Associated Press reports here that "Simon suspended three games for sausage incident." He was also fined $2000. In an amazing recovery, the Italian Sausage won yesterday's race. ESPN.com offers a "Police report: Sausagegate." Sports Illustrated provides "A history of bizarre mascot incidents." And today's edition of The Philadelphia Daily News contains this cartoon arising out of the incident.
Posted at 22:53 by Howard Bashman



Available online at law.com: The latest installment of Tony Mauro's Courtside column is entitled "Court Aces," and it looks at advocates in private practice who were repeat players before the U.S. Supreme Court in the Term that just concluded. Tony's column also mentions that "Justice Sandra Day O'Connor was nearly bonked on the head by a falling frame at the dedication of the National Constitution Center in Philadelphia on July 4," using a phraseology that has been in vogue here at "How Appealing" over the past week (see here, here, here, here, here, here, and here). My family and I have tickets to visit the National Constitution Center tomorrow morning, and we have high hopes of returning home physically intact. (P.S. So far, Tony is leaving coverage of the assault on the Italian Sausage by a Pittsburgh Pirates team member exclusively to me (see here and here for my reports)).

In other news, Jason Hoppin reports that "9th Circuit Grants Arab Israeli's Asylum Claim." You can access here an article headlined "2nd Circuit: State Can Bar Scouts From Charity Drive." An article reports on "The Trials of Jesselyn Radack." From Florida comes news that "$4 Million Verdict Reinstated in Benlate Case." An article reports that "Texas Court, Legislature Strengthen Good Samaritan Law." Bill Kisliuk's round-up of legal news mentions my recent "20 questions" interview with Senior Third Circuit Judge Ruggero J. Aldisert. You can access the complete interview here.

In commentary, Lawrence J. Siskind writes of "A Racialist Blowout," while Randolph J. May has an essay entitled "Agency Theory: Why we should worry about the lobbying of regulators."
Posted at 22:27 by Howard Bashman



"Constitutional Ruling: Court paves way for new taxes; Justices: Need to fund schools takes priority." Today's edition of The Las Vegas Review-Journal contains this report. And The Las Vegas Sun reports here that "Justices' 'bold step' signals end to deadlock; Leaders expect to approve funding plan early next week" and here that "Ruling gives political cover to all." You can access the Supreme Court of Nevada's ruling here (PDF) or here (HTML). And finally, you can access all of the documents filed in the case via this link.
Posted at 18:32 by Howard Bashman



"Carolyn Condit, Enquirer settle suit; Ex-congressman's wife accused tabloid of libel in article on Levy case." The Fresno Bee provides this report. And The AP reports here that "Condit's wife settles libel suit against National Enquirer."
Posted at 18:21 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Sniper Suspect's Trial May Change Venue"; here "Wholesalers Suing Tobacco Companies"; and here "FBI: al-Qaida Detainee Spoke of Fire Plot."
Posted at 17:05 by Howard Bashman



Ted Olson speaks: And Will Baude blogs about it, here.
Posted at 16:16 by Howard Bashman



Today's Town Hall columnists: Armstrong Williams has an essay entitled "Texas sodomy and the marriage amendment." Paul Greenberg has an essay entitled "Dr. Dowd analyzes Clarence Thomas." Jay Bryant has an essay entitled "Dems And Lawyers Wield Asbestos Monkey Wrench." And Rich Lowry has an essay entitled "Bush, the campaign-finance reformer."
Posted at 15:59 by Howard Bashman



Fifth Circuit grants rehearing en banc in interesting "blue wall of silence" case: On Wednesday, the U.S. Court of Appeals for the Fifth Circuit entered an order (posted online today) granting rehearing en banc in an interesting "blue wall of silence" qualified immunity case. You can access the now-vacated three-judge panel decision at this link. The National Lawyers Guild offers this write-up of the case.
Posted at 15:18 by Howard Bashman



"New policy evicts race as factor in ULM dorms": A reader sends along the link to this article from today's issue of The News-Star of Monroe, Louisiana and asks, "Isn't it ironic that race can be a factor regarding admittance (arguably the most important question when it comes to higher education), but after that decision is made, race is again anathema for universities to use when classifying students in certain ways?"
Posted at 15:09 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "Senate Panel Approves Bill to Establish Asbestos Trust." Adam Liptak reports that "Florida Court Voids a Law on Abortion." In other news, "Justice Department Seeking to Disallow Terrorist Interview." An article reports that "Senate Becomes O.K. Corral for a Surgeon and a Lawyer." An obituary bears the headline "Lord Shawcross, Prosecutor at Nuremberg, Dies at 101." An editorial is entitled "Cleaning Up a Rigged Game." And columnist Nicholas D. Kristof has an op-ed that asks, "Is Race Real?"

The Washington Post reports here that "Moussaoui Prosecutors Try Appeal Once Again." In other news, "McCain, Feingold Seek New Oversight for Finance Law." An article reports that "Fla. May Fine GOP Figure for 2000 Recount Actions." An obituary bears the title "Hartley Shawcross, 101; British Lawyer, Diplomat." Editorials appear under the headings "Cameras in the Court" and "Overhauling the FEC." Michael Kinsley has an op-ed entitled "A Painful Malpractice Debate." And letters to the editor appear under the heading "Lawrence v. Texas: What Was Overlooked."
Posted at 14:36 by Howard Bashman



"Judge Cristol tells Post how he set record straight on USS Liberty": Yesterday's issue of The Jerusalem Post contained this interview with U.S. Bankruptcy Court Judge A. Jay Cristol of the Southern District of Florida.
Posted at 14:22 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Bush Wants Marijuana Ruling Struck Down." An article reports "No New Trial for 'Boys Don't Cry' Killer," and you can access today's ruling of the Supreme Court of Nebraska at this link. Finally, you can access here an article headlined "Calif. Lawyers Quit Bar in Ethics Issue."
Posted at 14:15 by Howard Bashman



Mistreatment of Israeli-born Arab by Israeli Marines qualifies him for asylum and withholding of removal, Ninth Circuit rules: You can access today's unanimous ruling of a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, overturning the rulings of an Immigration Judge and the Board of Immigration Appeals, at this link.
Posted at 13:39 by Howard Bashman



Today's Justice Sandra Day O'Connor-nearly-bonked-on-the-head news update: In The Philadelphia Daily News, columnist Gar Joseph writes, "Lawsuits unlikely after stage mishap; Litigation Would Probably Lead to Bad Press for High-Profile Victims." Hey, since when have high-profile victims been any less litigious than the rest of society?
Posted at 13:10 by Howard Bashman



"Harvard Takes Back Hornstine Admission Offer; Decision follows allegations of plagiarism by controversial admit": This article appears in today's edition of The Harvard Crimson.
Posted at 13:03 by Howard Bashman



More news from Southern Illinois: Yesterday, The Belleville News-Democrat reported here that "Judge: U.S. attorney target of Justice probe; Miquelon resignation sets off memo war." And The St. Louis Post-Dispatch yesterday reported here that "Miquelon is federal target, judge says; Prosecutor denies allegations, sticks to reason for leaving."
Posted at 12:53 by Howard Bashman



Italian Sausage says, "Don't press charges": Today's issue of The Milwaukee Journal Sentinel reports here that "Pirates' Simon apologizes for swing; Sausage swatting puts Pirate, city in national spotlight." An editorial is entitled "Of sausages and stupidity." Columnist Dale Hofmann writes, "Sausage snafu is no laughing matter." Sorry, Dale, but a quite funny editorial cartoon concerning the incident is available here. You can watch an interview with the person who portrayed the Italian Sausage that night at this link. And yesterday the sausages were back to their normal selves, apparently.
Posted at 12:40 by Howard Bashman



"Judges can't hold other offices, court rules; Ban remains even after resigning, justices say": Today's edition of The Milwaukee Journal Sentinel contains this report. And you can access yesterday's ruling of the Supreme Court of Wisconsin at this link.
Posted at 12:31 by Howard Bashman



"Calif. Magistrate Clears Rat Supporter": The Associated Press provides this report.
Posted at 12:04 by Howard Bashman



D.C. Circuit affirms dismissal of lawsuit brought against U.S. government by Kenyans injured in 1998 U.S. Embassy bombing in Nairobi: Today a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued an opinion that begins:
Appellants, a prospective class of more than 5,000 Kenyan citizens and businesses injured in the 1998 bombing of the United States Embassy in Nairobi, Kenya, sued the United States under the Federal Tort Claims Act alleging that the government negligently failed to secure the Embassy and to warn of a potential terrorist attack. Following limited jurisdictional discovery, the district court dismissed the complaint, finding that the discretionary function, foreign country, and independent contractor exceptions to the Federal Tort Claims Act's waiver of sovereign immunity bar appellants' claims. We affirm in all respects.
You can access the complete opinion at this link.
Posted at 10:18 by Howard Bashman



"Popular": Eugene Volokh -- possibly the next Dean of the UCLA Law School (see my theory here) -- observes that N.Z. Bear has begun ranking Web logs by Sitemeter visit statistics.

Eugene writes that "Not all blogs are included -- How Appealing, for instance, isn't; I assume that it's largely because they don't have a publicly available SiteMeter counter." Thanks for pluralizing me; TalkLeft would be proud. But back to the matter at hand.

A long time ago, I decided to make this blog's hit counters password-protected after I noticed that in some instances the hit counters were revealing the names of the individuals whose computers were being used to visit my site. Here's one actual example. When Professor Volokh uses his office computer to visit "How Appealing," my hit counters record an Internet Protocol address that is unique to him and that UCLA has registered in his name. Thus, using the Bravenet hit counter, if one clicks on the feature "Click Here Now To Resolve These IP's to HostNames," the service will reveal that "evolokh.ucla.***" has visited. If the visitor has clicked on a link elsewhere to visit, the address of that link will also be revealed. Finally, if the visitor is using an older browser, the hit counter may record the address of the page the visitor was viewing immediately before he or she visited "How Appealing." Most users do not have individualized IP addresses that convert to their names, but many people associated with colleges or universities seem to have them. Thus, in an effort to safeguard reader privacy to some extent, I decided to make my hit counters private. My Bravenet hit counter, however, has always displayed the number of visitors for all to see, in case anyone cared.

Earlier this week, however, Bravenet performed an "upgrade" to its service, and as a result having a password-protected Bravenet hit counter no longer seems to be an option. Many other blogs do not seem to have the same reader privacy concerns that led me to keep my hit counters password-protected. And if my hit counter were not password-protected, "How Appealing" would be among the top-ten on N.Z. Bear's list. Are my concerns about reader privacy archaic and anachronistic? Please let me know via email if you have thoughts on the subject. (This post's heading is based on that most excellent Nada Surf song from 1996.)
Posted at 09:11 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Feds Attempt to Block Moussaoui Interview"; here "Judge Dismisses 'Political Prisoner' Suit"; and here "Judge: Texas Cops Can't Arrest Lawmakers."
Posted at 09:03 by Howard Bashman



Senator Santorum was right? That's what "The Angry Clam" contends in a post you can access here. And if you ignore the precise dates when the events in question took place, it's almost plausible (well, not really).
Posted at 08:28 by Howard Bashman



"Senate panel delays Pryor vote": This article appears in today's edition of The Montgomery Advertiser. And The Birmingham News reports here that "Pryor judiciary vote postponed."
Posted at 07:03 by Howard Bashman



"Fingering the Federalist Society: Activists hope to head off right-wing judges." Today's issue of The Arkansas Times contains this report.
Posted at 07:00 by Howard Bashman



"Moore case could cost state $1 million or more; But, so far, no taxpayer money has been spent on justice's battle to keep the Ten Commandments monument in the state's Judicial Building": This article appeared in yesterday's issue of The Mobile Register.
Posted at 06:58 by Howard Bashman



"Duncan closer to bench": The Raleigh News and Observer today provides this report. The Charlotte Observer reports here that "Duncan gets panel's nod for judgeship; Senate Judiciary Committee will recommend approval." And The Herald-Sun reports here that "Durham native closer to 4th Circuit Court seat."
Posted at 06:55 by Howard Bashman



"Judicial jabs: In this corner, Bush's nominees; in the other, Democrats." This article appears in today's edition of The Dallas Morning News.
Posted at 06:49 by Howard Bashman



Today's FindLaw columnist: Vikram David Amar has an essay entitled "The 2002-03 Supreme Court Term in Review: Landmark Cases Stress the Theme Of Equality."
Posted at 06:45 by Howard Bashman



"Nevada Supreme Court orders violation of Nevada Constitution": Eugene Volokh has the details here.
Posted at 00:51 by Howard Bashman



"Federal judge blocks violent video games law": The Associated Press offers this late-breaking news from the State of Washington. And the blog "Balasubramania's Mania" provides more details, including a link to the judge's ruling, here.
Posted at 00:33 by Howard Bashman



Thursday, July 10, 2003
"Senate Panel Clears Asbestos Fund Bill": Jesse J. Holland of The Associated Press provides this report.
Posted at 23:23 by Howard Bashman



Elsewhere in Thursday's newspapers: The Boston Globe contains an article entitled "For gays, no unanimity on marriage; Many welcome prospect; some hesitant on change." In other news, "Democrats in Senate block malpractice bill." An article reports that "Canada set to dispense marijuana as medicine." And columnist Ellen Goodman has an op-ed entitled "Justices' opinion gap."

The Los Angeles Times reports here that "Senate Medical Malpractice Bill Fails; Democrats block its consideration, even as they concede Congress needs to act. The vote is a likely campaign issue in some states." In other news, "UCLA Law Dean Resigns Position." The likely replacement is Eugene Volokh, now that the rest of the faculty realizes how much spare time he spends on blogging that could instead be directed toward bettering the law school. And an op-ed by Ruth Wedgwood is entitled "Justice, and Security Too: Military tribunals at Guantanamo Bay are proper and necessary."

The Washington Times reports here that "Connerly expands fight against race preference." And an op-ed by Suzanne Fields is entitled "Dishonor on Campus."

Finally, USA Today contains an op-ed by U.S. Senator Rick Santorum (R-PA) entitled "Americans must preserve institution of marriage" and an op-ed by Lorraine Dusky entitled "Gay unions: A matter of rights or a threat to traditional marriage? Constitutional proposal helps homophobia thrive."
Posted at 22:31 by Howard Bashman



"Confederate plate design unveiled; ACLU checks next step against 'Choose Life' tags": This article appears in today's edition of The Tennessean.
Posted at 22:28 by Howard Bashman



It isn't "All About the Benjamins": Rather, the July 28, 2003 issue of The National Review magazine is mostly about the how unhappy conservatives currently are with the Supreme Court of the United States.
Posted at 22:17 by Howard Bashman



"'Gag' order contradicts U.S. value Iraqis like": Senior Sixth Circuit Judge Gilbert S. Merritt is in Iraq but isn't a happy camper due to a gag order that affects his ability to speak out in the media. Thanks to Joanne Mariner for the pointer via email.
Posted at 22:15 by Howard Bashman



"9th Circuit rejects claims against Sound Transit": The Associated Press has this report. You can access today's Ninth Circuit ruling at this link.
Posted at 20:00 by Howard Bashman



Clayton Cramer has looked at into the history professors' brief in support of Lawrence and was rather disappointed with what he found: You can access his post here.
Posted at 19:58 by Howard Bashman



Tomorrow's episode of the PBS Television program "NOW with Bill Moyers" to feature segment on Eleventh Circuit nominee William H. Pryor, Jr.: According to the preview blurb I have received:
There's a battle in the Beltway over President Bush's judicial nominee William Pryor. Currently the Attorney General of Alabama, Pryor's strong views on Roe v. Wade and gay rights have some Democrats worried that as a judge on the 11th Circuit Court of Appeals, he would be unduly influenced by his ideological convictions. Republicans contend that once on the bench, Pryor will set aside his personal beliefs and uphold the law. On Friday, July 11, 2003 at 9 p.m. on PBS (check local listings), NOW with Bill Moyers spotlights Pryor and what is shaping up to be on of the administration's most controversial nominations to date. Also on the program, NOW spotlights the cutting-edge satire of Comedy Central's The Daily Show in an interview with its host Jon Stewart.
You can check local listings at this link.
Posted at 19:52 by Howard Bashman



"Senate Committee Approves Bush Nomination": You can access here an article from The Associated Press that begins, "A Senate committee on Thursday unanimously approved President Bush's nomination of Allyson Duncan for a seat on the U.S. Court of Appeals for the 4th Circuit, which includes West Virginia, Virginia, Maryland, North Carolina and South Carolina."
Posted at 17:21 by Howard Bashman



"Judge not": San Francisco Chronicle columnist Debra J. Saunders today looks at the dispute over whether California state court judges can be members of the Boy Scouts.
Posted at 17:14 by Howard Bashman



"Judges plead their case to Congress for pay raises": This article appears in today's issue of The Minneapolis Star Tribune.
Posted at 17:08 by Howard Bashman



Pity the poor Italian Sausage: As someone who had the pleasure of attending a Brewers-Braves game several years back at County Stadium, I was most distressed by the news of an assault yesterday against the Italian Sausage by a Pittsburgh Pirates player. You can see the Italian Sausage in happier times at this link. Fortunately for the player who committed the assault, there was not a government official inside of the costume. And I wonder if PETA is still keen on the idea of having vegetables join the race.
Posted at 16:41 by Howard Bashman



"Kennedy’s Libertarian Revolution: Lawrence's reach." Randy E. Barnett today has this essay at National Review Online.
Posted at 16:25 by Howard Bashman



What does cooking have in common with our system of cooperative federalism? For the an answer, see the first paragraph of this opinion that the U.S. Court of Appeals for the Seventh Circuit issued today.
Posted at 15:13 by Howard Bashman



"Fla. Supreme Court Rejects Abortion Law": The Associated Press has this report.
Posted at 15:06 by Howard Bashman



State of Connecticut may lawfully exclude Boy Scouts from the State's workplace charitable contribution campaign, Second Circuit holds: Today's unanimous opinion from a three-judge panel of the U.S. Court of Appeals for the Second Circuit begins:
In May 2000, the Connecticut State Employee Campaign Committee denied the application of the Connecticut Rivers Council, a local chapter of the Boy Scouts of America, to participate in the state's workplace charitable contribution campaign. That decision was based on a ruling by the Connecticut Commission on Human Rights and Opportunities that the Boy Scouts of America's policy of excluding homosexuals from membership and employment positions meant that the local chapter's participation in the campaign would contravene state law. The Boy Scouts brought suit for violations of their First Amendment right of expressive association, see Boy Scouts of America v. Dale, 530 U.S. 640 (2000), and of Connecticut State law. The United States District Court for the District of Connecticut (Eginton, J.) granted the defendants' motion for summary judgment. We hold that the removal of the Boy Scouts from this nonpublic forum did not violate the Boy Scouts' First Amendment right to expressive association. We also hold that there was no violation of Connecticut law. Accordingly, we affirm the judgment of the district court.
You can access the complete ruling at this link. Update: The AP reports here "Court: Conn. May Bar Boy Scouts From List."
Posted at 14:51 by Howard Bashman



"Judiciary committee delays vote on Pryor nomination": The Associated Press provides this report.
Posted at 14:28 by Howard Bashman



Renounce vs. denounce: A reader who is currently clerking for a judge on the U.S. District Court for the District of Columbia emails:
At the risk of telling you something you already noticed back when the opinion in Virginia v. Black was issued (April 7), I thought I would bring something to your attention. (I only got around to reading the decision today).

The opinion states that "the Klan became an issue in the third debate between Richard Nixon and John Kennedy, with both candidates renouncing the Klan."

Unless there is little-known dark chapter in the backgrounds of Presidents Nixon and Kennedy, I think what was meant was "DEnouncing"

I enjoy your blog immensely.
Thanks! And thanks for bringing this interesting word-choice question to light.
Posted at 13:47 by Howard Bashman



"Life, without possibility of e-mail: California prison officials don't want felons to have anything at all to do with the Internet -- not even a printout of a Web site." Salon.com today offers this report.
Posted at 13:20 by Howard Bashman



Divided Supreme Court of Florida affirms decision invalidating that State's "Parental Notice of Abortion Act": According to the majority opinion, "Under the Parental Notice Act, prior to undergoing an abortion, a minor must notify a parent of her decision or, alternatively, must convince a court that she is sufficiently mature to make the decision herself, or that, if she is immature, the abortion nevertheless is in her best interests." You can access the court's ruling at this link (137-page PDF document).
Posted at 12:46 by Howard Bashman



Today's round-up of federal judicial confirmation news and commentary: The Detroit News reports here that "GOP blasts Stabenow, Levin over judge delays; Mich. senators blamed for holding up hearings on appeals court nominees." The Detroit Free Press reports here that "Levin, Stabenow dig in over court nominations." Also in The Free Press, Mike Cox, Michigan's Attorney General, has an op-ed today entitled "Judicial nominees: Levin, Stabenow must help end deadlock; it clogs up courts." The Lansing State Journal reports here that "Senators take heat over court vacancies; Levin, Stabenow refuse to approve Bush nominees." And The Washington Times reports here that "Frist tells Michigan senators to desist."

Although, as I have reported below, the Senate Judiciary Committee this morning delayed until next week its vote on Eleventh Circuit nominee William H. Pryor, Jr., the following news reports may still be of interest. The Montgomery Advertiser reports here that "Panel may vote on Pryor today; The state attorney general's nomination for a federal judgeship is on the line." The Birmingham News reports here that "Pryor vote scheduled today; Close decision expected on sending judicial nomination to full Senate." And The Mobile Register reports here that "Judiciary panel likely to vote on Pryor today; Critics already looking ahead to stalling nomination in full Senate."

Finally for now, Kay R. Daly has an essay entitled "Beltway Parlor Games."
Posted at 11:41 by Howard Bashman



"The Supreme Court divides America": Columnist Bill Murchison today has this essay.
Posted at 11:26 by Howard Bashman



Today's Justice Sandra Day O'Connor-nearly-bonked-on-the-head news update: In The Philadelphia Daily News, columnist Michael Smerconish writes, "Frame Fell, Not Philly's Attitude." Stu Bykofsky's column also mentions the incident (see fourth item).

And in The Philadelphia Inquirer, columnist Gail Shister today mentions the incident in an essay entitled "Citizen Jennings shared his secret here with Scalia."
Posted at 11:07 by Howard Bashman



Available at National Review Online: Henry Payne has an essay entitled "Putting Preferences to a Vote: Connerly launches Michigan ballot initiative," and John O'Sullivan has an essay entitled "Marriage -- American-Style: The end ahead."
Posted at 11:00 by Howard Bashman



Senate Judiciary Committee Chairman Orrin G. Hatch has just announced that the committee will not vote on the nomination of William H. Pryor, Jr. to the Eleventh Circuit until next week: Allyson K. Duncan's nomination to serve on the U.S. Court of Appeals for the Fourth Circuit will be voted on and approved today.
Posted at 09:53 by Howard Bashman



On the agenda: The Senate Judiciary Committee's business meeting will be getting under way momentarily, and you can view the proceedings online via this link (Real Player required). Two federal appellate court nominees are scheduled to receive votes from the committee at this meeting: William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit, and Allyson K. Duncan to serve on the U.S. Court of Appeals for the Fourth Circuit.
Posted at 09:37 by Howard Bashman



Today's FindLaw columnist: Edward Lazarus has an essay entitled "The Ghost of Justice Powell: How His Cautious Conservatism Still Haunts the Supreme Court."
Posted at 07:46 by Howard Bashman



In Thursday's newspapers: In The New York Times, Neil A. Lewis reports that "Court Affirms Bush's Power to Detain Citizen as Enemy." An article reports that "Ballot Measure Seen in Wake of Court Ruling." In other news, "Official Says Class Action on Indian Fund Is a Top Issue." Adam Liptak reports that "Law Firm Is Sued Over Conduct in Liability Case." In news from Toronto, "Canada to Offer Marijuana to Medical Patients." In local news, "Motions Are Filed in the Stewart Case." And an editorial is entitled "'Big Food' Gets the Obesity Message."

The Washington Post reports here that "Jailing of Hamdi Upheld As Rehearing Is Denied." In other news, "Medical Malpractice Bill Dies in Senate; Democrats Block Proposed Limits On Damage Awards." And an editorial is entitled "An Asbestos Accord."

Finally for now, The Christian Science Monitor contains an editorial entitled "The Eminent-Domain Game."
Posted at 06:56 by Howard Bashman



Wednesday, July 09, 2003
My July 2003 appellate column: On Monday, July 14, 2003, The Legal Intelligencer will publish my July 2003 appellate column. My topic this month is a review of how the U.S. Court of Appeals for the Third Circuit and Pennsylvania's state appellate courts fared before the Supreme Court of the United States in the October 2002 Term. While it's true that none of the cases the Supreme Court decided on the merits this Term originated from the Third Circuit, the Supreme Court did resolve a number of conflicts that involved the Philadelphia-based federal appellate court. And let's not overlook that the Supreme Court did decide one case from the Supreme Court of Pennsylvania and one case on direct appeal from the U.S. District Court for the Eastern District of Pennsylvania. Whether you practice law in the Third Circuit and/or Pennsylvania or not, there's a good chance you'll find something of interest in this month's column. Anyone who would like to receive my monthly appellate column via email in PDF format on the day of its publication on the second Monday of each month can complete the free and easy sign-up form available at this link.
Posted at 23:03 by Howard Bashman



Available online at law.com: Jason Hoppin reports that "9th Circuit Says Own Precedent May in Some Cases Be Ignored." Jonathan Groner reports that "'Comfort Women' Suit Can't Be Heard in United States." And thanks again to Bill Kisliuk for the mention.
Posted at 22:50 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Lee shows no enmity in wake of Spike TV rift." In the continued fallout from a recent U.S. Supreme Court ruling, an article reports that "Sex Cases Against 2 Ex-Priests Dismissed." And an editorial is entitled "Overkill on Class Actions."

The Boston Globe reports here that "British Columbia approves gay, lesbian marriages."

Finally for now, The Washington Times contains an op-ed by Paul Greenberg entitled "Pledge driven furor."
Posted at 22:29 by Howard Bashman



"Specter key to committee vote on Alabama AG's nomination to court": The Associated Press provides this coverage.
Posted at 22:29 by Howard Bashman



"In Judicial Twist, Republicans Seen Stalling Bush Pick": The July 11, 2003 issue of The Forward contains this report.
Posted at 22:28 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "American Man Remains As 'Enemy Combatant'"; here "Federal Judge Blocks Anti-Abortion Plates"; here "Senate: End Abortion Funding Restrictions"; and here "Campaign Finance Supporters: Abolish FEC."
Posted at 20:30 by Howard Bashman



Appeal involving film "The Perfect Storm" provides perfect opportunity for Eleventh Circuit to certify state law question to Supreme Court of Florida: See this unanimous per curiam opinion issued today.
Posted at 17:17 by Howard Bashman



"Senate Confirms Four Claims Court Judges": Reuters has this coverage.
Posted at 17:09 by Howard Bashman



"Senate turns its attention back to Bush's appeals court nominations": Jesse J. Holland of The Associated Press provides this report.
Posted at 16:26 by Howard Bashman



"Supreme plot: Palm Beach County commissioner faces stiff fine over illegal fund-raising effort to oust three state justices": You can access here an article from the Daily Business Review that begins, "In a case with national political implications, the Florida Elections Commission has ruled that Palm Beach County Commissioner Mary McCarty violated state campaign finance rules in working to oust three Florida Supreme Court justices."
Posted at 15:22 by Howard Bashman



Possible U.S. Court of Federal Claims filibuster fails to materialize: Today the U.S. Senate confirmed the nomination of Victor J. Wolski by a vote of 54-43.
Posted at 14:52 by Howard Bashman



En banc Ninth Circuit considers when rehearing en banc is necessary to overrule three-judge panel decisions undermined by later U.S. Supreme Court rulings: You can access today's en banc decision of the U.S. Court of Appeals for the Ninth Circuit at this link.

Perhaps the most interesting part of this decision, however, is contained in the dueling concurring opinions in which Circuit Judges Alex Kozinski and A. Wallace Tashima face-off over what constitutes dicta. Judge Kozinski's concurrence begins, "Judge Tashima's view in United States v. Johnson, 256 F.3d 895, 919 (9th Cir. 2001) (Tashima, J., concurring), that some rulings of our court may simply be ignored as 'dicta' has just flunked its first reality-check."
Posted at 13:42 by Howard Bashman



1-800-You-Can't-Say-That! Today a three-judge panel of the U.S. Court of Appeals for the Federal Circuit issued an opinion that begins:
This appeal from the Trademark Trial and Appeal Board ("TTAB") of the United States Patent and Trademark Office ("PTO") involves section 2(a) of the Trademark Act, 15 U.S.C. sec. 1052(a), which precludes registration of marks that consist of or comprise "immoral, deceptive, or scandalous matter." Appellant The Boulevard Entertainment, Inc. ("Boulevard") seeks to register "1-800-JACK-OFF" and "JACK-OFF" as marks on the Principal Register for "entertainment in the nature of adult-oriented conversations by telephone." The examining attorney refused to register the marks under section 1052(a), and the TTAB affirmed the refusal to register on the ground that the marks consist of or comprise scandalous matter. Because substantial evidence supports the TTAB's finding that the term "jack-off" is an offensive and vulgar reference to masturbation and that Boulevard's use of the marks refers to that meaning, we affirm.
You can access Circuit Judge William C. Bryson's unanimous opinion at this link (MS Word document).
Posted at 13:39 by Howard Bashman



"Southern Illinois U.S. Attorney Quits": The Associated Press offers this report. In local coverage of this news, The Southern Illinoisan reports here that "U.S. Attorney Says She Can't Afford to Stay in Job" and on Monday reported here that "U.S. Attorney Resigns Post." The Belleville News-Democrat reports here that "Miquelon denies romantic role in exit; Says involvement, resignation not linked." The St. Louis Post-Dispatch today reports here that "Washington official will take over for Miquelon" and yesterday reported here that "Miquelon resigns U.S. attorney post."
Posted at 13:14 by Howard Bashman



By a vote of 8-4, the U.S. Court of Appeals for the Fourth Circuit today denies rehearing en banc in the case of alleged enemy combatant Yaser Esam Hamdi: The opinions concurring in and dissenting from the denial of rehearing en banc total more than fifty pages. Circuit Judges J. Harvie Wilkinson III and William B. Traxler, Jr. -- both of whom were on the three-judge panel that decided this appeal -- each filed opinions concurring in the denial of rehearing en banc, while Circuit Judges J. Michael Luttig and Diana Gribbon Motz -- neither of whom was on the three-judge panel that decided the appeal -- each filed opinions dissenting from the denial of rehearing en banc. Seven votes in favor were needed to grant rehearing en banc. The three-judge panel's opinion, issued January 8, 2003, is available here.
Posted at 12:31 by Howard Bashman



Should libertarians be pleased with the decision in Lawrence v. Texas? Dustin at the blog "Legalguy" says the answer is no.
Posted at 12:15 by Howard Bashman



Delaware, New Jersey, Pennsylvania, the US Virgin Islands, and now Washington, DC: The most recent judge to join the U.S. Court of Appeals for the Third Circuit currently has temporary quarters in the E. Barrett Prettyman U.S. Courthouse in Washington, DC. (See page two of this PDF file.) But surely chambers in Newark, New Jersey will be difficult to resist for long.
Posted at 11:11 by Howard Bashman



What makes this end-of-2002-Term U.S. Supreme Court wrap-up different from the others? On the afternoon of 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. of Robbins, Russell, Englert, Orseck & Untereiner LLP; Edwin S. Kneedler, Deputy Solicitor General, U.S. Department of Justice; Maureen E. Mahoney of Latham & Watkins LLP; Paul M. Smith of Jenner & Block LLC; and Seth P. Waxman of Wilmer, Cutler & Pickering LLP. This is the only end-of-2002-Term review whose panelists all have argued one or more cases this Term -- and it also includes the winning attorneys in two of the blockbusters, Grutter and Lawrence.

I'm so confident the program will be worthwhile that I'm traveling down from Philadelphia to attend. And you too can attend, by signing-up at this link.
Posted at 10:47 by Howard Bashman



"Vietnam Veteran Files Constitutional Challenge to 'Don't Ask, Don't Tell' and Federal Sodomy Statute": The Servicemembers Legal Defense Network yesterday issued this press release. And you can access a copy of the complaint initiating suit Monday in the U.S. Court of Federal Claims at this link (29-page PDF document).
Posted at 10:33 by Howard Bashman



Tentative agenda available online for tomorrow's business meeting of the Senate Judiciary Committee: You can access it here. Two federal appellate court nominees are scheduled to receive votes from the committee: William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit, and Allyson K. Duncan to serve on the U.S. Court of Appeals for the Fourth Circuit.
Posted at 10:19 by Howard Bashman



Today's Justice Sandra Day O'Connor-nearly-bonked-on-the-head news update: The Philadelphia Inquirer reports here that "Union denies role in collapse at center; 'No stagehands missed anything,' a Local 8 official said of the botched ceremony at the National Constitution Center." And letters to the editor appear under the heading "Inquirer coverage of July 4th ceremony was distorted." Today's issue of The Philadelphia Daily News contains an article headlined "Stagehands: We had no role in frame collapse." In related news, I'm hoping to put my family's charter membership in the National Constitution Center to good use this weekend. Stay tuned for a full report.
Posted at 09:51 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Murder Count in Okla. Bombing Tossed"; here "Prosecutors to Seek Execution for Rudolph"; here "Man Goes to Court to Get His Drugs Back"; here "Escapee Uses Prison ID Card at Hotel"; here "Dems Set to Filibuster Malpractice Bill"; and here "Marine Pilot Jailed for Refusing Vaccine."
Posted at 09:44 by Howard Bashman



"Court set to decide on gay marriage; Massachusetts case may resonate": This article appears in today's edition of The Atlanta Journal-Constitution.
Posted at 09:36 by Howard Bashman



"Anti-Affirmative Action Initiative: Activist targets U-M policy; California organizer kicks off Michigan ballot campaign." This article appears in today's edition of The Detroit Free Press. And columnist Brian Dickerson today has a related op-ed entitled "New twist in U-M case has pols tangled."
Posted at 07:01 by Howard Bashman



Today's FindLaw columnist: Michael C. Dorf has an essay entitled "A TV Appearance by Two Supreme Court Justices Indicates How Much the Court Continues to Value Image Control."
Posted at 06:56 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Neil A. Lewis reports here that "Court Blocks Effort to Protect Secret Cheney Files." In other news, "Man Held as 'Combatant' Petitions for Release." And an article reports that "Gay Man, Citing Supreme Court Ruling, Fights '97 Army Discharge."

The Washington Post reports here that "Cheney Loses Ruling on Energy Panel Records." Al Kamen's "In the Loop" column today is entitled "Now Playing: The Replacements," and its third item begins, "Justice Antonin Scalia seemed somewhat put out the other day when the high court struck down laws against sodomy in private among consenting adults." Columnist Robert J. Samuelson has an op-ed entitled "A Tax on Free Speech." And letters to the editor appear under the heading "Cultural Diversity Benefits All Americans."

The Wall Street Journal contains an editorial entitled "Political Malpractice: Trial lawyers ask Democrats to walk the plank--again." And an op-ed by Dick Wolf and Bill Guttentag is entitled "Cameras in Camera."
Posted at 06:47 by Howard Bashman



"Plagiarism scandal rocks The Volokh Conspiracy!" Indeed, heh. Next thing you know, one of the co-conspirators finally will announce that he is also a contributor to NRO's "The Corner." And while I'm on the subject, are there so few colors in the rainbow that both Orin Kerr and Randy Barnett have to share the color gray? How about chartreuse, anyone?
Posted at 00:26 by Howard Bashman



Tuesday, July 08, 2003
"3 reporters agree to turn over tapes of interview": Friday's edition of The Chicago Sun-Times contained this article, which states that the reporters did so after the U.S. Court of Appeals for the Seventh Circuit refused to issue an emergency stay and promised to provide at some unspecified future date an opinion explaining why the stay was denied. And last Thursday, the newspaper reported here that "Reporters ordered to give up tapes of IRA witness."
Posted at 23:44 by Howard Bashman



Elsewhere in Tuesday's newspapers: In USA Today, Joan Biskupic reports that "Supreme Court citing more foreign cases; Scalia: Only U.S. views are relevant."

The Los Angeles Times contains an article headlined "They Got Name: Director, Network Settle Legal Fight Blocking 'Spike TV' Moniker; Terms of the deal are not disclosed. Both sides are expected to appear in court today."

The Boston Globe reports here that "Pageantry takes a Crimson path; 2 Harvard grads vie to become Miss America as incumbent heads for campus." And an editorial is entitled "For gay marriage."

Finally for now, in The Washington Times, Bruce Fein has an op-ed entitled "Revolt against the Constitution." The op-ed begins, "The chief justice of the Alabama Supreme Court, Roy S. Moore, has forgotten that Robert E. Lee surrendered to U.S. Grant at Appomattox Court House, not vice versa."
Posted at 22:49 by Howard Bashman



Available online at law.com: Tony Mauro has an article headlined "Foreign Matter" about the U.S. Supreme Court's "newfound interest in invoking the rulings and views of foreign courts and international authorities in its own jurisprudence." An article reports that "7th Circuit Limits State Court Certification of Class Actions." Back on June 20, 2003 -- when the ruling in question issued -- I wrote that the decision "will likely have class action experts talking for quite some time." Fortunately, this article proves me right. In news from California, "EEOC Case Against Law Firm Reinstated; Law firm could face trial in harassment suit." And in news from New York, "No Challenges to Sentencing in Supervised Release Hearing."
Posted at 22:38 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "GOP Renews Push for Fetal Homicide Law" and here an article entitled "Lawyer Pushes U.S. on Indian Money Issue."
Posted at 22:28 by Howard Bashman



"Video game curb may hit snag; Judge indicates he's leaning toward blocking law for now": Today's issue of The Seattle Post-Intelligencer contains this report. Attorney Paul M. Smith argued the case for the video game industry.
Posted at 21:08 by Howard Bashman



"Same sex couples lose round in state court": This article appears in today's issue of The Indianapolis Star. You can access yesterday's ruling of the Court of Appeals of Indiana at this link. (Link to opinion via "The Indiana Law Blog.")
Posted at 18:56 by Howard Bashman



"Court Says Beef Checkoff Fee Is Illegal": The AP has this report. My earlier coverage of this ruling is available here.
Posted at 17:47 by Howard Bashman



"Experts Endorse Chilling in Some Patients": The Associated Press offers this report. Of course, as the closing words of this opinion disclose, Ninth Circuit Judge Alex Kozinski likewise has recognized the merits of chilling.
Posted at 17:20 by Howard Bashman



"[I]n the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time." Circuit Judge Stanley Marcus, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, today issued an opinion in which footnote nine reads:
The Government argued that the Notty was in international waters or on the "high seas" because "Saint Vincent Rock is a rock. If it was an island, it would be called Saint Vincent Island, not Saint Vincent Rock." Ultimately, we must determine whether it is a rock or an island according to the statutory definitions provided by the Archipelagic Act. We note in passing that for some purposes, the label is not altogether satisfying. Thus, for example, in the metaphysical sense, we can discern no reason why something could not be both a rock and an island at the same time. See Paul Simon and Art Garfunkel, I am a Rock, on Sounds of Silence (Columbia 1966) ("A winter’s day, in a deep and dark December. I am alone, gazing from my window, to the streets below, on a freshly fallen silent shroud of snow. I am a rock, I am an island. I've built walls, a fortress deep and mighty, that none may penetrate. I have no need of friendship, friendship causes pain. It's laughter and it's loving I disdain. I am a rock, I am an island. Don't talk of love. Well I've heard the word before. It's sleeping in my memory. I won't disturb the slumber of feelings that have died. If I never loved, I never would have cried. I am a rock, I am an island. I have my books and my poetry to protect me. I am shielded in my armor. Hiding in my room, safe within my womb, I touch no one and no one touches me. I am a rock, I am an island. And a rock feels no pain. And an island never cries."). Of course, neither Simon nor Garfunkel has been identified as a nautical expert.
You can access the complete opinion at this link.
Posted at 16:56 by Howard Bashman



"V.I. appeals ruling against St. Croix sewer contract": Last Thursday's edition of The Virgin Islands Daily News contained this article, which happens to include a misspelling of my last name. Thanks to a reader in the USVI for sending along the link.
Posted at 16:36 by Howard Bashman



Supreme Court of the United States issues calendar and schedule for October 2003 Term: You can access the calendar here and the schedule here. Last night, in a post you can access here, I linked to the argument calendar for the Court's first argument session of the October 2003 Term.
Posted at 16:18 by Howard Bashman



"Atheist asks top court to widen pledge ruling": Bob Egelko had this report in Friday's issue of The San Francisco Chronicle. And Frank J. Murray of The Washington Times reported here last week that "California ban on 'under God' in Pledge is unlikely to remain."
Posted at 15:47 by Howard Bashman



"Judge seeks help from pot advocates; Hunting for a legal 'hook' for injunction": The San Francisco Chronicle today contains this report. And The Mercury News reports here that "Marijuana group awaits ruling."

In somewhat related news, Bob Egelko reports here in today's edition of The SF Chronicle that "U.S. will appeal pot decision; Judge refused to jail marijuana grower."
Posted at 15:41 by Howard Bashman



Even more bad news for Saddam Hussein: Yesterday the U.S. District Court for the District of Columbia awarded $306 million in punitive damages against him and in favor of former prisoners of war from the 1991 Gulf War and their close family members. And the punitive damages award was in addition to an award in favor of the plaintiffs of many more millions of dollars in compensatory damages. You can access the ruling at this link.
Posted at 14:16 by Howard Bashman



Eighth Circuit sustains beef that the federal government's "beef checkoff" program is unconstitutional: Beef producers had a beef with the collection of mandatory assessments under a federal law known as the Beef Promotion and Research Act of 1985. A federal district court in South Dakota enjoined that law as unconstitutional because the statute mandates collection of assessments from beef producers to pay for generic advertising of beef and beef products.

Today the U.S. Court of Appeals for the Eighth Circuit affirmed, in an opinion you can access here. Thus, it turns out that beef is more like mushrooms than tree fruit (see this recent Ninth Circuit opinion to understand better this distinction). I'll be the first to agree that beef and mushrooms can combine to make for quite a tasty meal.
Posted at 12:30 by Howard Bashman



Get it in writing: A transcript of the American Constitution Society's Supreme Court Round-up, held on July 1, 2003 at the National Press Club in Washington, D.C., is available online here. (Via the "ACS Blog."
Posted at 12:21 by Howard Bashman



What makes some state interests "legitimate" and others "illegitimate"? Law Professor Lawrence Solum tackles that difficult question in a lengthy and detailed blog post you can access here.
Posted at 12:11 by Howard Bashman



Fact or fiction: "Do Elle's real-life counterparts -- Harvard Law grads who are fair of hair and based in D.C. -- relate to the frivolity onscreen?" Now that Legally Blonde 2 is in theaters, USA Today provides these answers to that question.
Posted at 12:07 by Howard Bashman



"Court Allows Suit on Cheney Energy Panel": The Associated Press has this report.
Posted at 12:03 by Howard Bashman



Here comes the reign again: Time for some reader mail. A lawyer who practices in Washington, DC emails to say: "Whatever the merits of the DC Circuit's Cheney decision, Judge Randolph surely is wrong in his expectation that the district court can 'reign' in any discovery excesses." Yes, and chances are he didn't mean "rain" either, leaving "rein" as the most likely choice. (This post's title inspired by the Eurythmics.)

And an attorney who practices in Harrisburg, Pennsylvania emails: "I gather that the folks in Tennessee who built the frame that nearly bonked Madame Justice O'Connor are not strict constructionists." Very well said.
Posted at 11:55 by Howard Bashman



"GOP eyes sidestep on nominees": Today's issue of The Washington Times contains this article, which begins: "Senate Republicans said they hope to bypass the Judiciary Committee to confirm four of President Bush's judicial nominees from Michigan."
Posted at 11:36 by Howard Bashman



"The Constitution is whatever Sandra Day O'Connor says it is": That's what columnist Charles Krauthammer asserts in an essay you can access here.
Posted at 11:12 by Howard Bashman



Today's Justice Sandra Day O'Connor-nearly-bonked-on-the-head news update: The Philadelphia Inquirer reports here that "Designer of fallen frame apologizes; The firm says it should have ensured the Constitution Center prop was bolted to the stage" and here "Designer: Frame plans not followed; The firm says blueprints for the huge Constitution Center prop that fell called for it to be bolted to the stage." An editorial is entitled "Framing the issue: Mishap should not overshadow center's worth." And columnist Acel Moore writes, "Accidents happen; Philly's still great."

The Philadelphia Daily News today reports here that "Tenn. firm admits fault in frame collapse." An editorial is entitled "Philly Framed Again." And columnist Jill Porter writes, "Let's put mishap behind us; start acting like a world-class city."

My very first post about this incident (accessible here) contains a link to a videotape of the collapse.
Posted at 10:54 by Howard Bashman



"It's Alive! Why the Constitution should remain dead." Jonah Goldberg has this essay today at National Review Online.
Posted at 10:47 by Howard Bashman



The CIA, JFK's assassination, and a multi-volume compendium of information on "Cuban Personalities": No, it's not the subject of a thriller that you'll be reading on the beach this summer, unless you bring along this decision that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 10:42 by Howard Bashman



Divided D.C. Circuit panel denies Vice President Cheney's emergency petition for writ of mandamus seeking to dismiss suit brought by Judicial Watch relating to the National Energy Policy Development Group: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 10:25 by Howard Bashman



Video online via C-SPAN: This past Saturday's installment of C-SPAN's fine program "America and the Courts" is a must-see. It features a speech that Justice Antonin Scalia delivered over the July 4th weekend in Philadelphia, Chief Justice William H. Rehnquist's recent address to the Fourth Circuit Judicial Conference (in which the Chief talks about several low-profile rulings from the October 2002 Term), and Justice Clarence Thomas's recent graduation speech at the University of Georgia School of Law. You can watch the program online at this link (Real Player required).

Also available to be viewed online, by clicking here (Real Player required), is the video of yesterday's Heritage Foundation program, "Scholars and Scribes Review the Rulings: The Supreme Court's 2002-2003 Term."
Posted at 10:09 by Howard Bashman



"Taking It to Michigan: Announcing the 'Michigan Civil Rights Act.'" Ward Connerly has this essay today at National Review Online. But why stop at Michigan -- why not have the United States Congress enact a law that precludes any university that accepts federal funds from employing racial preferences in deciding which students to admit and which faculty members to hire?
Posted at 10:03 by Howard Bashman



Avian gesture: The St. Petersburg Times reports here that "Judge ticked off, even if he wasn't flipped off; A gesture and a statement may be open to interpretation, but a judge's reaction to a defense attorney is not."
Posted at 10:00 by Howard Bashman



"State pays ACLU's lawsuit costs; Group won case to block Commandments at Capitol": Today's issue of The Courier-Journal of Louisville, Kentucky contains this report.
Posted at 09:54 by Howard Bashman



"Nominee for U.S. appeals court is deeply religious, anti-abortion, pro state's rights": This article appears in today's edition of The South Florida Sun-Sentinel. (Via "Southern Appeal.") (P.S. to headline writer -- why does "anti" get a hyphen but "pro" doesn't?)
Posted at 09:49 by Howard Bashman



"Court backs thumbnail image linking": c|net News.Com has this report on yesterday's revised ruling of the U.S. Court of Appeals for the Ninth Circuit. And to access Slashdot's discussion of the ruling, click here. The very first Slashdot comment states, "Hopefully the RIAA wont object to me distributing thumbnails of music as MP3's. One small step for law, one giant leap for freedom!" Too funny.
Posted at 09:46 by Howard Bashman



"Low court battle is brewing": Today's edition of The Hill contains this report. And you can access my similar post from yesterday at this link.
Posted at 09:38 by Howard Bashman



"We, the people of the Supreme Court of the United States": Columnist Mona Charen today has this essay.
Posted at 09:36 by Howard Bashman



Today's FindLaw columnist: Joanna Grossman has an essay entitled "The Consequences of Lawrence v. Texas: Justice Scalia Is Right that Same Sex Marriage Bans Are At Risk, But Wrong That A Host of Other Laws Are Vulnerable."
Posted at 06:45 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports here that "Moussaoui Judge Prods U.S. to Produce al Qaeda Witness." In other news, "Law Precludes Seating Sniper Jury, Attorneys Say." An article reports that "Massachusetts Investigating Microsoft's Compliance; State Says Firm May Have Violated Pact by Punishing Computer Maker for Promoting Linux." And columnist Richard Cohen has an op-ed entitled "The Elusive Truth About the Friedmans."

The Christian Science Monitor reports here that "Federal judges rebel over limits to sentencing power; Congress's move to tighten guidelines to better control 'maverick' judges draws broad criticism from bench." And an editorial is entitled "Privacy at the Library."

In The New York Times, an architecture review of the new National Constitution Center is entitled "More Perfect Union of Function and Form." An article reports that "Spike Lee Is Expected to Settle Suit Over Spike TV." In news concerning mental health, "Opposites Attract? Not in Real Life." In local news, an article reports that "Inmate Sought Pen Pals Online After Plea in Internet Sex Case," and an item bears the headline "After Battling for Gay Rights, Time to Shift Energies." Clyde Haberman's NYC column is entitled "Between the Letters of the Law." And an op-ed by U.S. Congressmen Earl Blumenauer and Jim Leach bears the title "Redistricting, a Bipartisan Sport."
Posted at 06:21 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Deadline Set for Moussaoui Prosecutors"; here "Dismissal of Abuse Charges Angers Accuser"; here "Texas House Approves Redistricting Map"; and here "Partisanship May Doom Malpractice Bill."
Posted at 06:16 by Howard Bashman



Monday, July 07, 2003
Access online a transcript of George Stephanopoulos' interview Sunday on the ABC News program "This Week" of U.S. Supreme Court Justices Sandra Day O'Connor and Stephen G. Breyer: You can access the transcript here, courtesy of Adam White. Thanks, Adam!
Posted at 23:15 by Howard Bashman



In Monday's newspapers: In The Washington Post, Charles Lane reports here that "O'Connor Says She Will Stay For Next Term; Supreme Court Justice, 73, Denies Retirement Rumors" and here that "Polls: Americans Say Court Is 'About Right.'" In other news, "For Jailed Moms, a Brief Release; Precious Visits by Children Allow Inmates to Serve Time as Parents." And letters to the editor appear under the heading "Selective Views Get Noticed."

The New York Times reports here that "O'Connor Indicates She Will Remain on Court." In other news, "Animal Rights Group to Sue Fast-Food Chain." In local news, "State Education Commissioner Keeps Smiling Through an Outcry." Columnist Bob Herbert has an op-ed entitled "Civil Rights, the Sequel." And letters to the editor appear under the heading "A Living Constitution."

The Boston Globe reports here that "Fla. death row inmates face deadline; Scholars, students to help press DNA claims of innocence." And in local news, you can access here an article headlined "A bar to the streets; Mediation program aims to stem evictions of disabled."

The Washington Times reports here that "'Don't ask, don't tell' faces challenge." In other news, "Redistricting plan likely to advance in Texas House." In news pertaining to California, an article reports that "UC looks to suspend policy precluding politics in classroom." Nat Hentoff has an op-ed entitled "Turning the Rule of Law upside down," and Philip R. Alper has an op-ed entitled "Privacy can be lethal."

Today's issue of The Los Angeles Times contains an article headlined "Refugees on Hold and at Risk; New security measures in response to 9/11 have left the number entering the U.S. at a 25-year low." An editorial is entitled "Fast-Food Foolishness." And in letters to the editor, "Court Ruling on Gays Fits the Constitution"; "Truth in Business and Free Speech"; and "Lawsuits Don't Get Rid of Fat."

Finally for now, The Christian Science Monitor reports here that "Debate on gay unions splits along generations; Recent polls suggest that young adults and older people view gay rights in starkly different terms."
Posted at 22:31 by Howard Bashman



"PETA Cries Foul in KFC Lawsuit": Foul or Fowl? Reuters has this report.
Posted at 22:30 by Howard Bashman



The next business meeting of the Senate Judiciary Committee is scheduled for Thursday, July 10, 2003: And that's when the committee is likely to vote on the nomination of William H. Pryor, Jr. to serve on the U.S. Court of Appeals for the Eleventh Circuit. You don't have to be Carnac the Magnificent to predict a party-line vote on this one. (And here's even more Carnac.)
Posted at 22:20 by Howard Bashman



"Fascinating"; "exceptional"; "wonderful": What some other law bloggers are saying about today's installment of "20 questions for the appellate judge," featuring Senior Third Circuit Judge Ruggero J. Aldisert.
Posted at 22:14 by Howard Bashman



NPR's Nina Totenberg reviews the U.S. Supreme Court's October 2002 Term: Featuring Tom Goldstein of "SCOTUSblog." You can listen here (Real Player required; 8 minutes and 41 seconds).
Posted at 22:09 by Howard Bashman



Jim Dedman looks at Ann Coulter's law review note: And he finds that it contains fewer footnotes than his law review note.
Posted at 21:11 by Howard Bashman



"TNN Network Can Call Itself Spike TV": The Associated Press provides this report.
Posted at 21:06 by Howard Bashman



The U.S. Supreme Court's October 2003 calendar is available online: You can view it here. Thanks to David M. Gossett for the pointer.
Posted at 20:06 by Howard Bashman



"Ten Commandments on appeal": Law Professor Jeff Cooper today provides this interesting and thoughtful post.
Posted at 17:22 by Howard Bashman



"Senators going nuclear": Yesterday's edition of The Baltimore Sun contained this editorial. Today's edition of The Commercial Appeal contains a column by James W. Brosnan entitled "Is GOP's heavy hand the American way?" And The San Antonio Express-News on Saturday contained a column by Jaime Castillo entitled "Parties are cooperating to speed confirmation of S.A. judges."
Posted at 16:48 by Howard Bashman



Today is "20 questions for the appellate judge" day at "How Appealing": In case you missed it, July's installment of "20 questions for the appellate judge" was posted online here at midnight this morning. This month's participant is Senior Third Circuit Judge Ruggero J. Aldisert, and his answers make for fascinating reading.

Appellate judges have already volunteered to participate in August and September 2003, which means that the next federal or state appellate judge who volunteers to answer 20 questions online here will have his or her interview appear in early October 2003. If you are an appellate judge serving on a federal or state court who would like to take part in the "20 questions" feature (see here for the complete archive, which now features six interviews), simply send me an email volunteering, and you will be assigned the next open interview slot. No preferences whatsoever are applied in the selection process, except that those who volunteer more rapidly will have their interviews appear online ahead of those who volunteer less rapidly.

For those who desire even more details, I prepare individualized questions for each participant and supply the questions via email at least two weeks before the interview is scheduled to be posted online. I post verbatim whatever answers are supplied to the questions. On average, this Web log receives between 7,000 and 13,000 page views per day, and among its readers are federal and state court judges, members of the executive and legislative branches of federal and state governments, law students, law professors, journalists, lawyers, and many other wonderful people.

One final teaser -- the interviewees in August and September will each be the first from their respective U.S. Courts of Appeals.
Posted at 15:49 by Howard Bashman



"Judge dismisses pot conviction": Saturday's edition of The Fairbanks Daily News-Miner contained this report, which begins: "A Fairbanks judge ruled the Alaska Constitution guarantees a local man the right to possess marijuana for personal use in his home." (Thanks to "TalkLeft" for the pointer.)
Posted at 15:24 by Howard Bashman



En banc Eleventh Circuit decides "whether a sheriff in Georgia acts as a county policymaker for purposes of the county’s liability under 42 U.S.C. sec. 1983." You can access today's en banc ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link. In the context of this case, the court concludes that the sheriff was not a county policymaker. A majority of the twelve-judge en banc court, however, fails to agree on a legal principle that would govern fact patterns that differ from the one presented today, splitting 6-6 (or 6 - (3-3)) on the issue.
Posted at 15:06 by Howard Bashman



Ninth Circuit grants rehearing en banc in first case to consider "the meaning of the clause 'other resistance to a coercive population control program' in section 601 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996": You can access today's order of the U.S. Court of Appeals for the Ninth Circuit granting rehearing en banc at this link. And you can access the now-vacated three-judge panel decision here.
Posted at 13:45 by Howard Bashman



"Court gets it right on Nike": This editorial from today's issue of The Washington Times may leave you scratching your head, wondering "huh?" After all, it was Nike that wanted the U.S. Supreme Court to hear the case and reverse, so it's difficult to see how it was a great victory for Nike (whose side in this dispute The Washington Times supports) when the Court punted.
Posted at 13:44 by Howard Bashman



"Free the Michigan Four": Today's issue of The Wall Street Journal contains this editorial. Who are the Michigan four? Why, they are the four nominees to the U.S. Court of Appeals for the Sixth Circuit who reside in Michigan and who have received negative blue slips from both of that State's U.S. Senators.
Posted at 13:16 by Howard Bashman



"Adult Books Law Fuels Federal Suit": The Times Record of Ft. Smith, Arkansas published this article on Tuesday, June 24, 2003 about a lawsuit filed the preceding day. Also on June 23d, the Supreme Court of the United States issued its ruling in United States v. American Library Assn., Inc., bringing to mind the Lloyd Bridges character's recurring line in "Airplane!" that "I guess I picked the wrong week to . . . ." (And see here for more memories of "Airplane!")
Posted at 13:09 by Howard Bashman



"Rulings may back Seattle schools' racial tiebreaker": Today's edition of The Seattle Times contains this report. (Thanks to the author of "Balasubramania's Mania" for sending along the link via email.)
Posted at 12:42 by Howard Bashman



Does due process require a jury trial before someone may be civilly committed as a sexually dangerous person or a sexually psychopathic personality under Minnesota law? Today the U.S. Court of Appeals for the Eighth Circuit answered that question "no" on habeas corpus review in an opinion you can access here.
Posted at 12:37 by Howard Bashman



Available at National Review Online: Deroy Murdock has an essay entitled "Lawrence Behind Bars: Conservatives vs. privacy." And Quin Hillyer has an essay entitled "Constitutional Irrelevance? Forfeiting sovereignty for sodomy."
Posted at 09:58 by Howard Bashman



"Veering Left: The Art Of Judicial Evolution." Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 09:56 by Howard Bashman



"Scholars and Scribes Review the Rulings: The Supreme Court's 2002-2003 Term." The Heritage Foundation this morning at 10 a.m. eastern daylight time will be hosting this program, featuring "Douglas Kmiec, Dean, The Catholic University of America, Columbus School of Law; Jonathan Turley, Professor of Public Interest Law, GWU Law School, Director, Environmental Law Advocacy Center; Charles Cooper, Former U.S. Assistant Attorney General, OLC, Current Supreme Court Appellate Litigator; Charles Lane, Supreme Court Correspondent, The Washington Post; David Savage, Supreme Court Correspondent, The Los Angeles Times; Mike Kirkland, Supreme Court Correspondent, United Press International; Edwin Meese III, (Moderator, Panel One), Former Attorney General and Ronald Reagan Distinguished Fellow, The Heritage Foundation; and Todd Gaziano (Moderator, Panel Two), Director, Center for Legal and Judicial Studies, The Heritage Foundation." You can learn more about the program here. You can view the program live online here via The Heritage Foundation's Web site or here via C-SPAN2.
Posted at 09:15 by Howard Bashman



A U.S. Court of Federal Claims filibuster? The U.S. Senate has scheduled (see page two of this PDF document) a cloture vote for Tuesday, July 8, 2003 on the nomination of Victor J. Wolski to be a Judge of the United States Court of Federal Claims. This perhaps should come as no surprise, as the nomination has generated its share of controversy (see here for an example). More judicial nomination news of interest may be occurring as early as this week, so stay tuned.
Posted at 09:07 by Howard Bashman



Today's FindLaw columnists: Joanne Mariner has an essay entitled "Defendants, Not Combatants: Federal Courts, Not Military Commissions." And John W. Dean on Friday had an essay entitled "Defamation Immunity On The Internet: An Evolving Body Of Law Has Been Stretched Beyond Its Limits."
Posted at 09:02 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Scalia Lashes 'Law-Profession Culture.'" Shannon P. Duffy reports here that "Two Tablets Cause a Big Headache" and here that "Resignation Ends Ability to Sue Under ERISA." And in news from New York, "Jury Prospect Found Excluded Solely on Race" and "Terrorism Cases Put Judges Front and Center."

In the July 7, 2003 issue of The National Law Journal, Marcia Coyle reports here that "One foe of race preferences sees a 'total defeat'" and here that "Marriage, military might wait their turn in court." A related article reports "No change at most schools." In other news, "A volt from below: Wisconsin high court upholds a rare 'stray voltage' jury award." And a book review is entitled "O'Connor's reflections."
Posted at 08:52 by Howard Bashman



Fourth Circuit rejects federal government's request to seek rehearing en banc in Zacarias Moussaoui appeal: You can access the Fourth Circuit's order issued late Thursday denying the federal government's motion to recall the mandate at this link. And The AP reported here that "Judges Won't Block Moussaoui Interviews."
Posted at 08:46 by Howard Bashman



"Pledge of Allegiance Critic Set for Court": Gina Holland of The Associated Press has this report.
Posted at 08:42 by Howard Bashman



Ten Commandments monument in Alabama Judicial Building is going nowhere fast: The Birmingham News reported here last Thursday that "Moore says ruling unconstitutional." The Associated Press today reports that "Alabama's chief justice rejects criticism from federal judge." Saturday's edition of The Toledo Blade contained an article headlined "Ten Commandments: Case has eyes of court-watchers." Thursday's issue of The Montgomery Advertiser contains an editorial entitled "Time for Moore to accept law." On Saturday, The St. Petersburg Times contained an editorial entitled "Alabama's ayatollah: The chief justice of Alabama's Supreme Court defied the Constitution when he placed a stone copy of the Ten Commandments in a state judicial building." And The Statesman Journal of Salem, Oregon on Saturday contained an editorial entitled "Ruling on religion sets matters straight."
Posted at 08:39 by Howard Bashman



"Patent Bending": The July 14, 2003 issue of The New Yorker contains this essay by James Surowiecki.
Posted at 08:27 by Howard Bashman



Today's Justice Sandra Day O'Connor-nearly-bonked-on-the-head news update: The Philadelphia Inquirer this morning reports here that "Center chief: Officials pulled on sturdy ties; Tethers, not tape, held streamers to a frame at the July Fourth opening." And today's edition of The Philadelphia Daily News reports here that "Center chief took brunt of collapse; Torsella's wife says 'It's a miracle' he's OK." You can access my earlier coverage of this incident, including a link to videotape of the collapse, here.
Posted at 08:20 by Howard Bashman



20 Questions for Senior Circuit Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit: "How Appealing" is especially pleased that Senior Circuit Judge Ruggero J. Aldisert of the U.S. Court of Appeals for the Third Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Aldisert joined the Third Circuit in July 1968 at the age of 48. He attended both college and law school at the University of Pittsburgh. After college, but before completing law school, he served as a Major in the United States Marine Corps. Following law school, he worked as a lawyer in private practice for almost fifteen years. In 1961, he was elected to serve as a Judge on the Court of Common Pleas of Allegheny County, Pennsylvania. In 1968, he was nominated and confirmed to fill a vacancy that existed on the U.S. Court of Appeals for the Third Circuit. Judge Aldisert has his chambers in Santa Barbara, California, and the Third Circuit has its headquarters in Philadelphia.

Questions appear below in italics, and Judge Aldisert’s responses follow in plain text.

1. In 1992, you published a wonderfully informative and useful book entitled "Winning on Appeal: Better Briefs and Oral Argument." I see that you are now in the process of preparing a revised edition of that book, to be published later this year. Why did you originally decide to publish this book, what feedback have you received on the book over the past decade or so from judges and attorneys, and why have you decided to produce a revised edition?

In 1990, West Publishing Company commissioned me to write a book on opinion writing for distribution to judges as a public service. This was based not only on my personal experience as an appellate judge since 1968 but the views of other appellate judges that I learned from 12 years as a faculty member of the Institute of Judicial Administration’s Senior Appellate Judges Seminars at New York University. West distributed Opinion Writing to all federal trial and appellate judges, including magistrate and bankruptcy judges and all state appellate judges. Because it was so successful, I decided to write a book for lawyers -- Winning on Appeal: Better Briefs and Oral Argument.

The feedback received in the past decade has been splendid. My publisher, the National Institute for Trial Advocacy, considers it one of its bestsellers. It has been adopted by many law schools as the text for courses in appellate advocacy, and I am told that most large law firms have the book in their library.

I wrote a revised edition for several reasons: to update statistics on reversals and granting oral argument; to solicit views from current leading appellate judges and determine if their views changed over 13 years (they didn't); to revise the format; and to make the text more reader-friendly as a how-to manual. The statistics reveal a trend of fewer published opinions, fewer reversals and less oral argument than in 1990.

As in the previous editions, there is more than one judge offering advice in these pages. Nineteen current chief justices of state courts, nine chief judges of U.S. Courts of Appeals, and more than a score of other U.S. circuit judges and state appellate judges have graciously offered excellent suggestions. Additionally, I devoted a new chapter entirely to advice from the nation's outstanding appellate lawyers on how to prepare for oral argument.

2. Unlike the other active and senior judges currently serving on the Third Circuit, who have their chambers located in one of the following places -- Wilmington, Delaware; Newark or Trenton, New Jersey; or Erie, Johnstown, Philadelphia, Pittsburgh, or Wilkes–Barre, Pennsylvania -- your judicial chambers are based in perhaps an even more desirable location, Santa Barbara, California. What were the circumstances that led to the relocation of your chambers to California, was it a bureaucratically complicated change to accomplish, and is it difficult to recruit law clerks who are interested in working for a Third Circuit judge whose chambers are located in the Ninth Circuit?

My long time home was Pittsburgh, Pennsylvania. I had to undergo triple bypass surgery in 1983, but unlike the fantastic success of so many open heart surgeries, my experience turned out to be a disaster. All three grafts became occluded, and being informed that I was not a good surgical risk for a second operation, I was told that I had to rely on medication, exercise and a change of climate. "In Pittsburgh, the winters are too cold for you, and the summers are too hot. Find a more pleasant climate." And I did -- Santa Barbara, California.

It wasn't a bureaucratically complicated change to accomplish. With the headquarters of the Los Padres National Forest already in Santa Barbara, I was able to cut through the red tape of preparing chambers in a federal facility there. The chambers were prepared by carpenters, painters, plumbers and electricians from the regular Forest Service staff without incurring tremendous expenses.

I have not found it difficult to recruit law clerks for a Third Circuit judge whose chambers are located on the West Coast. Law clerks like the job because they travel with me and end up with experience in three or four different courts of appeals. Then, too, they like working with me on my writings.

3. What are your most favorite and least favorite aspects of being a federal appellate judge?

I turned 83 last November, and I would not continue to be sitting as a federal appellate judge if I did not enjoy reading briefs, hearing arguments and writing opinions. My least favorite aspect is sitting in those circuits where neither tradition nor court rules require judges to be reasonably prompt in writing their opinions. In one case, I had to wait more than two years before the opinion writer circulated his opinion to the panel in a case where there was complete agreement in the panel on a rather straightforward, uncomplicated issue. I have also had experience in two circuits where there are no time limits in voting on rehearing en banc. Sometimes, these votes can last longer than a year.

4. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

My answer isn't totally responsive, but I'll give you more than you bargained for -- an all-star court containing the nine greatest American appellate judges of my time. I list them in alphabetical order: William J. Brennan, Jr., U.S. Supreme Court; Henry J. Friendly, Circuit Judge, U.S. Court of Appeals, Second Circuit.; Stanley H. Fuld, New York Court of Appeals; William Henry Hastie, U.S. Court of Appeals for the Third Circuit; Frank R. Kennison, New Hampshire Supreme Court, Samuel J. Roberts, Pennsylvania Supreme Court; Walter V. Schaefer, Illinois Supreme Court; Roger J. Traynor, California Supreme Court; and Elbert P. Tuttle, U.S. Courts of Appeals for the Fifth and Eleventh Circuits.

The easiest part of compiling the all-star court was to define the current era. I decided upon the last 42 years -- a period roughly coinciding with my own time on the bench. The next step also limited the inventory -- the judges had to be active for a substantial portion of that time. This excluded relatively recent judicial immortals, such as Learned Hand, Robert H. Jackson, Horace Stern, Arthur Vanderbilt, John Biggs, Jr. and Albert B. Maris.

But the real difficulty began with the next step. How do you define that elusive or intangible quality known as "greatness"? What standards of measurement do you use? How do you document? How do you prove? Often greatness in the judiciary is often nothing more than a reputation for greatness; judges or courts are "great" because they have been proclaimed to be so. Probably the biggest difficulty is to separate the truly great from those reputed to be so. And here is where attorney Charles Horsky's canny observation is so important: "Among lawyers and certainly among laymen, judicial stature has tended to be equated with quotability." Masters of legal literary style, masters of clarity, authors of the magnificent epigram are not necessarily the great judges; most great ones, however, qualify as literary masters.

Rufus Choate said of a great judge: "In the first place, he should be profoundly learned in all the learning of the law, and he must know how to use that learning." In addition, I turned to a two-fold test that Dean Roscoe Pound taught in another context: to determine (1) how thoughtfully and disinterestedly the judge weighs conflicts involved in the cases and (2) how fair and durable the adjustment of the conflict promises to be.

My all-star court does Pound, Choate and Horsky extremely proud.

5. How did you come to President Lyndon B. Johnson’s attention as a potential nominee to serve on the Third Circuit?

I am not certain how the name of any particular judge came to the attention of President Lyndon B. Johnson. This I do know. When a vacancy occurred in the Third Circuit when Austin Staley took senior status, I received a call from Joseph Clark, the Democratic senator from Philadelphia. He told me that he had been impressed by my work as the calendar control judge of the Court of Common Pleas in Allegheny County (Pittsburgh), where in two years I reduced the time from 48 to 11 months for a case to come to trial. I had known Senator Clark, but we weren't yet on a first-name basis. He told me, "I know that you’re a good friend of my colleague, Hugh Scott, and I have already mentioned you to him." At that time, Senator Scott was the Republican Minority Leader in the Senate. Thereafter, Senators Clark and Scott approached Warren Christopher, then Deputy Attorney General, who in turn recommended me to the President.

6. Your official Federal Judicial Center biography indicates that President Johnson nominated you to fill a vacancy on the Third Circuit on July 17, 1968 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge twelve days later, on July 29, 1968. In what ways did the federal judicial confirmation process differ in 1968 from what it is today? Also, which approach -- then or now -- do you find preferable, and why?

I am not certain that the official Federal Judicial Center Biography contains the correct date, but I do know that my commission reads July 9, 1968. Previously, there had been very few public hassles about appointments to the courts of appeals. I think that we have a serious problem today caused by both political parties, that an appellate court nominee has to be tasteless, odorless and colorless. If nominees have written law review articles or books, or asserted positions on substantive law or the judicial process, they are virtually doomed. They can be expected to be interrogated vigorously, if not viciously, on their views as well as to many otherwise aspects of their private lives. I am convinced that many able men and women prefer not to have their names submitted because they refuse to go through a public torture.

7. The confirmation process for federal appellate judges today certainly seems more overtly politicized than ever. For example, in early 2000, President Clinton nominated one of your former law clerks to fill a Third Circuit vacancy, but the U.S. Senate failed to act on the nomination. Through the grapevine I hear that some judges are noticing that the increased politicization of the nomination and confirmation processes has had an effect on sitting judges, in that they start thinking of themselves or their colleagues as "Clinton judges" or "Reagan–Bush judges." Is this something that you have noticed and, even if not, do you view it as a legitimate concern?

I can speak only of the Third Circuit because I sit by designation only on the other courts of appeals. It was my experience as an active judge that our judges have not thought of themselves and their colleagues as Johnson judges, Nixon judges, Carter judges, Reagan judges or what have you. In the sense that the label "liberal" is used, two of the most liberal judges with I sat on the court were appointed by Nixon and Reagan.

8. Not only do you reside in the Ninth Circuit, but you have sat by designation hearing appeals on that court with some frequency. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

Because I have often sat with the Ninth Circuit since 1987, I think I know the extent of the problems there. If any court reaches the point that the volume of published cases is so high that it is impossible an active judge to read the published opinions of his or her court, then the time has come to split the circuit. That is precisely the situation that exists today. Notwithstanding published analyses to the contrary, it has been my experience that there are too many panel conflicts. What is more, many of these conflicts go to the heart of the standard of review. I note that Judge Kleinfeld has publicly said, "Our court is much too big for us to read all of each other’s decisions and it is too big for us to sit together to rehear en banc. There are well over 3,000 combinations of judges, not including senior and visiting judges, so a pair of active judges on the court can go three or four years without sitting with each other on a regular panel." To me that is a serious problem.

One of the biggest stumbling blocks of dividing the circuit is the fear that the state of California would be split. This is a non-starter. California is already split culturally and politically on a geographic basis. Moreover, there are so many splits in panel decisions today that a split California would not make too much of a difference. As to the possibility of California diversity cases being decided by two different courts of appeals, I see no problem because diversity cases -- which are not binding on the state court system -- are seldom the subject of precedential opinions. I agree with Judge Diarmuid O'Scannlain that the present size of the court jeopardizes decisionmaking consistency and that the matter will be exacerbated with the addition of five additional judges. Judge O'Scannlain notes, "On a court with 50 judges, 19,600 different three judge panels are possible."

Years ago, the Hruska Commission recommended a split that I think should be seriously considered today. One half of California and Nevada and Arizona in one court and the rest of California and the other states in another circuit. The Commission made the decision on the basis of the caseload. If the statistics have changed, make a re-alignment to even out the caseload for the split circuits. As far of the judges are concerned, a formula could be established on a permanent basis; on a temporary basis, existing judges could be assigned where needed.

9. In January 1997, the Federal Lawyer published an article of yours under the headline "Then and Now: Danger in the Courts." In the article, you expressed your concern that the large number of appeals pending for decision in the Nation's federal appellate courts posed the threat of "assembly line justice." You wrote that the need for drastic reform was dire. Since then, the number of appeals filed has continued to grow. Do you still perceive a dire need for drastic reform, and what solutions do you view as deserving of consideration?

When I became a member of the Third Circuit in 1968 each active judge was responsible for deciding 90 appeals a year. The national average was 93. That was "Then."

But "Now" in the Third Circuit, each active judge was responsible for deciding 381 cases in 2002, 327 in 2001, 330 in 2000; and 381 in 1997. That's fully briefed cases on the merits. The national average in 2002 was 485 per active judge, up from 429 in 1997. Divide 485 cases by 255 working days a year and you start to get the message I have been preaching for years -- to no avail. One-A-Day is a great name for vitamins, but I doubt that it's equally great in describing the caseload for U.S. Circuit judges.

You must understand that the case you file with us moves along an assembly line of over one case every 4.9 hours. Think about it. That's the time allotted to your case. In that time, the judge must read the briefs, research the law, perhaps hear argument, conference with colleagues, make a decision, write an opinion or order, examine draft opinions written by other judges, and at the same time study motions in other cases or petitions for rehearing. And, of course, travel to the court, check into the hotel. Answer the phone. One fully briefed case for decision every 4.9 hours.

All of this in the highest court to which a federal litigant has a right to take an appeal. Today there is no quiet library time. The circuit judge is on a treadmill, and your case comes to him or her in the midst of a gallop. No time to taste the morsels you dish up for a leisurely dinner here -- a fast-food menu is all that's available. With this fast-food menu, are you receiving justice, or a kind of jurisprudential indigestion?

I use the U.S. Courts of Appeals as an example, but what is true with us is equally true in many state appellate courts, especially in the intermediate courts of appeals in large states. The present U.S. Court of Appeals system is not only unhealthy, but is kept alive only by artificial life support. And it's about time that we face up to it. And please, additional judges are not the answer.

No words of mine can demonstrate the extent of the problems more than the sheer number of cases terminated by each active U.S. circuit judge. We have a system that cries out for drastic reform -- a reform that can be brought about only by a re-examination of fundamental concepts of federal appellate review.

As a principal speaker in 1994 before the American Law Institute, I pleaded with the lawyers and the public to do something monumental. I asked for a study that will examine the anatomy of an appeal, not the structure of a court. That the study begin where the common law left off. That it begin before any statutes gave English litigants and then American litigants a right to appeal from a trial court.

That's how basic any investigation has to be if we are to come to grips with treadmill justice. In 1994, I was a voice crying in the wilderness. I am still crying.

10. You have sat as a federal appellate judge not only with the Third Circuit, but also by designation with the Fifth, Seventh, Ninth, Tenth, and Eleventh Circuits. What have you learned from sitting by designation on these other federal appellate courts that you might not have learned had you limited your judicial service to the Third Circuit?

I have had a rich and valuable experience sitting by designation with so many U.S. courts of appeals. I've read the briefs and heard the voices of lawyers from all parts of the country. I've been fortunate to get "the feel" of the claims, wants and demands of the litigants of environments totally different from those in Pennsylvania, Delaware, New Jersey and the Virgin Islands. And I have had the experience of sitting with judges and have heard lawyers of backgrounds other than those in "the effete East." From this experience, I have learned that although we live in a mammoth country of diverse environments and culture, a dedicated, uniform desire to do justice abides throughout this nation.

11. Another of your books is entitled "Logic for Lawyers: A Guide to Clear Legal Thinking." Often in your published opinions, you mention principles of logic in deciding cases; one recent example is your decision in In re: Linerboard Antitrust Litigation, 305 F.3d 145 (3d Cir. 2002). What role does logic occupy in the resolution of legal disputes, do you find that lawyers commonly fail to examine the logical underpinnings of their arguments on appeal, and would you suggest that logic be made a mandatory part of the curriculum in the Nation’s law schools?

It is tragic that our law schools do not have an orientation course in logic. We had that great line from Professor Kingsfield in The Paper Chase: "You come in here with a head full of mush and you leave thinking like a lawyer." The Socratic method is the most valuable tool to train students to think like a lawyer. Yet the students -- and unfortunately too many of their professors -- apparently do not know the elements of deductive and inductive reasoning. They do not understand that a fallacy of form occurs when the structure of a categorical deductive syllogism is violated. A discussion of every point in a brief must take the form of a deductive syllogism. Too many briefs urge us to accept the conclusion of a point raised without setting forth the major and minor premises leading to it. Students and lawyers do not become acquainted with the fallacies of irrelevant evidence, of distraction, as well as a host of miscellaneous fallacies -- from dicto simpliciter to begging the question and the linguistic fallacies.

12. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven't been. Also, are you adhering to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?

I go through a rather elaborate process in selecting a law clerk. I look at the whole person and want to know the applicant's academic record, his or her hobbies, his or her extracurricular activities as an undergraduate and whether he or she has had any "real-world," non-legal work experience. Because we are not in a bustling courthouse, but rather alone in a small shop in Santa Barbara, I also try to filter out those applicants who never remove their noses from their books. I have to be certain that clerks can satisfy the intellectual rigors of chambers life without drowning in them. I search for applicants who are outgoing, well-rounded, and affable and who get along with the co-clerk and the secretary. I have been extremely satisfied within the pool of applicants that I have been receiving.

Yes, I am adhering to the "law clerk hiring plan." I voted against it because I think that the plan favors the judges and most law professors, who really don't know students after only one year. I have always been able to get a good idea of the academic progress from the first-year marks of any law student. I think it is grossly unfair for a law student to wait until the end of his second year to interview for a law clerk's position at the same time he or she is seeking other post-law school employment.

13. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non–precedential decisions in briefs filed in all federal appellate courts. I know that you have previously expressed the view that federal appellate courts publish too many opinions. Where do you stand on the question of allowing citation to "unpublished" opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as "non–precedential" upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

I am totally opposed to allowing citation of "non-precedential opinions." These are truncated opinions. Very seldom are the material and adjudicative facts set forth. Indeed, in the Ninth Circuit the specific rule prohibits setting forth facts. You cannot assume that a non-precedential opinion in any circuit, with little or no facts, has the efficacy to announce a rule of law in any case. Roscoe Pound taught us that a rule of law is a detailed legal consequence to a detailed set of facts. How can we determine a rule of law from a non-precedential opinion that does not have an accurate statement of material facts to support the holding?

14. Is the salary now paid to federal appellate judges too low? Has this been the case during your entire tenure as a federal appellate judge? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Of course, the salary paid to federal appellate judges is too low. As a senior judge with grown children, I have no problem with it. The present salary structure is such that the pool of nominees draws primarily from those who are already in government service or serving in the state court systems. A federal judge should be paid a salary at least equivalent to a full professor in a national law school or a mid-range partner in a prestigious metropolitan law firm.

15. You have written that ninety percent of all appeals tend to be relatively straightforward to decide. How should judges go about deciding the remaining ten percent, and what role, if any, should their personal or political preferences play in those close calls? Also, is there an objective way to identify judicial activism, or is it all in the eyes of the beholder?

I have said that 90 percent of all appeals tend to be relatively straightforward to decide. They come within Judge Cardozo's first two categories: (1) the law is clear and the application of the facts equally plain; or (2) where the law is clear and the sole question is its application to the facts found by the factfinder. I turn to Roscoe Pound for assistance in deciding the remaining ten percent -- where the law is not clear. In the first category of this inquiry, we must find the law by using inductive generalization from a host of decided cases to form a guiding principle or to make a choice between competing principles. Involved in the former is inductive reasoning. The latter involves the exercise of a value judgment which should be supported by reasons why. In the second category of cases where the law is not clear, the legal precept may be identified, but the problem is interpreting -- the fertile field of statutory construction or interpreting clauses of the Constitution.

Max Weber, the important European social theorist, suggested that the term "value judgment" refers to "practical evaluation of a phenomenon which is capable of being . . . worthy of either condemnation or approval." He distinguished between "logically determinable or empirically observable facts" and "the value judgments which are derived from practical standards, ethical standards or . . . views."

I think we draw the same distinction here. Each judge has his or her own preferences among a sea of legal standards, any one in principle respectable. And we make our selections. Sometimes we select extra legal standards, making a choice from ethical, moral, social, political or economical concepts offered by diverse teachers or philosophers. Because a value judgment figures in the choice of competing precepts interpretations and application how can a judge arrive at this decision without being considered arbitrary? Roger J. Traynor reminded us that "one entrusted with decision, traditionally above base prejudices, must also rise above the vanity of stubborn pre-conceptions, sometimes euphemistically called the courage of one's convictions. He knows well enough that he must severely discount his own predilections of however high grade he regards them, which is to say he must bring to his intellectual labors a cleansing doubt of his omniscience, indeed of his perception."

In the law, as well as in life itself, judging is the act of selecting and weighing facts and suggestions as they present themselves, as well as deciding whether the alleged facts are really facts and whether an idea suggested is a sound idea or merely a fancy.

What we should expect from our judges, at a minimum, is a willingness to consider alternative solutions to a problem. A "result-oriented" judge, in the sense condemned, is one who consistently resists considering arguments contrary to initial impression or pre-existing inclination. We cannot expect judicial minds to be untainted by their first impression of a case. What we can expect is that the initial impression will be fluid enough to yield to later impressions. We can also expect that judges will be intellectually interested in an outcome based on sound reasoning. What we can demand is that judge employ logically sound techniques of intellectual inquiry and reflection when making value judgments, and then explain both their premises and their conclusions to us in clear language evidencing impeccable logical form.

I recognize that this is a long answer to your question. More extensive discussion can be found in the second edition of my book, The Judicial Process: Text, Materials and Cases.

16. You are currently the longest–serving Third Circuit judge on that court. As you approach your thirty–fifth anniversary on the Third Circuit later this month, including several years of service as Chief Judge, what memories of that court and your current and former colleagues do you hold most dear?

I answer your question by referring to two periods on the court. First, my early days on the court. When I joined, we had six active judges: Chief Judge Bill Hastie, Harry Kalodner, Collins Seitz, Abe Freedman, Frank Van Dusen and me. Our senior judges were men of historic proportions. John Biggs, Jr., had been a roommate of F. Scott Fitzgerald at Princeton. ("And Rugi, I was a better writer than Scotty, and he knew it.") Albert Maris, probably the best opinion writer our court ever had -- crisp and clean writing with an economy of words. I was star-struck because I had studied the opinions of Biggs and Maris in law school. Then there was Phillip Foreman, who was appointed U.S. District Attorney for New Jersey by Calvin Coolidge and U.S. District Judge by Herbert Hoover, both appointments when I was still in grade school. Bill Hastie was the first African-American governor (Virgin Islands), federal judge (District Court of the Virgin Islands), and Article III judge (Third Circuit). Not to take anything away from Thurgood Marshall, but Bill should have been the first African-American Supreme Court Justice.

The second period was with a group that was together for many years -- Collins Seitz, Frank Van Dusen, Arlin Adams, John Gibbons, Max Rosenn, Jim Hunter, Joe Weis, Leonard Garth, and later in 1977 when Leon Higginbotham replaced Van Dusen. We were the consummate collegial court. To be sure, we did not always agree on the law, but this never interfered with the strong bonds of friendship in this "band of brothers."

17. Several months ago on my appellate Web log, I linked (see here and here) to a newly-issued Ninth Circuit opinion that involved a tax dispute pertaining to Johnston Island, a small island in the Pacific Ocean that the United States acquired under the Guano Islands Act of 1856. Shortly thereafter, I received an email from a former law clerk of yours who wrote that Judge Aldisert had been stationed there for a time while serving in the U.S. Marine Corps. What if any memories do you have of that place and your assignment there?

I arrived on Johnson Island a little over a year after Pearl Harbor. After Wake had fallen in December 1941, the last two outposts guarding the approach to the Hawaiian Islands were Midway and Johnson. Johnson is and was a low-sand and coral island -- 1,000 yards long, about 200 yards wide and, after leveling for protection, 17 feet high. A mile and a half to the northeast of the main island is a small pile of sand and coral reef known as Sand Island, about 200 yards in diameter and eight feet high. Both islands are enclosed by a semi-circular reef, nearly continuous on the north but open to the south. Things were still a little touch-and-go when I arrived on Johnson -- General Quarters an hour before dawn and an hour before sunset every day, total blackout at night. I was an officer in a half-strength Marine defense battalion. The other half had been captured on Wake Island and were then prisoners of war. At first, our air protection consisted of two PBYs who went on dawn and dusk patrols at a top speed of 110 knots. Gradually the Navy CBs were able to extend the island to 1,000 yards so that we could have a runway to accommodate a squadron of Dauntless Dive Bombers.

The two 90-millimeter batteries were named after our comrades from the Wake detachment -- Captain B.D. Godbold and Lt. Lewis. I served most of my time on Johnson Island as an officer in Godbold battery and later became battery commander of Lewis battery, located on Sand Island. We staged from Johnston Island in January 1944 for the invasion of the Marshall Islands.

About 30 years would pass before I would meet Judge John Godbold of the Fifth Circuit. (He later became Chief Judge of both the Fifth and the Eleventh Circuits.) I told him about my experience with his name. He smiled and told me that the Marine captain captured on Wake Island was his brother, that he survived internment, remained in the Marine Corps and retired as a Lieutenant General in the Marines.

18. You entered the judiciary as an elected state court trial judge. Recently, the method of choosing judges by election has come under much criticism from various groups, and of course the federal model of selecting Article III judges has experienced challenges of its own. If you were put in charge of picking the most sensible method of selecting judges for a State or a Nation, what method would you choose?

I would retain the practice of having state trial judges stand for election with a caveat. I would have a trial lawyer section of local bar associations have input into the qualification of candidates similar to the ABA's stamp of approval on federal nominees. No one should be permitted to run for office unless he or she were marked qualified. I would eliminate election of state appellate judges, have appointments made by the governor for a 10-year term, after approval by a committee of experienced appellate lawyers in the state bar associations. In the case of both state trial and appellate judges, I would have subsequent terms based on a retention vote.

I have no trouble with the method of choosing federal judges -- appointment by the President with the advice and consent of the Senate. This means the Senate -- not its Judiciary Committee. For that committee to refuse to send a name to the full Senate is probably unconstitutional. The posturing about approving nominees to the courts of appeals is a relatively new phenomenon, and I think that this silly season will soon pass. Unlike the situation in the U.S. Supreme Court, more than 90 percent of our caseload is ideologically neutral.

19. You and your wife were close friends with U.S. Supreme Court Justice William J. Brennan, Jr. and his wife. When Justice Brennan retired from the Supreme Court, and since then, a more "conservative" approach to judging seems to have come into ascendancy at the Supreme Court. Would you share some of your memories of Justice Brennan, and do you think that it is unfair to malign the Warren Court as activist without acknowledging that the Rehnquist Court has also been activist in its own way?

Justice Brennan was one of the kindest men I ever met. Running throughout all his opinions was an effort to improve justice and eradicate discrimination throughout America. By injecting safeguards in criminal procedures, strengthening federal habeas corpus, and assisting in the resurrection of 42 U.S.C. sec. 1983, he forced many states to choose state judges who would understand and effectuate the great promise of the Constitution for fear that their decisions would not stand up if reviewed in the federal courts. I think that the state judiciary is a more respected institution than it was before Justice Brennan began his crusade.

I do not use the word "activist" to describe any past or present justice of the United States Supreme Court.

20. What do you do for enjoyment and/or relaxation in your spare time?

When she saw this question, my wife laughed, "You don’t have any spare time." For enjoyment (and health), my wife and I take a brisk four-mile walk on the beachway four mornings a week (she does five days), and once a week I play golf. I love to read and write. I have taken several extension courses at UCLA in fiction writing. For years, I have been simultaneously writing two novels which, of course, will never see the light of day, but I have great fun with the creative process. My wife and I are now slowing down, but for many years we traveled a lot -- to all fifty states and, until recently, to Europe every year.
Posted at 00:00 by Howard Bashman



Sunday, July 06, 2003
"The Philadelphia story: With a new Constitution Center and restaurants, the city's culture, history and cuisine are more fun than ever." The Los Angeles Times today contains this article. And Friday's newspaper contained an article headlined "Museum's Goal: A More Perfect Union; National Constitution Center, opening today, is devoted to the notion that democracy demands participation."
Posted at 22:47 by Howard Bashman



Coming soon to a newsstand near you: The July 14, 2003 issue of Newsweek contains an article entitled "A Wedge Is Born: Gay Marriage and 2004; For both parties, a tricky dance on an emotional issue." Robert J. Samuelson has an essay entitled "The Tax on Free Speech: Companies have to be able to speak out openly on major public issues without fearing that they might be sued for false advertising." And Anna Quindlen has an essay entitled "Justice Rip Van Winkle: The sour Puritanism of Scalia's tirade has gotten most of the ink, but it's the flagrant politicization of his response that is worthy of censure."

The July 14, 2003 issue of Time contains an article entitled "Guarding Death's Door: The death penalty is under attack. Scores have been wrongly convicted of capital crimes, and most Americans believe at least one innocent has been executed. Who can fix the system? Meet Ronnie Earle, veteran Texas prosecutor, death-penalty supporter -- and a D.A. who has learned from his own terrible mistakes."

And the July 14, 2003 issue of U.S. News and World Report contains an essay by John Leo entitled "The Supremes' sophistry."
Posted at 22:38 by Howard Bashman



"Forget the Tone. It's Dissent That Matters." Lincoln Caplan has this essay in today's edition of The Washington Post.
Posted at 22:29 by Howard Bashman



"In the Face of Death": This article, about how a death-qualified jury in Indianapolis decided to spare the life of a convicted murderer, is the cover story in today's issue of The New York Times Magazine.
Posted at 22:26 by Howard Bashman



"Court Finds for American Airlines in Pricing Case": Reuters provides this report, which begins: "A federal appeals court on Thursday upheld a lower court decision that exonerated American Airlines of charges that it had cut prices on some flights from Dallas in an attempt to drive out competition. The decision marked a defeat for U.S. antitrust regulators who had sued American, the world's largest carrier, alleging that it had added flights and taken a loss in order to quash competition from discount carriers at its hub at Dallas/Fort Worth International Airport." You can access Thursday's ruling of the U.S. Court of Appeals for the Tenth Circuit -- yes, somehow the Tenth Circuit ended up deciding this case about Dallas, Texas, which is located within the Fifth Circuit -- at this link.
Posted at 22:15 by Howard Bashman



Still to come: Shortly after midnight, stay tuned for July's installment of "20 questions for the appellate judge."
Posted at 20:03 by Howard Bashman



"Heartfelt Words From the Rehnquist Court": Linda Greenhouse has this article in today's edition of The New York Times.
Posted at 19:53 by Howard Bashman



Justices O'Connor and Breyer participate in interview broadcast today on the ABC News program "This Week": On the morning of Friday, July 4, 2003, before Justice Sandra Day O'Connor received Philadelphia's Liberty Medal and narrowly avoided being bonked on the head by a quite heavy falling wooden frame, she and Justice Stephen G. Breyer sat down for an interview with George Stephanopoulos, anchor of the ABC News program "This Week." Justice Antonin Scalia also attended Friday's festivities in Philadelphia, but he did not participate in the televised interview. The Associated Press reports here that "Supreme Court Justices Make TV Appearance; Supreme Court Justices O'Connor, Breyer Talk Terrorism, Courtroom Cameras in Rare TV Appearance." The New York Times reports here that "O'Connor Dismisses Rumors That She Plans to Retire From Court," although the article incorrectly states that Justice Breyer wrote the Court's recent ruling that prohibits States from outlawing homosexual sodomy between consenting adults performed in the privacy of one's home. And Charles Lane of The Washington Post reports here that "O'Connor Plans to Remain on Court."
Posted at 19:48 by Howard Bashman



Welcome to Philadelphia, Justice O'Connor: On the morning of Friday, July 4, 2003, moments after receiving Philadelphia's Liberty Medal, Justice Sandra Day O'Connor narrowly avoided being bonked on the head by a falling wooden frame in the final moments of the opening ceremony of the National Constitution Center. Three other people on stage with Justice O'Connor were struck by the falling frame and required treatment at a local hospital. Justice O'Connor, who conducted the count-down that led to the pulling of ribbons, which caused the frame to fall, was heard to say moments after the incident "We could all have been killed there." Suffice it to say that this incident was not the way any sane person had hoped a U.S. Supreme Court vacancy would occur, and there is no indication so far that stage workers disaffected by any of Justice O'Connor's recent rulings are to blame.

You can view video of the incident at this link (Real Player required) via WPVI-TV, Philadelphia's ABC affiliate. The Associated Press reports here that "Justice O'Connor Narrowly Escapes Injury" and here that "Park Service Probing Pa. Museum Mishap." The Philadelphia Inquirer on Saturday reported here that "Frame's Fall Mars Opening" and here that "A 'cowgirl from Arizona' receives the Liberty Medal; Sandra Day O'Connor, the first female Supreme Court justice, is lauded by 4,000 at the new Constitution Center." Today's issue of The Inquirer reports here that "Fallen frame was unsecured" and considers here "Another thumb in the city's eye."
Posted at 19:19 by Howard Bashman



Thursday, July 03, 2003
Have a wonderful July 4th holiday, everyone! I will see you back here on the evening of Sunday, July 6th.
Posted at 16:45 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "Malvo Trial Moved Out Of Fairfax By Judge; Ruling Cites Effect Of Sniper Shootings On Potential Jurors." In related news, "Low-Profile Suburb Braces for Onslaught; Chesapeake Anticipates, Dreads Trial." An article reports that "Bush Unsure Ban on Gay Unions Is Needed; Backing Standard Marriage, President Sidesteps Question." In local news, "Halt of Va. Execution May Not Save Inmate." And an article reports that "Federal Courts Clash Over Virginia Terror Suspects; District Judge Overturns Magistrate by Ordering Freed Man Into Custody as Four Others Are Released." An editorial is entitled "A Diverse Court." And letters to the editor appear under the heading "Where's the Case for Banning Gay Marriages?"

In The New York Times, Neil A. Lewis reports that "Justice Dept. Asks Court to Reconsider Ruling on 9/11 Suspect." Adam Liptak reports that "Judge Moves Sniper Trial, Leaving Area Where People 'Lived in Fear.'" In other news, "Libraries Planning a Meeting on Filters." An article reports that "Boy Scouts Under Fire; Ban on Gays Is at Issue." From Virginia comes news that "4 Terror Suspects Ordered Released Pending Trials." In business-related news, "Telecommuter in Florida Loses Case for Benefits." An article reports that "Judge Hints at Reinstatement for Men Who Wore Blackface." And in other local news, "Quick Action Urged on School Aid" and "A Child of the 60's, and a Keeper of the Faith." An op-ed by Adam Goodheart is entitled "The Ghosts of Jamestown." And letters to the editors appear under the headings "A Gay Rights Milestone" and "L.B.J. on Race Equality."

The Christian Science Monitor contains an article headlined "The other side of liberty: At the very moment they were in Philadelphia declaring that all men are created equal, many of America's Founding Fathers were slave owners. Activists are now demanding a fuller accounting at democracy's birthplace."

In The Boston Globe, columnist Jeff Jacoby has an op-ed entitled "The threat from gay marriage."

The Los Angeles Times reports here that "Luster Rape Convictions Will Stand; Appellate ruling says the rapist surrendered right to appeal by fleeing to Mexico. Bounty hunter who captured him returns to the U.S." An article reports that "Charges Dropped Against 4 Suspected of Sex Crimes; After a Supreme Court ruling, cases of ex-judge, two ex-priests and an ex-teacher are dismissed." In other news, "Judge Changes Sniper Trial Venue; Lee Boyd Malvo will be tried 200 miles south of the Washington-area suburb where he is accused of killing an FBI analyst in October." An article reports that "Candidates Leery of Gay Marriage Debate." In other news, "Nazi Concentration Camp Guard Arrested in Mich.; U.S. seeks to deport Johann Leprich, who was hiding in home's secret compartment." An editorial is entitled "Free Speech for Firms Too." And a letter to the editor appears under the heading "Candor Should Not Disqualify Nominee."
Posted at 15:58 by Howard Bashman



Available online at law.com: In news from New York, "DNA Registry Can Be Applied Retroactively" and "N.Y. Court First to Rule on Telecommuting; Unemployment benefits available in state where employee is physically present." From Miami comes news that "Rehearing Rejected on Groundless Cash Seizure" and "ChevronTexaco Subsidiary Hit With $33.8M Punitive Damages Verdict." Finally, from California comes news that "Court Says Failure to Drop Case Puts Lawyer on Hook."
Posted at 15:40 by Howard Bashman



The U.S. Court of Appeals for the Fifth Circuit issues a "Notice regarding the posting of Unpublished Opinions to the web": You can access it online here. The Notice begins:
Effective July 7, 2003, the United States Court of Appeals for the Fifth Circuit will begin posting electronic versions of newly issued unpublished opinions on our internet website www.ca5.uscourts.gov. In the coming months we will add unpublished opinions issued before July 7, 2003. "Opinions" are the court’s decisions which reach the merits of the case. Court orders dismissing appeals for lack of jurisdiction, or acting on motions, i.e. for certificates of appealability or for procedural relief etc., will not be posted.
This is excellent news, and you may recall that I first reported on this development early last month in a post you can access here.
Posted at 15:36 by Howard Bashman



It's the "frontier equivalent": Today Circuit Judge Alex Kozinski has issued an opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that begins:
One commentator describes the frontier equivalent of mechanic's liens:
If you furnish lumber to a man to build his house and he doesn't pay you, you shoot him. If he sells the house and the new owner refuses to pay you, you shoot the new owner.
What this regime lacked in due process, it made up for in clarity, the importance of which is driven home by the somewhat opaque issue we tackle in this case: whether a South Lake Tahoe redevelopment project was "subject to acceptance by any public entity" under California's mechanic's lien law.
Judge Kozinski's opinion goes on to mention the "right of reverter," and anyone interested in the subject can access here another essay in which Judge Kozinski addresses the possibility of reverter.
Posted at 13:39 by Howard Bashman



"Legislator objects to judges' courting his committee; Taken aback, justices say it's important they speak openly at hearings": This article appeared in The Seattle Post-Intelligencer on Saturday, June 28, 2003.
Posted at 13:13 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Feds Can Keep Muslim Leader Out of U.S."; here "Court Says Max Factor Heir Can't Appeal"; here "Court OKs Penn. Inmate Law Clinic Closure"; and here "Accused Nazi Camp Guard Arrested in Mich."
Posted at 12:03 by Howard Bashman



Tomorrow, July 4, 2003 will be the grand opening of the National Constitution Center in Philadelphia: I suspect that you'll find full coverage of tomorrow's ceremonies in Saturday's editions of The Philadelphia Inquirer and The Philadelphia Daily News. Also, the Inquirer offers a special online section about the Center.

Today's issue of the Inquirer reports that "City honors O'Connor at key moment." And the final installment of a five-part series bears the headline "Consensus: Constitution can be 'no better.'"

Today's issue of The Daily News lets you "Test your constitutional knowledge" with seventy-six questions. Answers are provided, although I can't vouch for their accuracy. An article reports that "Center Gets Last-Minute Touches." You can access here an article headlined "Join the party: Constitution Center's grand opening welcomes entertainers, politicians and you." Related articles bear the headlines "To create Signers Hall, historian used his imagination and more"; "Sculptor tells how he cast the Signers in bronze"; "Teens, check out these exhibits"; and "Must-dos for children." Columnist John Baer writes, "We need center as a reminder." And notable Philadelphians answer the question, "How would you amend the Constitution?"
Posted at 12:00 by Howard Bashman



"Pickering to complete term; Congressman not taking high-paying telecom job, mum on political future": Today's issue of The Clarion-Ledger contains this report.
Posted at 11:44 by Howard Bashman



The Associated Press is reporting: You can access here Gina Holland's article entitled "Supreme Court Urged to Take on Gun Rights"; here "Appeals Court Sides With Reform School"; here "Judge Knocks Off $15M in Smoker Lawsuit"; here "Judge: State Inmates Should Get Bulk Mail"; and here "Va. Suburb to Host Alleged Sniper Trial."
Posted at 07:52 by Howard Bashman



"Ruling says U.S. can keep man out; Decision reversed on federal appeal": The Chicago Tribune has this report.
Posted at 07:00 by Howard Bashman



"Fremont Street decision reversed; Appeals court rules Experience is a public forum": Today's issue of The Las Vegas Review-Journal contains this report.
Posted at 06:59 by Howard Bashman



"Gary loses KKK lawsuit; Fee required to pay for police overtime during parade found to be unconstitutional." This article appears in today's edition of The Indianapolis Star.
Posted at 06:54 by Howard Bashman



"Bush Promotes Whitewater Deputies; Liberals Angry As Starr Aides Tapped for Posts": The July 4, 2003 issue of The Forward will contain this report.
Posted at 06:51 by Howard Bashman



Today's and yesterday's FindLaw commentators: Today, Marci Hamilton has an essay entitled "The Supreme Court's End of Term Cases: A Demonstration of the Court's Continuing Independence That Proves Commentators Wrong," and Elaine Cassel has an essay entitled "Medicating the Mentally Ill for Trial and Execution: What Are the Implications of the Supreme Court's Recent Decision?" Yesterday, Anita Ramasastry had an essay entitled "When Does A State's Regulation of Private Companies Interfere with Foreign Affairs? A Recent Supreme Court Ruling Gives the Wrong Answer," and Anthony J. Sebok had an essay entitled "The Bill to Immunize the Gun Industry From Liability: Why Every Senator, Pro- or Anti-Gun Control, Should Oppose It."
Posted at 06:49 by Howard Bashman



Wednesday, July 02, 2003
"Let's really get the government out of our bedrooms." Slate's Michael Kinsley says "abolish marriage."
Posted at 23:43 by Howard Bashman



Sat on a wall, had a great fall: Fans of Humpty Dumpty and Alice in Wonderland likely will enjoy the concurring opinion that Sixth Circuit Judge Alice M. Batchelder issued today. Fans of Digital Underground's "Humpty Dance," however, may not find anything particularly of interest there.
Posted at 23:36 by Howard Bashman



Say hello to guest blogger Ted Frank at "Overlawyered": Here.
Posted at 23:19 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "U.S. Hostages in Iran Are Denied Damages." In other news, "White House Avoids Stand on Gay Marriage Measure." In local news, "Appeals Court Strikes Down City's Law on Lead Paint." Columnist Maureen Dowd has an op-ed entitled "Next Up, the Gay Divorcee." And letters to the editor appear under the headings "Gay Marriage and Family Life" and "Tying Judges' Hands."

The Los Angeles Times reports here that "Lawyers Put Their Weight Behind Obesity Cases." A front page article bears the headline "When Sources Go Bad: Informants are often key in federal cases -- but beware. 'You hold on to a source the way you hold on to a snake,' one FBI agent says." An op-ed by Jonathan Cohn is entitled "Six Justices Have Their Say: Morals R Us." And letters to the editor appear under the heading "Statute of Limitations on Sexual Molestation."

The Washington Times reports here that "Pro-life women shift to majority." In other news, "Defense wants book on sniper case blocked." Ward Connerly has an op-ed entitled "Liberty, equality . . . and diversity?" Paul Greenberg has an op-ed entitled "Privacy's rebirth." And Cal Thomas has an op-ed entitled "Constitution's demise."

The Washington Post reports here that "D.C. Juror Sentenced for Skipping Trial; Kerry Campaign Aide Reaches Plea Deal After Judge Jails Her for Contempt." An article is headlined "GOP Redistricting: New Boundaries of Politics?" And Harold Meyerson has an op-ed entitled "Grand Old Gay Bashers."

The Boston Globe reports here that "SJC says support pay can't favor children born in wedlock; Rejects ruling by lower court." And columnist Derrick Z. Jackson has an op-ed entitled "Bush's 'blind' justice in Texas executions."
Posted at 22:05 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Virginia to Appeal Abortion-Law Ruling"; here "Bush: Gay Marriage Ban May Not Be Needed"; here "Molestation Charges Dropped Against Judge"; and here "Rep. Pickering Will Stay in Congress."
Posted at 19:31 by Howard Bashman



"Such is the consequence of attempting to develop arguments never presented by anyone at any time in order to tailor an outcome for a favored party." Some tartly-worded dissents accompany this 8-6 en banc ruling that the U.S. Court of Appeals for the Fifth Circuit issued today.
Posted at 19:22 by Howard Bashman



"Oklahoma Man Gets Life in Prison for Spitting": Reuters has this report.
Posted at 17:44 by Howard Bashman



"Extremist; Far-right nominee": Hmm, which federal appellate court nominee could The Charleston Gazette be speaking of in this recent editorial (free registration required)? The answer is Eleventh Circuit nominee William H. Pryor, Jr.
Posted at 17:36 by Howard Bashman



Available online at law.com: You can access here an article headlined "Time-Tripping Over Prosecution Standards: States are repealing some statutes of limitations." Jonathan Groner reports that "In 'Grutter v. Bollinger' Amicus Avalanche, One Brief Stood Out." Jason Hoppin reports that "9th Circuit Flips Death Conviction, Faults Defense." From Georgia comes news that "Appeals Court Revives Hope for Junk Fax Class Action." In news from New York, "DNA Registry Can Be Applied Retroactively." Shannon P. Duffy has an article headlined "No Punitive Damages When Liability Is Unclear." And from Legal Times (free registration required), Paul Butler has an essay entitled "For Two Justices, Past Is Prologue," and Jennifer C. Braceras, who serves as a commissioner on the U.S. Commission on Civil Rights, has an essay entitled "Diversity Rationale Not Compelling."
Posted at 17:05 by Howard Bashman



"Recent rulings take back seat in Justice Scalia's talks at Calvin": Yesterday's edition of The Grand Rapids Press contained this report.
Posted at 16:53 by Howard Bashman



Programming note: My plans for this July 4th weekend are frighteningly similar to what they were last year. So, from some point on the afternoon of Thursday, July 3d through some point on Sunday, July 6th, "How Appealing" will be eerily bereft of new postings. But, all will be forgiven on Monday, July 7th, when I post the wonderful new installment of "20 questions for the appellate judge."
Posted at 16:34 by Howard Bashman



In today's edition of The Chicago Tribune: The newspaper offers transcript excerpts from Jan Crawford Greenburg's recent interview with Justice Sandra Day O'Connor. An article reports that "DePaul's librarian gets high court post." Clarence Page has an op-ed entitled "Lawmakers peeking in your bedroom." And Carol Marin has an op-ed entitled "Adam and Eve, Adam and Steve."
Posted at 16:25 by Howard Bashman



It's been said that "Just about anything goes in Vegas": Take, for example, this article headlined "Sin's back in for visitors to Las Vegas" published recently in The Long Beach Press-Telegram. Today the U.S. Court of Appeals for the Ninth Circuit did its part to ensure that the publicly-owned pedestrian mall in downtown Las Vegas remains a place where the public can exercise First Amendment rights. You can access the Ninth Circuit's ruling at this link.
Posted at 16:17 by Howard Bashman



"Supreme Court made pragmatic ruling on affirmative action": "How Appealing" reader Jeffrey A. Shooman has this op-ed in today's issue of The Asbury Park Press.
Posted at 16:08 by Howard Bashman



"President Bush nominates state appellate judge to federal bench": No, this isn't yet that news. But The Associated Press yesterday reported here that "A state appellate judge will be nominated by President Bush to the federal bench in the Eastern District of New York, the White House said Tuesday." And today's issue of Newsday reports here that "Bush Names Townes To U.S. District Court." Finally, The Syracuse Post-Standard reports here that "Townes nominated for federal judgeship; She was the first African-American woman elected to the Syracuse City Court."
Posted at 16:05 by Howard Bashman



Web sites and personal jurisdiction: The U.S. Court of Appeals for the Fourth Circuit today has issued another decision on this always popular subject matter, and you can access the opinion here.
Posted at 15:55 by Howard Bashman



Feeling possessive about gerunds: I'm very pleased to see that Sasha Volokh is returning to a subject that he and I have previously discussed (as my earlier posts here and here from last December illustrate).
Posted at 15:30 by Howard Bashman



The change of venue ruling in the DC-area sniper case is now available online: You can access it here, via FindLaw.
Posted at 15:19 by Howard Bashman



Seventh Circuit reverses federal district court's order requiring federal government to readmit Chicago-area Muslim leader to the United States: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit at this link. Back in March 2003, The Chicago Tribune published an article headlined "Court urged to block Muslim's return; Government fights ruling on Orland Park man."
Posted at 13:58 by Howard Bashman



Ku Klux Klan wins right to parade in Gary, Indiana: You can access the opinion that Circuit Judge Richard A. Posner delivered today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit at this link. At the close of the opinion, Judge Posner writes: "Some day the Supreme Court may hold that a state is authorized to ban, not the preaching of white (or black) supremacy, but the trademark and the trade dress of the Ku Klux Klan regarded as fighting words and signs by virtue of their history and connotations. But that is an issue for another day and a different forum."
Posted at 13:42 by Howard Bashman



"Burger, Fries and Lawyers: The Beef Behind Obesity Lawsuits": The U.S. Chamber of Commerce today issued this report. And you can access here a press release entitled "Chamber Study Shows Obesity Lawsuits No Diet Aid--Problem Lies With How Much, Not Where, Consumers Eat."
Posted at 13:11 by Howard Bashman



Is the term "pornography" unconstitutionally vague? There's apparently a circuit split over the question insofar as a condition of supervised release in a federal criminal sentence would prohibit the possession of it. Today the U.S. Court of Appeals for the Eighth Circuit manages to skirt the issue, in a decision you can access here.
Posted at 12:20 by Howard Bashman



Tom Goldstein's U.S. Supreme Court statistics are now available online: You can access all the data via this link at "SCOTUSblog."
Posted at 11:58 by Howard Bashman



The Village Voice on "The Supreme Court's Big Week": Sanford Levinson has an essay entitled "Redefining the Center: Liberal Decisions From a Conservative Court"; Laura Conaway has an essay entitled "Love and War: Gay Americans Won a Court Victory. Now Comes the Fight to Wed"; Richard Goldstein has one essay entitled "Free at Last? What the Sodomy Ruling Has Changed--and What It Hasn't" and another entitled "Attention, Sodomites! Reflections on the Supreme Court Ruling"; and Lani Guinier has an essay entitled "Saving Affirmative Action: And a Process for Elites to Choose Elites."
Posted at 11:51 by Howard Bashman



Today's Town Hall commentators: Pat Buchanan has an essay entitled "What the Court betrayals portend"; Michelle Malkin has an essay entitled "Grateful for Patriot Acts"; Paul Craig Roberts has an essay entitled "Landmark tomfoolery"; and Walter Williams has an essay entitled "Destroying black youth."
Posted at 10:51 by Howard Bashman



"The Death of Morality? Second-guessing democracy." Jonathan F. Cohn today has this essay at National Review Online.
Posted at 10:47 by Howard Bashman



"Judge Orders Malvo Trial Moved to Chesapeake": The Associated Press provides this report.
Posted at 09:55 by Howard Bashman



"Sodomy and the Law: The forgotten case for laws left unenforced." Hadley Arkes today has this essay at National Review Online.
Posted at 09:44 by Howard Bashman



"Court may be closed for trial; Prosecutors seek to shield identity of girl": Today's edition of The Mobile Register contains an article that begins, "Chief U.S. District Judge Ginny Granade has obliged federal prosecutors by issuing what apparently could amount to a blanket order closing her courtroom during the upcoming trial of a 32-year-old doctor accused of crossing state lines to have sex with a 15-year-old girl in Mobile."
Posted at 09:42 by Howard Bashman



Alabama Judicial Building Ten Commandments monument news: The Montgomery Advertiser reports here that "Moore appeal defeated." The Birmingham News offers this report. Reuters reports here that "Appeals Court Rejects Alabama Religious Display." And The New York Times contains an editorial entitled "The Ten Commandments Judge."
Posted at 09:39 by Howard Bashman



A quick look at some of the contents of Wednesday's edition of The Washington Post: You can access here an article headlined "Judge Blocks Tough Va. Abortion Law; Trial to Decide Constitutionality of 'Partial Birth' Ban"; here an article headlined "Rehearing Sought in Ruling for Moussaoui"; and here an article headlined "Court Rejects Monument To Ten Commandments."
Posted at 00:15 by Howard Bashman



"Commandments monument ejected": The Atlanta Journal-Constitution has this report. And Adam Liptak of The New York Times reports here that "Court Orders Removal of Monument to Ten Commandments."
Posted at 00:10 by Howard Bashman



Tuesday, July 01, 2003
In Tuesday's newspapers: The Los Angeles Times contains an article headlined "Still Can't Smoke It, but Court Says You Can Eat It." In news from Texas, "Private lives amid a very public decision: Almost nothing is known about the plaintiffs in the Supreme Court case decriminalizing gay sex -- and that's the point." An article reports that "Ruling Lets Unwanted E-Mail In; Justices say Intel can't use the courts to block critical messages unless its system is harmed. Some fear firms may now become targets." In other news, "Last Jailed Priest in County Is Released; As court ruling's effects unfold, the D.A. vows to press an inquiry into alleged sex abuses by clergy." You can access here an article headlined "Texas case pits a son's rights against a school's drug policy." From Sacramento comes news that "Crips Target of Prison Lockdown; A link between an expected execution and possible attacks on staff is under investigation." In media news, "Cameras in court feed Laci frenzy." An editorial is entitled "Children in Tiny Boxes." And letters to the editor appear under the heading "Molesters Will Go Free After Court's Ruling."

In USA Today, DeWayne Wickham has an interesting op-ed entitled "Thomas distorts Douglass' speech."

The Washington Post reports here that "Va.'s Laws On Abortion Get Tougher; Late-Term Procedure Ban, Consent Rule Take Effect." An article reports that "Texas Democrats Trying Fight, Not Flight, Over Districts." In other news, "Va. Terror Law Allowed By Judge in Sniper Case." You can access here an article headlined "Whoa! Canada! Legal Marijuana. Gay Marriage. Peace. What the Heck's Going On Up North, Eh?" An op-ed by columnist E.J. Dionne Jr. is entitled "Straight Talk on Families." Senator John Cornyn (R-TX) has a letter to the editor that appears under the heading "Advice and Consent -- After the Fact." And other letters to the editor appear under the heading "Affirmative Action and the Constitution."

The New York Times reports here that "Intel Loses Decision in E-mail Case." You can access here an article headlined "Across U.S., Redistricting as a Never-Ending Battle." An article reports that "Gay Families Flourish as Acceptance Grows." And letters to the editor appear under the heading "Dissenters' Role in the Court's Momentous Week."

The Washington Times reports here that "Backers of amendment against same-sex union see Texas ruling as boost." In other news, "Muhammad defense team seeks new venue." In op-eds, Bruce Fein considers an "Ill-reasoned frolic"; Tod Lindberg writes of "A different Republican Party"; and Herbert B. Dixon Jr. examines (of all things) "E-filing potential for the courts."

And finally for now, The Christian Science Monitor contains an article headlined "New battle line in 'culture war': gay marriage; High court affirmation of privacy rights and newly legalized homosexual marriage in Canada are energizing the issue."
Posted at 23:08 by Howard Bashman



"Couple's effort to enhance view from home proves costly; Bellevue pair will apologize, pay city for cutting trees on trail": Apparently no tree-destruction-related news item from Seattle would be complete without mentioning a certain other incident, as this recent article from The Seattle Post-Intelligencer illustrates.
Posted at 22:57 by Howard Bashman



"Federal Judge Blocks Enforcement Of Va. Abortion Law": Even more news of note from The AP.
Posted at 22:54 by Howard Bashman



"Lobbyists Push Bush Judicial Nominees": The Associated Press has this report.
Posted at 22:47 by Howard Bashman



"Appeals court nominee should not be rushed": Today's edition of The Honolulu Advertiser contains this editorial about Eleventh Circuit nominee William H. Pryor, Jr. Still not heard from -- The Pacific Daily News of Guam, and The PennySaver.
Posted at 22:41 by Howard Bashman



Say hello to "Blog 702," the official blog of "Daubert on the Web": For those not among the cognoscenti, Daubert is short for Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), a case in which the Supreme Court of the United States announced the rules that would govern whether expert testimony is admissible in a trial. Daubert, by the way, celebrated its tenth birthday this past Saturday. It's finally old enough to decide for itself whether the preferred pronunciation is "dow - bert" or "dough - bear."
Posted at 22:34 by Howard Bashman



Behind the scenes at the U.S. Supreme Court with photographer David Hume Kennerly: You may have seen some of Kennerly's photos taken at the Court in this week's edition of Newsweek. A much more extensive collection is available here, and you should definitely take a look.
Posted at 22:13 by Howard Bashman



Just one more reason why "How Appealing" readers are the best: In a ten-minute period this afternoon, four separate people emailed to make sure I was aware that the Eleventh Circuit had issued its ruling in the Ten Commandments monument in the Alabama Judicial Building case. Now I'm just pleased as punch that the Eleventh Circuit has finally begun posting its opinions online at its own Web site, but I'll be the first to admit that I'm still trying to figure out whether those opinions appear online regularly at a given time each day. I've got the other ten numbered circuits and the D.C. Circuit figured out as to the various times of day when they post decisions (yes, I purposefully ignore the Federal Circuit, because who can understand most of that stuff, anyhow?), but the Eleventh Circuit remains something of a wild card with respect to what time opinions will be posted online each day.
Posted at 21:14 by Howard Bashman



"Molestation case tossed; first of many?" Today's edition of The Sacramento Bee contains this report.
Posted at 21:06 by Howard Bashman



Available online at law.com: An article reports that "Calif. Supreme Court Rules Intel Can't Stop E-Mail With Trespass Law; Justices rule 4-3 that damage to equipment must be shown." In other news, "4th Circuit Nominee Has Broad Backing; With support from Republicans and Democrats, Allyson Duncan is poised to fill an N.C. vacancy on appeals bench." Shannon P. Duffy reports that "Fraud Negates Criminal Defendant's Right to Effective Counsel; 3rd Circuit finds attempt to deceive one's own lawyer can't provide benefit." And congratulations to all my friends at The Recorder on the wonderful news that "Recorder Wins Record Nine Awards in Newspaper Contest." Notwithstanding that great news, I'm still in shock about the following: "Fourth District Court of Appeal Justice William W. Bedsworth, a contributing writer to The Recorder, won second place in columns, commentary and criticism for the unique perspective he brings to all matters legal in his monthly column, 'A Criminal Waste of Space.'" If I were in charge of the award for commentary, Justice Bedsworth would be sure to win first place.
Posted at 20:40 by Howard Bashman



"Government Wants Ruling on Moussaoui": The Associated Press has this report.
Posted at 19:53 by Howard Bashman



The federal government seeks leave from the Fourth Circuit to file for rehearing and/or rehearing en banc in the Zacarias Moussaoui case: See today's docket entry, here.
Posted at 16:45 by Howard Bashman



View online today's Supreme Court Round-Up from the American Constitution Society: You can watch here (Real Player required), via C-SPAN.
Posted at 16:27 by Howard Bashman



"Roe vs. Judicial Sense: Forget briefly its immorality--it's just bad law": Law Professor Stephen L. Carter has this essay online today at Christianity Today Magazine. (Via "The Buck Stops Here.")
Posted at 16:23 by Howard Bashman



"In a Momentous Term, Justices Remake the Law, and the Court": Today's edition of The New York Times contains Linda Greenhouse's end-of-Term wrap-up. And, of course, be sure not to overlook the accompanying chart and its interesting way of listing the Justices, presumably from "most liberal" on the left to "most conservative" on the right.
Posted at 16:06 by Howard Bashman



"Ala. Judge Loses Ten Commandments Appeal": The Associated Press offers this report.
Posted at 16:05 by Howard Bashman



Eleventh Circuit announces ruling in Alabama Judicial Building Ten Commandments monument case: The order requiring the Chief Justice of Alabama to remove the monument has been affirmed. You can access today's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link. Circuit Judge Ed Carnes delivered the opinion of the court. Joining in the opinion was U.S. District Judge Richard W. Story. The Eleventh Circuit's Chief Judge, J.L. Edmondson, concurred in the result without separate opinion. Judge Carnes's opinion concludes:
The rule of law does require that every person obey judicial orders when all available means of appealing them have been exhausted. The chief justice of a state supreme court, of all people, should be expected to abide by that principle. We do expect that if he is unable to have the district court’s order overturned through the usual appellate processes, when the time comes Chief Justice Moore will obey that order. If necessary, the court order will be enforced. The rule of law will prevail.
This opinion would appear to be a must read.
Posted at 14:50 by Howard Bashman



"Court: Iran Hostages Can't Sue Captors": The Associated Press has this report.
Posted at 12:39 by Howard Bashman



Unanimous three-judge D.C. Circuit panel affirms dismissal of hostages' class action against Iran: Today the U.S. Court of Appeals for the D.C. Circuit issued an opinion that begins:
Americans taken hostage in Iran in 1979 and held for 444 days brought a class action on behalf of themselves, and their spouses and children, against the Islamic Republic of Iran and its Ministry of Foreign Affairs. The district court, Sullivan, J., issued a comprehensive opinion and ordered the action dismissed for failure to state a claim. Roeder v. Islamic Republic of Iran, 195 F. Supp. 2d 140 (D.D.C. 2002). Among the several issues presented on appeal, the principal question is whether legislation specifically directed at this lawsuit, and enacted while the case was pending in the district court, provided a cause of action for the hostages and their families.
You can access the complete opinion at this link.
Posted at 10:19 by Howard Bashman



"Michigan Impossible: Grutter compliance may be a problem." Peter N. Kirsanow, a commissioner on the U.S. Commission on Civil Rights, has this essay today at National Review Online. Update: And Ramesh Ponnuru has an essay entitled "Demystifying the Court: What Justice Scalia is up to."
Posted at 09:23 by Howard Bashman



"Death-penalty dilemma: A year after ruling, the issue of mental retardation haunts families, legislators." The Philadelphia Inquirer today provides this report.
Posted at 08:14 by Howard Bashman



"High court lineup under watch: Even with retirements on hold, pundits still guessing what's to come": This article appears in today's issue of The Dallas Morning News.
Posted at 06:22 by Howard Bashman



"Getting Serious About Race: The Next 25 Years": Stuart Taylor Jr. has this essay in the current issue of National Journal.
Posted at 06:19 by Howard Bashman



"Upholding Racial Division: Racial preferences remain; so does racial inequality." Cathy Young has this essay online at Reason.
Posted at 06:17 by Howard Bashman



Today's FindLaw columnist: Julie Hilden has an essay entitled "A Recent Supreme Court Decision Allowing the Government to Force Public Libraries to Filter Users' Internet Access Is Less Significant Than It Might At First Appear."
Posted at 06:16 by Howard Bashman




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Posted at <$MTEntryDate format="%I:%M %p "$> by Howard Bashman




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