How Appealing

Sunday, February 29, 2004
"No middle ground: The gay marriage issue has become an emotional tug of war nationally and locally - and both sides are pulling hard." This article appears today in The Buffalo News.
Posted at 23:55 by Howard Bashman



"Supporters: Book should stay on shelves." A fight over evolution is the subject of this article published today in The Helena Independent Record.
Posted at 23:52 by Howard Bashman



"'Da Vinci Code' leads to Nashville federal court": This article appeared Thursday in The Tennessean.
Posted at 23:50 by Howard Bashman



From the March 8, 2004 issue of U.S. News and World Report: The new issue of the magazine will contain articles headlined "Tied in Knots by Gay Marriage; The politics of Bush's amendment to the culture war are complex for both parties"; "A Legal Maze-And More To Come"; "The First to Face the Tribunals"; and "Getting A Free Pass: Anger over a deal to release a 'terrorist.'"
Posted at 23:40 by Howard Bashman



Elsewhere in Sunday's newspapers: The Boston Globe reports that "Illinois proposal would tag the cars of drunk drivers." An article reports that "Rulings test Finneran's authority." In other news, "Appeals court set to hear FBI suit; US argues families brought claims late." An article reports that "Hadley law on building goes to SJC; Measures to temper development at issue." In news from one of the Nation's top universities, "Stem cell center eyed at Harvard; Researchers seek to bypass US restrictions" and "Harvard to announce aid for poor students." And columnist Eileen McNamara has an op-ed entitled "Obstruction to justice."

The Los Angeles Times reports that "Cost of Vengeance Divides Oklahoma; Second trial for bomb plotter Terry Nichols has one town asking if the death penalty is worth the financial and emotional toll." In other news, "Firm Sued by D.A. Funds Bid to Recall Him; Pacific Lumber gives $229,000 to campaign to oust the Humbolt County official who filed fraud case." Jim Newton, a Los Angeles Times editor currently on leave while writing a biography of Earl Warren, has an op-ed entitled "Warren Court Opened Door to Wedding Chapel for Gays; The 1954 ruling against 'separate but equal' reverberates today." Jonah Goldberg has an op-ed entitled "Raising the Volume; Candidates of both parties want to sit out the culture wars, but that's not possible." And Jack Miles has an op-ed entitled "What Would He Say? Jesus railed against a grave threat to marriage; No, not homosexuality -- divorce."

The Washington Times reports that "Gays' political clout facing test." In other news, "Nine states keep resident sex-offender lists private." And in news from Texas, "Murderer returns to prison again."
Posted at 23:10 by Howard Bashman



To serve you better: In the nearly two years that "How Appealing" has been in existence, I have been asked multiple times by readers why I don't provide links, as many other blogs do, allowing readers who wish to make donations to do so. After much prodding, tonight I have added such links. Donations that are received will go first toward the purchase of a laptop computer, which will allow me to keep "How Appealing" updated while I am on the road. Once that goal is achieved, additional donations will go toward the cost of switching from Blogger to Movable Type and paying the bandwidth fees necessary to host this blog on a more reliable server. So, whether you choose to donate or not, I can assure you that all donations will go toward appropriate, blog-related causes. And for those who do choose to donate, you have my most sincere thanks in advance.
Posted at 22:00 by Howard Bashman



Justice William W. Bedsworth's most recent monthly column is available online: It's titled "Getting to Sabbath," and you can access it here. The column is quite funny as always, and Justice Bedsworth launches a valiant bid for paid administrative leave.
Posted at 21:55 by Howard Bashman



Recess appointments can be tricky: The Columbus School of Law of Catholic University states here that Fourth Circuit Judge Roger L. Gregory was "the first circuit court judge to have been the beneficiary of two presidential recess appointments -- by Clinton and Bush -- that came from different political parties." That's not true. (Thanks much to the federal appellate court law clerk who drew this to my attention. And here's the obligatory mention of my original "It's tricky" post from December 2002.)
Posted at 21:32 by Howard Bashman



Non-activist judges approve of opposite-sex marriage: See this wedding announcement published today in The New York Times.
Posted at 21:25 by Howard Bashman



Same-sex marriage in the news: The March 8, 2004 issue of Time magazine will contain articles headlined "For Better Or For Worse? As more gays say 'I do,' Bush calls for a constitutional ban; But will the issue really change any voter's mind come November?"; "1,138 Reasons Marriage Is Cool"; and "Where Do They Stand On Gay Marriage?" The current issue of The Economist, meanwhile, contains articles headlined "Equal rights: The case for gay marriage" and "Gay marriage: New fuel for the culture wars."
Posted at 19:10 by Howard Bashman



"Judges from beyond the fringe": This editorial appears today in The Berkshire Eagle. Friday's issue of The Monroe (Louisiana) News Star, meanwhile, contained an editorial entitled "President makes good call on Pryor; Move gets around Senate stall, puts good man in a vital position."
Posted at 19:01 by Howard Bashman



"Medical marijuana and its witless enemies; Anti-drug advocates continue to ignore credible science": Steve Chapman has this op-ed today in The Chicago Tribune.
Posted at 18:58 by Howard Bashman



Death penalty news and commentary from here and there: The New Haven Register today contains articles headlined "Death Penalty Debate: Use it or lose it; Capital cases costly, futile, attorneys say" and "'I used to be against the death penalty, but now I believe in it.'" The Roanoke Times today reports that "Coleman's prosecutors welcome DNA testing; Roger Keith Coleman was executed for raping and murdering his sister-in-law, but some people question his guilt." And The Journal Gazette of Fort Wayne, Indiana contains an essay by Joe Beck entitled "Executing the mentally ill."
Posted at 18:50 by Howard Bashman



In news and commentary pertaining to Camp Delta at Guantanamo Bay, Cuba: The Advertiser of Australia contains an article headlined "Suspect's torture - two years of Springsteen." And The Statesman of India contains an essay by Jeremy Seabrook entitled "A Legal Black Hole."
Posted at 18:44 by Howard Bashman



"How should police read teen suspects their rights? The case of a 17-year-old before the Supreme Court could result in a special Miranda rule for juveniles." Warren Richey will have this article in Monday's issue of The Christian Science Monitor.
Posted at 17:49 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Montana Creationism Bid Evolves Into Unusual Fight." In other news, "Judge in Oklahoma Bomb Case Calls Hearing After Report." An article reports that "Harvard Says Poor Parents Won't Have to Pay." In other news, "Through Gaps in System, Nurse Left Trail of Grief." In local news, an article is headlined "Sex, Lies and Videotape and Murder." In same-sex marriage-related coverage, "San Francisco Toasts Gay Weddings"; "The Gay Rights Movement, Settled Down"; "The Culture Wars, Part II"; and Frank Rich has an essay entitled "The Joy of Gay Marriage." In celebrity justice-related coverage, "Joyously Watching Others Fail"; "Web of Friends and Business Blurs Stewart's Glossy Image"; "In Fraud Cases, Guilt Can Be Skin Deep"; and "At the Williams Trial, a Tangled String of Contradictions." An article is headlined "A Movie Pondered Reality. A Lawsuit Questions Its Originality." James Traub's essay in the Magazine section is headlined "The Pull of Family." Lisa Schiffren has an op-ed entitled "How the Judges Forced the President's Hand." Nathaniel Frank has an op-ed entitled "Joining the Debate but Missing the Point." And Joseph J. Ellis has an op-ed entitled "A New Topic for an Old Argument."

The Washington Post reports that "New Trial of 1995 Okla. Bombing to Open; Spared Federal Execution, Terry Nichols Faces 161 State Murder Charges." In other news, "Eight Years Later, D.C. Murder Case Still Untried." A front page article is headlined "Just Married, After 51 Years Together; Activist Gay Couple Accepts Leading Role." An essay by Sally Quinn is entitled "In Washington, the Empathy That Dare Not Speak Its Name." An editorial is entitled "A Start for Tribunals." Bernard Ries has an op-ed entitled "Caught in a Blind: You Can't Duck This Conflict, Mr. Justice." Eric Shumsky has an op-ed entitled "The Amendment Speaks for Itself." And Michael Alvear has an op-ed entitled "A Fight for Hope."
Posted at 15:10 by Howard Bashman



This is no surprise -- woman recently sworn in as U.S. District Judge in Florida, but who isn't the youngest female U.S. District Judge now serving, also isn't the youngest of all U.S. District Judges now serving: The Associated Press has taken the erroneous information contained in this article from yesterday's issue of The Pensacola News Journal, which I first noted here yesterday, and made recently-confirmed U.S. District Judge M. Casey Rodgers' claim to fame even more incorrect. The AP, in its coverage of her swearing-in (see here and here), calls Judge Rodgers the youngest U.S. District Judge now in service.

As I explained yesterday, Judge Rodgers is not the youngest female U.S. District Judge now serving. That distinction belongs to U.S. District Judge Amy J. St. Eve. But the youngest U.S. District Judge without regard to gender is David L. Bunning, whose date of birth is July 14, 1966. Those who wish to relive the controversy that surrounded his nomination can do so here, here, here, here, and here.
Posted at 12:50 by Howard Bashman



"Taking back their beach; Panama City Beach officials have had enough of raunchy students": The Tallahassee Democrat today contains an article that begins, "Joe Francis and his Girls Gone Wild empire may go to trial later this year, accused of indecency and corruption in the pursuit of spring-break porn."
Posted at 12:48 by Howard Bashman



"Courts compete to bag big cases; Bankruptcies fuel local economies": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 12:44 by Howard Bashman



"Crooked prosecutors taint Texas justice system": This editorial appears today in The Austin American-Statesman.
Posted at 09:55 by Howard Bashman



In today's issue of The San Francisco Chronicle: Bob Egelko has an article headlined "Courts could make parallels with old racial laws; Deciding on legality of same-sex unions raises similar issues." In related coverage, "Culture war being reshaped; Conservatives lower expectations" and "Newsom now a national figure; Same-sex marriage decision turns him into lightning rod." And in news from the Scott Peterson trial, "Inside look at how jury is picked; Process includes ample time for probing questions" and "Is selecting a jury scientific? Yeah, right ...." That last article is accompanied by a photograph of one of my all-time favorite potential jurors.
Posted at 09:50 by Howard Bashman



"Lowering the bar on profiles in courage": Steve Duin, in this op-ed published today in The Oregonian, writes of former Alabama Chief Justice Roy S. Moore's recent visit to Oregon.
Posted at 09:45 by Howard Bashman



In today's edition of The Houston Chronicle: Today's newspaper contains articles headlined "High court to revisit age in executions; Debate pits scientific data against horror of crimes"; "Roe no more, but still a voice on abortion; Norma McCorvey resurfaces on other side of issue that has defined her life"; "As abortion numbers decline, most clinics located in cities"; "Pharmacist's refusal stirs debate; Rules vary on moral choice not to provide morning-after pill"; and "Search for pill took woman to four stores."

An editorial is entitled "Don't amend: Leave Constitution to guarantee freedom, not bias." Columnist Cragg Hines has an op-ed entitled "Rick, John, W and the execution circus." And Harold M. Hyman has an essay entitled "Slave Suits: Two women, two rare victories in court."
Posted at 09:35 by Howard Bashman



"Censorship policy fuels controversy; Experts say district's administrators go too far in measure allowing review of publications." This article appears today in The Indianapolis Star.
Posted at 09:33 by Howard Bashman



"Free speech's effect on judges' caseload at issue": The Arizona Daily Sun today contains this report.
Posted at 09:28 by Howard Bashman



"South Dakota's Ban on Abortion Looks to the Future; Bill, which governor is expected to sign, virtually outlaws the procedure; Backers say the idea is for a Supreme Court showdown." This article appears today in The Los Angeles Times.
Posted at 09:24 by Howard Bashman



"Whistle-Blower Protection Law Starts Small; Fight between a tiny Virginia bank and a fired employee is the unlikely first test of bid to protect insiders who reveal financial trickery." The Associated Press provides this report.
Posted at 09:22 by Howard Bashman



"Adult business laws a 'hot topic'; New Albany not alone in fight against store": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 09:18 by Howard Bashman



"DNA testing upsets parentage laws": The Grand Rapids Press contains this article today.
Posted at 09:16 by Howard Bashman



"In the courts: Scores of litigants bump Walsh; Statistics on peremptory challenges show jurist leads list with 117." This article appears today in The Las Vegas Review-Journal.
Posted at 09:13 by Howard Bashman



"Justice Douglas starts 'new career'": The Toledo Blade today contains this report.
Posted at 09:10 by Howard Bashman



"High court is atheist's calling": This article appeared Friday in The Seattle Post-Intelligencer. The UW Daily reported Friday that "'Under God' argued at mock trial." And columnist Robyn E. Blumner has an essay entitled "Readin', writin', 'rithmetic, loyalty oath" in today's issue of The St. Petersburg Times.
Posted at 09:05 by Howard Bashman



"Papers of Roe-Wade Author to Be Released": David G. Savage has this article today in The Los Angeles Times.
Posted at 09:00 by Howard Bashman



"Specter's record inspires fear - and loathing - on the right": This article about U.S. Senator Arlen Specter (R-PA) appears today in The Philadelphia Inquirer. Senator Specter is up for reelection this fall and is next in line to chair the Senate Judiciary Committee.
Posted at 08:35 by Howard Bashman



Saturday, February 28, 2004
Elsewhere in Saturday's newspapers: The Los Angeles Times reports that "S.F. Gets a Week to Make Case for Gay Marriage; The state Supreme Court refuses to immediately halt the city's controversial policy; But it signals that it will decide quickly on taking up the legal issues." An article reports that "Judge Drops Most Serious Stewart Charge; The prosecution failed to show that the defendant intended to commit securities fraud, the jurist says in ruling." In other news, "NFL Tries to Block Clarett Ruling." An article reports that "Accuser in Bryant Case to Testify Tuesday; Prosecutors seek to limit the range of questions that the defense will be allowed to ask the woman in closed court." And in local news, "Judge Tosses Out $33-Million Verdict" and "Tampering Charge Delays Rape Trial of Lawman's Son; Gregory Haidl's defense questions the validity of a videotape purported to show the 2002 attack."
Posted at 23:15 by Howard Bashman



Is a criminal defendant's right to self-representation too easy to invoke? A pending cert. petition asks the U.S. Supreme Court to consider that question on the merits, the blog "Criminal Appeal" reports here.
Posted at 23:10 by Howard Bashman



Ten Commandments news: From Idaho, The AP reports that "Idaho Senate kills Commandments display." And The Idaho Statesman contains an article headlined "Don't put Commandments in Statehouse, senators say; Kempthorne, others back religious markers; Panel rejects plan to display various monuments."

From Montana, The Great Falls Tribune reports that "Alabama judge brings case for commandments to Civic Center."

Finally, from Texas, The Dallas Morning News reports that "Board debates schools' use of kits that include Ten Commandments."
Posted at 23:01 by Howard Bashman



"Tempe law grad with murder record applies for license to practice": The Associated Press provides this report from Arizona.
Posted at 22:59 by Howard Bashman



In today's edition of The San Francisco Chronicle: In today's newspaper you will find articles headlined "Lockyer pleads to top court; State justices give S.F. until Friday to defend licenses"; "Social Security won't take S.F. licenses; White House's first bureaucratic obstacle to same-sex marriages"; and "DVD copiers win big in state court ruling; Encryption code said to have lost trade secret status."
Posted at 22:35 by Howard Bashman



The Pittsburgh Post-Gazette is reporting: Today's newspaper contains articles headlined "Justice Department subpoenas Planned Parenthood records" and "ACLU claims victory in dispute over parades; Judge's ruling allows groups to apply for permits, pay lower fees."
Posted at 22:32 by Howard Bashman



"S.F. to Stop Gay Weddings if Court Rules-Mayor": Reuters provides this report.
Posted at 19:27 by Howard Bashman



"Florida stuck with Pryor": This editorial appears today in The Palm Beach Post.
Posted at 19:25 by Howard Bashman



"New Trip Trouble for Scalia": The Los Angeles Times today contains this editorial.
Posted at 19:22 by Howard Bashman



It ain't so: The Pensacola News Journal today contains an article headlined "New judge in town; She's youngest woman to sit on federal bench." The article states that U.S. District Judge M. Casey Rodgers was born on August 13, 1964. U.S. District Judge Amy J. St. Eve of the U.S. District Court for the Northern District of Illinois wasn't born until November 20, 1965, which would seem to undermine any claim that Judge Rodgers is now the youngest serving female U.S. District Judge.
Posted at 17:32 by Howard Bashman



In Saturday's newspapers: The New York Times reports that "Most Serious Charge Against Stewart Is Dismissed." You can access yesterday's ruling at this link. In same-sex marriage-related news, "Call to Ban Gay Marriage Is Dividing Republicans"; "State Official Asks Court to Bar Licenses"; and "Gay Marriage Debate Shifts to Small New York Township." An article reports that "F.B.I. Orders an Internal Review of Oklahoma City Bombing Files." Adam Liptak reports that "Treasury Department Is Warning Publishers of the Perils of Criminal Editing of the Enemy." And in local news, "Suffolk Halts Taking of Cars in D.W.I. Cases" and "Ghoul Charges Add Insult to Tragedy."

The Washington Post reports that "Judge Throws Out Fraud Charge; Stewart Still Faces Lesser Criminal Charges, Civil Lawsuits." An article reports that "Calif. Court Won't Halt Gay Marriages; Mayor of New Paltz, N.Y., Weds Same-Sex Couples." In other news, "NFL Attorneys Request A Stay for Draft Ruling." An article reports that "Handling of Terror Case Probed; 'Special Attorney' Hired to Review Allegations of Misconduct." In local news, "Law School Shooter Pleads Guilty; Former Student Avoids Death Penalty in Deal on Va. Slayings" and "Md.'s Appointed Jurists Face a Trial at the Polls." An editorial is entitled "Lone Star Statement." And columnist Colbert I. King has an op-ed entitled "Slow Progress, 50 Years After Brown."
Posted at 15:15 by Howard Bashman



Yaser Esam Hamdi now has one less reason to feel excluded: Remedying the snub that I previously identified here, the law firm of Jenner & Block now offers an online brief bank for the U.S. Supreme Court case of Hamdi v. Rumsfeld.
Posted at 10:13 by Howard Bashman



"Death row inmate loses appeal claiming racism": This article appears today in The Houston Chronicle. The Associated Press reports that "Appeals court rejects inmate's bias claim." And The Times-Picayune yesterday published an essay by reporter James Gill headlined "5th Circuit keeps hitting the snooze button."

My first mention of Thursday's ruling of the U.S. Court of Appeals for the Fifth Circuit on the merits of Thomas Joe Miller-El's habeas petition can be accessed here, and my coverage of the U.S. Supreme Court's earlier decision in favor of Miller-El is available at this link.
Posted at 10:01 by Howard Bashman



"Snubbing Justice Owen?" Linda P. Campbell, editorial writer for The Fort Worth Star-Telegram, had this essay in Thursday's issue of that newspaper. Thursday's edition of The Birmingham News reported that "Names for AG emerge; Riley advisers, U.S. attorney among possible replacements for Pryor." And The Oregon Daily Emerald on Thursday contained an op-ed by columnist David Jagernauth entitled "Trouble during recess."
Posted at 09:55 by Howard Bashman



"Justice Scalia and Mr. Cheney": This editorial appears today in The New York Times. And Charles Lane reports today in The Washington Post that "Lawyer in Two Cases Hosted Scalia Visit."
Posted at 09:49 by Howard Bashman



"Justice Blackmun's files to be made public": This article appeared Wednesday in The Minneapolis Star Tribune.
Posted at 00:54 by Howard Bashman



Friday, February 27, 2004
The Post Trial and Appellate Practice Committee of the Pennsylvania Bar Association is off to a great start: I had a most enjoyable time at the two-day continuing legal education seminar sponsored by the PBA's Post Trial and Appellate Practice Committee, which I recently joined. In addition to having fun as one of the presenters on the topic of "Incorporating Technology into Appellate Practice," it was great to see again so many Pennsylvania state court appellate judges and attorney friends. I especially enjoyed getting to spend some time with my friend Robert L. Byer, who happens to be one of western Pennsylvania's best appellate lawyers, and several lawyers from the suburban Philadelphia law firm of Lamb McErlane PC. As always, it was wonderful to meet for the first time many lawyers who are enthusiasts of "How Appealing." And last night's dinner at a local quite wonderful Italian restaurant, as one of an ad hoc group consisting of a handful of current and former Pennsylvania appellate court jurists and several lawyers, will be the source of many fond memories for quite some time to come.

Between the very positive press coverage that my new practice has received and the mention I previously made of it online here, everyone had heard that I had left big firm life to open my solo appellate boutique. Several people commended me for the guts it took to go out on my own, but that's perhaps giving me too much credit. I was fortunate to have plenty of good work on the horizon when I opened by new practice, and even more has arrived in recent weeks. Thanks to my good relationships with lawyers who can serve as possible referral sources for appellate work, I am confident that the early very good fortune my practice has experienced in the first month of its existence will extend forward into the future. And, for what it's worth, this month "How Appealing" has averaged on a typical weekday more visits than at any time since its inception in May 2002.
Posted at 23:20 by Howard Bashman



Available online from National Public Radio: Today's broadcast of "All Things Considered" contained segments entitled "Judge Drops Most Serious of Stewart's Charges"; "Porn Industry Braces to Fight Anti-Obscenity Push"; and "Commentary: Clarifying the Aging Alien Tort Claims Act." Thursday's broadcast, meanwhile, contained a segment entitled "Comment: The Law, Rights, and the Border."

And today's "Morning Edition" broadcast contained a segment entitled "DOJ Seeks Planned Parenthood Abortion Records."
Posted at 22:45 by Howard Bashman



"Va. Man Challenges State's Adultery Law; ACLU Contends Sex Is a Private Matter": This article appeared in yesterday's edition of The Washington Post. And The Richmond Times-Dispatch reported yesterday that "Attorney contests his conviction in adultery; He and ACLU claim that criminalizing infidelity violates the Constitution." Thanks to the "SW Virginia law blog" for the pointer. (Plus, click here to access that blog's coverage of a recent Virginia state appellate court's nude dancing decision.) Perhaps it's time for a new state motto?
Posted at 22:42 by Howard Bashman



Recent Sixth Circuit death penalty brouhaha is now officially "for publication": For those who may have missed this the first time around, yesterday the U.S. Court of Appeals for the Sixth Circuit posted online the latest evidence that the court still has some work to do before truly qualifying as just one happy family.
Posted at 22:30 by Howard Bashman



Ten Commandments news: From Alabama, The Montgomery Advertiser reported yesterday that "Ousted chief justice tries to regain job." The Birmingham News reported that "Lawyer asks court to return Moore; Says ousted chief justice seeks job, not Commandments monument, back." And Thursday's broadcast of NPR's "Morning Edition" contained a segment entitled "'Ten Commandments' Judge Appeals Removal."

In news from Minnesota, The Duluth News Tribune reports that "MCLU to file suit today." And The Associated Press reports that "Duluth sued over Ten Commandments monument."

In news from Montana, The AP offers an article headlined "Martz: Display of Ten Commandments a matter of free speech." And The Daily Inter Lake reports that "Commissioners find support for keeping Commandments."

Finally, The Idaho Statesman reports that "Monument may get new home; Commandments may move to St. Michael's."
Posted at 22:10 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Calif. Court Won't Stop Gay Marriages"; "FBI Orders Oklahoma City Bomb Review"; "Ex-Law Student Pleads Guilty to Slayings"; and "Justice Dept. to Look at Detroit Trial."
Posted at 22:00 by Howard Bashman



Justice Antonin Scalia cancels his subscription to The Los Angeles Times: Today's edition of The Los Angeles Times reports that "Scalia Took Trip Set Up by Lawyer in Two Cases; Kansas visit in 2001 came within weeks of the Supreme Court hearing arguments." United Press International reports that "Judge took trips with lawyer in two cases." And Gina Holland of The Associated Press has an article headlined "Justice Scalia Stirring Controversy."
Posted at 21:51 by Howard Bashman



Forever minus a day: The concept of a prisoner's earning good time credits that would entitle the prisoner to be released before serving his criminal sentence in full doesn't make very much sense when the prisoner has been sentenced to life imprisonment, the U.S. Court of Appeals for the D.C. Circuit quite sensibly concluded in this unanimous three-judge panel opinion issued today. (Thanks to Juan Non-Volokh for pinch-hitting in my absence.)
Posted at 21:40 by Howard Bashman



"Kennedy eyes suit on Pryor": Thursday's issue of The Hill contained an article that begins, "Sen. Edward Kennedy (D-Mass.) has asked his staff to put together a case that he hopes will prove that President Bush’s recess appointment of Alabama Attorney General William Pryor to the U.S. Court of Appeals was unconstitutional." The article contains an inaccuracy in its listing of federal appellate courts before which the lawfulness of judicial recess appointments have been challenged. See my appellate column from March 2001 for the correct information.
Posted at 21:29 by Howard Bashman



"Law Student Loses Supreme Court Case": This article appears today in The Harvard Crimson. You can access the ruling at this link. If I may quote the words of Justice Harry A. Blackmun, "Poor Joshua!" And in other news from The Crimson, "Junior Professor Criticizes HBS Through Blog."
Posted at 21:13 by Howard Bashman



Not the real "Jane Doe": Seventh Circuit Judge Richard A. Posner, in this very interesting opinion issued today, calls into question whether the plaintiff in a sexual harassment case should be allowed to proceed under a pseudonym. The use of a pseudonym, however, did not prevent the plaintiff from winning her appeal on the merits.
Posted at 20:00 by Howard Bashman



The Fifth Circuit's view of the merits of Thomas Joe Miller-El's habeas petition hasn't changed much in two and a half years: I'd hate to say I predicted the result of yesterday's ruling of the U.S. Court of Appeals for the Fifth Circuit when I summarized the U.S. Supreme Court's decision in Miller-El's favor last Term, but see for yourself.
Posted at 19:45 by Howard Bashman



Reader mail: In reference to this opinion that the U.S. Court of Appeals for the Fifth Circuit issued yesterday, a reader emails: "I'd say that this Fifth Circuit decision has one of the highest caption-to-text ratios (16/2) that I've ever seen."
Posted at 19:40 by Howard Bashman



A wonderful time was had: Just a quick note to mention what a wonderful time I had at the appellate advocacy CLE seminar that I attended yesterday and participated as an instructor at today. I'll have more to say about the event later this evening.
Posted at 18:30 by Howard Bashman



"20 questions for the appellate judge" news: I am reliably advised that I may be on the verge of securing a "20 questions" participant from the U.S. Court of Appeals for the D.C. Circuit. If so, that would leave only the Second and Fourth Circuits in the hunt for the dubious distinction of being the final U.S. Court of Appeals to produce a "20 questions for the appellate judge" interviewee.
Posted at 18:28 by Howard Bashman



What's the Third Circuit's usual mode of transportation? By a vote of 6-5, the U.S. Court of Appeals for the Third Circuit earlier in the week denied a petition for rehearing en banc in a case where a divided three-judge panel had upheld a death sentence imposed in the Pennsylvania state court system. Circuit Judge Richard L. Nygaard issued a passionate dissent from the court's failure to grant rehearing en banc. The final paragraph of the dissent appears answer the question that serves as the title of this post. On a much more serious note, you can access the three-judge panel's divided ruling from January 2004 at this link.
Posted at 18:15 by Howard Bashman



"Peer back to turbulent time in justice's papers; Records cover 24 years on highest court": In today's edition of USA Today, Joan Biskupic has this article previewing next week's release of the personal papers of deceased U.S. Supreme Court Justice Harry A. Blackmun.
Posted at 18:10 by Howard Bashman



"Veterans urge importance of law recruitment; Brief filed against lawsuit prohibiting law school recruiting": This article appeared in yesterday's issue of The Daily Texan. The article reports on the amicus brief that I filed earlier in the week with the U.S. Court of Appeals for the Third Circuit.
Posted at 18:00 by Howard Bashman



Wednesday, February 25, 2004
"How Appealing" will next be updated on the evening of Friday, February 27, 2004: Between now and then, I'll be on the road teaching at a continuing legal education seminar titled "Appellate Advocacy in the Pennsylvania Courts" and visiting with some fans of this blog. More details about the CLE seminar can be found here.
Posted at 23:00 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Supreme Court Upholds Ban on Religious Scholarships" and that "Boy Scouts Access Issue Is Back Before Supreme Court." Shannon P. Duffy reports that "Justices Hear Pa. Death Penalty Appeal" and that "Judge Slashes Lawyer's Rate for Typos, Careless Writing." And Luther T. Munford has an essay entitled "Even for the Supreme Court, Recent Litigating Counts."

In other news, "New Jersey Court Stays Lethal Injections; Judges also require justification for ban on media televising executions." In news from California, "Waiting at the Chapel." And in news from Florida, "Indictment Expected Against Man Who Knew 'Dirty Bomber.'"
Posted at 22:58 by Howard Bashman



"States Allowed to Avoid Subsidy of Divinity Study": Linda Greenhouse will have this article in Thursday's issue of The New York Times.
Posted at 22:25 by Howard Bashman



"Ousted Ala. Chief Justice in Court": The Associated Press offers this coverage. And The Montgomery Advertiser this morning offered a preview headlined "Moore appeals job loss today."

In other Ten Commandments-related news, The Atlanta Journal-Constitution today reports that "Bills would allow Commandments in courthouses." The York Dispatch contains an article headlined "Fund drive for commandment fight; Residents vow to defray any legal costs." And The Ledger Independent reports from Ohio that "Commandments find new home at bank."
Posted at 19:43 by Howard Bashman



Available online from National Public Radio: Tonight's broadcast of "All Things Considered" contained segments entitled "High Court: States to Decide Theology Funding" (featuring Nina Totenberg); "Stewart's Attorneys Rest Case"; and "Commentary: Bush's Same-Sex Marriage Ban." And today's broadcast of "Morning Edition" contained segments entitled "Supreme Court Hears Case on Looted Nazi Art" (featuring Nina Totenberg); "U.S. Plans Tribunals Against Cuba Detainees"; and "GOP Lawmakers Begin Push for Gay Marriage Ban." Real Player is required for these audio segments.
Posted at 19:10 by Howard Bashman



"Court Shields Postal Service From Suits": The Associated Press provides this report.
Posted at 19:07 by Howard Bashman



"Judge Pryor: Appointment gives appeals court a principled voice." This editorial appears today in The Birmingham News. The Washington Times today contains an editorial entitled "A 'bittersweet' appointment." And The Pantagraph of Bloomington-Normal, Illinois today contains an editorial entitled "Senate, president must get together on nominees."
Posted at 19:01 by Howard Bashman



Are conservative Ninth Circuit judges are fouling-up that court's good record of success before the U.S. Supreme Court? The following email arrived this afternoon:
Today in your recount of the SCOTUS opinions, you write: For those keeping score, after being affirmed twice yesterday, the Ninth Circuit was reversed twice today.

Given that many who keep score do so because they believe the Ninth Circuit is so out of whack to the LEFT side of the ideological equilibrium, it is certainly worth noting that both panels that were reversed today were undeniably "conservative" panels. In Davey v. Locke, the original panel was Rymer, Gould, and McKeown, with McKeown dissenting. Judge Gould is a Clinton Judge, but those who watch this court with any frequency understand that he votes, with rare exception, with the Reagan/BushI/BushII Judges. Flamingo was originally written by Judges Thompson, Tallman, and Lay (visiting). Of yesterday's opinions, one would normally be considered a "liberal" panel (Reinhardt, Fisher, Molloy); while the other was a Kozinski opinion. In any event, I thought this information might also be relevant to those keeping score.
And another reader writes:
Since you are assisting "those keeping score" of instances where the U.S. Supreme Court has reversed decisions from the Ninth Circuit, you might also consider indicating whether the affirmations yesterday or the reversals today came in cases where the Ninth Circuit panel was dominated by left-leaning liberal judges or conservative commandos. If you take a look at this, you may find that the popular myth (liberal judges are the cause of the high reversal rate) has been dispelled, at least as far as the reversals today are concerned.
This just goes to show that if the liberals on the Ninth Circuit aren't going to do their duty to ensure that that court has an unusually high reversal rate, then the conservatives will be forced to take matters into their own hands.
Posted at 18:55 by Howard Bashman



"State attorney general accused of drunken driving; Breath test shows her above limit after car lands in ditch": The Milwaukee Journal Sentinel today contains this report. The Wisconsin State Journal reports that "Lautenschlager cited for drunken driving." And you can access here a copy of the police report (PDF).
Posted at 17:48 by Howard Bashman



"City not liable for Shannon Schieber’s rape and murder, jury declares": The Philadelphia Inquirer provides this news update.
Posted at 17:45 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Upholds Mich. Sex Offender Registry"; "Gay Marriage Opponents Go to Calif. Court"; "Judge: Peterson Trial Will Last 5 Months"; "Wis. Attorney General Says She Won't Quit"; "Ashcroft Forms New Intelligence Council"; and "Philly Exonerated Over Serial Rapist Case."
Posted at 17:40 by Howard Bashman



Some happy news from the U.S. Court of Appeals for the Fifth Circuit: While at my former law firm, I wrote the opening and reply briefs for the defendant-appellant in this appeal decided today.
Posted at 17:33 by Howard Bashman



"False Light, Camera, Action: The story Joe Eszterhas forget to share." Michael Doyle has this jurisprudence column online at Slate.
Posted at 17:04 by Howard Bashman



In other news from The San Francisco Chronicle: Bob Egelko reports today that "Marriage ban called similar to prohibition; Legal experts say both measures are 'exercises in moral policing.'" And an article reports that "IBM case goes to jury; Cover-up by firm was never proven, attorney argues."
Posted at 16:59 by Howard Bashman



"Airline loses case over forcing man to sit near smokers; Bay Area doctor with asthma died": This article appears today in The San Francisco Chronicle.
Posted at 15:37 by Howard Bashman



"National Wildlife Federation Opposes Myers Circuit Court Nomination": The National Wildlife Federation today issued a press release that begins, "Since our founding 68 years ago, the National Wildlife Federation has never opposed a judicial nomination by any president."
Posted at 14:15 by Howard Bashman



"Court Hears World War II-Era Art Dispute": Gina Holland provides this report on one of the cases argued today at the U.S. Supreme Court.
Posted at 14:05 by Howard Bashman



Reuters is reporting: James Vicini reports that "Supreme Court Upholds Religion Scholarship Ban." And in other news, "Martha Stewart Lawyers Rest Defense Case."
Posted at 12:08 by Howard Bashman



"Disproving" religion? A reader who is currently clerking on a federal appellate court emails to note that footnote 10 of the majority opinion in Locke v. Davey contains a typo.
Posted at 12:00 by Howard Bashman



Representatives of the American Bar Association are now defending that organization's "not qualified" rating for Magistrate Judge Roger T. Benitez, whom President Bush in May 2003 nominated to serve on the U.S. District Court for the Southern District of California: You can watch the hearing live online, right now, at this link (Real Player required). My earlier coverage of this matter, which linked to various news articles, can be accessed here.

Update: This hearing concluded at 11:50 a.m. At some later date, an archived copy of the video from the hearing may become available via this link.
Posted at 11:09 by Howard Bashman



Today's U.S. Supreme Court decisions: The Supreme Court of the United States has issued three opinions today.

1. In Locke v. Davey, No. 02-1315, the Court has reversed the Ninth Circuit's judgment. Chief Justice William H. Rehnquist delivered the opinion of the Court. You can access the syllabus here, the majority opinion here, the dissent of Justice Antonin Scalia here, the dissent of Justice Clarence Thomas here, and the oral argument transcript here.

2. Justice Anthony M. Kennedy delivered the opinion for a unanimous Court in U.S. Postal Service v. Flamingo Industries (USA) Ltd., No. 02-1290, and the Ninth Circuit's judgment under review was reversed. You can access the syllabus here, the opinion here, and the oral argument transcript here.

3. Last but not least, the Court issued a per curiam reversal in Muhammad v. Close, No. 02-9065. You can access the opinion here and the oral argument transcript here.

For those keeping score, after being affirmed twice yesterday, the Ninth Circuit was reversed twice today.

In early press coverage of today's rulings, Anne Gearan of The Associated Press reports that "Court OKs Denial of Divinity Scholarships."
Posted at 10:04 by Howard Bashman



"Court upholds firing of Crystal City teacher": The St. Louis Post-Dispatch reports here today that "A former Crystal City teacher who was fired after she told her class that she opposed interracial marriage might continue to appeal her case, her attorney says." You can access yesterday's ruling by the Missouri Court of Appeals Eastern District at this link.
Posted at 09:55 by Howard Bashman



The U.S. District Court for the District of Columbia yesterday delivered bad news for Big Tobacco: In the federal government's lawsuit against the tobacco industry, the court denied defendants' motion for partial summary judgment on claims that defendants advertised, marketed, and promoted cigarettes to youth and fraudulently denied such conduct. You can access yesterday's ruling at this link.
Posted at 09:38 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue one or more decisions in argued cases at 10 a.m. this morning. Stay tuned for details.
Posted at 09:22 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit reverses federal district court's decision that held unconstitutional the Michigan Sex Offenders Registration Act: You can access today's ruling from a unanimous three-judge panel at this link.
Posted at 09:19 by Howard Bashman



Washington Post editorial cartoonist Tom Toles revisits the duck hunt: Today's editorial cartoon can be viewed here.
Posted at 09:12 by Howard Bashman



In news from South Dakota: The Aberdeen American News reports today that "Senate votes to ban abortions; Amherst senator casts deciding vote" and "Youth death penalty repealed; Governor's signature needed for finalization." The Rapid City Journal reports that "Senate approves anti-abortion bill." The Argus Leader reports that "Exception added to abortion proposal" and "Youth death penalty bill headed to Rounds." And The Star Tribune reports that "South Dakota Senate OKs ban on almost all abortions."
Posted at 07:42 by Howard Bashman



In news pertaining to the U.S. Supreme Court: The Houston Chronicle reports that "High court ruling lifts Texan's death sentence; Justices cite deception by prosecutors." The Fort Worth Star-Telegram reports that "Death Row inmate's sentence overturned." The San Antonio Express-News reports that "Justices order Texan be taken off death row; A majority had concluded prosecutors concealed links between police and two witnesses." David Pasztor of The Austin American-Statesman reports that "Supreme Court reverses Texan's death penalty; Majority of justices cite deliberate deception in decision to reverse sentence." The Chicago Tribune reports that "Nearly executed, inmate granted new hearing." And Henry Weinstein of The Los Angeles Times reports that "Justices Void Death Sentence, Citing Prosecutor Misconduct."

David G. Savage of The Los Angeles Times reports that "Justices Find No Age Bias in Benefits Case; Court says firms can't be sued if they adopt plans that favor older workers over younger ones." The Washington Post reports that "High Court Backs Benefits Based on Age; Younger Workers' Bias Claim Rejected." In coverage from The Washington Times, "Better benefits for older workers upheld." The Pittsburgh Post-Gazette reports that "Better benefits for older workers legal; Supreme Court short circuits new kind of age-discrimination lawsuit." And The Hartford Courant reports that "Discrimination Claim Denied; Older Workers Can Have Better Health Plans, Justices Rule."

In The Washington Post, Charles Lane reports that "High Court Underscores Warrant Rules; Justices Say 4th Amendment Is Clear on Search and Seizure Requirements."

The Morning Call of Allentown, Pa. reports that "Inmates' lives hang on court's decision; Wilkes-Barre case now before top U.S. jurists could affect others on state's death row." And in somewhat related news, that newspaper reports that "State's capital cases stalled."

Finally, Gina Holland of The Associated Press reports that "High Court Takes Up WWII-Era Art Dispute." And The Birmingham News reports that "Alabama weighs in on Supreme Court case."
Posted at 07:17 by Howard Bashman



"HLS Veterans Won't Back Solomon Brief": This article, in which I am quoted, appears today in The Harvard Crimson.
Posted at 07:16 by Howard Bashman



Tuesday, February 24, 2004
Elsewhere in Tuesday's newspapers: In The Boston Globe, Lyle Denniston has articles headlined "Supreme Court to rule on Big Dig case; Meaning of 'vessel' is crucial to appeal" and "High court declines to rule on secrecy in terror case."

The Los Angeles Times reports that "Court Deals Blow on Budget; The state could sink $650 million more into the hole after a decision on corporate taxes." In other news, "Holocaust Survivors' Suit to Collect Insurance Claims Sent Back to State; A federal judge agrees with plaintiffs that the case, alleging delay of settlements to victims or their families, is a Superior Court matter." In business news, "Attorney Sums Up Case Against IBM; A lawyer for two former employees claims the firm knew chemicals used in its factory were making workers sick" and "Defense Counters With Stewart's Business Manager, Ink Analyst; Executive confirms pact to sell ImClone stock at $60; Prosecution's claim that the deal was cooked up is slightly dented." And in news from California, "Stakes Raised in Fight on Gay Unions; Lockyer announces that he will ask the California Supreme Court to rule on the constitutionality of same-sex marriages"; "Same-Sex Couples Denied Marriage Licenses Sue; L.A. County violated the constitutional rights of the gay and lesbian pairs, the suit alleges"; and "Blake Given Week to Find a Lawyer; Judge warns the actor that she plans no more delays for his trial in the death of his wife."

Finally for now, USA Today reports that "Human rights groups denied seats at tribunals; Space is limited, Pentagon says."
Posted at 23:45 by Howard Bashman



"Pa. farmers win challenge of 'Got Milk' campaign": The Associated Press provides this report. I first noted today's ruling of the U.S. Court of Appeals for the Third Circuit in a post headlined "Got unconstitutionality?"
Posted at 23:30 by Howard Bashman



Additional coverage of today's U.S. Supreme Court rulings: In tomorrow's issue of The New York Times, Linda Greenhouse will have an article headlined "Leads Justices to Overturn Death Sentence in Texas." What word is missing, I wonder. Also in tomorrow's paper is an article headlined "Justices Say Airline Is Liable for a Fatal Reaction to Smoking."

In tomorrow's issue of The Washington Post, Charles Lane will have an article headlined "Justices Overturn Death Sentence; Court Criticizes Texas's Conduct In Murder Case." In other news relating to that decision, The AP reports that "Prosecutor vows to seek death penalty again for Banks."

In Wednesday's issue of The Christian Science Monitor, Warren Richey will have articles headlined "High-level rebuke to courtroom deceit; The Supreme Court overturns a ruling that said deception in a Texas murder trial didn't matter" and "Court rejects reverse age discrimination; It says a federal law meant to protect older workers can't be used by the young to get preferential treatment."

Finally for now, Stephen Henderson of Knight Ridder Newspapers reports that "Rewarding older workers isn't age discrimination, high court rules."
Posted at 23:01 by Howard Bashman



In news from Alabama: The AP reports that "Hearing on ex-justice's ouster to begin." And an editorial published yesterday in The Huntsville Times is entitled "Bill Pryor moves on; His recess appointment to the federal bench leaves big shoes to fill."
Posted at 22:59 by Howard Bashman



"High Court Hears Arguments on Pa. Killer": The Associated Press provides this report. Update: In advance of today's oral argument, The AP issued a preview headlined "U.S. Supreme Court hears 1982 mass murder case."
Posted at 19:47 by Howard Bashman



"Massachusetts Supreme Court Orders All Citizens To Gay Marry": This article will appear in tomorrow's issue of The Onion.
Posted at 19:34 by Howard Bashman



From tonight's broadcast of NPR's "All Things Considered": Tonight's broadcast included segments entitled "High Court Disallows Texas Death Sentence" (featuring Nina Totenberg); "Bush Favors Constitutional Ban on Gay Marriage"; "Analysis: Prohibiting Gay Marriage"; "U.S. Plans Military Tribunals for Yemeni, Sudanese"; and "The Not So Random Coin Toss."
Posted at 19:30 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court won't hear Honduran lobster smuggling case from Alabama"; "Court Protects Gov't From Privacy Suits"; and "White House counsel defends policy on enemy combatants."
Posted at 19:24 by Howard Bashman



California death row inmate Kevin Cooper remains in the news: The Associated Press reports that "Attorney general wants to reinstate Cooper death sentence." The Los Angeles Times reports that "State to Appeal Death Stay to U.S. High Court." And Bob Egelko of The San Francisco Chronicle has an article headlined "Request to reinstate death sentence."
Posted at 19:20 by Howard Bashman



"Court turns away challenge to Bush's inaugural prayer": Bob Egelko has this article in today's issue of The San Francisco Chronicle.
Posted at 19:15 by Howard Bashman



Reuters is reporting: James Vicini reports that "Supreme Court Overturns Death Sentence for Texan"; "Supreme Court Rejects Reverse Age Bias Lawsuits"; "No Immunity for Invalid Search Warrant, Court Rules"; and "Ruling: Airline Can Be Liable for Asthma, Smoke Death." And in other news, "U.S. Brings First Charges Against Guantanamo Inmates"; "Calif. Seeks Top Court Ruling on Gay Marriage Row"; "Marriage Amendment May Boost Bush But Not Pass"; and "San Francisco Mayor Condemns Bush on Gay Marriage."
Posted at 19:00 by Howard Bashman



"Supreme Court Overturns Death Sentence in Texas Case": Linda Greenhouse of The New York Times provides this news update. Charles Lane of The Washington Post reports that "Supreme Court Lifts Death Sentence for Texas Inmate." And David G. Savage of The Los Angeles Times reports that "Supreme Court Rejects Reverse Bias Claim."
Posted at 18:42 by Howard Bashman



"Law School Veterans Organizations File Brief in Support of Military's Right to Recruit on Law School Campuses": The UCLA School of Law Veterans Society issued this press release in connection with the amicus brief that I filed today on its behalf in the U.S. Court of Appeals for the Third Circuit.
Posted at 17:26 by Howard Bashman



The Seventh Circuit delivers bad news for so-called "critical vendors" in the Kmart bankruptcy: Circuit Judge Frank H. Easterbrook issued this very interesting decision today for a unanimous three-judge panel. This opinion issued today in typescript but in fact looks better than many of the printed opinions the Seventh Circuit has been posting online lately.
Posted at 17:23 by Howard Bashman



Judge Posner, copyright, and comic books: Seventh Circuit Judge Richard A. Posner issued a lengthy opinion last Friday (but posted online today) on behalf of a unanimous three-judge panel of that court addressing the question who owns the copyright to several characters in the comic book series Spawn. The opinion makes for quite an interesting read.
Posted at 17:01 by Howard Bashman



Three-judge U.S. District Court for the District of Massachusetts panel strikes down 2001 Redistricting Act approved by Massachusetts legislature: The opinion explains, "After careful consideration of the parties' plenitudinous submissions, we conclude that the Redistricting Act deprives African-American voters of the rights guaranteed to them by section 2 of the VRA." Circuit Judge Bruce M. Selya, sitting by designation, was the author of the court's unanimous ruling. Thanks to Law Professor Rick Hasen for the pointer.
Posted at 16:41 by Howard Bashman



Judge Pryor in the house: This order that the U.S. Court of Appeals for the Eleventh Circuit issued today mentions Circuit Judge William H. Pryor, Jr.
Posted at 14:58 by Howard Bashman



Got unconstitutionality? A three-judge panel of the U.S. Court of Appeals for the Third Circuit today issued a ruling that strikes down as unconstitutional the federal government's "Got Milk?" advertising program. You can access today's ruling at this link. Senior Circuit Judge Ruggero J. Aldisert wrote the opinion of the court.
Posted at 14:46 by Howard Bashman



The amicus brief that I filed today in the U.S. Court of Appeals for the Third Circuit on behalf of several law student veterans' groups in support of the district court's ruling refusing to enjoin the Solomon Amendment can now be accessed online: The amicus brief is available online at this link. And you can access many of the other briefs that have been filed in the litigation via this link.
Posted at 14:40 by Howard Bashman



Over the dissent of seven judges, U.S. Court of Appeals for the Ninth Circuit denies rehearing en banc in case reinstating claim that claim that Washington state’s felon disenfranchisement scheme constitutes improper race-based vote denial in violation of Section 2 of the Voting Rights Act: You can access today's opinion dissenting from the denial of rehearing en banc at this link. Circuit Judge Alex Kozinski wrote the dissenting opinion. The original decision by a unanimous three-judge panel issued on July 25, 2003, and it can be accessed here.

Update: Election Law Professor Rick Hasen finds Judge Kozinski's dissent persuasive for the reasons explained here.
Posted at 14:20 by Howard Bashman



"Oral arguments on Roe canceled": This article appears today in The San Antonio Express-News.
Posted at 14:17 by Howard Bashman



"Sierra Club Moves for Scalia Recusal in Cheney Case": The Sierra Club has issued this press release. As I previously mentioned last night, the recusal motion can be accessed here.
Posted at 14:15 by Howard Bashman



"President Calls for Constitutional Amendment Protecting Marriage": The text of President Bush's statement from this morning, along with audio and video links, can be accessed here.
Posted at 13:58 by Howard Bashman



"Bush to Back Gay Marriage Ban Amendment": The Associated Press provides this report.
Posted at 10:50 by Howard Bashman



Today's U.S. Supreme Court opinions: The Court today issued five decisions in argued cases. Click on the name of each case to access each ruling.

1. Justice Ruth Bader Ginsburg issued the opinion in Banks v. Dretke, No. 02-8286, in which the judgment under review was reversed and and the case remanded. You can access the oral argument transcript at this link.

2. Justice Clarence Thomas issued the opinion in Olympic Airways v. Husain, No. 02-1348, and the Ninth Circuit's decision was affirmed. You can access the oral argument transcript at this link.

3. Justice David H. Souter issued the opinion in General Dynamics Land Systems, Inc. v. Cline, No. 02-1080, and the judgment under review was reversed. You can access the oral argument transcript at this link.

4. Justice Souter also issued the opinion in Doe v. Chao, No. 02-1377, and the judgment under review was affirmed. You can access the oral argument transcript at this link.

5. Finally, Justice John Paul Stevens issued the opinion in Groh v. Ramirez, No. 02-811, and the Ninth Circit's decision was affirmed. You can access the oral argument transcript at this link.

In early press coverage of today's rulings, The Associated Press is reporting that "Court Lifts Death Sentence for Texas Man" and "Court Blocks Reverse Age Discrimination." And the Ninth Circuit was affirmed twice and reversed zero times today, establishing a new record of success for the modern era.
Posted at 10:00 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue one or more opinions in argued cases at 10 a.m. today. The U.S. Court of Appeals for the Fifth Circuit is closed today for Mardi Gras. And I will be filing a possibly newsworthy amicus brief today in the U.S. Court of Appeals for the Third Circuit; stay tuned for more details later today.
Posted at 09:35 by Howard Bashman



"Controversies surround recess appointments": This article appears today in The Hill. That publication also contains an article headlined "Miss. pick leads to protests." Birmingham, Alabama's NBC13 reports that "Pryor Opponents Protest At St. Joseph Baptist Church; Activists Oppose Federal Judge Appointment." And The Post and Courier of Charleston, South Carolina contains an editorial entitled "Senate Democrats' hypocrisy" (free registration required).
Posted at 09:30 by Howard Bashman



"Court Cancels Roe V. Wade Consideration": The Associated Press provides this report.
Posted at 09:27 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports that "Court Denies Review of Post-9/11 Secrecy; But Justices Will Hear Two Cases on Rules for Deporting Convicted Immigrants" and "Sierra Club Wants Scalia To Sit Out Task Force Case." In news from New York, "Business Manager Backs Stewart." And Dana Milbank's "White House Notebook" is headlined "For News Hounds, TGIF."

In The New York Times, Linda Greenhouse reports that "Justices Agree to Hear Two Deportation Cases." In other news, "Supreme Court in California to Get Case on Marriages." Neil A. Lewis reports that "Rights Groups Won't Get Seats at Guantanamo Base Tribunals." An article reports that "Senate to Vote on Shielding Gun Makers." In movie news, "Victims Say Film on Molesters Distorts Facts." An article reports that "A Prominent Accuser in Boston Abuse Scandal Is Found Dead." In business news, "Witness Tells of Early Talk of Plan to Sell Stewart Shares" and "The Ink Expert for the Defense Defends His Densitometer." In local news, "Rowland's Lawyer Asks Impeachment-Study Panel to Reveal Inquiry's Scope" and "Trial Beginning for Ex-Firefighter in Thefts at Ground Zero Cleanup." And an op-ed by Michael R. Bloomberg, Richard M. Daley, James K. Hahn, and Scott L. King is entitled "Lawyers, Guns and Mayors."

Finally for now, Warren Richey of The Christian Science Monitor reports that "Supreme Court decision may limit access to terror cases."
Posted at 07:10 by Howard Bashman



"Sierra Club Asks Scalia to Step Aside in Cheney Case; The rare recusal motion raises the issue of impartiality because of the duo's hunting trip." David G. Savage has this article today in The Los Angeles Times.
Posted at 07:00 by Howard Bashman



Monday, February 23, 2004
"Your papers, please": This editorial about the case known as Hiibel v. Sixth Judicial District Court, which will be argued in the U.S. Supreme Court on March 22, 2004, appeared today in The Washington Times. Dudley Hiibel has a Web site devoted to the case, and there you will find the following introduction:
Meet Dudley Hiibel. He's a 59 year old cowboy who owns a small ranch outside of Winnemucca, Nevada. He lives a simple life, but he's his own man. You probably never would have heard of Dudley Hiibel if it weren't for his belief in the U.S. Constitution.

One balmy May evening back in 2000, Dudley was standing around minding his own business when all of a sudden, a policeman pulled-up and demanded that Dudley produce his ID. Dudley, having done nothing wrong, declined. He was arrested and charged with "failure to cooperate" for refusing to show ID on demand. And it's all on video.

On the 22nd of March 2004, the U.S. Supreme Court will decide whether Dudley and the rest of us live in a free society, or in a country where we must show "the papers" whenever a cop demands them.
You can access the Web site, and watch the actual video of Hiibel's encounter with the police, at this link.
Posted at 23:50 by Howard Bashman



"20 questions for the appellate judge" news update: I am very pleased to report that Chief Justice Shirley S. Abrahamson of the Supreme Court of Wisconsin will be the September 2004 interviewee in this Web log's monthly "20 questions" feature. You can access a complete list of other upcoming interviewees at this link. Why would I announce the September 2004 interviewee before the July and August 2004 interview slots have been filled? Because I remain confident that those openings will be filled soon, and appellate judges who are interested in taking part in the "20 questions for the appellate judge" feature are invited to email me in order to volunteer to participate as an interviewee.
Posted at 23:40 by Howard Bashman



U.S. Supreme Court round-up: In Tuesday's issue of The New York Times, Linda Greenhouse will have an article headlined "Justices Agree to Hear Two Deportation Cases." In Tuesday's issue of The Washington Post, Charles Lane reports that "Court Denies Review of Post-9/11 Secrecy; But Justices Will Hear Two Cases on Rules for Deporting Convicted Immigrants." Tuesday's edition of The Seattle Times will report that "Supreme Court refuses to take primary-election case." And law.com offers an article headlined "Still a Secret: No comment as U.S. Supreme Court refuses to hear habeas corpus case of Florida man detained for five months after Sept. 11."
Posted at 23:30 by Howard Bashman



Access online the Sierra Club's motion to recuse Justice Antonin Scalia from hearing and deciding the pending case involving Vice President Cheney: FindLaw has posted the motion at this link (80-page PDF document).
Posted at 23:20 by Howard Bashman



"Bad City: What's an attorney general to do?" Dahlia Lithwick has this essay online tonight at Slate.
Posted at 20:59 by Howard Bashman



White House nominates U.S. District Judge Ricardo H. Hinojosa to chair the U.S. Sentencing Commission: You can view today's nomination at this link. Judge Hinojosa joined the Commission just last year. You can view a list of all the current Sentencing Commissioners at this link. And a press release announcing the resignation of the Commission's most recent chair, Circuit Judge Diana E. Murphy of the U.S. Court of Appeals for the Eighth Circuit, can be viewed here.
Posted at 19:30 by Howard Bashman



"Group Wants Scalia to Leave Cheney Case": Gina Holland of The Associated Press reports here that "The Sierra Club on Monday called on Supreme Court Justice Antonin Scalia to remove himself from a case involving the vice president, because of a 'troubling' hunting trip the two men took last month." Judicial Watch, which along with the Sierra Club brought the suit against Vice President Cheney that gives rise to the U.S. Supreme Court case, previously announced that it would not seek Justice Scalia's recusal.
Posted at 19:18 by Howard Bashman



"Civic Disobedience: San Francisco chooses the wrong way to flout the state." Slate has just posted online this jurisprudence essay by Law Professor Richard Thompson Ford.
Posted at 19:10 by Howard Bashman



"Newdow loses bid to abolish prayer at presidential inaugurations": The U.S. Court of Appeals for the Ninth Circuit has finally met a lawsuit brought by Michael A. Newdow that it doesn't like, David Kravets of The Associated Press reports here. The Ninth Circuit's ruling is non-precedential, which means that a later panel is free to reach the opposite result in a published opinion, and lawyers are prohibited from citing the decision back to the Ninth Circuit unless one of several narrowly-drawn exceptions applies.

It appears that today's decision was reached by the Ninth Circuit's screening panel, which this month consists of Circuit Judges William A. Fletcher and Richard C. Tallman and Senior Circuit Judge Ferdinand F. Fernandez. Coincidentally, Judge Fernandez served on the three-judge panel that decided the Pledge of Allegiance case and dissented from the Ninth Circuit's ruling there.
Posted at 17:30 by Howard Bashman



"Right Turn: U.S. senators are allowing the president to trample their rights and responsibilities in Congress." Mary Lynn F. Jones has this essay online at The American Prospect. The essay begins, "On Friday, President Bush installed Alabama Attorney General William Pryor as a judge on the 11th U.S. Circuit Court of Appeals. Only last month, he appointed Charles Pickering Sr. to a similar position."
Posted at 16:47 by Howard Bashman



"Judge who admitted smoking marijuana won't seek re-election": The Associated Press provides this report from Michigan. And The Traverse City Record-Eagle reports today that "Gilbert not running again; Judge will return in March to finish term."
Posted at 16:40 by Howard Bashman



"Killer's bestseller: Freedom of speech or crime profits?" This article appeared in yesterday's issue of The Reno Gazette-Journal.
Posted at 15:37 by Howard Bashman



Reuters is reporting: James Vicini reports that "U.S. top court rejects appeal in secret Sept. 11 case." And in other news from the U.S. Supreme Court, "US court denies Medtronic appeal in J&J patent case."
Posted at 15:23 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Potential Jurors Sworn in for Nichols Case" and "Peterson Defense Can't Put Judge on Stand."
Posted at 14:45 by Howard Bashman



Length of recess: Following-up on the second paragraph of this post from this morning, a reader emails to note that while the U.S. Senate's calendar shows only a five day recess for the "Presidents' Day" holiday, the actual duration of the recess in which the White House appointed William H. Pryor, Jr. to the U.S. Court of Appeals for the Eleventh Circuit was just over ten days. To quote further from my correspondent's email:
Attorney General Daugherty opined in 1921 as follows, 33 Op. A.G. 20, 25:
"[N]o one, I venture to say, would for a moment contend that the Senate is not in session when an adjournment of [two days] is taken. Nor do I think an adjournment for 5 or even 10 days can be said to constitute the recess intended by the Constitution. In the very nature of things the line of demarcation can not be accurately drawn. To paraphrase the very language of the Senate Judiciary Committee Report, the essential inquiry, it seems to me, is this: Is the adjournment of such duration that the members of the Senate owe no duty of attendance? Is its chamber empty? Is the Senate absent so that it can not receive communications from the President or participate as a body in making appointments?"
According to Louis Fisher's monograph on recess appointments [available here from the Congressional Research Service], a DOJ brief in 1993 (Memorandum of Points and Authorities in Support of Defendants' Opposition to Plaintiffs' Motion for Partial Summary Judgment, at 24-26, Mackie v. Clinton, Civ. Action No. 93-0032-LFO (D.D.C.)) suggested that recess appointments might be justified for recesses in excess of three days.
Only time will tell whether any legal challenges will be brought against Judge Pryor's recess appointment on this basis.
Posted at 13:50 by Howard Bashman



The key Fifth Circuit docket entry today in the case of McCorvey v. Hill: The Fifth Circuit's docket in the case in which Norma McCorvey seeks to overturn her victory in 1973 in Roe v. Wade has been updated to reflect the following entry bearing today's date:
COURT Order filed denying Concerned Law Professors' motion to file motion to file amicus curiae brief out of time [4756804-1], denying Concerned Law Professors' motion to file amicus curiae brief [4756804-2] denying Concerned Law Professors's motion to participate in oral argument [4756804-3] Oral argument in this case is cancelled. [4758691-1] (EHJ) Copies to all counsel. [03-10711] (cvt)
So, oral argument in the case has been canceled on the order of Circuit Judge Edith H. Jones. Presumably the court will issue a ruling in the not too distant future on the merits of the appeal.
Posted at 13:19 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Court to Hear Two Deportation Cases" and "Supreme Court Stays Out of Coal Dispute." And in other news, "Marshals Faulted for Prisoner Health Care."
Posted at 12:00 by Howard Bashman



If you think overruling Roe v. Wade would be difficult, just try scheduling the case for oral argument: I am writing to further update this post from earlier this morning.

An observant reader emailed me at just after 10 a.m. this morning to note that Circuit Judge Charles W. Pickering, Sr. was shown here on the Fifth Circuit's Web site as one of the three judges assigned to hear oral argument in the case that represents Norma McCorvey's belated effort to overturn her victory in 1973 in Roe v. Wade. Since then, the Fifth Circuit has substituted Circuit Judge Edward C. Prado for Judge Pickering on the oral argument panel that will be hearing cases on Monday and Tuesday of next week, and has also pulled the case of Norma McCorvey, Etc., Appellant vs. Bill Hill, Etc. from the oral argument list altogether. The plot thickens!
Posted at 11:45 by Howard Bashman



Access online today's U.S. Supreme Court summary reversal in a criminal case: The decision is available here. The Supreme Court reversed a decision against the State of Illinois that an intermediate appellate court in Illinois had issued arising from the routine destruction of evidence in a criminal case.
Posted at 11:02 by Howard Bashman



Third time wasn't the charm: Readers may recall that on Saturday I mentioned in this post the possibility that the White House could keep Judge William H. Pryor, Jr. on the bench past the fall of 2005, even in the absence of U.S. Senate confirmation, through the use of successive recess appointments. Ironically, the current record-holder for successive recess appointments to the federal judiciary is also from Alabama. U.S. District Judge Oscar R. Hundley received three recess appointments in a row to the U.S. District Court for the Northern District of Alabama before resigning from the federal bench in the absence of Senate confirmation. Some are concerned that recess appointees may try too hard to impress the Senate, but perhaps they have equal reason to stay in the good graces of the White House.

On a related note, a reader emails to observe that the Senate recess in which Judge Pryor was appointed appears to have been just five days long. This opinion from the Office of Legal Counsel questions whether the President may lawfully make recess appointments during such a short intrasession recess.

In another strange coincidence, it must be noted that Judge Preyer also joined the federal judiciary via a recess appointment.
Posted at 10:50 by Howard Bashman



The Associated Press is reporting: In news from the U.S. Supreme Court, Anne Gearan reports that "Court Won't Hear 9/11 Secrecy Challenges," while Gina Holland reports that "Court Won't Take Primary Election Case."
Posted at 10:45 by Howard Bashman



And you probably thought I was joking: The U.S. Court of Appeals for the Fifth Circuit has revealed the identities of the three judges who will hear oral argument next week in a case that seeks to overturn the result of Roe v. Wade. The three judges who are assigned to hear and decide the appeal are Circuit Judges Edith H. Jones, Jacques L. Wiener, Jr., and Charles W. Pickering, Sr. Guess my earlier musings weren't too far off the mark after all.

You can learn more about the case here from The Associated Press, here from law.com, here from The Houston Chronicle, and here from The San Antonio Express-News.

Update: Since the time of my post, the Fifth Circuit's oral argument listing has been changed to substitute Circuit Judge Edward C. Prado for Judge Pickering on Monday's and Tuesday's cases. So, I guess this post didn't prove accurate for long or else the Fifth Circuit's oral argument listing as available online earlier this morning originally contained an error.
Posted at 10:32 by Howard Bashman



Today's U.S. Supreme Court order list: You can access online at this link today's Order List. The Court granted review in three cases and called for the views of the Solicitor General in one case. On the question of lobsters, cert. was denied.
Posted at 10:01 by Howard Bashman



"Let the Sunshine In: Mary Frances Berry wants to keep preference practices in the dark." Roger Clegg has this essay today at National Review Online.
Posted at 09:30 by Howard Bashman



"Man, 14 when he fathered boy, must pay support; Court: Welfare of their child, not older woman's behavior, the issue." Saturday's issue of The Macomb (Mich.) Daily contained an article that begins, "A man who claims he was seduced and exploited in his early teens by an older, married woman must pay child support to the state for the illegitimate son he gave her, the Michigan Court of Appeals decided in a precedent-setting Macomb County case this week." You can access last Thursday's ruling of the Michigan Court of Appeals at this link.
Posted at 08:48 by Howard Bashman



On the agenda: The U.S. Supreme Court retakes the bench this morning, and at 10 a.m. the Court is scheduled to issue an Order List.

The Chicago Tribune today contains an article headlined "A woman's fight for her family's art: It's up to the Supreme Court whether a Nazi refugee can sue to retrieve $150 million in paintings now owned by an Austrian museum." Relatedly, USA Today reports that "Trail of Nazi plunder leads to high court." And in other news from the Supreme Court, USA Today reports that "Environmental cases hinge on limits of authority."
Posted at 07:26 by Howard Bashman



The St. Louis Post-Dispatch is reporting: That newspaper offers articles headlined "Brown wasn't alone in fight v. Board" and "Lawyer, deputy sheriff serve O.J. Simpson with court order to get money in lawsuit."
Posted at 07:22 by Howard Bashman



"Forget Nader. Draft Moore. How Democrats can win back the White House." Timothy Noah has this essay online at Slate today.
Posted at 07:19 by Howard Bashman



"Litigants take the law into their own hands; Self-representation often long, lonely trek": This article appears today in The Arizona Republic.
Posted at 07:18 by Howard Bashman



"Ex-GOP Lawyer Wants Judiciary Probe Focused on Democrat 'Corruption'": CNS News today provides this report. And you can also access the text of "Manuel Miranda's Letter of Departure."
Posted at 07:16 by Howard Bashman



"Military brig at Norfolk Naval Station is no ordinary jail": This article appears today in The Virginian-Pilot.
Posted at 07:05 by Howard Bashman



In Monday's newspapers: The New York Times reports that "Congressional Redistricting Battle Could Lead to New Rules." In business news, "Trial Against I.B.M. Nears a Finish" and "Adelphia Is Next in Parade of Fraud Trials." And in news from California, "Schwarzenegger Backs Amendment to Allow Immigrant Presidents" and "For a Day, Same-Sex Pairs Get a Warm Reception."

The Washington Post reports that "Special Counsel Under Scrutiny; Senators Concerned He Removed Agency's References to Sexual Orientation Bias." In business news, "Trial Against Adelphia Executives to Open; Father, 2 Sons Face Criminal Charges in Wide-Ranging Fraud Investigation." Editorials are entitled "Progress on Detainees" and "When Plan A Fails." And columnist William Raspberry has an op-ed entitled "Reasons for Marriage."

Finally for now, in The Christian Science Monitor Juliette Kayyem has an essay entitled "Military justice system a self-inflicted casualty in terror war."
Posted at 06:50 by Howard Bashman



"Pryor temporarily appointed to U.S. Court of Appeals": This article appears today in The Crimson White.
Posted at 06:40 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Nazi-Looted Art Case Heads to High Court"; "Abortion Battle Shifts to Bill for Unborn"; and "Nichols Set to Face Trial in Okla. Blast."
Posted at 00:20 by Howard Bashman



Sunday, February 22, 2004
In Sunday's newspapers: The Boston Globe reports that "Majority in Mass. poll oppose gay marriage; Survey also finds civil union support."

The Los Angeles Times reports that "S.F. Wedding Planners Are Pursuing a Legal Strategy." And Law Professor David Cole has an op-ed entitled "Guantanamo Bay Continues as a Blot of Shame on the U.S.; Abusive policies have eased slightly but not enough to end world censure."
Posted at 23:53 by Howard Bashman



Available online at law.com: In news from California, "Microsoft Says Class Fee Request Doesn't Compute." An article is headlined "Reawakening 'Roe v. Wade': 5th Circuit to hear one-sided argument in appeal seeking to overturn landmark abortion decision." Legal Times contains an article headlined "The S&L Payouts That Never Came: Eight years after high court said Uncle Sam was on the hook over thrift crisis, few plaintiffs have seen even a penny." And Shannon P. Duffy has an article headlined "Ten Men Out: 3rd Circuit upholds rehiring of nine umpires, approves denial of reinstatement to others."
Posted at 23:45 by Howard Bashman



"Bush Appoints Bill Pryor to 11th U.S. Circuit Court of Appeals Using Vague Procedure": Adult Video News today has this report (not work safe due to accompanying borderline pornographic advertisements).

And while I'm on the subject, The Independent (UK) today contains an article headlined "Larry Flynt: The trouble with Larry; For freedom of speech die-hards he's the 'Martin Luther King of pornography', for others he's a smut-peddling scumbag; Well, now you can make up your own minds, because Larry Flynt, self-confessed chicken rapist, is bringing his Hustler sex shops to Britain."
Posted at 23:32 by Howard Bashman



And in other news from South Dakota: The Aberdeen American News reports here today that "The march in the South Dakota Legislature toward a confrontation with the U.S. Supreme Court over legalized abortion ended Saturday, at least temporarily, when a state Senate committee voted 5-4 to totally rewrite the bill and removed from it the specific language outlawing abortions."
Posted at 23:28 by Howard Bashman



"State still hasn't resolved confusion over recounts": This editorial appears today in The Palm Beach Post.
Posted at 23:24 by Howard Bashman



Duck-gate cartoon: Thanks to Law Professor Tom Mayo for drawing this duck-gate cartoon to my attention via his "HealthLawBlog." As Tom explains, "this one really nails the issue in ways the others have missed."
Posted at 23:20 by Howard Bashman



Almost famous: Thanks much to the reader who drew to my attention earlier today that the law firm of Irell & Manella LLP cites to "How Appealing" in its comments opposing proposed Federal Rule of Appellate Procedure 32.1. It almost makes me wish that I had submitted my own official comments, except that anyone who cares is undoubtedly already very much aware that I am among the proposed rule's staunchest supporters.
Posted at 23:18 by Howard Bashman



"Gavels fade from use in courtroom; Area courthouses often do without": This article appears today in The Aberdeen American News. Thanks to the "SW Virginia law blog" for traveling far outside of its professed geographical jurisdiction for the pointer.
Posted at 23:10 by Howard Bashman



On newsstands soon: The March 1, 2004 issue of Time magazine will contain an article headlined "I Do ... No, You Don't! Why San Francisco's brash mayor is taking on Schwarzenegger and Bush over gay marriage." And the March 1, 2004 issue of Newsweek will contain an article headlined "Outlaw Vows: A brash young mayor issues marriage licenses to same-sex couples and opens a new front in America's culture wars."
Posted at 14:32 by Howard Bashman



"Bush nominee to S.D. bench gets ABA rating of not qualified": The San Diego Union-Tribune recently published this report about Magistrate Judge Roger T. Benitez, whom President Bush in May 2003 nominated to serve on the U.S. District Court for the Southern District of California. At the time of the nomination, The Union-Tribune reported that "Bush picks five as S.D. federal judge nominees." Since then, of course, Magistrate Judge Benitez received his largely negative rating from the American Bar Association. Information about Magistrate Judge Benitez's background can be accessed here.

No doubt as a result of that rating, Magistrate Judge Benitez will be the sole nominee considered at the Senate Judiciary Committee's confirmation hearing scheduled for this upcoming Wednesday, February 25, 2004. The third panel at the hearing will consist of representatives from the ABA who no doubt will be asked to explain the basis for the unfavorable rating.

In other coverage of this matter, The Imperial Valley Press reported that "ABA says Benitez 'not qualified.'" And The Associated Press reported that "Lawyers' group says nominee unqualified for bench in San Diego."
Posted at 10:20 by Howard Bashman



"Alabama split over Pryor's appointment": This article appears today in The Atlanta Journal-Constitution. And The Times Daily contains an op-ed by Mike Goens entitled "Alabama will miss Bill Pryor."
Posted at 08:15 by Howard Bashman



"Pledge hearing gets a dry run; Plaintiff Newdow argues well in moot court, but will he win in Washington?" Claire Cooper, legal affairs writer for The Sacramento Bee, had this article in Friday's issue of that newspaper.
Posted at 08:11 by Howard Bashman



Saturday, February 21, 2004
In Saturday's newspapers: The Washington Post reports that "Muhammad's Bid for New Trial Rejected; Prince William Judge Denies Series of Motions, Changes Date for Sniper's Sentencing." In other coverage of this news, The Washington Times reports that "Muhammad request for new trial rejected." The Richmond Times-Dispatch reports that "No new trial as Muhammad sentence nears." The Virginian-Pilot reports that "Judge denies motions to drop Muhammad?s murder convictions." And The Baltimore Sun reports that "Va. judge refuses to void Muhammad conviction; Sniper verdict based on evidence, he says."

In other news, The Washington Post reports that "Ex-Death Row Inmate Seeks Evidence Release; Attorneys Say Documents in Va. Case Could Prevent Similar Errors."

The Los Angeles Times reports that "Schwarzenegger Seeks Halt to Gay Marriages; The governor directs the state attorney general to immediately pursue a judicial resolution of the issue; A second S.F. judge refuses to stop the unions." In other news, "Judge Bans Copying Software for DVDs; 321 Studios is prohibited from making the products that bypass disc encryption." And finally, letters to the editor appear under the heading "Perceptions Matter -- Scalia Should Withdraw."
Posted at 23:35 by Howard Bashman



The San Francisco Chronicle is reporting: Sunday's issue will contain an article headlined "Lockyer rejects halt to nuptials; He dismisses governor's demand as a political ploy." In today's newspaper, Bob Egelko has an article headlined "Lesbian ex-couple fight for custody; Egg donor contends genes, nurture trump waiver of rights." And in Friday's newspaper, Egelko had an article headlined "Legal fee award in slander case rejected," which reports on this decision that the Supreme Court of California issued Thursday.
Posted at 23:23 by Howard Bashman



"Criminal Appeal: Post-conviction practice in the Ninth Circuit and the California state courts." Longtime "How Appealing" reader Jonathan Soglin recently started his own blog, which is a must read for those interested in criminal law-related rulings from the Ninth Circuit and the California state appellate courts. Some may recall that back in December 2002, Jonathan was the first to email me with the correct answer to the trivia question, "For which Ninth Circuit judge did Dahlia Lithwick serve as a judicial law clerk?"
Posted at 23:10 by Howard Bashman



Death penalty news from here and there: Today's edition of The Philadelphia Inquirer contains an article headlined "N.J. court suspends executions; At issue: Whether effects of a lethal injection can be reversed; The ruling is considered a landmark." And The Newark Star-Ledger reports that "Appeals court stays state executions; 'Arbitrary' procedures on secrecy and medical reversal cited." You can access yesterday's ruling by the Superior Court of New Jersey, Appellate Division, at this link.

Elsewhere, The Baltimore Sun today contains an article headlined "Unwavering about death penalty; Father: Court ruling aside, Chuck Poehlman wants his daughter's killer to be executed." My earlier mention of the decision by Maryland's highest court that gives rise to this article can be accessed here.
Posted at 22:55 by Howard Bashman



The Houston Chronicle is reporting: "How Appealing" reader Mary Flood has an article headlined "Skilling colleague passed by on chain gang." And in other news, "UT task force to study rules on computer porn at work."
Posted at 22:52 by Howard Bashman



"Portland bows in courthouse fight to feds; The U.S. government, owner of the historic downtown building, cites law to stop a new challenge": This article appears today in The Oregonian. Thanks to Law Professor Jack Bogdanski for the pointer.
Posted at 22:44 by Howard Bashman



Ain't That Peculiar: It's been awhile since I've recommended a movie here, but tonight I just finished watching the brilliant film "American Splendor" on DVD, and I'm pleased to report that it deserves all the accolades it has earned from Elvis Mitchell, Roger Ebert, and the movie reviewer for The Atlanta Journal-Constitution.
Posted at 22:23 by Howard Bashman



"Supreme Court to hear detainee case; To decide if suspect in 'dirty bomb' can be held indefinitely": Lyle Denniston has this article today in The Boston Globe. Neil A. Lewis reports in The New York Times that "Supreme Court Will Hear 3rd Detainee Case." Charles Lane reports in The Washington Post that "Court Accepts Case of 'Dirty Bomb' Suspect; Decisions by Justices This Spring Are Expected to Clarify Scope of President's Powers in Wartime." Stephen Henderson and Shannon McCaffrey of Knight Ridder Newspapers report that "Supreme Court to hear case of 'dirty bomb' suspect." The Los Angeles Times reports that "Supreme Court to Decide Padilla Case; It will rule on whether the U.S. citizen arrested in Chicago can be held as an 'enemy combatant.'" The Chicago Tribune reports that "Court takes Padilla case; Justices to rule on national security vs. constitutional rights." The Washington Times reports that "Justices take case on jailed 'enemy.'" And Tony Mauro of law.com has an article headlined "High Court at Crossroads."

In other coverage, The Seattle Post-Intelligencer reports that "High court to rule on 2nd detention; U.S. citizen, a terrorism suspect, has been held without charges." And The Australian reports that "Court to rule on detention."

In related news, The South Florida Sun-Sentinel reports today that "Man in terror case denied bail." And tomorrow's issue of The New York Times Book Review contains a review headlined "Civil Liberties and the War on Terrorism."
Posted at 15:30 by Howard Bashman



Will the U.S. Senate eventually confirm William H. Pryor, Jr. to a lifetime position on the U.S. Court of Appeals for the Eleventh Circuit, and what about the possibility of a second recess appointment to the Eleventh Circuit after the first expires? "Feddie" of "Southern Appeal" provides his views this morning as to "Why Pryor will eventually be confirmed by the Senate." I will follow with interest the debate that's sure to follow in the comments to that post.

Let me begin with my usual disclaimer that I disfavor the use of procedural mechanisms to prevent the confirmation of judicial nominees who are objectively qualified and who would be confirmed by a majority of U.S. Senators if a vote on the merits were to occur. That having been said, Judge Pryor faces quite an uphill battle to achieve confirmation. Obviously, confirmation is not in the cards until after the upcoming elections for the Presidency and for one-third of the U.S. Senate. The U.S. Senate previously conducted two votes to overcome the filibuster of Pryor's nomination, and the most votes in favor of an override that Pryor's supporters were able to muster were 53. You can see the vote tallies here (53 "for" on July 31, 2003) and here (51 "for" on November 6, 2003). Because 60 votes "for" are necessary to override a filibuster, the Republicans would need to pick up seven more votes "for" in the upcoming election. I don't think that even the most optimistic supporters of the Republican party view that scenario as likely. And on the subject of having Democrats who previously voted against breaking the filibuster change their minds, I guess anything is possible, but I don't believe that any such change of mind has yet happened with respect to any of the various filibusterees, and, as this morning's Washington Post editorial notes, to partisan Democrats Pryor's nomination was and remains the most provocative of all of President Bush's federal appellate court nominations.

Thus, perhaps the more relevant question to ask is whether President Bush could give Judge Pryor a second recess appointment once the first expires toward the end of 2005. I don't know the answer to that question, but the chart of recess appointments that accompanies this Federalist Society paper suggests that at least three federal district judges -- William J. Tilson of the U.S. District Court for the Middle District of Georgia; Milton D. Purdy of the U.S. District Court for the District of Minnesota; and Oscar R. Hundley of the U.S. District Court for the Northern District of Alabama -- received back-to-back recess appointments before leaving the federal judiciary. Presumably President Bush could keep Judge Pryor on the bench for up to six years through successive recess appointments assuming the President's reelection this fall.
Posted at 11:55 by Howard Bashman



This morning's press coverage of President Bush's recess appointment yesterday of William H. Pryor, Jr. to the U.S. Court of Appeals for the Eleventh Circuit: In The New York Times, Neil A. Lewis reports that "Bypassing Senate for 2nd Time, Bush Seats Judge." And an editorial is entitled "Judicial Activism."

The Washington Post reports that "Bush Again Bypasses Senate to Seat Judge." And a must-read editorial is entitled "More Provocation."

The Los Angeles Times reports that "Bush, Frustrated by Democrats, Again Bypasses Senate on Judge." The Washington Times reports that "Bush again installs a judge at recess." And The Atlanta Journal-Constitution reports that "Bush places Pryor on court; Recess appointment avoids filibuster, bypasses Senate."

In coverage from Alabama, The Montgomery Advertiser contains articles headlined "Pryor sidesteps Democrats"; "Republicans praise choice"; and "Allen named acting attorney general." And an editorial is entitled "Pryor will strengthen court."

The Mobile Register contains articles headlined "Bush names Pryor; President bypasses Senate to appoint Alabama's AG"; "Many possible Pryor successors"; and "Pryor Timeline." And an editorial is entitled "Almost three cheers for Pryor's judgeship."

Finally for now, The Birmingham News reports that "Pryor sworn in as judge; Bush appoints attorney general to 11th Circuit while Congress is away."

My views on yesterday's developments can be gleaned from two columns that I wrote long before President Bush nominated Judge Pryor: "Activist U.S. Court of Appeals Judges: Myth or Reality?" and "Questioning the Constitutionality of Recess Appointments to the Federal Judiciary."
Posted at 10:00 by Howard Bashman



Friday, February 20, 2004
In Friday's newspapers: The Washington Post reports that "U.S. Agrees to Free 5 Britons, Dane From Guantanamo Jail." In local news, "Capital Sentence Reversed, New Hearing Ordered in Md.; Death Row Numbers Continue to Decline"; "Appeals Court Declines to Free Lentz; Jailing to Continue Even Though Conviction Was Thrown Out"; and "Muhammad's Lawyers Cite Letters by Malvo." In same-sex marriage-related news, "More Cities Supportive of Gay Marriage; Officials Say They Would Grant Licenses if They Could, but Others Urge Caution" and "For Gay Md. Couple, It's 'Finally Happening.'" An editorial is entitled "More Texas Rules." And letters to the editor appear under the heading "A Constitutionally Unsound Approach."

The New York Times reports that "San Francisco Sues State Over Same-Sex Weddings." In other news, "Final Word Still to Come on Interest Group Money." An article reports that "Friend Says Stewart Talked of Tip From Broker." In other celebrity justice-related news, "Judge Rejects Some Testimony of Coroner in Ex-Net's Trial." And an article reports that "Women Tailor Sex Industry to Their Eyes."

The Los Angeles Times reports that "S.F. Sues State Over Bans on Gay Marriage." In related news, "State Senator Fumes Over Same-Sex Marriages" and "Boxer Walks a Tightrope." An article is headlined "Leading Skilling's Defense: a Lawyer of 'Enormous Talent'; 'Jeff Skilling has nothing to hide' in Enron's collapse, says Daniel Petrocelli, famed for winning the Simpson civil case." In local news, "Corcoran Inmate Starves to Death; Staff didn't notice that the prisoner, an elderly priest with a history of engaging in hunger strikes, was wasting away, officials say"; "Judge Accused of Misconduct by State Panel; The South Gate jurist, who allegedly invited a rape victim to dinner and made sexual comments to staff, vows to fight the charges"; and "Judge Cuts Internet Ad Firm's Award; Three Yorba Linda brothers should get $1.4 million from a Seattle-based customer rather than the jury-approved $6.55 million, Santa Ana jurist rules." And in news from New York, "Stewart Friend Testifies; Damaging testimony conflicts with the media titan's assertions about her ImClone stock sale."

The Washington Times reports that "San Francisco sues state over gay 'marriage.'" In other news, "FBI disciplined 77 agents over 14-year period." An editorial is entitled "Metro on track." And Linda Chavez has an op-ed entitled "With this hubris...."

USA Today reports that "San Francisco sues state over same-sex marriages." An editorial is entitled "Medical privacy falls victim to fierce abortion fight." And an op-ed in response by U.S. Representative Melissa Hart (R-Pa.) is entitled "Privacy will be protected."
Posted at 23:52 by Howard Bashman



"Penn. Court Reinstates Asbestos Lawsuits": The Associated Press reports here that "The state Supreme Court on Friday reinstated 376 asbestos lawsuits against Crown Cork & Seal Co. Inc., declaring unconstitutional a 2001 state law designed to protect the Philadelphia-based manufacturer." You can access today's ruling by the Supreme Court of Pennsylvania at the following links: majority opinion; dissenting opinion; and additional dissenting opinion. Pennsylvania's highest court appears to have taken the somewhat unusual step of resubmitting the case on the briefs in late December 2003 after the newest member of the court took his oath of office, allowing him to cast the decisive vote in a case that was orally argued back in October 2002.
Posted at 23:45 by Howard Bashman



"Scholars, activists call for justice; Radcliffe, HMS activists Harbury, Farmer discuss human rights abuses in Guatemala and Haiti": This article appears in the current issue of the Harvard Gazette.
Posted at 23:22 by Howard Bashman



"Court ruling may limit mass litigation": The Clarion-Ledger reports here today that "The state Supreme Court on Thursday ruled that dozens of people suing a drug maker were improperly joined in their case. The decision could have a major impact on civil justice in Mississippi, legal observers say." You can access yesterday's ruling by the Supreme Court of Mississippi at this link.
Posted at 23:11 by Howard Bashman



"Court Accepts Case of 'Dirty Bomb' Suspect; Decisions by Justices This Spring Are Expected to Clarify Scope of President's Powers in Wartime": Charles Lane will have this article in Saturday's issue of The Washington Post. In Saturday's issue of The New York Times, Neil A. Lewis will have an article headlined "Supreme Court Will Hear 3rd Detainee Case." The Los Angeles Times reports that "Justices to Review Case Against Padilla." And online at law.com, Tony Mauro has an article headlined "High Court at Crossroads."
Posted at 22:25 by Howard Bashman



"Bypassing Senate for Second Time, Bush Seats Judge": Neil A. Lewis will have this article in Saturday's issue of The New York Times. And a front page article in Saturday's issue of The Washington Post is headlined "Bush Again Bypasses Senate to Seat Judge."
Posted at 22:20 by Howard Bashman



"Judge Denies Immediate Stay of Gay Unions": The Associated Press has this report from California.
Posted at 21:00 by Howard Bashman



"Bush Installs Judge, Bypasses Senate": The Los Angeles Times provides this news update.
Posted at 20:58 by Howard Bashman



"Supreme Court to Hear 'Dirty Bomber' Case": Charles Lane has this news update online at The Washington Post.
Posted at 19:05 by Howard Bashman



"Bush Appoints Pryor to Appeals Court; President Bypasses Senate Democrats Who Have Stalled His Nominations": The Washington Post provides this news update. Knight Ridder Newspapers report here that "Bush bypasses Senate to install judge." And NPR's "All Things Considered" this evening included a segment entitled "Bush Names Pryor to Bench, Dodging Democrats."
Posted at 18:50 by Howard Bashman



"Bush Installs Judge, Bypassing Senate": Here's an updated report from The Associated Press. And Reuters reports that "Bush Puts Conservative on Court, Bypasses Congress."
Posted at 17:55 by Howard Bashman



Senator Patrick J. Leahy (D-VT), ranking Democratic member of the Senate Judiciary Committee, isn't happy about today's judicial recess appointment: Senator Leahy's statement can be accessed here.
Posted at 17:19 by Howard Bashman



"IBM vows to appeal after key pension ruling": Reuters provides this report.
Posted at 17:15 by Howard Bashman



Welcome to the "Wallace McCamant club," Judge Pryor: See my posts from January 19th and 20th, 2004 (here and here) for all the details.
Posted at 17:00 by Howard Bashman



When it comes to judicial recess appointments, The Sierra Times was prescient: See my post from January 26, 2004 entitled "Know your filibusterees."
Posted at 16:45 by Howard Bashman



Access online President Bush's statement on the recess appointment of William H. Pryor, Jr. to the U.S. Court of Appeals for the Eleventh Circuit: The President's statement can be accessed here. And you can also access online the "Statement of Former Attorney General Bill Pryor." (Final link via "Southern Appeal.")
Posted at 16:34 by Howard Bashman



"Committee" applauds, "Alliance" jeers, PFAW says pshaw: The Committee for Justice has issued a press release entitled "CFJ Applauds White House for Pryor Recess Appointment." The Alliance for Justice, meanwhile, has issued a press release entitled "Alliance for Justice Incensed Over President Bush's Recess Appointment of William Pryor to the Eleventh Circuit." And People For the American Way has issued a press release entitled "White House Puts Politics First, Constitution Last With Appalling Recess Appointment Of Bill Pryor."
Posted at 15:46 by Howard Bashman



"Sen. Orrin Hatch: If this conservative senator isn't safe from conservative attacks, is anyone?" Michael Crowley has this essay online today at Slate.
Posted at 15:30 by Howard Bashman



BREAKING NEWS -- The AP reports that the White House will use recess appointment to put Bill Pryor onto the Eleventh Circuit: The Associated Press within the past ten minutes has issued a report that begins, "Bypassing Senate Democrats who have stalled his judicial nominations, President Bush will use a recess appointment to put Alabama Attorney General Bill Pryor on the 11th U.S. Circuit Court of Appeals at least temporarily, government sources said Friday." Thanks to "Southern Appeal" for the pointer.
Posted at 14:34 by Howard Bashman



"Ohio State minority applicants down in wake of court race ruling": The Associated Press provides this report.
Posted at 14:30 by Howard Bashman



"Arbour leaving Supreme Court for UN post": The Canadian Press reports here that "Justice Louise Arbour is leaving the Supreme Court of Canada to become the United Nations human-rights commissioner, touching off what is expected to be an intense contest to take her place at the court." And CBC News reports that "Arbour to take UN human rights post."
Posted at 14:23 by Howard Bashman



"Judges stand by remap date; New districts must be drawn by March 1": The Atlanta Journal-Constitution offers this report. You can access the ruling by a three-judge panel of the U.S. District Court for the Northern District of Georgia at this link.
Posted at 14:00 by Howard Bashman



"Former GOP Staff Attorney Says 'Profit Motive' Drives Judiciary Battles": CNS News today provides this report. Thanks to a reader for the pointer.
Posted at 13:10 by Howard Bashman



In news pertaining to the U.S. Supreme Court: Gina Holland of The Associated Press reports here that the Court today agreed to review on the merits the Second Circuit's recent decision in favor of alleged dirty bomber Jose Padilla. You can access the briefs that have been filed so far in that matter at this link. Update: The order granting review can be accessed here.

And in other news, The AP reports that "Mass Murderer Gets Day in Supreme Court."
Posted at 12:57 by Howard Bashman



"Government Pushes Solomon Amendment; Government action comes after HLS faculty petition": This article appears today in The Harvard Crimson. And yesterday's issue of The Daily Northwestern contained an editorial entitled "Law School right to keep recruiters."
Posted at 12:41 by Howard Bashman



Bush frees Rasul before Rasul faces Bush in U.S. Supreme Court: Shafiq Rasul, the lead petitioner in the pending U.S. Supreme Court case of Rasul v. Bush, is about to be released to Great Britain from U.S. military custody at Guantanamo Bay, Cuba.

The Boston Globe today reports that "US to free 6 detainees; 2 brought legal case." The Miami Herald offers an article headlined "Guantanamo Britons to be returned home; Five Britons jailed at Guantanamo Bay will be returned home in several weeks; Discussions are continuing on the fate of four other British citizens." The Los Angeles Times reports that "5 Britons Held at Guantanamo to Be Released; They will be returned to their country; The move helps the U.S. smooth ties with a key ally." The Times of London reports that "Guantanamo Brits to face police investigation." The Associated Press reports that "Britons at Guantanamo Could Face Legal Woes." Reuters reports that "UK Police Begin Probe Into Guantanamo Britons." And BBC News offers reports headlined "Guantanamo investigations begin; British anti-terrorist officers have begun investigations into the five UK terror suspects to be freed from Guantanamo Bay"; "Guantanamo Britons' legal status"; and "'Fear' still haunts Tipton; Fear and suspicion still grips the small town of Tipton two years after being thrown into the limelight by events thousands of miles away."
Posted at 11:40 by Howard Bashman



Newdow wows 'em at moot court: The Oakland Tribune reports today that "Atheist's point well-taken in Pledge case dry run."
Posted at 10:52 by Howard Bashman



"Lawyer's racist remarks earn new trial for Death Row inmate": This article appears today in The Palm Beach Post. And The Miami Herald today contains an article headlined "Lawyer's racist remarks bring new trial; On Death Row for 14 years, a Polk County man gets a new trial after the Florida Supreme Court finds his defense attorney expressed 'racial prejudice.'" You can access yesterday's decision of the Supreme Court of Florida at this link.
Posted at 10:50 by Howard Bashman



"Court's Stay of Execution for Killer Is Reaffirmed": The Los Angeles Times today offers this news concerning the case of California death row inmate Kevin Cooper. And you can access yesterday's en banc order of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:43 by Howard Bashman



"'Jane Roe' takes her case back to court": The Houston Chronicle today contains this report. And The San Antonio Express-News reports today that "Roe vs. Wade heads back to courtroom."
Posted at 10:39 by Howard Bashman



The Green Bag Press announces the publication of "In Chambers Opinions": Get the details here, and even more details are available here. Sorry, no bobbleheads included.
Posted at 10:11 by Howard Bashman



"Ernest Money: A drug warrior uses Congress' purse strings to strangle dissent." Jacob Sullum has this essay online today at Reason.
Posted at 09:22 by Howard Bashman



This Harvard Law Record article reports that there are 36 to 40 editorial board positions on the Harvard Law Review: Blogger and Harvard Law student Jeremy Blachman offers the definitive list of editorial board positions here.
Posted at 00:35 by Howard Bashman



"Ogletree class draws Justice Breyer, Jesse Jackson": Clinton Dick, who mysteriously failed to cover the speech I delivered earlier this year at the Harvard Law School, has this report in the current issue of The Harvard Law Record.
Posted at 00:30 by Howard Bashman



Thursday, February 19, 2004
Elsewhere in Thursday's newspapers: In same-sex marriage-related news, The Washington Times reports that "California will reject altered marriage forms"; "California gay 'marriages' pushing Bush to act"; and "Senate urges gay 'marriage' ban." In other news, "FBI report shows agents punished, fired for crimes." In local news, "Suit targets ban on pro-pot ads." An op-ed by Kenneth W. Starr is entitled "A stitch in crime." And an op-ed by William Murchison is entitled "Marriage amendment cause."

USA Today reports that "'Sex tourists' warned: Law is watching; U.S. targets those going overseas to molest kids."

The Boston Globe reports that "Bush 'troubled' by gay marriage, but is quiet on amendment plans." And in other news, "US asylum ruling awaited for woman who alleges abuse."

The Los Angeles Times reports that "Tribe Seeking Exemption From Disclosure Laws; An appellate court is asked to rule that an Indian band's sovereignty spares it from state rules on campaign donations." In other news, "White House Accused of Science Bias; The administration has censored and suppressed reports from U.S. agencies that don't adhere to a party line, the group alleges." In business news, "IBM Loses Pension Ruling; A judge says 140,000 employees and retirees are entitled to back pay in a 'cash-balance' case." And in local news, "Rights vs. Obligations of Marriage: As San Francisco continues to unite thousands of same-sex couples, newlyweds consider benefits, costs" and "After 25 Years, Woman Sees Son in His Fight for Freedom."
Posted at 23:50 by Howard Bashman



In news from Utah: The Salt Lake Tribune today contains articles headlined "End of firing squad may be a step closer"; "Late-term abortion measure advances"; and "Plan would shed light on judge misconduct." A news update from The Associated Press is headlined "Senate passes firing squad bill." And The Deseret Morning News reports that "Emotional House OKs abortion bill."
Posted at 23:40 by Howard Bashman



"Court order prohibits ex-wife from 'defaming' man over fears of abuse": This article appears in today's edition of The Seattle Times. Previously, The Associated Press reported that "Police officer's ex-wife requests end to gag order."
Posted at 23:35 by Howard Bashman



"New fed law to be tested in drawn-out legal battle": Today's issue of The Boston Herald contains an article that begins, "A year after the deadly inferno at The Station nightclub, hundreds of burn victims and relatives of those killed are hoping for relief while civil lawyers are bracing for a drawn-out legal battle that will test a new federal law for the first time."
Posted at 23:11 by Howard Bashman



"Man wins reprieve from death sentence; Appeals court judges divided on reasons for overturning ruling": This article will appear in Friday's issue of The Baltimore Sun. You can access today's ruling of the Court of Appeals of Maryland, that State's highest court, at this link.
Posted at 23:08 by Howard Bashman



The perils of an advocate's trying to replicate an allegedly hostile work environment from the lectern at the start of an appellate oral argument: Today in the U.S. Court of Appeals for the Seventh Circuit, a three-judge panel consisting of Circuit Judges Richard D. Cudahy, Richard A. Posner, and Ilana Diamond Rovner heard oral argument in the case of Leslie D. McPherson v. City of Waukegan. The attorney for plaintiff-appellant McPherson began his oral argument as follows:
My name is Jed Stone, and I represent the appellant Leslie McPherson.

"What color is your bra? Does it match your panties?"
Immediately thereafter, Judge Rovner interjected:
Are you speaking to Judge Posner?
The courtroom erupted in laughter. You can download the audio of the oral argument via this link (right-click to save MPG audio file to your computer's hard drive before playing audio). Thanks so very much to the reader who emailed to bring this oral argument from earlier today to my attention.
Posted at 22:42 by Howard Bashman



Access online the vast majority of the public comments received on proposed Federal Rule of Appellate Procedure 32.1: They are available via this link. Thanks to those readers of "How Appealing" who submitted comments in support of that proposed rule after I suggested the usefulness of doing so back on January 29, 2004. One well-phrased comment in opposition to the proposed rule comes from California Court of Appeal Justice William W. Bedsworth. (By the way, the February 2004 installment of Justice Bedsworth's always very funny monthly column, entitled "Feral Chihuahuas Kill Thousands in California," can be accessed here and here.)
Posted at 22:01 by Howard Bashman



"Carcieri's bill shocks constitutional scholars; The governor's proposed homeland security bill would 'take the state of Rhode Island back 200 years,' says one nationally recognized First Amendment expert." The Providence Journal today contains this report. You can access the text of the proposed law at this link. Eugene Volokh comments here. And in more recent news, "Carcieri withdraws homeland-security bill."
Posted at 19:50 by Howard Bashman



"Court to Hear Case to Reopen Roe v. Wade": The Associated Press reports here that "A federal appeals court has agreed to hear a request from the woman formerly known as 'Jane Roe' to reconsider the 1973 U.S. Supreme Court decision Roe v. Wade that legalized abortion." The appeal is pending before the U.S. Court of Appeals for the Fifth Circuit.

Update: You can view the Fifth Circuit's hearing list containing this case here. No word yet on whether recess appointee Charles W. Pickering, Sr. will be one of the three judges in whose hands the fate of Roe v. Wade rests. But seriously, anyone who thinks that a three-judge Fifth Circuit panel can overturn the result of one of the all-time most controversial U.S. Supreme Court cases undoubtedly is in for disappointment.

Second update: Thanks much to the reader who drew to my attention that the pleadings and orders that give rise to this appeal can be accessed via this link.
Posted at 17:59 by Howard Bashman



"Memogate: The Judiciary Committee computer scandal is one gnarly sausage." Slate has just posted online this essay by Dahlia Lithwick.
Posted at 17:41 by Howard Bashman



Seventh Circuit Judge Frank H. Easterbrook supports proposed Federal Rule of Appellate Procedure 32.1, which would allow citation to unpublished and non-precedential opinions in all federal appellate courts: Several "How Appealing" readers emailed me after I mentioned here that Law Professor Eugene Volokh had posted this letter signed by a majority of judges serving on the U.S. Court of Appeals for the Seventh Circuit opposing proposed FRAP 32.1 to note that Judge Easterbrook was not among the signers of that letter. What, these readers wondered, was Judge Easterbrook's view on proposed FRAP 32.1? Speculate no more -- you can read Judge Easterbrook's letter in support of proposed FRAP 32.1 at this link.

I have also posted online here a letter from Second Circuit Chief Judge John M. Walker, Jr. opposing proposed FRAP 32.1. The letter notes that eighteen other active and senior Second Circuit judges join in the views expressed in Chief Judge Walker's letter. Additional, mostly negative comments about proposed FRAP 32.1 can be accessed via this link.
Posted at 17:10 by Howard Bashman



Access online the petition for rehearing en banc filed in the U.S. Court of Appeals for the Eleventh Circuit in the case upholding constitutionality of Florida statute prohibiting adoption of a child by persons "who are known to engage in current, voluntary homosexual activity": The petition for rehearing en banc can be accessed here. In this post earlier today, I provided links to press coverage of this court filing.
Posted at 17:00 by Howard Bashman



"IBM may owe workers billions in pension case": This article appears today in The St. Louis Post-Dispatch.
Posted at 15:20 by Howard Bashman



Cartoonist Mark Fiore examines the "Gay Agenda": You can access his animated cartoon here. Relatedly, The San Francisco Chronicle today reports that "Papers, pundits abuzz nationwide over gay weddings; Fans, foes see mayor's move as turning point."
Posted at 14:28 by Howard Bashman



"A majority of voters in the survey also reject the filibuster strategy employed by Senate Democrats against some of President Bush's judicial nominees." See this press release issued yesterday summarizing the results of a nationwide Zogby poll.
Posted at 14:09 by Howard Bashman



"State ban on gay marriage being tested; The U.S. Constitution instructs states to honor other states' public acts, such as marriages." This article appears today in The St. Petersburg Times.
Posted at 13:24 by Howard Bashman



Former Louisiana Governor Edwin Edwards seeks to have his federal criminal conviction overturned: The Times-Picayune today reports that "Edwards lawyers want verdict tossed; Judge, jurors, witness called into question." In other coverage, The Advocate of Baton Rouge reports that "Edwards focuses on judge; Petition says Polozola 'paranoid' during trial." And The Lafayette Daily Advertiser reports that "Attorneys working to get convictions overturn for Edwards."
Posted at 13:15 by Howard Bashman



"HBS Program Lifts Rule On Race": The Harvard Crimson reports here today that "Harvard Business School has dropped a rule barring white and Asian students from a summer program after two groups opposed to race-based admissions threatened to take legal action against Harvard."
Posted at 13:11 by Howard Bashman



"Life, Liberty and Pursuit of Porn": Wired News interviews Larry Flynt.
Posted at 12:09 by Howard Bashman



"Protesters urge removal of SJC justices; Target four who back gay marriage": This article appears today in The Boston Globe.
Posted at 11:42 by Howard Bashman



In news and commentary from Alabama: Today's issue of The Birmingham News contains an article headlined "Dismiss suit to reinstate Moore, state lawyers urge." An editorial in The Mobile Register is entitled "Conservatives back Pryor." And The Montgomery Advertiser today contains an editorial entitled "Moore, Newsom peas in a pod."
Posted at 11:37 by Howard Bashman



"Divided panel says Ten Commandments marker must go": The Omaha World-Herald today contains this report, along with a very large photograph of the monument at issue. And The Lincoln Journal Star reports that "Ten Commandments ruling upheld in court."
Posted at 11:30 by Howard Bashman



"O'Connor says lawyers can do more; First female U.S. Supreme Court justice calls for an increase in pro bono work": This article appears in today's issue of The Arizona Business Gazette.
Posted at 11:19 by Howard Bashman



"Gay men appeal federal decision upholding Florida's ban on gay adoptions": The South Florida Sun-Sentinel today contains this report. And The Miami Herald reports that "ACLU vows to fight ruling that bans gay adoptions; Lawyers for the American Civil Liberties Union will ask a federal appeals court to reconsider its ruling supporting a law barring gays from adopting."
Posted at 11:10 by Howard Bashman



"GOP senators circle wagons round Hatch; Top conservatives tell their ideological allies to hold fire": This article appeared in yesterday's issue of The Hill.
Posted at 07:20 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "San Francisco Mayor Exults in Move on Gay Marriage." In other news, "Senator Says Report on Misconduct by F.B.I. Agents Is 'List of Horrors.'" An article reports that "Advocacy Groups Allowed to Raise Unlimited Funds." In news from Maryland, "A City Combs Madam's 'Black Book' for the Names It Knows." In other news, "Old Deportation Orders Put Many Out Unjustly, Critics Say." In news relating to the war on terror, "Man Guilty of Lying to the F.B.I. in Sheik Case" and "Guardsman Charged With Trying to Spy for Al Qaeda." And in celebrity justice-related news, "Stewart Trial Examines Securities Fraud Issues" and "At Williams Trial, a Day for Guns and Gracious Living."

The Washington Post reports that "Bush Biding Time on Marriage Amendment; San Francisco Move Raises Concern." In news from Virginia, "Sniper Retrial Called Unjustified; Prosecutors Say Evidence Proved Muhammad's Guilt." An article reports that "More States Are Fighting 'No Child Left Behind' Law; Complex Provisions, Funding Gaps In Bush Education Initiative Cited." In business news, "Skilling Indictment Expected Today; Former Chief Executive Would Be Highest-Ranking Enron Defendant"; "Reason for Stewart's Stock Sale Disputed; Jury Hears Evidence That ImClone Shares Were Falling Well Before Transaction"; and "Jury Sides With Boeing In Employee Dismissal; Whistle-Blowing Led to Firing, Former Engineer Claimed in Suit." And a letter to the editor appears under the heading "An Institution Damaged."

The Christian Science Monitor contains an article headlined "As court mulls, gays wed; A judge may decide as soon as Friday whether to stop San Francisco's rush of gay marriages." And in other news, "In Florida, a bitter fight over cutting down orange trees; A state court is ruling on a compensation plan that residents argue undervalues trees destroyed to stop a citrus canker."
Posted at 06:40 by Howard Bashman



Access online the federal government's Brief for Appellee filed Tuesday in the U.S. Court of Appeals for the Third Circuit in the constitutional challenge brought by various law schools, law professors, and law students against the Solomon Amendment: The brief can be viewed online at this link.
Posted at 00:33 by Howard Bashman



Wednesday, February 18, 2004
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "S.F. Judge Won't Halt Marriages; The city gets until March 29 to return to court and defend the merits of allowing same-sex unions; Count tops 2,600 couples." In related news, "Marriage Amendment Unlikely Soon; Between election-year politics and Congress' aversion to altering the Constitution, a change barring same-sex unions doesn't look imminent" and "Same-Sex Union Controversy Moves Into New Hampshire; The state already bars such marriages, but lawmakers discuss extending its reach." In business news, "No-Call Telephone Registry Is Upheld; An appeals court rejects claims that the list violates telemarketers' free-speech rights" and "Ex-Aide's Friends Allowed to Testify; Prosecutors are prohibited from speculating about the timing of calls between Stewart and her broker." An article reports that "Prosecutor in Terror Case Sues Justice Department; The veteran of the U.S. attorney's office in Detroit says senior federal officials were publicity hounds and did not provide support." And an editorial is entitled "Politicking on Kids' Backs."

The Washington Times reports that "White House waits on marriage issue." In related news, "Pro-family groups set back in bid to end gay 'marriage.'" In other news pertaining to California, "Celebrities take up death-row case." An article reports that "Prosecutor sues Justice, Ashcroft." And in local news, "Lack of commuter tax unfair to residents, lawyers say" and "House requires consent on pills."

The Boston Globe reports that "N.H. bill targets same-sex marriage; Effects to be sweeping, gay advocates caution." An article reports that "Book groups seek privacy." And in local news, "Revere ordered to pay costs in adult store case."

Finally, USA Today reports that "S.F. courts allow gay marriages to continue."
Posted at 23:22 by Howard Bashman



Available online at law.com: An article reports that "Virginia Seeks Review of Ruling on Prayer." In news from California, "San Francisco Draws Battle Lines for Gay Marriage; Decisions in 'Lawrence' and 'Goodridge' seen as road map" and "Judge: Class Action Prince Was Really a Frog." And an article by Carolyn Elefant is headlined "It's a Blog World After All: If you're seeking greater visibility, a Web log may be for you."
Posted at 23:05 by Howard Bashman



"The Determinants of Sentencing in Pennsylvania: Do the Characteristics of Judges Really Matter?" The Heritage Foundation today posted online a paper bearing that title. The paper reports that it analyzes "Pennsylvania sentencing data from 1998 to determine the effects of the races and genders of offenders and judges on judicial sentencing."
Posted at 22:43 by Howard Bashman



"Court OKs national no-call list; Federal panel in Denver says privacy trumps marketers' free-speech claim": Today's issue of The Denver Post contains this report.
Posted at 22:24 by Howard Bashman



"Morris mom turns tables in music industry lawsuit": This article appears today in The Newark Star-Ledger.
Posted at 22:23 by Howard Bashman



"Perry endorses challenger for high court": The San Antonio Express-News today reports here that "Adding fuel to a contentious Texas Supreme Court race, Gov. Rick Perry on Tuesday endorsed Fourth Court of Appeals Justice Paul Green in his race against incumbent Steven Wayne Smith." All three are Republicans.
Posted at 22:14 by Howard Bashman



The wire services are reporting: Reuters reports that "Wrong Form May Invalidate Calif. Same-Sex Marriages" and "Nichols Seeks Plea Bargain in Oklahoma Bomb Trial."

And The Associated Press is reporting that "ACLU Sues to End Ban on Anti-Drug-Law Ads."
Posted at 22:10 by Howard Bashman



Boalt Hall Law Professor Stephen R. Barnett responds to Ninth Circuit Judge Alex Kozinski's letter in opposition to proposed Federal Rule of Appellate Procedure 32.1: In a nutshell, Professor Barnett (whose letter you can access here) does not find Judge Kozinski's opposition to proposed FRAP 32.1 especially persuasive.

Please note: You must have Adobe Acrobat Reader version 6.0 installed (the newest available version) in order to view the first page of Professor Barnett's letter. Older versions of Adobe Acrobat Reader will allow you to view everything except the first page of the letter. The letter's first page is merely an introduction of sorts; Professor Barnett begins addressing the merits of Judge Kozinski's opposition following the table of contents that appears on page 3 of Professor Barnett's letter. In any event, Professor Barnett's letter is a must-read for anyone interested in the subject of unpublished and non-precedential appellate court rulings. Professor Barnett raises many of the same points that I have raised (see here and here) and would raise in response to Judge Kozinski's opposition to FRAP 32.1.
Posted at 17:25 by Howard Bashman



Legal aristocracy: One of the two judges considering the lawfulness of same-sex marriages in San Francisco is the grandson of Earl Warren, this article published today in The Oakland Tribune reports.
Posted at 16:28 by Howard Bashman



"The Constitution: A living or static document?" In today's issue of The San Diego Union-Tribune, Lionel Van Deerlin offers these reflections on Justice Antonin Scalia's recent speech in San Diego.
Posted at 16:26 by Howard Bashman



"Attorney denies that she had sex with ex-client": The Seattle Times today contains this report. The article explains, "In a formal response filed last week with the disciplinary board of the Washington State Bar Association, Olson denied 'knowingly and intentionally having sexual relations' with former client Sebastian Burns."
Posted at 16:23 by Howard Bashman



Ku Klux Klan opposes racial preferences in Michigan: This article appears in today's issue of The Michigan Daily.
Posted at 16:17 by Howard Bashman



Attorney who retired at age 100 is dead at 101: The Modesto Bee contains this report. Somewhere in Alabama a court clerk is mourning the loss of an octogenarian.
Posted at 16:05 by Howard Bashman



"Judicial Overreach: The Massachusetts decision was not only blind to the political reaction but also unpersuasive." American Prospect magazine has today posted online this essay by Paul Starr.
Posted at 15:59 by Howard Bashman



Petition for rehearing en banc will be filed following today's Eighth Circuit ruling in Nebraska Ten Commandments case: This press release provides the details. To access my earlier post about today's ruling, simply click here.
Posted at 15:51 by Howard Bashman



From today's broadcast of NPR's "Morning Edition": Today's broadcast contained segments entitled "Vietnamese Sue Agent Orange Maker"; "Tyson Foods Convicted of Cattle Price-Fixing"; and "S.F. Gay Marriages Get Court Reprieve" (Real Player required).
Posted at 15:24 by Howard Bashman



"Punctuation The Key To Communication": The Philadelphia Inquirer today contains an article headlined "U.S. Courthouse entrance on Market Street reopens." I was at the courthouse yesterday visiting with the U.S. Court of Appeals for the Third Circuit and noticed the new entrance. Next to the new entrance, the following motto is carved into the building's front: "JUSTICE THE GUARDIAN OF LIBERTY." Am I alone in thinking that perhaps some punctuation (a colon, perhaps) should appear between the first and second words of that motto? On the other hand, perhaps not.

Also in today's Inquirer is an article headlined "Narberth lawyer takes seat on Superior Court."
Posted at 14:45 by Howard Bashman



"Conservative law students unite": Today's edition of The Yale Daily News contains this article.
Posted at 14:39 by Howard Bashman



"Same-sex marriage case poses a legal puzzle; Court may not grant transgender man's request to void union": This article appears today in The Houston Chronicle.
Posted at 14:34 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Court Upholds Neb. Commandments Ruling"; "Bush 'Troubled' by Gay Marriage Issue"; and "Unemployed Umps Fan in Appeals Court."
Posted at 14:20 by Howard Bashman



"Still Live from Death Row: The Rituals of State Murder." CounterPunch this weekend published this essay by California death row inmate Kevin Cooper. (Via "TalkLeft.") Relatedly, Bob Egelko today reports in The San Francisco Chronicle that "Cooper recalls escape from execution." And The Associated Press reports that "Cookbook Features Recipes for Death Row."
Posted at 13:42 by Howard Bashman



"Judges refuse immediate halt to same-sex marriages": This article appears in today's issue of The San Francisco Chronicle.
Posted at 13:31 by Howard Bashman



CNN/Money discovers "Judge B.D. Parker Katzmann of the U.S. Court of Appeals for the 2nd Circuit": See this article, which Toby Stern kindly brought to my attention.
Posted at 13:29 by Howard Bashman



Divided three-judge Eighth Circuit panel affirms order requiring removal of Ten Commandments monument from public park in Plattsmouth, Nebraska: You can access today's ruling at this link. Each of the three judges on the panel issued an opinion. You can learn much more about the history of this dispute via this link.
Posted at 11:32 by Howard Bashman



Second Circuit holds trial judge violated the law in denying access for the media to voir dire interviews of prospective jurors in Martha Stewart case: You can access today's ruling at this link. The opinion begins:
This case calls upon us to balance two weighty constitutional rights: the First Amendment right of the press and of the public to access criminal proceedings and the Sixth Amendment right of criminal defendants to a fair trial. A conglomeration of news organizations and publications has appealed from an order of the United States District Court for the Southern District of New York (Cedarbaum, J.) barring the media from attending the voir dire examinations of prospective jurors held in the district judge's robing room but providing for the release of the transcripts of the voir dire examinations. We conclude that, under the circumstances presented here, the district court erred in closing the voir dire proceedings. We therefore vacate the portion of the district court's order denying the media contemporaneous access to the voir dire. We recognize that, because voir dire has already been completed, this remedy has no practical implications with respect to this case. We, nevertheless, decide the issues presented because the underlying dispute regarding the First Amendment right of access is capable of repetition in future cases yet likely to evade review.
Circuit Judge Robert A. Katzmann wrote the opinion for a unanimous three-judge panel.
Posted at 10:58 by Howard Bashman



"Judicial arrogance: Scalia's attitude in Cheney case reflects badly on the Supreme Court." This editorial appears today in The Buffalo News.
Posted at 10:42 by Howard Bashman



Big words: The questions that will provide the basis for my upcoming "20 questions for the appellate judge" interview with First Circuit Judge Bruce M. Selya are now wending their way via email from Pennsylvania to his chambers in Providence, Rhode Island. My questions may mark the first time that anyone has attempted to rhyme the word "struthian" with "Babe Ruthian."
Posted at 10:30 by Howard Bashman



"Bill may aid display of Ten Commandments": This article appears today in The Atlanta Journal-Constitution.
Posted at 09:05 by Howard Bashman



"No oral sex please, this is clean-living Singapore": The Sydney Morning Herald today contains an article that begins, "Singapore's 77-year-old chief judge has given an earthy defence of his country's notorious prohibition on oral sex - declaring the law should be upheld to safeguard Asian standards of decency."
Posted at 09:00 by Howard Bashman



"Moore's Law: Bill Pryor, Alabama's attorney general, explains why Judge Roy Moore was wrong to defy a federal court order." This essay by Terry Eastland appears online today at The Weekly Standard.
Posted at 07:15 by Howard Bashman



In Wednesday's newspapers: The New York Times reports that "Do-Not-Call Registry for Telemarketing Upheld in Court." In news from California, "Gay Weddings Continue in San Francisco as Lawyers Argue." An article reports that "Alabama Jury Awards Ranchers $1.28 Billion From Tyson." In news from New York, "Court Upholds Judges' Right to Compel Medication" and "Tattoos Affirmed as Evidence." An article reports that "Judge Rejects Dean's Blanket Exemption in Keeping Records Secret." In business news, "Setback Seen for Broker in Stewart Judge Ruling" and "Europeans Reject Offer by Microsoft." And an editorial is entitled "Gay Marriage in the States."

The Washington Post reports that "National No-Call List Upheld By Court; Judges See No Violation Of Telemarketers' Rights." In news from California, "Judges Postpone Action On Same-Sex Marriage; Weddings Continue in Calif. Amid Lawsuits." An article reports that "Terrorism Prosecutor Sues Justice Dept.; Assistant U.S. Attorney Alleges Smear Campaign." An article reports that "Cattle Farmers Awarded $1.28 Billion in Beef Suit." In other news, "Gay Rights Information Taken Off Site; New GOP Head of Agency Says He Is Reviewing Material." In news from New York, "Witnesses to Back Broker's Aide; They Will Testify to Faneuil's Early Admission of Wrongdoing." An article reports that "Steroid Case Details Released; Bonds's Trainer Admitted Giving Steroids to Major League Players." In local news, "Commuter Tax Suit Argued; U.S. Joins Maryland, Virginia in Opposing D.C. Stance." An editorial is entitled "Playing by Texas Rules." And a letter to the editor appears under the heading "Whose Activist Judges?"

Finally for now, The Christian Science Monitor contains an article headlined "Oklahoma City: Is another trial worth its grief? With a court date of March 1 set for Terry Nichols, survivors wrestle with crime, punishment, and memories."
Posted at 06:56 by Howard Bashman



"Scalia outlines his judicial philosophy; Balboa Park speech attracts protesters": The San Diego Union-Tribune recently published this article.
Posted at 06:44 by Howard Bashman



"Judicial Disappointments": Nan Aron has this article in the current issue of In These Times magazine.
Posted at 06:36 by Howard Bashman



Tuesday, February 17, 2004
Elsewhere in today's and yesterday's newspapers: The Los Angeles Times today reports that "Same-Sex Marriage Divides Mass.; Like its Legislature, the citizenry remains deeply split over whether to become the first state to allow gay and lesbian couples to wed." In other news, "Protesters Who Push the Limits; Abortion opponents are legally invading the privacy of everyone who works at a Kansas clinic; The providers refuse to be intimidated." Letters to the editor appear under the heading "Ashcroft Wants Medical Files in Abortion Cases." In yesterday's newspaper, an article reported that "Race, Justice Go on Trial in Sex Case; College was the goal of a star athlete; Instead, he was convicted on two charges in a statutory rape; To some, he is a victim of the Old South." And an article was headlined "S.F.'s Hero of the Moment; Gavin Newsom is hailed by many for allowing same-sex couples to marry; But some say he now has no chance at national office."

The Boston Globe today reports that "Death row appeal challenges rule limiting filings." And columnist Joan Vennochi has an op-ed entitled "Calm justice in eye of gay marriage storm."
Posted at 23:51 by Howard Bashman



Ten Commandments news: The Atlanta Journal-Constitution today reports that "GOP introduces bill allowing display of Ten Commandments." And The Idaho Statesman today reports that "2 lawmakers enter monument fray; City says threat will have no effect on moving plan."
Posted at 21:57 by Howard Bashman



"Lawyers See Red Over Lobster Case": law.com has kindly made Tony Mauro's article freely accessible at this link. Plus, this presentation of the article is accompanied by a photograph of what might very well be a lobster. You can access my preview of this case, along with links to the cert. petitions, other briefs, and the decision below, at this link.

In other news of interest from law.com, "Federal Circuit Dismisses Suit Over Painkiller Patent"; "A Furor Over Iowa Subpoenas"; and "Absent Lawyer Says Firm Knew He Wouldn't Show."
Posted at 21:39 by Howard Bashman



"Two judges delayed taking any action Tuesday to shut down San Francisco's same-sex wedding spree, rebuffing conservative groups enraged that the city's liberal politicians had already married almost 2,400 gay and lesbian couples." So begins a report from The Associated Press that you can access here.
Posted at 20:44 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "Jury Hits Tyson with $1.28 Bln Verdict" and "U.S. Court Upholds 'Do Not Call' List."
Posted at 17:50 by Howard Bashman



View online a portion of the Senate Judiciary Committee confirmation hearing for Ninth Circuit nominee William Gerry Myers III: The hearing was featured on this past Saturday's broadcast of C-SPAN's fine program "America and the Courts." You can watch online by clicking here (Real Player required).
Posted at 17:00 by Howard Bashman



"Lawyers now look to small screen when looking to make a name for themselves; Attorneys stalk big trials, hoping to provide expert commentary": This article appears in today's issue of The San Francisco Chronicle.
Posted at 16:20 by Howard Bashman



"Weddings continue as judge delays conservatives' bid to stop them": The San Francisco Chronicle provides this news update.
Posted at 16:18 by Howard Bashman



"New Superior Court judge sworn in": The Philadelphia Inquirer offers this news update on the swearing-in today of the judge who won a state-wide race for the Superior Court of Pennsylvania by only 28 votes.
Posted at 16:14 by Howard Bashman



Same-sex marriage survives the first of today's judicial challenges in San Francisco: The Associated Press provides this report.
Posted at 15:12 by Howard Bashman



Divided three-judge Third Circuit panel upholds arbitration of umpires' grievances against Major League Baseball: You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link. I'd have more to say about the ruling except that I find the Third Circuit's new format for presenting its opinions online -- a format instituted this month -- to be entirely inimical to reading, and I long for the day when the Third Circuit's opinions once again look something like this.
Posted at 14:57 by Howard Bashman



BREAKING NEWS -- U.S. Court of Appeals for the Tenth Circuit upholds constitutionality of federal goverment's "Do Not Call" registry: You can access today's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit at this link. The decision's conclusion states:
We hold that 1) the do-not-call list is a valid commercial speech regulation under Central Hudson because it directly advances substantial governmental interests and is narrowly tailored; 2) the registry fees telemarketers must pay to access the list are a permissible measure designed to defray the cost of legitimate government regulation; 3) it was not arbitrary and capricious for the FCC to adopt the established business relationship exception; and 4) the FTC has statutory authority to establish and implement the national do-not-call registry.
Today's ruling reverses two Tenth Circuit-based federal district court decisions to the contrary.

In early press coverage of the ruling, The Associated Press reports that "Appeals Court Upholds Do Not Call List."
Posted at 14:45 by Howard Bashman



Just in time for duck hunting season in Philadelphia: The Philadelphia Bar Association has issued a press release reporting that "U.S. Supreme Court Associate Justice Antonin Scalia will present the inaugural Justice Antonin Scalia Award for Professional Excellence at the Association's April 29 Quarterly Meeting and Luncheon, to be held at noon in the Grand Ballroom at the Park Hyatt Philadelphia at the Bellevue, Broad and Walnut Streets. Justice Scalia will also serve as the keynote speaker for the luncheon." In other, rather belated bird hunting news from Pennsylvania, the Hegins Pigeon Shoot is no more (see here and here).
Posted at 14:33 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Gay Marriage Foes to Appear in Court"; "Vt. Judge Rules on Dean's Sealed Records" (plus, a barely legible copy of the ruling can be accessed here); "Prosecutor in Terror Case Sues Ashcroft"; "States Challenge No Child Left Behind Act"; and "Record Industry Sues More Over Downloads."
Posted at 14:11 by Howard Bashman



"Pryor Convictions: Opposing judicial activism, left and right." Harvard Law student and blogger (here, here, and sometimes even here) Adam White has this essay today at National Review Online.
Posted at 10:01 by Howard Bashman



"Lawyers Seeing Red Over Lobster Case; Estrada, Waxman represent clients asking Supreme Court to review convictions over improper imports": Tony Mauro has this report (free registration required) in this week's issue of Legal Times. Yesterday I wrote about this case, and provided links to the briefs and ruling under consideration, in a post you can access here.
Posted at 09:48 by Howard Bashman



Why would anyone poke fun at St. Mary's University School of Law? Friday's edition of The San Antonio Express-News contained an article headlined "Campaign wording angers St. Mary's dean." The current campaign for a seat on the Supreme Court of Texas is not the first time someone seeking to gain or hold on to a job in the judiciary has taken a swipe at St. Mary's. Indeed, no one other than D.C. Circuit nominee Janice Rogers Brown not too long ago did the same thing, as I reported here back in August 2002.

Update: The "Texas Law Blog" reprints an exchange of correspondence between St. Mary's dean and Texas Supreme Court Justice Steven W. Smith (whose official bio can be accessed here).
Posted at 09:42 by Howard Bashman



"Reporters And Sources: Look To Politics, Not Law, For Protection." This week's issue of National Journal contains this essay by Stuart Taylor Jr.
Posted at 09:24 by Howard Bashman



"The case for a federal marriage amendment": William Kristol and Joseph Bottum have this essay in the February 23, 2004 issue of The Weekly Standard.
Posted at 09:20 by Howard Bashman



"Conservatives Vent: Memos still beg for more scrutiny." Quin Hillyer has this essay today at National Review Online.
Posted at 09:14 by Howard Bashman



"Kaczynski shuns death penalty": This article published in today's issue of The Daily Princetonian reports on a speech that the Unabomber's brother delivered yesterday at Princeton University.
Posted at 07:24 by Howard Bashman



"Plan seeks greater rights for parents": The South Florida Sun-Sentinel today contains an article that begins, "Looking to revive a controversial abortion law, House Speaker Johnnie Byrd on Monday unveiled a more sweeping constitutional amendment proposal aimed at bolstering parents' rights."
Posted at 07:22 by Howard Bashman



"Ex-Officers: Military's Gay Policy Outdated." This article appears in Newsday today.
Posted at 07:20 by Howard Bashman



"Former Moore aide to seek court seat": The Birmingham News today contains this report.
Posted at 07:19 by Howard Bashman



"Breyer uses tribute to honor Brandeis; Supreme Court justice describes predecessor's enduring influence": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 07:10 by Howard Bashman



In today's and yesterday's newspapers: The New York Times today contains a report from San Francisco headlined "Rushing to Say 'I Do' Before City Is Told 'You Can't.'" An article reports that "The Ghost of Waksal Past Hovers Over the Stewart Trial." In yesterday's newspaper, Neil A. Lewis had an article headlined "Partisan Denunciations Fly Over Secret Strategy Memos." And letters to the editor appeared under the heading "Abortion Records and Privacy Rights."

The Washington Post reports today that "Va. House Advances Contraceptive Restrictions; Limits Aimed at Minors, 'Morning-After' Pills." In other news, "Lifestyles Provide Riches for the Prosecution; Defense Lawyers Fear Evidence of Wealth Can Bias Jurors." And yesterday's newspaper contained an article headlined "Questions Left After Slaying Case Dissolves."

The Christian Science Monitor today contains an article headlined "Student / teacher romances: Off limits." And Illinois Attorney General Lisa Madigan has an op-ed entitled "Get serious about sex offender registration."
Posted at 07:00 by Howard Bashman



"The justice, his VP friend, and questions: Antonin Scalia sees no conflict in going on a hunting trip with Dick Cheney, then hearing his appeal of a lawsuit; Others do." This article appears today in The St. Petersburg Times. In The Los Angeles Times today, Robert Scheer has an essay entitled "Old MacDonald Had a Judge...." In today's issue of The Washington Post, Art Buchwald has an essay entitled "Duck Blind Trust." And in non-duck-related news from San Diego, "USD Students Argue Case To U.S. Justice Scalia; Heldman, Hartmere, Finalists In Moot-Courtroom Competition." You can learn more about this particular moot court competition here.
Posted at 06:44 by Howard Bashman



Monday, February 16, 2004
"Waging war in the Senate": Columnist Robert Novak today has this essay in The Chicago Sun-Times.
Posted at 17:38 by Howard Bashman



And the answers are: Congratulations to "How Appealing" reader Cyrus Sanai for being the first to email the correct answers to all 20 Judge Selya vocabulary words listed in this post. Another competitor whose email arrived slightly earlier had 18 of the 20 answers correct, which, to borrow a punchline from this past Saturday's Weekend Update, was "Close but no cigar." Without further ado, the answers are:
1i; 2n; 3b; 4p; 5f; 6t; 7l; 8r; 9a; 10h; 11j; 12e; 13s; 14d; 15o; 16q; 17c; 18m; 19k; 20g.
Thanks to all readers who took the time to expand their vocabulary far beyond what anyone else is likely to understand.
Posted at 17:21 by Howard Bashman



Ten Commandments news: Today's news all comes from within the geographical boundaries of the U.S. Court of Appeals for the Ninth Circuit. In news from Idaho, "Legislators vow to protect monument." And in news from Montana, The Great Falls Tribune reports that "Ousted judge to speak in GF."
Posted at 17:15 by Howard Bashman



Judge Selya answer key: Law Professor David Franklin emails in response to this post from last night:
I was pleasantly surprised to see a citation to my 1997 Green Bag piece on your site; I was sure no one had ever read it!

I happen to have in my possession a copy of the official Judge Selya glossary, a 63-page typescript of Selyan words that he distributes to his clerks, presumably to enable them to draft, or at least understand, his opinions. Perhaps your readers would enjoy matching the following twenty Selyacious words with the glossary definitions.
The twenty words are:
1. adscititious; 2. atrabilious; 3. biedermeier; 4. boeotian; 5. buzznacking; 6. cozenage; 7. esemplastic; 8. eupeptic; 9. flagitious; 10. fugleman; 11. futhark; 12. gelandesprung; 13. jorum; 14. ochlocracy; 15. pecksniffian; 16. pilgarlic; 17. quaesitum; 18. rapparee; 19. swivet; 20. tatterdemalion.
The definitions with which these twenty words match-up are, in no particular order:
a. villainous; b. conventional or uninspired; c. the object of one's search; d. mob rule; e. a jump in skiing or thought; f. idle chatter; g. a ragamuffin; h. a trained soldier who leads exercises; i. derived from something external; j. a runic alphabet; k. a state of extreme agitation; l. shaping disparate things into unity; m. a rover in search of plunder; n. gloomy; o. unctuously hypocritical; p. dull, thickheaded; q. a bald-headed man; r. cheerful; s. a large drinking vessel; t. fraud.
The first reader to email me with the correct matching definition for each word (e.g., 1-t; 2-a, etc.) will be the winner of this blog's Judge Selya obscure word contest. Thanks much to Professor Franklin for enabling this contest to occur.
Posted at 16:20 by Howard Bashman



"Affirmative action foe brings message to town": The Grand Rapids Press today provides this report.
Posted at 15:07 by Howard Bashman



"Group urges Law School to fight access to campus for 'discriminatory' recruiters": This article appears today in The Daily Northwestern.
Posted at 15:03 by Howard Bashman



President Clinton says he has no intention of serving on the U.S. Supreme Court: See this article published today in USA Today. This raises the interesting related question whether anyone who voluntarily relinquished his U.S. Supreme Court bar membership after the Court issued an order to show cause (access news coverage here) has ever gone on to serve as a Justice on the Court.
Posted at 14:20 by Howard Bashman



Some don't appreciate Judge Selya's vocabulary: An attorney who works at a very highly regarded law firm in New York City emails:
I'm sure I'm not alone in being somewhat put off by the fascination with Judge Selya's use of obscure words. The principal audience for judicial opinions is (or should be) the general public, and judges should strive to write them as accessibly as possible, without using oversimplification. Judge Selya's obsession with archaic language (some of which apparently is not found in the "most comprehensive of American dictionaries") makes opinions less comprehensible to lawyers, not to mention the parties and the general public. The use of vocabulary incomprehensible to most well-educated people may be suited for academic writing, crossword puzzles, or other vehicles for intellectual gymnastics (if at all). But Judge Selya does no service to the judiciary or the public by contributing opinions that may not be decipherable even if one's desk companion is a major American dictionary. I would note that by and large, the greatest lights in the federal judiciary of all intellectual persuasions (Posner, Easterbrook, Calabresi, Kozinski, & Scalia to name just a few) tend to be the most direct, clear (often even colloquial) writers. I don't really understand Judge Selya's project, but I respectfully submit it doesn't merit much attention.
And from somewhere very, very cold comes the following email:
Out here in the Midwest, we're a lot more plain-spoken than folks in the more sophisticated Northeast. 'Round these parts, if a judge used all the fancy words that Judge Selya uses, we'd suspect he was just puttin' on airs, trying to show off how much smarter he is than the rest of us.

Seriously, it seems to be that a judge should try to make his opinions intelligible to his readers, rather than (as Judge Selya seems to do) trying to make them as difficult to understand as possible. One should not need an unabridged dictionary in order to understand a court opinion. I enjoy obscure words as much as the next person, but I try not to flaunt my knowledge of them, lest the person I'm talking or writing to be put off by my show of learning, so that my ostentatiousness undermines my persuasiveness. Maybe not having to worry about such mundane considerations is one of the benefits of lifetime tenure.
This is certainly one of the subjects I intend to raise with Judge Selya in my "20 questions" interview with him, which will be published here in early March 2004.
Posted at 13:30 by Howard Bashman



"Students appreciate Rehnquist lectures": The Arizona Daily Wildcat today contains this article.
Posted at 12:47 by Howard Bashman



"Memo Theft": This editorial appears today in The Washington Post.
Posted at 12:44 by Howard Bashman



"Convicted killer bears heavy burden of proof; Reprieve seen as move to solidify death penalty": The San Jose Mercury News today contains an article by Howard Mintz that begins, "Convicted murderer Kevin Cooper was pulled from the brink of execution last week by a federal appeals court with a history of giving second chances to California's death row inmates."
Posted at 12:40 by Howard Bashman



"Scholars eye abortion proposal; Measure's language, judicial composition, history not favorable": The Aberdeen American News today contains an article that begins, "Some of the nation's top scholars of the U.S. Supreme Court's history and current behavior see no chance of South Dakota succeeding in the attempt under way to overturn the Roe v. Wade decision legalizing abortion."
Posted at 12:35 by Howard Bashman



When it comes to spiny lobsters, if you don't do the crime, you might still have to do the time: A case of "lobster fraud" might be seen as a laughing matter if it weren't for the fact that someone is currently serving eight years in federal prison for committing a federal crime that depends on understanding the laws of Honduras in a manner directly contrary to the way in which the Republic of Honduras says those laws must be understood. As a result, many will be looking on with interest in the very near future to learn whether the U.S. Supreme Court agrees to review the case known as McNab v. United States and the companion case of Blandford v. United States, which are scheduled to be discussed at the Justices' private conference this Friday.

Understandably, this case has already garnered some attention from the mainstream media. The Chicago Tribune, one week ago Sunday, published an article by Jan Crawford Greenburg headlined "Fisherman's case casts a wide net; International spat reaches top court." (Greenburg's article can also be accessed here, without any need for pre-registration.) The Associated Press recently published an article headlined "Honduras asks U.S. Supreme Court to overturn conviction." And a related op-ed entitled "Overzealous Prosecution: Eight years for bagging lobsters?" has recently appeared in several newspapers throughout the Nation.

The federal government apparently thought that this case was newsworthy from the outset, because it issued press releases announcing the indictment and convictions after trial in Mobile, Alabama. A divided three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit affirmed the convictions in March 2003 (original opinion here; order amending here).

Fortunately for McNab and the others, the lawyers working to overturn the Eleventh Circuit's ruling do not lack for talent. Miguel A. Estrada is serving as counsel of record for McNab, and the cert. petition he filed can be accessed here. The petition filed by Paul D. Kamenar of the Washington Legal Foundation on behalf of Blandford and the others can be accessed here. The federal government's not very persuasive brief in opposition to these petitions for writ of certiorari can be accessed here. McNab's reply brief for petitioner can be accessed here. And the especially significant amicus brief filed by former Solicitor General Seth P. Waxman on behalf of the Republic of Honduras can be accessed here. That amicus brief explains in no uncertain terms that McNab did not violate the laws of Honduras.

What makes this case worthy of U.S. Supreme Court review? The manner in which federal courts go about determining the meaning of foreign laws is a recurring question of great significance, and the briefs demonstrate that the federal appellate courts are divided over the proper approach. As a result of that division, McNab and others sit in federal prison convicted of committing crimes under Honduran law that the Republic of Honduras says do not exist. It's difficult to imagine a case that could better present this question for the Court's resolution, or lawyers more talented than the ones who would continue to be involved if cert. is granted. I'll keep you posted should this case receive additional press coverage in the days ahead, and the U.S. Supreme Court could announce as early as Monday, February 23, 2004 -- one week from today -- whether it is granting review on the merits in this matter.
Posted at 11:00 by Howard Bashman



A Harvard Law Professor offers his favorite Judge Selya vocabulary word: Addressing further a subject previously discussed here and here, the following email arrived from Cambridge, Mass. this morning:
Not to "paint the lily" (e.g., United States v. Vazquez-Alomar, 342 F.3d 1, 6 (1st Cir. 2003)), but my favorite is "cynosure," which appears frequently in Judge Selya's opinions. See, e.g., Uno v. City of Holyoke, 72 F.3d 973, 986 (1st Cir. 1995) ("This assumption is faulty because the litigation challenges Holyoke's electoral system as a whole, and, to the extent the challenge is scissile, its cynosure is not the wards but the system's at-large component--a component that allegedly dilutes the plaintiffs' opportunity for full political participation in municipal affairs.").

I have to say, though, that I'm a bit disappointed that your readers would find the word "anodyne" so notable. In my view, use of the word is, well, anodyne.

I "need go no further." E.g., Gulf Coast Bank and Trust Co. v. Reder, 355 F.3d 35, 39 (1st Cir. 2004)
Hmm, scissile isn't so bad either. Indeed, it reminds me of my post from June 2003 entitled "Shizzle my nizzle: lyrics leave judge lost for words."
Posted at 10:24 by Howard Bashman



"New digs bespeak forgotten grandeur; Ohio Supreme Court: Old building restored for justices." This article appears today in The Cincinnati Enquirer. Additional photos of the renovated building can be accessed via this link.
Posted at 08:35 by Howard Bashman



"en banc" blog terminates with no prospect of rehearing: Access the details here.
Posted at 08:22 by Howard Bashman



On the agenda: Today is the Washington's Birthday federal holiday -- also known under the Federal Rules of Appellate Procedure, at least for the time being, as Presidents' Day. As a result, most federal and state appellate courts will be closed today. Once again, however, this is not a holiday that the U.S. Court of Appeals for the Fifth Circuit observes, so that court could issue one or more published opinions today. The Fifth Circuit will be closed on Tuesday, February 24, 2004 for Mardi Gras, however. The definitive list of Fifth Circuit holiday closures can be accessed here.

Update: This post has been updated to specify the precise date on which the Fifth Circuit will be closed for Mardi Gras. Except for being closed on Tuesday, February 24, 2004, the Fifth Circuit will be open for business the rest of next week.
Posted at 08:10 by Howard Bashman



"Justice Scalia's duck-hunting caper: He should step aside in case involving the Vice President." This editorial appears today in The Miami Herald. And The Los Angeles Times today contains an article headlined "Bias is hard to spot in ourselves; A wave of ethical indiscretions has psychologists reminding us that humans can't always be impartial, despite what we think."
Posted at 06:24 by Howard Bashman



Sunday, February 15, 2004
Elsewhere in Sunday's newspapers: The Boston Globe reports that "Ruling on gay marriage ignited a national debate." In related coverage, "Debate humanized issue, legislators" and "Deja vu for N.H. lawmakers." An editorial is entitled "Sacred rights." And Jeff Jacoby has an op-ed entitled "Or is it an air of hypocrisy?"

The Los Angeles Times reports that "Lawyer Was Ready for the Marriage Debate; Seeing the issue of gay weddings coming, Matt Daniels drafted an amendment now before Congress; His childhood experience drives him." In news from Chicago, "Automat of Legal Services on the Defensive; 'Do-it-yourself' law menus are being offered by a growing number of companies; But critics say they are practicing without a license." An article reports that "Reason Runs Out in Fulbright Squabble; After UC Berkeley misses deadline, lawyers argue over postal hours and try to define 'mail.'" In news from Texas, "D.A. Challenge of Student Voters Is a Civil Rights Lesson; Students at a historically black college might not qualify as 'residents,' the prosecutor has said; Top state officials affirm their right to vote." A report from The Associated Press is headlined "California's Free State Past at Odds With Truth; Records disprove non-slave history; Online archive gives insight into challenges blacks faced in the 1800s." An article is headlined "One 19th Century Jurist Lacked Prudence." And letters to the editor appear under the headings "Scalia to Critics: 'Quack, Quack'"; "Lax Enforcement of Capital Punishment"; and "Drawing Shows Strides Being Made by Women."

The Washington Times reports that "Massachusetts at impasse on gay 'marriage.'" And an op-ed by Ed Feulner is entitled "Checking out the Patriot Act."
Posted at 23:27 by Howard Bashman



"How Appealing" readers offer their favorite vocabulary words found in opinions by First Circuit Judge Bruce M. Selya: An email received in response to this post from last night states:
My candidates are "ultracrepidarian," from K-Mart Corp. v Oriental Plaza, 875 F2d 907, 916 (1st Cir. 1989) and a bunch of obscure words from Werme v Merrill, 84 F.3d 479 (1st Cir. 1996) -- "tamisage"; "palsgrave"; "apodictic"; and "anodyne."
Another reader has written to suggest "quidnunc," found in several opinions including United States v. Atwood, 963 F.2d 476, 479 (1992). A third reader offers two favorites: "sockdolager" and "ukase." My research discloses only one instance when Judge Selya used both of these words in the same opinion. See In re Grand Jury Proceedings (Gregory P. Violette), 183 F.3d 71, 77-78 (CA1 1999).

Also, those readers with access to Westlaw should be sure not to miss David Franklin's article "Judge Bruce Selya, Resipiscent Recidivist," 1 Green Bag 2d 95 (Fall 1997). There, Franklin writes:
If Selya has a signature word, it is "eschatocol." This fifty-cent wonder is not found in the most comprehensive of American dictionaries; one must repair to the OED to discover that it means "The concluding section of a charter, containing the attestation, date, etc.; a concluding clause or formula." "Eschatocol" has been used twenty-two times in the published oeuvre of the federal bench - all twenty-two courtesy of Judge Selya. In fact, in thirteen of those instances, the word is used in the same stock phrase: "We add an eschatocol of sorts." (Thank goodness for the saving clause "of sorts," lest we readers mistake what follows for a traditional eschatocol.)
The entire article is well worth a look.
Posted at 22:10 by Howard Bashman



"The court that cried Wolf": San Francisco Chronicle columnist Debra J. Saunders today has this essay about the stay of execution that the Ninth Circuit recently granted to Kevin Cooper.
Posted at 22:07 by Howard Bashman



"Opponents of lethal injection press case": This article appears today in The Omaha World-Herald.
Posted at 21:05 by Howard Bashman



"Bork to join faculty at UR; Ex-high court nominee will teach constitutional law courses in fall and spring": Friday's issue of The Richmond Times-Dispatch contained this report.
Posted at 21:02 by Howard Bashman



"Something About Mary: Gay-marriage proponents target the veep's daughter." This article will appear in the February 23, 2004 issue of Newsweek.
Posted at 21:00 by Howard Bashman



"Student Group Offers Whites-Only Award": The Associated Press reports here from Rhode Island that "A student group at Roger Williams University is offering a new scholarship for which only white students are eligible, a move they say is designed to protest affirmative action." And today's issue of The Providence Journal contains an article headlined "Club offers whites-only scholarship; The College Republicans group at Roger Williams University says its $50 scholarship is making a statement against affirmative action."
Posted at 19:23 by Howard Bashman



Ten Commandments news: Friday's edition of The La Crosse Tribune reported that "Council votes to appeal Ten Commandments ruling." Yesterday, The Atlanta Journal-Constitution reported that "Commandments go public outside court; Lawyer posts rules as 'gift' to Pickens." On Friday, The Birmingham News contained an article headlined "Moore: Court failed to weigh order's legality." And today's issue of The Duluth News Tribune contains an essay by Jim Heffernan entitled "Add to City Hall religious sculptures."
Posted at 18:41 by Howard Bashman



"Reception set for Judge Pickering": The Laurel Leader-Call offers this news. Previously, The Clarion-Ledger reported that "White House seeks Pickering replacement; Woman, 2 judges among those considered for vacant Miss. district." And The Associated Press reported that "Cochran, Lott give four names to White House for federal judgeship."
Posted at 18:36 by Howard Bashman



"Courts consider dozens of Texas mental retardation claims": The Associated Press provides this report.
Posted at 18:32 by Howard Bashman



Big law firms handle much less sex toy-related appellate litigation: Nathan A. Forrester, who back in September 2003 graciously provided this detailed report on the oral argument before the U.S. Court of Appeals for the Eleventh Circuit in the case challenging the constitutionality of Alabama's law prohibiting the sale and distribution of sex toys, has left his job as Solicitor General of Alabama to join the law firm of Bradley Arant Rose & White LLP. The Birmingham Business Journal provides this report. Meanwhile, the Eleventh Circuit has yet to rule in this quite interesting case.
Posted at 15:30 by Howard Bashman



"Supreme Court Fellow Panel on Congress & the Federal Courts": C-SPAN provides online access to video from this panel discussion (Real Player required) that occurred late last month in Washington, DC. If, like me, you've never previously set eyes on Second Circuit Judge Robert A. Katzmann, here's your chance. Justice Stephen G. Breyer was among the other participants in the program.
Posted at 14:10 by Howard Bashman



The San Francisco Chronicle is reporting: In same-sex marriage related news, "Uncharted territory; Bush's stance led Newsom to take action"; "Political landscape upended"; "Out-of-towners leap at chance to wed in S.F."; and "Wedding bliss spreads to steps of state Capitol; Same-sex rally draws 1,000 to Sacramento." In other news, "Peterson saga echoes in our psyches; A convergence of factors makes for wide public interest." And an article is headlined "Steroid charges bypass athletes; Critics question hiding names of ring's clients."
Posted at 14:00 by Howard Bashman



"'Right to hunt' advances in Penna.; With sportsmen increasingly wary of animal-rights groups, the House has passed a bill to amend the state constitution." This article appears today in The Philadelphia Inquirer. And the text of the proposed state constitutional amendment can be accessed here.
Posted at 13:58 by Howard Bashman



"VU lawyer assists Holocaust victim": Today's edition of The Post-Tribune of Merrillville, Indiana contains this article.
Posted at 10:53 by Howard Bashman



"Plans OK grandparent rights; Proposals would allow them visitation even in cases where parents withhold access": The Detroit News contains this report today.
Posted at 10:51 by Howard Bashman



"Stopping the death machine: Activist wages uphill battle against state executions." This article appears today in The Houston Chronicle.
Posted at 10:48 by Howard Bashman



"Goldwater dedication a patriotic celebration": The Arizona Republic today contains this report about an event yesterday at which Justice Sandra Day O'Connor gave the keynote address.
Posted at 10:45 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Intelligence Panel's Finances Will Stay Private." In local news, an article is headlined "Moving In on New York Lawyers." And an editorial is entitled "How America Doesn't Vote."

The Washington Post reports that "In a 'Scene Not to Be Believed,' Same-Sex Couples Tie the Knot; Hundreds Wait Hours to Get Married in San Francisco." In related coverage, the Sunday Outlook section contains items headlined "Same-Sex Marriage Raises Legal Questions" and "A Marriage License Only Goes So Far." And in sports-related news, "Age Requirement Being Discussed."
Posted at 10:30 by Howard Bashman



"'Culture war' rages at Utah Capitol, Matter of morals?" This article appears today in The Salt Lake Tribune.
Posted at 08:18 by Howard Bashman



"Even for a federal judge, Antonin Scalia's arrogance is breathtaking." So begins an editorial published today in The Wilmington (N.C.) Star-News. And columnist Martin Dyckman has an essay entitled "Quacks from high places" in today's issue of The St. Petersburg Times.
Posted at 08:11 by Howard Bashman



Saturday, February 14, 2004
Access online many more amicus briefs urging affirmance of the Ninth Circuit's ruling in the Pledge of Allegiance case: "SCOTUSblog" provides access via this link to many more amicus briefs filed yesterday on the side of Michael A. Newdow. I have at this time just one more brief to add to the extensive collection found at the preceding link -- this amicus brief filed yesterday by Christopher L. Eisgruber and Lawrence G. Sager, two teachers and scholars of constitutional law who specialize in the field of religious liberty.
Posted at 22:45 by Howard Bashman



In Saturday's newspapers: The New York Times reports on "How Massachusetts Left Gay Marriage at the Altar." An article reports on "Bid to Stop San Francisco From Letting Gays Marry." In business news, "Martha Stewart's Lawyers Score Legal Victory on Testimony"; "Release of Windows Coding Is a New Worry for Microsoft"; "A Criminal Indictment Against Skilling of Enron Is Said to Be in the Works"; and "Tax Evader Pleads Guilty in Fraud Case." In sports-related news, "At Core of Drug Scandal, Names Are Missing." And an editorial is entitled "Privacy in Peril."

A front page article in The Washington Post is headlined "Little Consensus on Marriage Amendment; Even Authors Disagree on the Meaning of Its Text." An article reports that "Gay Couples Rush to San Francisco; Opponents of Same-Sex Marriage Fail to Stop City From Marrying Partners." In other news, "Snipers' Defense Neared $2 Million; Judge Rejected Some Bills in Malvo Case." An article reports that "Lentz Prosecutor, U.S. Plan Separate Appeals; Harm to Federal Lawyer's Reputation Cited." A front page article reports that "Panel Set Up To Hear Pleas Of Detainees; Rumsfeld: Cuba Prisoners Will Get Annual Reviews." In news from New York, "Expert Securities Testimony Not Allowed; Judge Grants Stewart Defense Team a Victory With Ruling." In news from California, "All Sides in Jackson Case Aim for December Trial" and "Four Plead Not Guilty To Steroid Distribution." An article reports that "Bush, Clinton Agree to Testify Privately to Panel Probing 9/11; White House Rules Out Public Questioning of President." And Ellen Goodman has an op-ed entitled "Gay Unions: Moderation Is Winning."

The Boston Globe contains the following same-sex marriage-related coverage: "Pace quickens on push for an amendment"; "Romney warns of 'legal limbo'; Governor eyes timing of vote, gay marriages"; "In aftermath, battle for legislators grows"; "Fear, determination led to plan for filibuster"; "Coverage boosts state's liberal image"; "Docket includes fence mending"; and "Suit to stop gay marriages delayed; Couples flocking to San Francisco to exchange vows." In other news, "US may detain terror suspects for years; Looks to appoint a 'parole' board." In local news, "US attorney defends gun, drug cases." An article reports that "Harvard warns sex magazine against pornography." An article is headlined "A funny thing happened on the way to law school; Aisha Tyler found comedy in college, and there's no stopping her." Bill Maher has an op-ed entitled "Valentine's Day, that great state holiday." And Harvey A. Silverglate has an op-ed entitled "Disturbing steps by prosecutors."

The Los Angeles Times reports that "U.S. Plans to Escalate Porn Fight; Justice Department hire of a veteran prosecutor answers criticism from Christian conservatives who have long sought a crackdown on smut." In same-sex marriage-related news: "S.F. Wins Round 1 in Marriage Battle; A judge refuses to step in and halt the issuance of licenses to gay couples; At City Hall, the holiday weekend line for weddings grows longer"; "Activists Protest Same-Sex Marriages; Group stops at the Santa Ana courthouse during 14-city tour denouncing the unions"; and "A Nice Day for Gay Weddings; Hundreds of same-sex couples flock to San Francisco for marriage licenses, which face legal challenges; City Hall will stay open all weekend." In other news, "Judge Weighs Suit on Tulsa's '21 Riot; Reparations are sought for a white mob's torching of the city's black Greenwood area." In local news, "Law School Gets a Second Chance; National bar association tells Western State that it will reconsider yanking accreditation, but the Fullerton college's lawyer isn't optimistic." In business news, "Leaked Code Is Traced to Microsoft Partner Firm" and "Charges May Be Next for Skilling, Source Says; A grand jury could be assembled as early as next week; The former Enron CEO maintains his innocence." In celebrity justice-related news, "Ruling Helps Stewart by Barring Testimony; The judge tells the prosecution it can't call experts to the stand to try to prove its charge of securities fraud"; "Public's response is perfectly tepid; Martha Stewart's court-watchers -- from fans to foes -- aren't getting worked up like it was, say, Enron in town"; and "Jackson's Trial Won't Start Soon; Even a preliminary hearing in the singer's molestation case is more than a month away; Geragos' rumored departure is denied." An editorial is entitled "True Help on Mental Illness." And letters to the editor appear under the heading "By Redefining Marriage, We Reduce Its Meaning."

The Washington Times reports that "Panel to review terror suspects." And in other news, "Virginia targets unions of gays."
Posted at 22:10 by Howard Bashman



What's your favorite Judge Selya vocabulary word? In celebration of the forthcoming March 2004 installment of "20 questions for the appellate judge" featuring First Circuit Judge Bruce M. Selya, I have decided to offer readers of this blog a chance to share via email their favorite obscure word used by Judge Selya in an opinion. I was hoping to be able to say that my favorite was "struthian," but on further review it turns out that Judge Selya has only used the related word "struthious." See, e.g., North American Specialty Ins. Co. v. Lapalme, 258 F.3d 35, 45 (CA1 2001). To avoid having your response dismissed as jejune, see, e.g., Macaulay v. Anas, 321 F.3d 45, 55 (CA1 2003), please be sure to include the name and citation of the case in which Judge Selya uses the word you are recommending. To send along your favorite Judge Selya vocabulary word via email, simply click here. I'll be sure to make use of the best of the most obscure words in my "20 questions" for him, which I'm due to email to his chambers before the end of the day Monday.
Posted at 22:00 by Howard Bashman



"Army's look at Muslim conference irks some; Agents sought list of people who attended UT gathering on women's issues, organizer says": This article appears in today's issue of The Austin American-Statesman.
Posted at 21:11 by Howard Bashman



The Houston Chronicle is reporting: Today's newspaper contains articles headlined "Lawsuit juries harder to find; Fear of 'jackpot justice' trumps law for some potential panelists" and "Presence of Army agents stirs furor; Roster sought of attendees at UT meeting on Islam."
Posted at 20:58 by Howard Bashman



"Students don’t need to support FAIR to fight discrimination": Stanford Law School student Hans Allhoff had this essay in Friday's edition of The Stanford Daily.
Posted at 20:57 by Howard Bashman



Death penalty graphic: Charts and graphs accessible here accompany Adam Liptak's article headlined "Study Revises Texas's Standing as a Death Penalty Leader" in today's issue of The New York Times.
Posted at 20:55 by Howard Bashman



"Media mayhem in Malvern; Reporters camp outside home of woman believed key to Kerry rumors": The Philadelphia Daily News contains this article today.
Posted at 16:40 by Howard Bashman



"Term limits a bad idea for state's judges": This op-ed by attorney Rick Dindinger appears today in The Denver Post.
Posted at 16:37 by Howard Bashman



"Dignity for the disabled": The St. Petersburg Times today contains this editorial.
Posted at 16:35 by Howard Bashman



"High court orders data back online": This article appears today in The South Florida Sun-Sentinel.
Posted at 16:33 by Howard Bashman



In other news from The San Francisco Chronicle: Today's issue of that newspaper also contains articles headlined "Mad dash to S.F. City Hall to say 'I do'; 2 groups trying to halt same-sex unions must wait until Tuesday" and "Voice on Peterson case to go silent; S.F. prosecutor to halt TV analysis after D.A. letter."
Posted at 16:30 by Howard Bashman



"S.F. won't give feds abortion data; Justice Dept. wants General Hospital records on banned late-term method": Bob Egelko has this article in today's edition of The San Francisco Chronicle.
Posted at 16:27 by Howard Bashman



"Shelby: Moore bill will pass Senate." The Birmingham News today contains an article that begins, "Alabama's senior U.S. senator predicted Friday that the Senate will approve a bill backed by Roy Moore to restrict federal courts from reviewing cases involving the acknowledgment of God." And The Montgomery Advertiser reports that "Moore, officials target courts."
Posted at 11:00 by Howard Bashman



What day is it? Today's issue of The Poughkeepsie Journal reports that "Judge loves to marry people; Dutchess man unites 56 couples in a year."
Posted at 10:57 by Howard Bashman



"Sniper attorneys to speak; Cooley and Ebert will discuss the trials' impact on the death penalty": The Richmond Times-Dispatch today contains this report.
Posted at 10:51 by Howard Bashman



"Court overturns second death sentence; Justices say jury recommendations must be respected under law": This article appears today in The News Journal of Wilmington, Delaware.
Posted at 10:50 by Howard Bashman



In election law news: The Atlanta Journal-Constitution reports today that "Election district appeals set; Attorney general plans to fight ruling against legislative maps." In news from Colorado, The Associated Press reports that "Republicans refuse to drop remap fight." And The South Florida Sun-Sentinel today reports that "State bans recounts of touch-screen ballots" perhaps ensuring that there will be no more Floridas in Florida.
Posted at 10:45 by Howard Bashman



"Group sues to return Confederate emblems to state's high court": This article appears today in The Houston Chronicle.
Posted at 10:42 by Howard Bashman



"Legal dream team wins condemned killer Kevin Cooper a reprieve": The Associated Press provides this report from California.
Posted at 10:41 by Howard Bashman



"No computer laws were broken, says former Frist aide": The Scripps Howard News Service today provides this report.
Posted at 10:40 by Howard Bashman



"If it walks like a duck, quacks like a duck": John Brummett has this op-ed today in The Pahrump Valley Times. And The Oregonian today contains a letter to the editor that appears under the heading "Cheney more at fault than Scalia."
Posted at 10:35 by Howard Bashman



"Detainees to get 'parole board'; Speaking in Miami, Defense Secretary Donald Rumsfeld announces creation of a type of parole board for terror suspects." This article appears today in The Miami Herald.
Posted at 10:30 by Howard Bashman



The importance of spacing in newspaper headlines: Today's edition of The New Britain Herald contains an article headlined "Governor'sex-attorney admits to favors." In other, better punctuated coverage of this story, The New York Times today reports that "Gov. Rowland Owes Firm $100,000, a Judge Says." The Hartford Courant reports that "Judge Says Appointment Not Linked To Favors." And The Stamford Advocate reports that "Judges asked about gifts for Rowland."
Posted at 10:25 by Howard Bashman



"High court justice wraps up Island visit": This article appears today in The Honolulu Advertiser. Before heading back to the cold weather of Washington, DC, Justice Ruth Bader Ginsburg took time out of her busy schedule to visit the beach (see here and here).
Posted at 10:20 by Howard Bashman



To deserve its current reputation, Texas needs to impose more death sentences: In Saturday's issue of The New York Times, Adam Liptak reports that "Study Revises Texas's Standing as a Death Penalty Leader."
Posted at 00:28 by Howard Bashman



Friday, February 13, 2004
Elsewhere in Friday's newspapers: The Boston Globe contains the following same-sex marriage related articles: "Gridlock in marriage debate; Deeply split Mass. Legislature to reconvene in March session"; "At the end, discord rules a divided body"; "Vote on Travis measure shows split on gay marriage"; "Romney out front; Bush aides in touch"; and "Gay couples line up for chance to wed; In San Francisco, city officials issue first licenses in US." An editorial is entitled "Equality on Beacon Hill." Columnist Brian McGrory has an essay entitled "Wedding distractions." Columnist Scot Lehigh has an essay entitled "Finneran at his worst." Columnist Derrick Z. Jackson has an essay entitled "Black, gay rights linked in history." And J. Donald Monan has an op-ed entitled "'Equal' does not mean 'same.'"

The Los Angeles Times reports that "Mass. Session Ends With No Gay Marriage Decision; Third bill to reverse ruling that legalized same-sex unions fails; Legislature is set to reassemble and take up the issue March 11." In related coverage, "Defiant San Francisco Marries Dozens of Same-Sex Couples" and "Lifelong Partners, Activists Wed at Last." An article reports that "Ruling Hits State Wine Shippers; Court says New York can ban out-of-state vintners from selling directly to its residents." In other news, "S.F. May Help Establish Pot Cooperatives; Marijuana would be for the sick; U.S. crackdown feared." An article reports that "Reparations Sought Decades After Race Riot; A lawsuit for damages from Oklahoma and Tulsa may set the tone for a national campaign." And columnist Al Martinez has an essay entitled "The need for justice gives rise to a haunting question."

USA Today reports that "Mass. lawmakers fail to agree on gay marriage ban; Won't try again until March 11."

The Washington Times reports that "Same-sex couples 'married' by city." And Jonah Goldberg has an essay entitled "Racial preferences more harmful than legacy policies."
Posted at 22:31 by Howard Bashman



"Redrawing the Boundaries: Decision at odds with maps in 24 states, Democrats say": At law.com today, Jonathan Ringel has this article on a three-judge federal district court panel's ruling that struck down redistricting in Georgia. And Law Professor Rick Hasen notes here that the case is now heading to the U.S. Supreme Court.
Posted at 22:20 by Howard Bashman



Access online Michael A. Newdow's Brief for Respondent filed today in the U.S. Supreme Court in the Pledge of Allegiance case: The brief can be viewed online at this link.
Posted at 22:15 by Howard Bashman



"EPA Appeals to Top Court on Power Plants": The Associated Press provides this report.
Posted at 22:13 by Howard Bashman



Available online from National Public Radio: Tonight's broadcast of "All Things Considered" contained reports entitled "Guantanamo 'Enemy Combatants' to Get Hearings" and "New Hampshire Debate Over Death Penalty." And today's broadcast of "Morning Edition" contained a report entitled "Massachusetts Suspends Gay Marriage Debate."
Posted at 19:36 by Howard Bashman



"Bush nominates Benton to appeals court": The Associated Press has this report on the Eighth Circuit-related news that I noted here earlier today.
Posted at 18:49 by Howard Bashman



Law firm Web site disclaimers can be fun: See this post from the blog "Notes from the (Legal) Underground" for plenty of proof. (Via Jerry Lawson's "Netlawblog.")
Posted at 17:32 by Howard Bashman



"Former GOP Staffer Discounts 'Memogate'": Jesse J. Holland of The Associated Press provides this report.
Posted at 17:26 by Howard Bashman



"Robert H. Bork to Join Law Faculty": Today the University of Richmond School of Law issued this press release. (Thanks to "Jurist's Paper Chase" for the pointer.)
Posted at 17:14 by Howard Bashman



Pfizer has reason to celebrate today's Celebrex ruling from the U.S. Court of Appeals for the Federal Circuit: Today a unanimous three-judge panel of the Federal Circuit issued a ruling that affirmed a trial court's decision invalidating a patent belonging to the University of Rochester. The university had sued Pfizer claiming that sale of Celebrex infringed the university's patent.
Posted at 17:05 by Howard Bashman



"The Diminishing of John Ashcroft: A Bipartisan Groundswell of Rebellion." Nat Hentoff has this essay online at The Village Voice.
Posted at 16:18 by Howard Bashman



"Airport district debates Pledge of Allegiance": This article appears today in The Monterey Herald.
Posted at 16:16 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Rumsfeld Plans Panel to Review Guantanamo" and "Gay Marriage Opponents File Suit in S.F."
Posted at 14:25 by Howard Bashman



"Dispatch From the Massachusetts Constitutional Convention: The tragic lives of state legislators." Slate today provides this essay by Dana Mulhauser.
Posted at 14:20 by Howard Bashman



Today's the deadline for Michael A. Newdow and his amici to file briefs in the U.S. Supreme Court in support of the Ninth Circuit's ruling in the Pledge of Allegiance case: The amicus brief filed today in support of affirmance on behalf of Americans United for Separation of Church and State, the American Civil Liberties Union, and Americans for Religious Liberty can be accessed here.
Posted at 14:11 by Howard Bashman



"Supreme indifference: Scalia's flip attitude suggests he values his leisure time with cronies more than the reputation of the Supreme Court." The Oregonian today contains this editorial. And The Chicago Tribune today contains an editorial entitled "If it walks like a duck...."
Posted at 14:05 by Howard Bashman



"Clarence Thomas awes crowd": This article appears in today's issue of The Jackson (Mich.) Citizen Patriot. (Thanks to "SCOTUSblog" for the pointer.)
Posted at 14:01 by Howard Bashman



"SCOTUSblog" has now posted online the complete finding aid for the papers of Justice Harry A. Blackmun: You can access the entire finding aid via this link.
Posted at 13:30 by Howard Bashman



"Scott Peterson is too sexy for his portrait." This post's title, which triggered disquieting memories of the hit song by one-hit-wonder Right Said Fred, begins an article headlined "Case a boon for court artists" found in today's issue of The San Francisco Examiner.
Posted at 13:28 by Howard Bashman



"More black jurors needed in Allegheny County; Lack of diversity delaying one trial": The Pittsburgh Post-Gazette today contains this article.
Posted at 13:20 by Howard Bashman



"S.F. defies law, marries gays; City Hall ceremonies spur constitutional showdown, injunction threat": This article appears today in The San Francisco Chronicle. And The San Francisco Examiner reports that "City expects slew of suits."
Posted at 13:18 by Howard Bashman



State of Missouri considers allowing production of both pro- and anti-abortion rights automobile license plates: Today's issue of The St. Louis Post-Dispatch contains this report.
Posted at 12:11 by Howard Bashman



"Court Rules in Brain-Damaged Woman's Case": The Associated Press reports here that "Gov. Jeb Bush and the parents of a severely brain-damaged woman won appellate court rulings in their favor Friday on two legal issues in their quest to keep the woman alive against her husband's wishes." You can access today's rulings of Florida's Second District Court of Appeal at this link and at this link.
Posted at 11:18 by Howard Bashman



"Burgers, Fries, and Lawyers": Todd G. Buchholz has this essay in the current issue of Policy Review, a publication of the Hoover Institution.
Posted at 10:38 by Howard Bashman



"Move Over, Mumia: There's a new celebrity on death row." The pseudonymous "Jack Dunphy" has this essay today at National Review Online.
Posted at 09:41 by Howard Bashman



White House nominates William Duane Benton to fill vacancy on U.S. Court of Appeals for the Eighth Circuit: You can access yesterday's announcement at this link. The nominee currently serves as a judge on the Supreme Court of Missouri, which offers this biography of Judge Benton. The St. Louis Post-Dispatch correctly predicted this nomination last month, in a post I first linked to here.
Posted at 07:15 by Howard Bashman



In Friday's newspapers: The New York Times reports that "Massachusetts Lawmakers, After Heated Debate, Put Off Vote on Gay Marriage." In somewhat related news, "More Than 50 Gay Couples Are Married in San Francisco." An article reports that "Cuba Detentions May Last Years." In local news, "Appeals Court Upholds Limit on Sale of Out-of-State Wine." An article reports that "Ashcroft Defends Subpoenas." An article is headlined "Unlikely Symbol in Death Penalty Debate." In other news, "Guardsman Taken Into Custody and Examined for Qaeda Tie." In business news, "ImClone Cancer Drug Behind Stewart Trial Finally Is Approved by F.D.A." and "Judge Backs I.R.S. Effort to Get Tax Shelter Files." An article is headlined "What's Under the Ink? White House Comes Clean." In other news, "4 Indicted in a Steroid Scheme That Involved Top Pro Athletes." And an editorial opposing the confirmation of Ninth Circuit nominee William Gerry Myers III is entitled "An Enemy of the Environment."

The Washington Post reports that "Gay Marriage Debate Inconclusive; Massachusetts Lawmakers Adjourn Constitutional Convention Until March." In news from Virginia, "Delegates Move to Prohibit Recognition of Gay Unions; Measure Receives Preliminary Approval." A front page article reports that "San Francisco Opens Marriage to Gay Couples." An article is headlined "Ashcroft: Abortion Records Needed." In other news, "Terror Sting Nets National Guardsman." And an editorial is entitled "Gay Marriage Games."

The Christian Science Monitor reports that "America's gay marriage debate enters decisive phase; Day of debate in Massachusetts ends as victory -- at least for now -- for those who support same-sex marriage." And an editorial is entitled "Cloning and Same-Sex Marriage."

Finally for now, The Wall Street Journal contains an editorial entitled "The Trials of Martha: Prosecutions aren't the place to write securities law."
Posted at 06:30 by Howard Bashman



"GOP senators denounce snooping staffers": The Washington Times contains this article today.
Posted at 06:29 by Howard Bashman



"It Walks Like a Duck": This editorial appears today in The Los Angeles Times. And The Battle Creek Enquirer contains an editorial entitled "Recusal best option in Cheney case." Meanwhile, this week's issue of The Amherst Student contains an article headlined "Scalia discusses constitutional issues."
Posted at 06:22 by Howard Bashman



"No Suspects In Slaying of Prosecutor": Today's issue of The Washington Post contains this article. And The Baltimore Sun today reports that "Search uncovers Luna's penknife; Federal prosecutor, 38, was likely stabbed with it, investigators believe."
Posted at 06:10 by Howard Bashman



"Judiciary GOP Supports Probe; Senators Break With Activists on Computer Hacking Case": This article appears in Friday's issue of The Washington Post. And the Scripps Howard News Service reports that "Probe finds 'unethical conduct' by panel's staff."
Posted at 00:30 by Howard Bashman



Thursday, February 12, 2004
Elsewhere in Thursday's newspapers: The Los Angeles Times reports that "Senator Assails Silberman as Too Partisan for Panel; White House rejects call for his removal from intelligence review; The judge stands by record." An article reports that "Gay Marriages in Mass. Survive Vote; Lawmakers narrowly defeat a constitutional amendment to restrict matrimony to a man and woman; Emotions run high at statehouse." In sports-related news, "Clarett Wins Another Decision Against NFL." In news from Illinois, "Town, Gown Work Out Deal to End Spat." And letters to the editor appear under the heading "A Supreme Court Justice Who Is Hard to Pin Down."

The Boston Globe contains the following same-sex marriage-related news: "Two marriage amendments fail; lawmakers to reconvene today; Debate exposes deep divisions"; "House speaker's gambit sparked anger, furious maneuvering"; "A gay-marriage foe feels stuck in middle"; "For lesbian couple, fight is 'not over yet'"; "Dueling chants of passion, venom marked scene outside"; "Romney tried to play role in debate"; and "O'Malley watches from afar." Lyle Denniston reports that "'Enemy combatant' gets lawyer; Pentagon lifts curb on US citizen held in 'dirty bomb' case." And an editorial is entitled "So far, so good."

The Washington Times reports that "Conservatives call for probe." And in other news, "Massachusetts rejects 2 marriage bills."

USA Today reports that "Mass. debates gay marriage; Demonstrators on both sides gather in Boston." A front page article reports that "Spam rage drives some e-mailers to extremes; Law falls short as some strike back on their own." And Ronald Goldfarb has an op-ed entitled "Constitutional amendment on marriage unlikely to pass."
Posted at 23:53 by Howard Bashman



Opponents of proposed Federal Rule of Appellate Procedure 32.1 are advancing arguments that are contrary to fact: Although it is beyond dispute that proposed Federal Rule of Appellate Procedure 32.1 -- which would allow parties to cite to unpublished and non-precedential rulings in all federal appellate courts -- takes no position concerning what persuasive or precedential effect, if any, a given federal appellate court must accord to its own unpublished rulings, opponents of the proposed rule argue that unless citation to such decisions is prohibited, courts will have no alternative but to treat unpublished rulings as precedential in nature.

The most obvious flaw in this argument is that many federal appellate courts today already allow, and in the past have allowed, their own unpublished and non-precedential opinions to be cited back to them, and none of those courts has been forced as a result of that practice to accord precedential effect to opinions designated as non-precedential. Indeed, I vividly recall a Sixth Circuit published opinion which noted that a series of unpublished Sixth Circuit decisions had uniformly resolved a certain issue of law one way, but because those decisions were non-precedential the panel issuing a published opinion was free to, and in fact did, resolve the same issue precisely the opposite way, thus binding the court to that last-in-time resolution into the future.

Because I am someone who believes that federal appellate courts should not have the power to designate rulings as non-precedential when released -- rather, the precedential effect of an opinion should be determined by its contents, and not by a label attached to it at its time of issuance -- I would be even more pleased with proposed FRAP 32.1 had it abolished non-precedential rulings. But, as the proposed rule's text and the notes accompanying it make pellucidly clear, proposed FRAP 32.1 does not abolish non-precedential rulings. For opponents of FRAP 32.1 to suggest otherwise is contrary to fact, and for them to suggest that FRAP 32.1 will have the effect of abolishing non-precedential federal appellate court rulings is contrary to the experience of every federal appellate court that already voluntarily has allowed the practice that FRAP 32.1 will make national in scope.
Posted at 23:16 by Howard Bashman



As promised, "SCOTUSblog" has begun to post online the "finding aid" to the papers of Justice Harry A. Blackmun: Links to the finding aid are collected here. Not surprisingly, the third segment of the finding aid confirms that Justice Blackmun received plenty of abortion-related correspondence.
Posted at 23:00 by Howard Bashman



"Panel backs judge nominees": This article appears today in The Honolulu Advertiser.
Posted at 22:35 by Howard Bashman



In today's issue of The Harvard Law Record: An article reports that "Filibustered nominee speaks on Rule of Law, religion." And Jonathan Skrmetti has an op-ed entitled "To Times: Stop distorting Judiciary memos."
Posted at 22:30 by Howard Bashman



"Search uncovers Luna's penknife; Investigators debate theory that lawyer died by suicide, not murder": This article will appear in Friday's issue of The Baltimore Sun. In related news, The Associated Press is reporting that "FBI Probes Complaint About Prosecutor." And the Federal Bureau of Investigation issued this press release today.
Posted at 21:55 by Howard Bashman



From tonight's broadcast of NPR's "All Things Considered": Tonight's program contained reports entitled "U.S., Hospitals Clash over Abortion Records"; "Limbaugh Gains ACLU Support"; "Mass. Legislators Debate Gay Marriage, Union"; and "San Francisco Officials Conduct Gay Marriage."
Posted at 19:10 by Howard Bashman



"Was the duck hunt a conflict of interest? Debate swirls over Justice Scalia hearing a case that involves Cheney." Warren Richey will have this article in Friday's edition of The Christian Science Monitor. Also in tomorrow's edition of that newspaper, commentator Daniel Schorr will have an essay entitled "Sharing a duckblind vs. blind justice." The Monitor is also running an online poll on the question "Should Justice Scalia recuse himself from a case involving friend Dick Cheney?" As of this moment, the vote is 46 yes, 8 no.

Meanwhile, grammar aficionados can now debate whether the gerund in the headline that leads off this post should have taken the possessive.
Posted at 19:03 by Howard Bashman



"Be a Man, David: Gender bending in the Minnelli-Gest divorce." Dahlia Lithwick has this essay online at Slate this evening.
Posted at 19:00 by Howard Bashman



"Senate GOP Memo Snooping Stirs Uproar": Jesse J. Holland of The Associated Press provides this report.
Posted at 18:05 by Howard Bashman



Today's Ten Commandments news: From Pennsylvania, The York Daily Record reports that "Hanover monument fight grows; Free legal help has been promised to the borough if it tries to keep the commandments."

The Idaho Statesman today contains an article headlined "Judge: Commandments can go; Councilman Shealy calls move 'imminent.'"

From Minnesota, The Duluth News Tribune reports today that "Commandments beget lawsuit; A civil liberties group prepares to sue Duluth to have a Ten Commandments monument removed from outside City Hall." And The Associated Press reports that "Duluth monument target of Ten Commandments debate."

From South Carolina, The AP reports that "House mulls allowing Ten Commandments."

From Georgia, The Atlanta Journal-Constitution today reports that "Habersham County drops appeal to keep Ten Commandments display." The Athens Banner-Herald reports that "Habersham drops fight for displays." The Gwinnett Daily Post reports that "Habersham drops appeal in display suit." Bucking the trend, The Gainesville Times today reports that "Commandments case still is active."

Finally, from Alabama, The Huntsville Times contains an editorial entitled "Commandments displays all over the place."
Posted at 17:02 by Howard Bashman



"Memo Fireworks Consume Judiciary Panel Hearing": FOXNews.com provides this report.
Posted at 16:34 by Howard Bashman



Another duck hunting editorial cartoon: From Pat Oliphant. (Thanks to Garrett Epps of "Jurist's Law Reporting" blog for the pointer.)
Posted at 16:23 by Howard Bashman



"Activist fears Roe v. Wade reversal": This article appears in today's issue of The Yale Daily News.
Posted at 16:04 by Howard Bashman



"A Recent Utah Case Asks: Is a Prohibition on Polygamy Constitutional?" Law Professor Marci Hamilton has this essay online at FindLaw today.
Posted at 16:03 by Howard Bashman



"Lesbian couple wedded at SF City Hall; Women had been together for five decades": The San Francisco Chronicle reports here that "History was made at 11:06 a.m. today at San Francisco City Hall when Del Martin and Phyllis Lyon took their wedding vows, becoming the first same-sex couple to be officially married in the United States."
Posted at 15:25 by Howard Bashman



U.S. Court of Appeals for the Second Circuit upholds New York State's prohibition on the direct shipment of wine into New York from out of state wineries: Circuit Judge Richard C. Wesley's opinion issued today on behalf of a unanimous three-judge panel begins, "On December 6, 1933, the New York Times declared that '[p]rohibition of alcoholic beverages as a national policy ended at 5:32 ½ p.m. Eastern Standard Time' when Utah became the thirty-sixth state to ratify the Twenty-first Amendment."
Posted at 14:45 by Howard Bashman



"The flimflam defense": San Francisco Chronicle columnist Debra J. Saunders has this essay today concerning the stay of execution for California death row inmate Kevin Cooper.
Posted at 13:59 by Howard Bashman



"Cheney + Scalia on the hunt": Tony Auth, editorial cartoonist for The Philadelphia Inquirer, had this cartoon in yesterday's newspaper.
Posted at 13:56 by Howard Bashman



Report on this morning's executive business meeting of the Senate Judiciary Committee: None of the federal appellate court nominees on the agenda for consideration at this morning's meeting was voted out of committee. Indeed, one "How Appealing" reader who observed the meeting called it "ugly." The statement of Ranking Democratic Member Sen. Patrick J. Leahy (D-VT) can be accessed here. And a joint statement that Sen. Leahy issued with Committee Chairman Sen. Orrin G. Hatch (R-UT) can be viewed at this link.
Posted at 13:38 by Howard Bashman



The law firm of Jenner & Block sets up online brief bank for Rumsfeld v. Padilla: You can access the resource online at this link. If only Yaser Esam Hamdi had Internet access at the Naval brig where he is being held, he'd probably be wondering when someone is going to set up an online brief bank in his honor. After all, certiorari has already been granted in Hamdi's case, while Padilla is still hoping against hope that the U.S. Supreme Court will refuse to review the Second Circuit's ruling that was largely in his favor.
Posted at 11:56 by Howard Bashman



"Judicial Activism Forces Same-Sex Marriage on the Nation": The U.S. Senate's Republican Policy Committee yesterday issued this report, which updates the RPC's last report on this subject from late July 2003.
Posted at 11:37 by Howard Bashman



Given all the many Barbie doll-related Ninth Circuit rulings that this blog has reported on since its inception: I feel it's almost my duty to link to today's report from The Associated Press that "Barbie and Ken 'Split' After 43 Years." Perhaps this development is in response to Circuit Judge Alex Kozinski's recent advice (found at the very end of this opinion) that Barbie needed "to chill."
Posted at 11:29 by Howard Bashman



"Massachusetts Seeks Gay Marriage Compromise": NPR's "Morning Edition" contained this report (Real Player required) today.
Posted at 11:24 by Howard Bashman



"Justice's blind": An editorial published today in The Salt Lake Tribune begins, "Supreme Court Justice Antonin Scalia is undoubtedly a wise and learned man. But he seems to misunderstand this stuff about justice being blind. This justice is clearly blind to the horrible appearance of impropriety, if not downright unethical behavior, that follows a very expensive -- to the taxpayers -- duck hunting trip he took last month with Vice President Dick Cheney."
Posted at 11:20 by Howard Bashman



"Ex-staffer scolds Hatch over stand on leaked memos": This article appeared yesterday in The Salt Lake Tribune.
Posted at 09:19 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "Legislature Votes Leave Same-Sex Marriages as Law." Adam Liptak has a news analysis headlined "A Troubled 'Marriage.'" In other news, "Denying Crime, Cuba Prisoner Says He Drove for bin Laden." An article reports that "Chrysler Deal Called a 'Godsend.'" In other news, "Indecency Laws Examined in Wake of Halftime Show." An article reports that "Anxiety Takes Hold of Presidential Aides Caught Up in Leak Inquiry." In business news, "Politics Could Overshadow Legal Hurdles of a Merger." In local news, "Two in Clinton Impeachment Taking Roles in Rowland Case" and "At Trial, U.S. Traces Roots of Terror Network to Brooklyn." In celebrity justice-related news, "Court Hears Tape Offering Broker's Version of Stewart's Stock Sale"; "2 Testify on Williams's Reaction to Death"; "Michael Jackson Faces Cash Crisis"; "A Savvy, Scrappy New York Lawyer for Jackson"; and "A Show and a Real Trial: A Moral Line." An article reports that "Snowmobile Curb in Yellowstone Is Relaxed by a Federal Judge." And in other news, "Judge Denies N.F.L.'s Bid to Keep Clarett Out of Draft."

The Washington Post reports that "2nd Suspect Can See Lawyer; U.S. Citizen Was Linked to Alleged Al Qaeda 'Dirty Bomb' Plot." In somewhat related news, "Spanish Detainee Sent Home; Al Qaeda Suspect Among Dozens Chosen for Repatriation by U.S." and "Jihad Trial Witness Says Paintball Was Training Drill." An article is headlined "Hatch vs. . . . Conservatives? Computer Probe Inflames Activists." In other news, "Mass. Lawmakers Defeat Moves to Define Marriage; Two Attempts to Amend State Constitution Fail." An article reports that "Doctors, Hospitals Challenge U.S. Subpoenas; Justice Department Seeks Confidential Medical Records on Banned Late-Term Abortion Procedure." In sports-related news, "No Stay for NFL: Clarett to Enter Draft." In business-related news, "Stewart's Ex-Broker Finally Heard; Bacanovic, on Tape, Tells Tale of Client's ImClone Stock Sale" and "Court Backs Full Checks On Credit Complaints." And an article is headlined "Shaping Conservative Agenda: 'Monday Meeting' in New York Draws Influential Crowd."

Finally for now, The Christian Science Monitor reports that "Gays want the right, but not necessarily the marriage."
Posted at 07:00 by Howard Bashman



"Court Is Urged to Change Media Ownership Rules": This article appears today in The New York Times. The Chicago Tribune reports that "Court hears debate on ownership rules; FCC restrictions on media argued." And Reuters reports that "Court Mulls Rationale of Media Ownership Limits."
Posted at 06:50 by Howard Bashman



"Cooper case ruling will be appealed; State to ask high court to reinstate death penalty": Bob Egelko has this article in today's edition of The San Francisco Chronicle. And Reuters contains an article headlined "Schwarzenegger Says Frustrated at Execution Delay."
Posted at 06:40 by Howard Bashman



"Sykes sails through judiciary hearing; Federal lawmakers praise nominee for 7th U.S. Circuit Court of Appeals": The Milwaukee Journal Sentinel contains this article today. And The Philadelphia Inquirer reports that "Chesco judge moves closer to U.S. bench."
Posted at 06:38 by Howard Bashman



"Scalia Rejects Pleas for Recusal in Cheney Case": This article appears today in The Washington Post. And The Missoulian today contains an editorial entitled "It's impropriety, not mere appearance of it."
Posted at 06:30 by Howard Bashman



Wednesday, February 11, 2004
In Wednesday's newspapers: The Boston Globe today contains the following same-sex marriage-related news: "Amendment would turn gay marriages into unions; Lawmakers get proposal today"; "National and local lobbying efforts ratcheted up"; "Analysts see challenges for amendment"; and "Group promises aid for amendment foes." A related editorial is entitled "Constitutional questions." And columnist Scot Lehigh has an op-ed entitled "Political stakes high in gay marriage clash."

The New York Times reports that "Massachusetts Weighs a Deal on Marriages Between Gays." In other news, "Report Questions the Reliability of an F.B.I. Ballistics Test." In sports-related news, "N.F.L. Asks Judge for Stay to Keep Clarett From Draft" and "Clash Over Race of Jurors at Trial of Ex-Net." An article reports that "Stewart Trial Focuses on Message From Broker." And in other news, "U.S. Landlords Face Post-9/11 Standards."

The Washington Post contains a front page article headlined "Bush Plans To Back Marriage Amendment; Constitution Would Specify Man, Woman." An article reports that "Study Faults FBI Bullet Tests; Analysis of Lead Called Inconsistent; Court Challenges Expected." In sports-related news, "NFL Asks Federal Judge To Suspend Draft Ruling" and "Ex-NBA Star's Trial Opens; Night of Drinking Ended in 'Death and Deceit,' Prosecutor Says." And an editorial is entitled "A Break for the Innocent."

USA Today reports that "Gay marriage fight nears a peak; Massachusetts Legislature to vote on amending state's constitution."

The Washington Times reports that "Constitutional showdown set on marriage."

The Los Angeles Times reports that "Report Finds Flaws in FBI Bullet Analysis; Changes are proposed for the technique often cited in expert testimony in criminal trials." An article is headlined "In S.F., a Test Case for Gays; Mayor orders study on legality of same-sex marriages, calling ban unconstitutional." And in celebrity justice-related news, "Jurors Hear of Attempt by Stewart to Alter Phone Log" and "Bryant Lawyers Subpoena Bellhop, Argue Shield Law."
Posted at 23:20 by Howard Bashman



"Fur Flies Over Empty Podium: Lawyers trade blame for missed California Supreme Court appearance." law.com provides this report. In all the instances that I have used my monthly appellate column to give advice about oral arguments on appeal, the need to give the most important piece of advice never occurred to me -- be sure to show up for the argument.
Posted at 23:15 by Howard Bashman



"Justice Dept. Seeks Hospitals' Records of Some Abortions": This article will appear in Thursday's issue of The New York Times.
Posted at 23:11 by Howard Bashman



"Has murder of Luna stumped investigators?" This article appears in today's edition of The Lancaster New Era.

And CBS News offers a report entitled "FBI Flop In Dead Prosecutor Case?" that states, "Sources tell CBS News that only a few weeks after the body of Assistant U.S. Attorney Jonathan Luna was found face down in a creek near his parked car in rural Lancaster, Pennsylvania, supervisors at the FBI's Baltimore field office began focusing on one of their own female agents as a possible suspect in the murder."
Posted at 23:09 by Howard Bashman



Law Professor Eugene Volokh has posted online a letter from a majority of the judges serving on the U.S. Court of Appeals for the Seventh Circuit opposing proposed Federal Rule of Appellate Procedure 32.1: You can access the letter here. And the text of proposed Rule 32.1 can be accessed at this link.

Let me note a few interesting points in the debate over Rule 32.1. First, the proposed rule would allow unpublished and non-precedential rulings to be cited in all federal appellate courts, but the rule does not require any federal appellate court to treat unpublished or non-precedential rulings as precedent. Indeed, the Ninth Circuit (just to use as an example the circuit that is most vociferously opposed to Rule 32.1) could continue even after Rule 32.1 is adopted to refrain from ever citing to its own unpublished opinions, and it could order all district courts under its jurisdiction to likewise so refrain. True, I would be even more pleased if Rule 32.1 prohibited federal appellate courts from designating certain rulings as non-precedential, because I believe an opinion's status as precedent should be determined by what it contains rather than by a label attached to the decision at the time of its issuance. But Rule 32.1 takes no position on this issue, and for opponents of Rule 32.1 to suggest otherwise causes them to be fighting a battle that is not actually now underway.

Second, a rule that allows advocates to cite to unpublished and non-precedential decisions would not make litigation more costly. Is it more costly to litigate appeals in the D.C. Circuit, the First Circuit, or the Third Circuit, just to name a few of the circuits where such citations are already allowed? I don't understand that to be the case. Moreover, unpublished opinions are becoming as readily available to advocates as published opinions. West's Federal Reporter advance sheets contain both forms of appellate court rulings; a law recently passed by Congress will soon require all federal appellate courts to make unpublished opinions available over the Internet (and a significant majority already do so); and Westlaw already has all of these unpublished opinions online. "But isn't Westlaw prohibitively expensive?" some may wonder. Perhaps it once was, but I recently entered into a contract with West Publishing Company allowing me unlimited access to all state and federal court opinions and statutes from throughout the United States for a flat rate of only $300 per month.

Third, the assumption that under the current regime in certain federal appellate courts lawyers cannot be faulted as incompetent for ignoring on-point unpublished decisions is absurd. When I am searching for the most helpful or relevant federal appellate court ruling that addresses a given issue, I cannot in good faith refuse to look at the unpublished, non-precedential decisions. For one of those decisions may be closest on point, and, if it is, the case law that it cites and relies on may be best suited for me to rely on and cite in drafting my client's appellate brief. Moreover, if an advocate can find an on-point unpublished opinion, so can a federal judge's judicial law clerk. Thus, the contention that if lawyers are prohibited from citing to unpublished opinions, federal trial judges won't be tempted to do so either is revealed to be unpersuasive. And any advocate who prefers unpublished, non-precedential rulings to on point published precedential rulings after Rule 32.1 becomes law will be making a significant strategic mistake.

Finally, Ninth Circuit Judge Alex Kozinski, in his lengthy letter opposing Rule 32.1, argues that the new rule will discourage judges from providing an explanation to litigants for the court's ruling in cases that don't deserve a published opinion. Distressingly, however, his letter seems to be saying that in the Ninth Circuit an unpublished opinion prepared by staff counsel may reflect the result with which a three-judge panel unanimously agrees but may only offer in support of that result reasoning in which none of the three judges concurs. How it benefits a litigant to receive an explanation with which none of the judges who decided the appeal actually agrees is beyond me. Again, my view can be stated simply -- if a decision of an appellate court is to bind the litigants in an appeal, it should likewise bind the court that issued it (subject to being overruled or set aside in the usual ways). And whether a decision is precedential should depend on what the decision says, not on the label a three-judge panel decides to affix to it in advance of its issuance. But, to reiterate, Rule 32.1 does not purport to abolish non-precedential federal appellate court rulings. Rather, it simply allows lawyers to tell an appellate court how it has ruled in earlier, similar cases.

The deadline for submission of public comments on Rule 32.1 is February 16, 2004. You can submit comments online via this link. As sometimes occurs in heated debates over the law, it seems as though proponents and opponents of Rule 32.1 are largely talking past one another in the debate over the rule's usefulness. It will be interesting to see whether the supporters of Rule 32.1 -- a rule that nearly received the unanimous backing of the Advisory Committee on Appellate Rules -- will see any reason to reconsider their support for the rule based on criticism they view to be unpersuasive and misplaced.
Posted at 22:09 by Howard Bashman



"How Appealing Will Big Firm Life Remain for Blawgers?" Just stumbled across Dennis Kennedy's cleverly titled blog post from earlier this month that links to his interesting article headlined "2004 Legal Technology Trends: Do We Stand on the Threshold of the Next Legal Killer App?"
Posted at 19:42 by Howard Bashman



From tonight's broadcast of NPR's "All Things Considered": Tonight's broadcast contained segments entitled "Gay Marriage Ban Proposed for U.S." and "Massachusetts Debates Gay Marriage Ban" (Real Player required).
Posted at 19:22 by Howard Bashman



Justice Ruth Bader Ginsburg visits Hawaii: The Honolulu Star-Bulletin today reports that "Ginsburg gives isles a peek at Supreme Court; The Honolulu Rotary Club gets to sample the judge's dry wit." And The Honolulu Advertiser today reports that "Ginsburg cites court's unanimity, cordiality."
Posted at 18:45 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Georgia County Drops Commandments Appeal"; "Mass. Awaits Historic Gay-Marriage Vote"; and "Court OKs Medical Residents' Lawsuit" (plus, access today's ruling of the U.S. District Court for the District of Columbia at this link).
Posted at 17:27 by Howard Bashman



"Scalia affirms state rights under Constitution": This article appears in today's issue of The Boston Globe.
Posted at 17:23 by Howard Bashman



Department of Defense has announced it will allow Jose Padilla to visit with his lawyer: See this press release issued today. In news coverage of this development, The Associated Press reports that "Pentagon Allows Padilla to See Lawyer."
Posted at 17:19 by Howard Bashman



Getting married: Enough with the suspense. As has been noted elsewhere since my original post, the two federal appellate judges who will be getting married to one another this summer are Chief Judge Carolyn Dineen King and Senior Circuit Judge Thomas M. Reavley, both of the U.S. Court of Appeals for the Fifth Circuit. "How Appealing" wishes them all the best.
Posted at 17:08 by Howard Bashman



"This case concerns three men, each named Francisco Rivera, and the confusion that has resulted from attempting to determine which one of them committed grand theft auto in 1993." So states the third paragraph of this opinion that the U.S. Court of Appeals for the Eleventh Circuit issued today.
Posted at 17:01 by Howard Bashman



"Groups Say FCC Media Rules Would Stifle Public": The Associated Press provides this report on today's oral argument before the U.S. Court of Appeals for the Third Circuit.
Posted at 16:08 by Howard Bashman



Thanks to the "Law Students" page on law.com for reprinting my February 2004 appellate column: You can access the reprint here.
Posted at 16:07 by Howard Bashman



Denver Post columnist Al Knight defends The Federalist Society: See his column from today's newspaper. (Thanks to "Ex Parte" for the pointer.)
Posted at 16:01 by Howard Bashman



Today's Senate Judiciary Committee hearing turned out to be quite the love-fest: The hearing, which I previewed here earlier today, lasted just an hour even though it included one appellate court and two district court nominees. Senator Orrin G. Hatch (R-UT), the committee's chairman, was so impressed with the bipartisan support for the nominees that he spoke of trying to get them added to the already crowded agenda for tomorrow's executive business meeting.
Posted at 15:14 by Howard Bashman



That's quite a hamburger: Today the U.S. Court of Appeals for the Fourth Circuit issued a ruling in the trademark dispute between What-A-Burger of Virginia, Inc. and Whataburger, Inc. of Corpus Christi, Texas.
Posted at 15:11 by Howard Bashman



"Judge Refuses Stay for NFL; Clarett to Enter Draft": The Washington Post provides this news update.

Update: The trial court's order denying a stay pending appeal can be accessed online at this link.
Posted at 14:55 by Howard Bashman



"Scalia Defends Hunting Trip With Cheney": Gina Holland of The Associated Press provides this report.
Posted at 13:31 by Howard Bashman



"Driver for bin Laden in a Guantanamo cell; Osama bin Laden's driver is among the prisoners being held at the Guantanamo terrorism prison, his Pentagon-appointed defense lawyer discloses." This article appears today in The Miami Herald.
Posted at 11:20 by Howard Bashman



Coming soon to the Senate Judiciary Committee: Today at 2 p.m., the Senate Judiciary Committee will hold a confirmation hearing for three judicial nominees, including Seventh Circuit nominee Diane S. Sykes. Once confirmed, she will join the list of judges serving on the same court, at the same time, as the judge for whom they once served as law clerk. A live video feed of hearing is supposed to be accessible at this link (Real Player required).

And if that's not enough excitement for one week, tomorrow morning the Judiciary Committee is scheduled to hold its first executive business meeting of 2004. Three federal appellate court nominees are on the agenda for that meeting, and at most one or two may be favorably reported from the committee tomorrow for consideration by the entire U.S. Senate.
Posted at 11:01 by Howard Bashman



Oh how the South is changing: First thing you know, Confederate flag-based T-shirts are banned from high school. Next thing you know, Tennessee considers prohibiting drivers of pick-up trucks from allowing their dogs to roam free in the back of a moving vehicle. See this article from today's issue of The Tennessean.
Posted at 11:00 by Howard Bashman



"SCOTUSblog" to post online the entire finding aid for Justice Blackmun's papers: Tom Goldstein reports the exciting news in a post you can access here. I'll try to keep you updated as the document itself becomes available online there.
Posted at 10:39 by Howard Bashman



"Efforts Against Gay Marriage Intensify": Today's broadcast of NPR's "Morning Edition" contained this report (Real Player required).
Posted at 10:04 by Howard Bashman



"Court Hints It Won't Rule on TV Ownership Limits; A panel omits the topic from oral arguments, indicating it will leave intact Congress' 39% cap on viewers reached." Bloomberg News provides this preview of the oral argument occurring at this very moment before the U.S. Court of Appeals for the Third Circuit.
Posted at 10:00 by Howard Bashman



In news from Harvard University: Today's issue of The Harvard Crimson contains an article headlined "Committee Approves Porn Magazine; H Bomb will feature nude pictures of undergraduates." The article begins, "After flipping through the pages of Squirm, a Vassar College erotica magazine, the Committee on College Life (CCL) voted to approve a student-run magazine that will feature nude pictures of Harvard undergraduates and articles about sexual issues at its meeting yesterday."
Posted at 09:51 by Howard Bashman



Available today at National Review Online: Douglas W. Kmiec and Mark S. Scarberry have an essay entitled "Massachusetts Alternatives: Mending the mistake without amending the federal Constitution." And Peter N. Kirsanow, who serves as a commissioner on the U.S. Commission on Civil Rights, has an essay entitled "Patton & Preferences II: Competence is colorless."
Posted at 09:31 by Howard Bashman



For whom the recusal controversy Toles: Editorial cartoonist Tom Toles had this cartoon in yesterday's issue of The Washington Post.
Posted at 08:45 by Howard Bashman



"Let Judges Decide Sentences": Today's edition of The Hartford Courant contains this editorial.
Posted at 07:05 by Howard Bashman



"Newsom's plan for same-sex marriages: Mayor wants to license gay and lesbian couples." This article appears today in The San Francisco Chronicle. And The San Jose Mercury News reports that "S.F. may sanction same-sex marriage; Legality challenge seen as certain."
Posted at 07:00 by Howard Bashman



"Condemned man's family rejoices at execution delay": The Pittsburgh Tribune-Review today contains this article about California death row inmate Kevin Cooper. In other news, The Los Angeles Times reports that "Probe Sought in Death Row Case; Following a reprieve for Kevin Cooper, the defense seeks an independent investigation in the brutal slayings of four people in Chino Hills." The New York Times reports that "Appeals Court Bars Execution in California; Review Is Next." The San Jose Mercury News reports that "Execution decision may take months." In The LA Times, columnist Steve Lopez has an essay entitled "Punishing With Life Instead of Death?" And The North County Times contains an op-ed by Rick Reiss entitled "Ninth Circuit strikes again."
Posted at 06:52 by Howard Bashman



"Monroe DA sues to remove judge; Pazuhanich threatens integrity of the bench, prosecutor says." This article appears today in The Morning Call of Allentown, Pa.
Posted at 06:50 by Howard Bashman



"Massachusetts set for gay marriage showdown": Reuters provides this report.
Posted at 06:49 by Howard Bashman



"Clinton Speaks on Brown v. Board; In Low Library Address, Former President Says Case Was Good Start, But U.S. Needs More Work": This article appears today in The Columbia Spectator.
Posted at 06:48 by Howard Bashman



"Judges Skeptical of U.S. Efforts to Ban a Tax Book": The New York Times today provides this account of an oral argument that took place yesterday before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 06:47 by Howard Bashman



"Redistricting shot down; Legislature given until March 1 to redraw maps": This article appears today in The Atlanta Journal-Constitution.
Posted at 06:45 by Howard Bashman



"Few Impartial on Panel Co-Chair; D.C. Judge Silberman, an aggressive partisan, helped absolve the Reagan White House in an intelligence probe." This article by David G. Savage and Tom Hamburger appears today in The Los Angeles Times.
Posted at 06:43 by Howard Bashman



"Scalia should step down": This editorial appeared yesterday in The San Francisco Examiner. Today, USA Today contains an editorial entitled "Appearances matter." The Cornell Daily Sun yesterday contained an editorial entitled "Judicial Restraint." And The Times-Picayune today contains an essay by James Gill entitled "Duck blind."

In other news, today The Associated Press is reporting that "Justice Scalia questions SJC ruling on gay marriage."
Posted at 06:18 by Howard Bashman



"A Son Fights On for Mom: Chant Yedalian lost his mother to breast cancer, then went to law school so that he could wage his own legal crusade against her HMO." This front page article will appear in Wednesday's issue of The Los Angeles Times.
Posted at 00:17 by Howard Bashman



Tuesday, February 10, 2004
Elsewhere in Tuesday's newspapers: The Boston Globe today contains several same-sex marriage-related articles: "Lawmakers eye civil union provision; Bid to win backers for amendment"; "Gay marriage called election issue"; "Opponents warn lawmakers that polygamy will be next"; and "Process may take longer than day." An editorial is entitled "'No' to discrimination." And William Hobbib has an op-ed entitled "Gay marriage and the right to vote."

The Washington Times reports that "Memo download called 'criminal.'" In other news, "Florida anti-preference law takes hit." And Bruce Fein has an op-ed entitled "Death penalty usurpations."

In The Los Angeles Times, Henry Weinstein reports that "Judge Finds Apparent Collusion in Case; He says state and local authorities appear to have joined to block the release of a convict. Prosecutors say there was no 'game-playing.'" In other news, "Club Unfair to Gays, Court Is Told; A lesbian couple from San Diego County take their fight for spousal privileges at a private golf course to an appellate panel." In news from Oregon, "3 Members of Terrorist Cell Sentenced; One of the 'Portland Seven' expresses sorrow for trying to join the Taliban after 9/11." An article reports that "Juror Names to Be Kept Secret; Judge in the Scott Peterson murder trial rules against attorneys for the media; He also orders that witness lists remain confidential." In other news from California, "Vote Tabled on Status of Law School; Western State in Fullerton has been in settlement talks over national accreditation with bar association officials." And a letter to the editor appears under the heading "Justice Scalia Not Fit to Serve on the Court."
Posted at 23:22 by Howard Bashman



"Long delay seen in Cooper case; Inmate's lawyers want independent review": Bob Egelko will have this article in Wednesday's issue of The San Francisco Chronicle.
Posted at 23:19 by Howard Bashman



Who's getting married? Several readers have emailed in response to this post from earlier today to say something along these lines:
Are you really going to make the vast North American viewing audience mentally run through all the U.S. circuit judges who can legally marry one another? Or are you going to reveal the identity of Mr. and Mrs. Appellate Judge at some point? (Not that I haven't tried to make a couple of utterly random guesses.)
Well, I'd be happy to reveal the happy couple's identity, but what fun would that be? So, let's try more hints. First, one of the two judges is in regular active service, while the other has taken senior status. Second, both were nominated to the U.S. Court of Appeals on which they serve by the same President. And third, although the marriage is scheduled to occur in August, that date was not chosen in order to take advantage of impending legal developments in Massachusetts.
Posted at 23:10 by Howard Bashman



This article's like totally against using "like" to mean "said": One week ago today, The Wall Street Journal contained an article headlined "The Campaign Against 'Like': As Ex-Valley Girls (and Boys) Move Up the Ladder, Pressure Grows to Sound Professional."
Posted at 23:02 by Howard Bashman



"Former court clerk, brother found not guilty": The Atlanta Journal-Constitution reports here today that "A former federal court clerk and his brother were acquitted today of all charges in an alleged scheme to leak classified court information to leaders of a violent Atlanta street gang."
Posted at 22:58 by Howard Bashman



Ten Commandments news: In news from Georgia, "Habersham gives up 10 Commandments fight."

The Idaho Statesman reports that "City goes another round on marker; Boise: Coalition's arguments 'just don't hold water.'"

The Harvard Crimson reported here yesterday on Alabama Attorney General Bill Pryor's speech late last week at Harvard Law School. And The Huntsville Times yesterday contained an editorial entitled "Decalogue on display; The Commandments are back, and Roy Moore's not happy."
Posted at 22:51 by Howard Bashman



"Judge Cracks Hold on Windows Trademark": law.com offers this article from tomorrow's edition of The Recorder. And The Associated Press reports that "Microsoft trademark case to be delayed." You can access today's ruling of the U.S. District Court for the Western District of Washington in the Windows vs. Lindows suit at this link.
Posted at 22:41 by Howard Bashman



"Hudson High freshman defies ban on rebel flag; A Hudson High student is suspended for wearing a Confederate flag shirt after the principal forbade them in school." The St. Petersburg Times contains this article today.
Posted at 20:54 by Howard Bashman



"Leak probe expands; Santorum assails signs investigation targets GOP aides": Tomorrow's edition of The Hill will contain an article that begins, "A top Senate Republican lashed out at Democrats yesterday amid signs that an investigation into leaked Judiciary Committee memos has been expanded to include GOP leadership aides and the possibility that thousands of Democratic documents may have been taken."
Posted at 20:48 by Howard Bashman



The Associated Press is reporting: In news from Boston, "Question of electing judges gets second look in wake of gay marriage ruling." And in news from South Dakota, an article headlined "House sends abortion bill to Senate" reports that "The South Dakota House passed a bill 54-15 Tuesday that would ban most abortions in the state."
Posted at 20:03 by Howard Bashman



"High court ruling slows executions in Texas; Two mentally retarded death-row inmates avoid execution as state struggles to apply federal decision." This article will appear in Wednesday's issue of The Christian Science Monitor. And in death penalty-related news from California, The Los Angeles Times has a news update headlined "Cooper's Lawyers Seek Outside Inquiry."
Posted at 20:00 by Howard Bashman



When it comes to Justice Blackmun's papers, you can't find the finding aid: In last week's issue of Legal Times, Tony Mauro had the following newsbrief (next to last item; free registration required):
In response to interest last month in the upcoming release of the papers of the late Justice Harry Blackmun, the Library of Congress has withdrawn from public access an index or "finding aid" to the papers. Scholars and journalists were hoping to use the 350-page aid in advance of the March 4 release date to plan their research. Blackmun's daughter Sally, who has had control of the late justice's papers, has granted exclusive pre-release access to reporters Linda Greenhouse of The New York Times and Nina Totenberg of National Public Radio. The justice, who died on March 4, 1999, had specified the fifth anniversary of his death as the release date for his huge collection. Legal Times reviewed the finding aid in advance of a Jan. 26 article about the papers. After learning that Legal Times had seen the index, Yale Law School professor Harold Koh, who is advising Sally Blackmun, asked library lawyers to decide if it should be regarded as part of the papers and thus not released until March 4. Last week, the index was yanked -- angering historian David Garrow. "One of the best research institutions in the world is being made to look foolish and unprofessional simply on account of Koh's ham-handed attempt to 'manage the news' concerning public release of the Blackmun papers," says the Emory University law professor. Koh replies, "Thoughtful people understand the difference between 'managing the news' and implementing a late justice's intent that there be an orderly release of his collected papers in a way that promotes genuine public understanding of how the Court works."
Further illustrating the power of the Internet, excerpts from the elusive finding aid are available online here (thanks to "SCOTUSblog" for the link to the finding aid excerpts).
Posted at 19:42 by Howard Bashman



"FCC Media Ownership Appeal to Begin": NPR's "All Things Considered" this evening contained this preview (Real Player required) of an oral argument scheduled to occur tomorrow in the U.S. Court of Appeals for the Third Circuit.

Some very talented appellate advocates are expected to appear at the lectern in Philadelphia tomorrow, including Carter G. Phillips (that's "Mr. Carter" to you (see third item)), Miguel A. Estrada, and Donald B. Verrilli, Jr. If I didn't myself have two Third Circuit briefs due over the next two weeks, I'd be quite tempted to attend and observe tomorrow's oral argument.
Posted at 19:22 by Howard Bashman



"Full Faith and Credulous: The president heads down the path of the bigots." Dahlia Lithwick has this essay online at Slate this evening.
Posted at 19:07 by Howard Bashman



"Court tosses Georgia House, Senate redistricting": The Atlanta Journal-Constitution provides this news update. You can access today's unanimous ruling by a three-judge panel of the U.S. District Court for the Northern District of Georgia at this link. Thanks to Law Professor Rick Hasen for the pointer.
Posted at 17:45 by Howard Bashman



Mr. & Mrs. Appellate Judge: Word has reached me in the hinterlands that two judges serving on a particular U.S. Court of Appeals have announced that they will be getting married to one another this summer. Have two judges serving on the same federal appellate court ever been married to one another? I'd make that a "How Appealing" trivia question, but I fear that the answer probably is "no."
Posted at 17:24 by Howard Bashman



"So You'd Like To Be An Appellate Lawyer?": The February 2004 installment of my monthly appellate column, published in yesterday's issue of The Legal Intelligencer, can be accessed online here. If nothing else, readers of this month's column will learn how I got started on my career as an appellate litigator.
Posted at 17:18 by Howard Bashman



"Northwestern escapes DOJ subpoena; Judge denies Ashcroft's request for patient medical records": Crain's Chicago Business yesterday reported here that "A move by U.S. Attorney General John Ashcroft to subpoena the medical records of 40 patients who received so-called partial-birth abortions at Northwestern Memorial Hospital in Chicago was halted--at least temporarily--when a Chicago federal judge quashed the information request." You can access last Thursday's ruling by Chief District Judge Charles P. Kocoras of the U.S. District Court for the Northern District of Illinois at this link. Thanks much to Lis at "Riba Rambles" for the pointer.
Posted at 16:11 by Howard Bashman



"Court Honors Women Who Led the Way in Law": This press release is available online via the Web site of the Circuit Executive for the Ninth Circuit.
Posted at 14:45 by Howard Bashman



"Panelists Challenge Gay Marriage; Conservative speakers address an opinionated crowd at HLS": This article appears today in The Harvard Crimson.
Posted at 14:38 by Howard Bashman



Today's Ninth Circuit rulings of note: Today the U.S. Court of Appeals for the Ninth Circuit issued three opinions worthy of brief mention.

1. In Powell v. Lambert, the Ninth Circuit -- a court that forbids citation to and reliance on its own unpublished opinions -- failed to abide by a similar rule prohibiting reliance on the unpublished opinions of Washington State appellate courts. Sure, the Ninth Circuit's consideration of non-precedential state court rulings appears to have been dictated by U.S. Supreme Court precedent, but it's rather ironic nevertheless.

2. In Krystal Energy v. Navajo Nation, the Ninth Circuit ruled that Congress intended to abrogate the sovereign immunity of Indian tribes under the Bankruptcy Code's general provision abrogating sovereign immunity of various "governmental units." The statutory definition of the term "governmental unit" -- "United States; State; Commonwealth; District; Territory; municipality; foreign state; department, agency, or instrumentality of the United States..., a State, a Commonwealth, a District, a Territory, a municipality, or a foreign state; or other foreign or domestic governments" -- (as you have just seen for yourself) doesn't expressly mention Indian tribes.

3. Finally, in Ellison v. AOL, Inc., the Ninth Circuit issued a decision concluding that a federal trial court was wrong to dismiss, before trial, certain copyright infringement claims that author Harlan Ellison brought against AOL resulting from a third-party's posting copies of some of Ellison's copyrighted short stories on a peer-to-peer file sharing network known as USENET. The opinion, which considers the four safe harbor limitations of liability under Title II of the Digital Millennium Copyright Act, is worth reading if you're interested in this sort of stuff.
Posted at 13:36 by Howard Bashman



Recusal refusal: Last Friday, The Clarion-Ledger published an article headlined "Justices say recusals not needed; Judges claim law firm assistance shouldn't exclude them from cases." You can access last Thursday's ruling by the en banc Supreme Court of Mississippi at this link.
Posted at 12:41 by Howard Bashman



"20 questions for the appellate judge" update: Dust off your unabridged dictionaries, because March 2004's participant in "20 questions for the appellate judge" will be First Circuit Judge Bruce M. Selya. Aside from asking him the obvious question -- whether there's any word in the English language that's so obscure even he wouldn't use it in an opinion -- I'd welcome hearing from readers who'd like to propose questions. Suggested questions should be submitted via email.

I recently listed the other upcoming interviewees who have volunteered to take part in the "20 questions" feature through June 2004. The next federal or state appellate judge to volunteer to participate will have his or her interview published online here in July 2004. Additional volunteers will be assigned to the months that follow. To volunteer, simply send me an email, a process you can initiate by clicking here. A customized set of questions miraculously appears in the interviewees email in-box in the middle of the month before the interview is due to be published, and answers are due back by return email on the Friday before the publication date, which is the first Monday of the month.
Posted at 12:00 by Howard Bashman



Making a federal case out of it: The U.S. Court of Appeals for the D.C. Circuit today decided a dispute between American Airlines and passengers suing over lost luggage.
Posted at 11:36 by Howard Bashman



"Appeals court to rehear gay parent case": Today's issue of The Tennessean contains an article that begins, "A divorce case involving a father who had been sentenced to jail time for telling his son he is gay is now back in court."
Posted at 11:33 by Howard Bashman



"Court Blocks Calif. Execution": Today NPR's "Morning Edition" contained this report (Real Player required).
Posted at 09:28 by Howard Bashman



"U-M sees dive in minority applications; Admissions officials: It's a result of ruling": This article appears today in The Detroit Free Press. The Detroit News reports that "U-M loses minority applicants; 23% drop linked to affirmative action battle." And The Michigan Daily reports that "Applications from minorities drop in '03-04."
Posted at 09:15 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Neil A. Lewis reports that "Democrats Suggest Inquiry Points to Wider Spying by G.O.P." An article reports that "Trial in Suit Against Daimler Resumes." In other news, "National Law Group Endorses Videotaping of Interrogations." An article reports that "An Antiwar Forum in Iowa Brings Federal Subpoenas." In campaign finance news, "Too Young to Vote, Old Enough to Donate." An article reports that "Top Bush Aide Is Questioned in C.I.A. Leak." In other news, "9/11 Panel Threatens to Issue Subpoena for Bush's Briefings." And in celebrity justice-related news, "More Tactics Than Theatrics at Stewart Trial"; "From Dramatic to Decorous for a Witness"; and "Ex-Nets Star's Potential Jurors React to Pet-Shooting Accounts."

The Washington Post reports that "Democrats Say File Issue Could Bring Probe." An article reports that "Early Trauma Altered Sniper, Psychologist Says." In other news, "Judges at Odds on Va. Search Tied to Okla. City Bombing." In local news, "Public Access to Md. Court Records Ordered"; "Va. Jihad Case Opens Against Muslim Men; Four Face Conspiracy Counts; Defense Says Islam Is on Trial"; and "Va. House Relaxes Open Meetings Act; Bill to Exempt Legislature Would Allow Secrecy, Opponents Say." An article reports that "Bush Aides Testify in Leak Probe; Grand Jury Called McClellan, 2 Others." In business news, "Witness Says He Didn't Tell Stewart of Suspicions." Dana Milbank's "White House Notebook" is headlined "Cheney, a Little Tarnished." And an editorial is entitled "Justice Denied in Virginia."
Posted at 06:55 by Howard Bashman



"Convicted Killer Gets Last-Minute Reprieve; Hours before scheduled execution, a 9th Circuit panel blocks it to allow new tests on evidence from the 1983 murders in Chino Hills." This article appears today in The Los Angeles Times. The San Francisco Chronicle reports that "Court blocks Cooper's execution; Appeals panel grants a stay -- murder evidence to be tested." The Sacramento Bee reports that "Execution halted; appeals court orders new tests." The San Jose Mercury News contains an article headlined "Reprieve for killer facing death; High Court upholds ruling allowing new review of DNA." The Contra Costa Times reports that "Court grants Cooper stay." The Long Beach Press-Telegram reports that "Execution of Cooper stayed; Appeals court says new evidence means case should be reopened." The Associated Press reports that "Execution of California Man Put on Hold" and "Hundreds cheer outside death row at stay of execution." And Reuters reports that "Supreme Court Upholds Killer's Stay."
Posted at 06:40 by Howard Bashman



"Justice Scalia's impartiality highly questionable": This editorial appears today in The Houston Chronicle. The New York Post today contains an editorial entitled "Scalia and Caesar's Wife." The San Antonio Express-News contains an editorial entitled "It seems hunters Scalia, Cheney still in a blind." The Charleston Gazette contains an editorial entitled "Cronies: Republicans at play." And The Binghamton Press & Sun-Bulletin contains an editorial entitled "Scalia should sit this one out."
Posted at 06:30 by Howard Bashman



"Dems seek charges in leak probe": This article appears today in The Hill.
Posted at 06:16 by Howard Bashman



The U.S. Supreme Court has denied California's request to vacate stay of execution that the Ninth Circuit issued yesterday for death row inmate Kevin Cooper: Bob Egelko of The San Francisco Chronicle provides the latest news here. So, no execution will occur tonight after all.
Posted at 00:11 by Howard Bashman



Monday, February 09, 2004
Elsewhere in Monday's newspapers: The Boston Globe reports that "While foes rally, gay marriage camp strategizes; Says amendment is a Trojan horse."

The Los Angeles times contains an article headlined "Teen Is Snared in Post-9/11 Security Net; Brought to U.S. illegally by his mother at age 3, he visits father in Mexico, is caught on return trip."

USA Today contains an op-ed by James Alan Fox entitled "Take death penalty off table for teen murderers."

And Nat Hentoff has an op-ed in The Washington Times entitled "Rebellion against the Patriot Act."
Posted at 23:30 by Howard Bashman



Contractual pre-dispute jury trial waivers are unenforceable under California law, California Court of Appeal for the First Appellate District, Division Five, holds: You can access last Friday's ruling by a unanimous three-judge panel at this link.
Posted at 22:19 by Howard Bashman



"Commentary: Scalia's Cheney Ties." Senior News Analyst Daniel Schorr had this commentary (Real Player required) on tonight's broadcast of NPR's "All Things Considered."
Posted at 22:11 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Convicted Sniper's Lawyers Seek New Trial"; "Judge Strikes Down Iowa Sex-Offender Law" (you can access today's ruling of the U.S. District Court for the Southern District of Iowa at this link); "Mass. Lawmakers Divided on Gay Marriage"; and "Yellow Snow Leads to Burglary Arrest."
Posted at 21:59 by Howard Bashman



En banc Ninth Circuit grants permission for Kevin Cooper to file successive habeas corpus petition: The vote to continue the stay of execution was 9-2. You can access today's en banc opinion, which includes a dissent and a partial dissent, at this link. David Kravets of The Associated Press reports that "Appeals Court Blocks Calif. Execution." And Reuters reports that "California Execution Delayed After Legal Battle."
Posted at 20:44 by Howard Bashman



"Appellate Justices Stay Cooper Execution": The Los Angeles Times provides this news update. The San Jose Mercury News reports that "Federal appeals court stays Cooper execution." And United Press International reports that "Appeals court stays California execution."
Posted at 18:41 by Howard Bashman



Race neutral: The Denver Post today reports that "Bill aims to erase racial preference; State's race-neutral policies would be extended to city governments, schools." And in somewhat related news, The St. Petersburg Times today contains an article headlined "Judge: Bush's plan is biased; The governor will rework One Florida's contract provisions after a ruling that they aren't neutral on race, ethnicity and gender."
Posted at 17:29 by Howard Bashman



"Persistence pays off with proof of innocence": This lengthy article appears today in The Virginian-Pilot.
Posted at 17:24 by Howard Bashman



"Appeals court grants stay of execution for killer": Bob Egelko of The San Francisco Chronicle provides this news update. And Reuters reports that "U.S. Appeals Court to Review California Execution." As a reader notes by email, the Reuters report erroneously identifies in which of Kevin Cooper's two appeals the Ninth Circuit has granted rehearing en banc.
Posted at 17:20 by Howard Bashman



"Privacy reduction's next act: The U.S. Congress is hard at work trying to punish Internet users who value their privacy." Declan McCullagh has this essay today at c|net News.Com.
Posted at 17:15 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "ABA Won't Take Position on Gitmo Rights." And in other news, "Minority Applications Drop at Michigan"; "In Poll, Most Oppose Gay Marriage"; "Cincinnati Gay-Rights Group Seeks Repeal"; "Digital Photos Pose Issues in the Courts"; "Judge in Peterson Trial Seals Lists"; "Three Ore. Terror Defendants Sentenced"; and "Trial Opens in 'Paintball Terrorism' Case."
Posted at 17:00 by Howard Bashman



"Teen defendant seeks death penalty ban while appeal decided": The Associated Press today provides this report from North Carolina. Meanwhile, The News & Observer of Raleigh, North Carolina reports here today that "A Raleigh lawyer is trying to use the U.S. Supreme Court's pending decision about whether to abolish the death penalty for juveniles to help his client avoid facing execution for the murder of a public utilities worker." And in somewhat related news, The AP reports from New Hampshire that "Activists hope to raise execution age; Bill would change limit from 17 years old to 18."
Posted at 16:36 by Howard Bashman



Access online the Ninth Circuit's order granting rehearing en banc and staying the execution of death row inmate Kevin Cooper: The order can be viewed at this link.
Posted at 14:50 by Howard Bashman



Frequent Filer: The February 2004 issue of the California Bar Journal contains a profile of Maxcy Filer, who passed the California Bar Exam on his 48th try.
Posted at 14:32 by Howard Bashman



Chief Justice Rehnquist's new book is due out early next month: Blogger Kyle Still offers the details here.
Posted at 14:18 by Howard Bashman



"Misjudged: What Lawrence hasn't wrought." Joseph Landau has this essay (paid subscription required) in the current issue of The New Republic. Andy Lowry of the "Thus Blogged Anderson" site offers various excerpts from the article here.
Posted at 13:55 by Howard Bashman



"The cold war was over but the 'soy war' had just begun." Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion that brings an end to litigation initiated in 1989 by "a class of soybean farmers who sold their soybeans during the period of allegedly depressed prices in July 1989."
Posted at 13:30 by Howard Bashman



Ninth Circuit grants stay of execution to Kevin Cooper: David Kravets of The Associated Press provides this report, which states that rehearing en banc has been granted. Undoubtedly, the Attorney General of California will seek to have the U.S. Supreme Court vacate the stay to allow Cooper's execution to occur overnight tonight as scheduled.
Posted at 13:23 by Howard Bashman



"Appellate Advocacy in the Pennsylvania Courts": The Pennsylvania Bar Institute on Thursday, February 26 and Friday, February 27, 2004 is presenting a very worthwhile continuing legal education seminar in Mechanicsburg, Pennsylvania, a town located just outside of Harrisburg. I was planning to attend even before I was asked to be one of the presenters (along with two state appellate judges) in a segment that will focus on "Incorporating Technology into Appellate Practice." You can access more information about the seminar here (HTML), and the course brochure is available here (PDF). The seminar is sponsored by the newly-formed Post Trial and Appellate Practice Committee of the Pennsylvania Bar Association and is open to all who wish to attend. It definitely makes sense to sign-up early to guarantee a seat.
Posted at 12:10 by Howard Bashman



When does the one-year time limit for filing a federal habeas action begin to run for a federal criminal defendant who did not appeal from his judgment of conviction and sentence? Today a divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit addressed this question in an opinion you can access here.
Posted at 12:02 by Howard Bashman



Double Indemnity: The U.S. Court of Appeals for the Eighth Circuit today reversed a federal trial court's ruling that denied double indemnity accidental death life insurance benefits to an employee who died in a collision that occurred while operating his motorcycle in a seriously inebriated state. The opinion, which you can access here, also contains discussion of Russian roulette.
Posted at 11:44 by Howard Bashman



"Silverang Leaving Buchanan to Join Developer; Co-Managing Partner Steered Phila. Office Through Rough Seas": The Legal Intelligencer today contains an article (paid subscription required) that begins: "Kevin Silverang, who guided Buchanan Ingersoll's Philadelphia office through turbulent times since joining the firm seven years ago, has resigned to take a position as a senior partner at King of Prussia-based real estate developer O'Neill Properties." Last Monday, The Legal contained a front-page article reporting on my departure to open my Pennsylvania-based appellate boutique.
Posted at 11:36 by Howard Bashman



"Judges' details revealed in web bungle": This article will appear in Tuesday's edition of The Age of Melbourne, Australia.
Posted at 09:47 by Howard Bashman



Available at National Review Online: Matthew J. Franck has an essay entitled "Ducking Commonsense: Looking for impropriety where there is none." And Peter N. Kirsanow, a commissioner serving on the U.S. Commission on Civil Rights, has an essay entitled "Patton & Preferences: Diversity plans are vulnerable."
Posted at 09:35 by Howard Bashman



"More judiciary memos await": This article appears today in The Washington Times. Relatedly, Carl Weiser's "Inside Washington" column published today in The Cincinnati Enquirer is headlined "U.S. Senate probes court document leak."
Posted at 09:10 by Howard Bashman



In Monday's newspapers: In The New York Times, Jennifer 8. Lee reports that "Congressman Says Bush Is Open to States' Bolstering Gay Rights." In local business news, "In Dispute on Trade Center's Insurance, Billions at Stake." An article previews "A Day for Hard Choices in the Stewart Trial." And an editorial is entitled "Computer Hackers in the Senate."

In The Washington Post, Charles Lane reports that "Scalia Travel Sparks New Questions About Recusals." Earlier this morning, I noted here an error in this article. And in local news, "For Victims of Police, Pain Outlasts Payments; Pr. George's Lawsuits Bring No Peace of Mind."
Posted at 07:02 by Howard Bashman



Divided three-judge Ninth Circuit panel rejects bid to postpone execution of California death row inmate Kevin Cooper: You can access yesterday's ruling by a divided panel denying Cooper's request for leave to file a successive habeas petition at this link. And you can access yesterday's unanimous decision by the same three-judge panel affirming the denial of relief on Cooper's civil rights action challenging the lethal injection method as cruel and unusual punishment at this link.

In news coverage of the rapidly unfolding developments, The San Francisco Chronicle reports that "Appellate court turns back bids to stop execution; Cooper still scheduled to die tonight, but his lawyers say they have new evidence." Also in that newspaper, Bob Egelko has an article headlined "Provocative Death Row essays by Cooper available on Internet." The Los Angeles Times reports that "As Execution Nears, Family Relives Horror; Chino Hills couple are angry at death-penalty foes who seek a stay for their son's killer." The New York Times reports that "Protests Continue in California as Execution Nears." David Kravets of The Associated Press reports that "Cooper loses two legal appeals, lawyers vow to keep fighting" and "Prison, protesters ready for first execution in two years." And The Long Beach Press-Telegram contains articles headlined "Cooper set for execution tonight; Large protest expected for man convicted in grisly Chino Hills slayings" and "Grisly slayings haunt with images, questions."

Update: I have corrected my references to the two Ninth Circuit rulings that issued yesterday. Thanks to Jonathan Soglin for pointing out the error via email.
Posted at 06:33 by Howard Bashman



"Scalia Travel Sparks New Questions About Recusals": Charles Lane has this article today in The Washington Post. Lane's article repeats the incorrect assertion that "Scalia's travel with Cheney was first reported by the Los Angeles Times."

In fact, Justice Antonin Scalia's travel with Vice President Cheney was first reported by The Associated Press in Louisiana in a report that apparently was only distributed throughout the South. (The freely available online version of this AP report has disappeared from the Internet, but anyone with access to Westlaw, Lexis, or a similar service can confirm the point. I first linked to such an AP report on Thursday, January 8, 2004.) The very next day, on Friday, January 9, 2004, an alert "How Appealing" reader raised the recusal issue with me via email, spawning this post that evening. That very same reader has more recently informed me that sometime during the next week, he sent a similar email raising the recusal issue to Los Angeles Times reporter David G. Savage, who covers the U.S. Supreme Court for that newspaper. And the rest, as they say, is history. But, in the interest of historical accuracy, Cheney's trip with Scalia was first reported on locally by The AP and brought to National attention via this Web log. And the recusal question was first publicly raised here at "How Appealing," albeit in a rather cryptic manner.

The Seattle Post-Intelligencer today contains an editorial entitled "Scalia should recuse himself." And The Charlotte Observer today contains an editorial entitled "Hunt for impartiality: Justice Scalia should excuse himself from Cheney's case."
Posted at 06:10 by Howard Bashman



Sunday, February 08, 2004
"Questions About Justice Can't Be Ducked": Letters to the editor appeared under that heading in Sunday's issue of The Los Angeles Times.
Posted at 23:50 by Howard Bashman



Ten Commandments news: From Wisconsin, The La Crosse Tribune reported on Friday that "Eagles want city to join Ten Commandments appeal."

From Georgia, The Gainesville Times reported on Friday that "Judge won't delay Commandments case."

From Alabama, Friday's edition of The Huntsville Times contained an article headlined "Just want my old job back, Moore says; Ousted chief justice says he has no plans to seek higher office."

Finally, from North Dakota, The Grand Forks Herald reported yesterday that "Activist sues UND official in federal court."
Posted at 23:11 by Howard Bashman



"Federalists Do It Too: The False Debate Over 'Activist' Judges." Law student Steve Sanders has this essay in the current issue of Res Gestae, the student newspaper of the University of Michigan Law School.
Posted at 22:08 by Howard Bashman



"Field of judges for Brame case shrinks": The Associated Press provides this report today from Washington State. Yesterday, The News Tribune of Tacoma reported that "Judge disqualifies himself from Brame suit."
Posted at 21:59 by Howard Bashman



"Faith helps Brazill endure prison; Nathaniel Brazill, who was 13 when he shot and killed a favorite teacher, talks for the first time about his life in prison." This article appears today in The Miami Herald.
Posted at 21:56 by Howard Bashman



To access all the recent filings in the U.S. Court of Appeals for the Ninth Circuit relating to Kevin Cooper's impending execution in California: Simply visit this page maintained by the Ninth Circuit. The page has already been updated to reflect several new filings today. I wonder which three Ninth Circuit judges have been assigned to decide this matter in the first instance.
Posted at 20:55 by Howard Bashman



"Fight brewing over porn law; Bookstores say effort goes too far": Yesterday's edition of The Lansing State Journal contained this article.
Posted at 20:45 by Howard Bashman



"Lawmakers file to keep justice law; House speaker, Senate head say rotation is constitutional": This article appeared in yesterday's issue of The Concord (N.H.) Monitor.
Posted at 20:42 by Howard Bashman



"Hinckley Can't Escape The Blame": Lincoln Caplan, editor and president of Legal Affairs, has this op-ed today in The Hartford Courant.
Posted at 20:38 by Howard Bashman



"Reform to figure in Supreme Court races; 4 seats on state's high court up for election": The Clarion-Ledger today provides this news from Mississippi.
Posted at 20:33 by Howard Bashman



"Gay rights no easy sell in courts; Despite high-profile victories, gay-rights activists have lost most recent cases": Warren Richey will have this article in Monday's issue of The Christian Science Monitor.

Meanwhile, the February 16, 2004 issue of Time magazine will contain an article headlined "The Battle Over Gay Marriage: It's official: gays can marry in Massachusetts come May. A TIME report on how it happened, what it means -- and how it may play out in the race for the White House." And Andrew Sullivan will have an essay entitled "Why The M Word Matters To Me: Only marriage can bring a gay person home."
Posted at 17:33 by Howard Bashman



When your client's last name is Anders, the temptation to file an Anders brief in his criminal appeal could prove irresistible: Blogger Jonathan Soglin has the details here.
Posted at 17:05 by Howard Bashman



Law Professor Eugene Volokh defends the PROTECT Act: In today's edition of The Los Angeles Times, Eugene has an op-ed headlined "Congress Has Every Right to Judge the Judges; Despite a cry of 'unwarranted interference,' it is eminently reasonable for lawmakers to try to determine how well the jurists are complying with sentencing guidelines." As an added bonus, if you'd like to see how the op-ed read before editors attacked it with a red pen and cut it to shreds in order to fit it into the tight confines of the op-ed page, Eugene offers his original essay here.

P.S. In defense of The LA Times editorial page editors, they do seek and obtain the author's concurrence in all proposed edits. And then they pay the author several hundred dollars (although, alas, not as much as the generous folks at Slate pay).
Posted at 14:40 by Howard Bashman



"Alabama Court Modifies Ten Commandments Display": This morning's broadcast of NPR's "Weekend Edition - Sunday" contained this report (Real Player required).
Posted at 14:22 by Howard Bashman



"Cooper's hour near -- public is still divided; People's appetite for eye-for-eye justice seems to be waning": This article appears today in The San Francisco Chronicle. You can access online the appellate brief and emergency motion for a stay that California death row inmate Kevin Cooper's lawyers filed yesterday in the U.S. Court of Appeals for the Ninth Circuit.

In other news coverage of this matter, Reuters reports that "New Appeal Filed in California Execution Case." Voice of America reports that "Austrians Protest 'Native Son' Schwarzenegger's Death Sentence Policy." The Marin Independent Journal contains articles headlined "Victim's mother: She has no doubt of Cooper's guilt" and "Execution foes: Some lost family members to murder." Sacramento's News10 offers a story headlined "Reporter Claims Evidence Against Cooper was Planted." And The Nevada (Iowa) Journal reports that "Woman to witness 'justice' in relatives' murders."
Posted at 14:02 by Howard Bashman



"Good shot, Justice Scalia": The Week in Review section of today's edition of The New York Times includes this editorial cartoon by Ann Telnaes.
Posted at 13:50 by Howard Bashman



"Power of the Center: Justice Sandra Day O'Connor's swing vote boosts the Supreme Court's influence -- and her own." Law Professor John Yoo has this op-ed today in The Los Angeles Times. Professor Yoo was one of the participants in a segment that the PBS program "NewsHour with Jim Lehrer" featured last month about Justice O'Connor entitled "The Power of One." You can see a transcript of that program here and listen to the segment via Real Player here.
Posted at 13:01 by Howard Bashman



"Justice returns to area": Today's issue of The Daily Local News of West Chester, Pa. contains this article.
Posted at 12:56 by Howard Bashman



The Sacramento Bee is reporting: In today's edition, Claire Cooper has an article headlined "Can 2 be sentenced for the same crime? The state high court reviews prosecutors' incompatible cases." Meanwhile, in other news, "Killer's execution will go by the book; He's saying his farewells as state follows checklist for a lethal injection" and "Essay contest winners have the write stuff."
Posted at 12:53 by Howard Bashman



"True patriotism: Supreme Court Justice Ruth Bader Ginsburg warns against the dangers of citizen apathy." This editorial appears today in The Times Union of Albany, New York.
Posted at 12:50 by Howard Bashman



"EHT family takes free-expression case to top court": This article appears today in The Atlantic City Press.
Posted at 12:47 by Howard Bashman



In Sunday's newspapers: The New York Times reports that "Conservatives Use Gay Union as Rallying Cry." In news from England, "A Mother's Ordeal Forces Britain to Review Crib Deaths." In the Week in Review section, Adam Liptak has an article headlined "Is the Group Responsible for the Individual's Crime?"; the photograph of Attorney General John Ashcroft and a statue-tory breast accompanies an article headlined "L'Affaire Bodice: Why We Are Shocked, Shocked"; a sports-related article is headlined "Breaking Tackles to Reach the N.F.L."; and Law Professor Stephen Gillers has an essay entitled "On Knowing the Basic Rules of Advocacy." In business news, "The Pornography Industry vs. Digital Pirates." In local news, "Broken Promises," while a follow-up on a local news story is headlined "No Stomach Pills, but Many Legal Bills." And columnist Maureen Dowd addresses the controversy I have labeled "Duck, Duck, Recuse" in an op-ed entitled "Murder Most Fowl."

The Washington Post reports that "2nd Muslim Group Out Of Marriage Alliance." In local news, "Lentz Case Colored By Conflict in Court; Appeals Feature Judge vs. Prosecutor." And in the Sunday Outlook section, Michael Dobbs has an essay entitled "A Familiar, Thorny Record Of Wartime Justice," while Sue Russell, biographer of Aileen Wuornos, has an essay entitled "More of a Monster Than Hollywood Could Picture."
Posted at 12:00 by Howard Bashman



"Fisherman's case casts a wide net; International spat reaches top court": Jan Crawford Greenburg has this article in today's edition of The Chicago Tribune. My earlier posts about the McNab case can be accessed here and here.
Posted at 11:45 by Howard Bashman



News from The Associated Press: Now available online are articles headlined "3 Calif. Jurors Urge Death Penalty Delay"; "Cheney Calls for Patriot Act Renewal"; and "100 Men in NYC Seek Right to Wear Skirts."
Posted at 10:33 by Howard Bashman



The Los Angeles Times is reporting: From Saturday's newspaper, "O.C. Law School to Keep Its Ranking; Western State gets a temporary reprieve from judge, who says the American Bar Assn. may not be following its own rules." An article reports that "D.A. Rejects 3rd Trial for Ex-Officer; Civil suits and a federal probe of possible rights violations remain in an Inglewood patrolman's alleged assault on a youth in 2002." In other news, "Boy Scouts Sue San Diego Over Lease Dispute; The organization seeks to block its ouster from Balboa Park, alleging discrimination by the city in its settlement of a lawsuit by the ACLU." And a report from New York is headlined "Antidote: Martha's anteroom; It may be stuffy in the courtroom, but Stewart trial's overflow crowd is having some fun."

On Friday, the newspaper reported that "NFL Told to Allow Younger Players; A judge strikes down an eligibility rule, clearing the way for Ohio State's Clarett to be in the draft." In related news, "The Real Question Is, Why Didn't It Happen Sooner?" An article reports that "California Supreme Court Denies Cooper's Bid to Delay Execution." In other news, "Dozens of Courthouses Found at Risk in Quakes; State officials are not surprised, saying that many of the buildings inspected by structural engineers predate current safety rules." In same-sex marriage-related news, "Gay Marriage Ruling Dominates the Political Discourse; Lawmakers, candidates debate electoral effect and prospects for amending Constitution" and "Massachusetts Debates the State of Matrimony; Lawmakers consider options in reaction to a ruling allowing gays and lesbians to marry." In business news, "A Public Entreaty in Suzuki Lawsuit; A Consumer Reports column seeks readers' support as the suit alleging doctored road tests moves forward" and "Stewart's Image Takes Hit From Key Witness." In local news, "Court Agrees to Keep Rancho Open; Panel upholds a ruling barring closure of the hospital for the disabled; County officials say the decision worsens their budget picture"; "Youth Authority to Review Use of Cages; Inmate advocates say the 'secure program areas' for teaching violent youths are inhumane, call for a ban"; and "Another Defense Attorney for Blake Is Out." Finally, John R. Lott Jr. and Grover Norquist had an op-ed entitled "Gun Control Remains a Loaded Issue for Democratic Candidates; The rhetoric may be toned down, but the aim remains the same."
Posted at 08:00 by Howard Bashman



Saturday, February 07, 2004
In today's and yesterday's editions of The Boston Globe and The Washington Times: In the Globe today, articles on the subject of gay marriage report that "Mass. rulings push states to seek a ban"; "Travaglini will call convention; Promises vote on gay marriage amendment"; and "Finneran options are called limited." And an op-ed contains excerpts from U.S. District Judge Mark L. Wolf's imposition of a death sentence on Gary Lee Sampson.

In Friday's Globe, articles on the subject of gay marriage reported that "Finneran seeks to delay start of gay marriages; Constitutional convention becomes focus of lobbying"; "Romney urges states to define institution"; and "O'Malley sharpens attack on court." An article reports that "Judge Wolf raps focus on guns, drugs in US docket." In other news, "Lawyer cites trouble with fingerprints as evidence." In news from California, "Custody battle tests parental-rights limits; Estranged lesbians spar on motherhood question." And an article reports that "Clarett ruled eligible; NFL is expected to appeal judge's decision."

The Washington Times today reports from Virginia that "House votes 98-1 to ban teen-only nudist camps." On Friday, meanwhile, the newspaper reported that "GOP firing draws conservatives' wrath" and that "Rulings may speed up marriage amendment." And an editorial on Friday was entitled "The Massachusetts muddle."
Posted at 23:31 by Howard Bashman



"Gay marriage divide roils states; A new ruling by Massachusetts' top court and a constitutional convention here next week are escalating a national debate." This article appeared in Friday's edition of The Christian Science Monitor.
Posted at 23:15 by Howard Bashman



In today's and yesterday's editions of The Washington Post: Today's newspaper reports that "Prosecutors Assail Judge in Lentz Case." In other news, "2 More Detainees at Guantanamo May Face Tribunals, Pentagon Says." And in local news, "Hatfill Lawyers Given Go-Ahead"; "Charges Dropped In Hikers' Slayings; New Tests Hurt Case Against Md. Man"; and "Senate Votes to Lift Time Limit on New Evidence; Va. Measure, Which Would Eliminate '21-Day Rule' for Felons, Faces Uphill Battle in House."

In Friday's newspaper, an article reported that "Pentagon to Alter Military Tribunal Rules; U.S. to Tell Attorneys When Listening In on Talks With Guantanamo Clients." Charles Lane and Mark Maske had an article headlined "Judge Rules NFL Draft Is Open to Everyone; High School Players Eligible for First Time." In other news, "Battle Over Gay-Marriage Ruling Begins To Take Shape; Opponents Rally Support, Consider Legal Options." A related editorial asked "Why Not Civil Unions?" And in local news, "A Shrinking Death Row; Rulings Contribute to Md. Decline, Reflecting U.S. Trend."
Posted at 22:20 by Howard Bashman



From Friday's edition of The New York Times: Yesterday's newspaper contained a profile of retired Third Circuit Judge John J. Gibbons headlined "Ex-Judge vs. the Government's Law-Free Zone." In other news, a report from Boston was headlined "Unusual Sparring Between Court Majority and Dissenters." In sports-related news, "Judge Orders N.F.L. to Permit Young Athletes to Enter Draft" and "Ruling in Favor of Clarett Could Open Huge Hole Into N.F.L." And Law Professor Jeffrey Rosen had an op-ed entitled "How to Protect America, and Your Rights."
Posted at 22:10 by Howard Bashman



"Tax Protester Tells Federal Court That He Is Delusional": The New York Times today contains this article.
Posted at 22:05 by Howard Bashman



"Ontario's top judge defends his ruling on gay marriages": This article appears today in The Regina Leader Post.
Posted at 18:38 by Howard Bashman



"Kevin Cooper Files New Bid To Block Execution": Bay City News provides this report.
Posted at 18:36 by Howard Bashman



Wisconsin Supreme Court Justice Diane S. Sykes is scheduled to receive Senate Judiciary Committee confirmation hearing on her nomination to join the U.S. Court of Appeals for the Seventh Circuit on Wednesday, February 11, 2004: The announcement of the hearing can be accessed here. Once confirmed, Sykes will join the list of federal judges who are serving on the very same court, at the very same time, as the judge for whom they once served as a law clerk.
Posted at 18:30 by Howard Bashman



"Conservatives Use Gay Union as Rallying Cry": Sunday's edition of The New York Times will contain this article.
Posted at 16:46 by Howard Bashman



The U.S. Court of Appeals for the Ninth Circuit provides death row inmate Kevin Cooper with his own Web page: You can access the page pertaining to Cooper, whose execution is imminent, at this link. My post from earlier today collecting news coverage about this case can be accessed here.
Posted at 16:44 by Howard Bashman



"Scalia should recuse himself": This editorial appears today in The Capital Times of Madison, Wisconsin.
Posted at 16:40 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Lawyers Groups Works on New Judge Rules." The article begins, "The American Bar Association is working on new conduct rules for judges, such as when they should withdraw from a case."

And in other news, "Gay Marriage Rules Shows Mass. Bench Rift"; "Death Penalty Varies Widely in California"; and "Feds Win Right to War Protesters' Records."
Posted at 15:39 by Howard Bashman



"Asian-Americans Take Offense at a Law Firm Memo": This article appears today in The New York Times. Previously, law.com reported that "Dewey Partner's E-Mail Causes Upset Over Racial Insensitivity."
Posted at 12:40 by Howard Bashman



Not to be confused with Shemp: Bob Egelko and Kathleen Seligman report today in The San Francisco Chronicle that "Hemp industry revived with victory over DEA; Bush push to expand drug wars shot down by Ninth Circuit ruling." The Los Angeles Times reports that "U.S. Ban of Hemp Foods Is Rejected; The ruling by the 9th Circuit Court of Appeals opens the door for the domestic sale of bread and other food products made from the plant." The Washington Post reports that "Appeals Court Limits Ban on Hemp Products." The San Jose Mercury News reports that "Hemp-food manufacturers win court battle; Trace of hallucinogen had drawn federal suspicion." Reuters reports that "U.S. Court OKs Sale of Hemp-Based Food Products." And The Minneapolis Star Tribune reports that "Minneapolis bakery breathes easier with looser hemp foods policy." You can access yesterday's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 11:00 by Howard Bashman



No one has ever lived to complain about being executed using pancuronium bromide, part two: In today's issue of The New York Times, Adam Liptak reports that "Federal Judge Rules Chemicals Used in Executions Are Humane." Reuters reports that "U.S. Judge Rules Lethal Injection Not Cruel." Bob Egelko of The San Francisco Chronicle reports that "Cooper's hopes dim as judge OKs lethal injections." Howard Mintz of The San Jose Mercury News reports that "Execution's foes fail to sway courts; Killer of four is set to die Tuesday." Claire Cooper of The Sacramento Bee reports that "Judge rejects plea to delay execution; He says it's unlikely that he would find death by injection is cruel and unusual." And The Los Angeles Times reports that "Chino Hills Killer Loses His Latest Appeal; U.S. judge rules against Kevin Cooper, who is scheduled to be executed Tuesday for slaying four people. He meets with the Rev. Jesse Jackson."

You can access yesterday's ruling by District Judge Jeremy Fogel of the U.S. District Court for the Northern District of California at this link. The only good news implicit in yesterday's setback for Cooper is that now he can appeal his case to the U.S. Court of Appeals for the Ninth Circuit, a court that is not especially fond of the death penalty.
Posted at 10:55 by Howard Bashman



"Aisenberg Transcripts To Stay Sealed": This article appears today in The Tampa Tribune. And The Associated Press reports that "Court cuts fees for Aisenbergs to $1.3 million, reseals files." I first mentioned yesterday's ruling by the U.S. Court of Appeals for the Eleventh Circuit in a post you can access here.
Posted at 10:45 by Howard Bashman



In news from Ohio: The Cincinnati Enquirer reports today that "Taft signs gay marriage ban; Critics say bill portrays Ohio as intolerant, unwelcoming." The Cleveland Plain Dealer reports that "Taft defends gay-marriage ban." The Dayton Daily News reports that "Taft signs into law measure that defines marriage in Ohio." And The Toledo Blade reports that "Taft signs measure banning same-sex marriage" and "Lack of legality doesn't affect ties that bind, couples say."

In other news from Ohio, The Dayton Daily News today reports that "Lawsuit protests ban on jellybean prayer; Kettering parents suing district."
Posted at 10:37 by Howard Bashman



"Strict partial-birth abortion ban bill advances": This article appears today in The Salt Lake Tribune. Yesterday that newspaper reported that "Women rip into abortion bill."
Posted at 10:35 by Howard Bashman



"Judge criticizes Gary's accusers": The Palm Beach Post today contains this report.
Posted at 10:33 by Howard Bashman



"Appeals judges uphold ruling allowing Chronicle libel suit": This article appears today in The Houston Chronicle.
Posted at 10:31 by Howard Bashman



"Love That Dare Not Squeak Its Name": The New York Times today contains this article about homosexuality in the animal kingdom.
Posted at 10:29 by Howard Bashman



"ABA chief welcomes relaxed rules on detainees": The Houston Chronicle today contains this report.
Posted at 09:31 by Howard Bashman



"Ex-Ala. judge says he acted from duty; Defied federal court order to remove Ten Commandments block": This article appears today in The Richmond Times-Dispatch.
Posted at 09:28 by Howard Bashman



"Myers draws heavy fire at hearing": The Casper Star-Tribune reported here yesterday that "Presidential candidate and Massachusetts Democratic Sen. John Kerry on Thursday called on President Bush to withdraw William Myers' nomination to the Ninth Circuit Court of Appeals." And Native American Times yesterday offered a report headlined "Two Oklahoma tribal leaders support controversial nominee; Myers opposed by a number of Indian groups."
Posted at 09:20 by Howard Bashman



"Sierra Club may seek Scalia recusal in Cheney case": Reuters today provides this report. The Los Angeles Times reports that "House Democrats Call for Hearings on High Court Conflicts of Interest." The Boston Globe contains an editorial entitled "Scalia's apparent conflict." And The Fort Worth Star-Telegram contains an editorial entitled "Shot in the foot."
Posted at 09:10 by Howard Bashman



"Pickering renominated to appeals court to satisfy federal regulations": This article appears today in The Clarion-Ledger. The article explains that "President Bush gave Pickering a special appointment to the appeals court last month when Congress was in recess. But, according to federal regulations, the White House had to resubmit Pickering's nomination to the Senate within 40 days of his recess appointment for the judge to be paid"
Posted at 09:01 by Howard Bashman



Friday, February 06, 2004
The Associated Press is reporting: Anne Gearan has an article headlined "Bush administration: No outsiders helped energy panel." And in other news, "Jury Asked: One or Two Attacks on WTC?"; "Panel approves bill to repeal juvenile death penalty"; and "Cornyn blasts gay marriage ruling, plans hearings."
Posted at 21:06 by Howard Bashman



Not giving up yet: Smack dab in the middle of the three nominations that the White House sent on to the U.S. Senate today is the following:
Charles W. Pickering, Sr., of Mississippi, to be United States Circuit Judge for the Fifth Circuit, vice Henry A. Politz, retired, to which position he was appointed during the last recess of the Senate.
You can access the news release here.

Update: And in related news from Mississippi, an article reports that "It appears Hattiesburg attorney Mike Randolph has made the short list as the next U.S. district judge for the southern district, replacing federal Judge Charles Pickering."
Posted at 20:00 by Howard Bashman



"Cooper's bid to thwart lethal injection fails": Bob Egelko of The San Francisco Chronicle provides this news update. Today's ruling by District Judge Jeremy Fogel of the U.S. District Court for the Northern District of California, rejecting the inmate's claim that it is inhumane to administer the death penalty using the paralytic agent pancuronium bromide, can be accessed here. In the print edition of today's newspaper, Egelko had an article headlined "State high court refuses Cooper stay of execution; Attorney files federal suit to stop California's use of lethal injection."
Posted at 19:50 by Howard Bashman



"Bill to cut high court backlog faces opposition": This article appears today in The Honolulu Advertiser.
Posted at 19:46 by Howard Bashman



From tonight's broadcast of NPR's "All Things Considered": Tonight's broadcast contained segments entitled "Obstacles Remain for Massachusetts Gay Marriage"; "High Court Test of Marriage Act Likely"; and "Bush Names Panel to Probe Pre-War Intelligence Failures" (Real Player required).
Posted at 19:25 by Howard Bashman



The wire services are reporting: The Associated Press is reporting that "Bid to Outlaw Hemp Food Fails in Court"; "ABA Prepares to Add Gay Marriage Views"; and "Scott Peterson Defense Says It's Ready."

Reuters, meanwhile, is reporting that "U.S. Judge Rules Lethal Injection Not Cruel"; "Paris Hilton Sues Over Internet Sex Tape"; "Janet Jackson's Breast Exposure Triggers Suit"; and "Judge Bans Cameras from Michael Jackson Hearing."
Posted at 17:50 by Howard Bashman



"Hatch vs. GOP Staff: Democrats play fast and loose with ethics, Republican gets thrown overboard." Quin Hillyer has this essay today at National Review Online.
Posted at 17:33 by Howard Bashman



The U.S. Court of Appeals for the Eleventh Circuit reduces Hyde Amendment award for the bad faith federal prosecution of parents in connection with the disappearance of their daughter from $2,680,602.22 to $1,298,980.00: You can access today's ruling at this link, and the trial court's decision is accessible here. The Tampa Tribune in May 2003 published an editorial entitled "Aisenberg Case Justifies Criticism Of Government Power."

Back in September 1999, The St. Petersburg Times published an article headlined "Aisenbergs Arrested: Parents of missing baby Sabrina are charged in her disappearance; Police say the girl is dead." CNN.com in October 1999 had an article headlined "Parents of missing baby due back in Florida court; Couple denies lying to police." And "Larry King Live" in March 2001 devoted a show to the question "What Happened to Sabrina Aisenberg?" Other news coverage and information about the case can be accessed via this page.
Posted at 17:12 by Howard Bashman



Current and former D.C. Circuit Judges to serve on independent commission examining intelligence on weapons of mass destruction: You can access a transcript of President Bush's announcement today at this link.
Posted at 15:56 by Howard Bashman



"Cheney faces impropriety claims; Fresh revelations about a shooting trip taken by US Vice-President Dick Cheney and a Supreme Court judge are fuelling renewed allegations of impropriety." BBC News provides this report. The New York Times today reports that "Scalia's Trip With Cheney Raises Questions of Impartiality." And The San Diego Union-Tribune today contains an editorial entitled "Duck-blinded ethics: Scalia puts Supreme Court integrity at risk."

In largely unrelated news, today The Chicago Tribune reports that "Senate confirms ex-Scalia aide to federal bench." The article begins, "At 37, Mark Filip is about to become one of the youngest lawyers to join the federal bench in Chicago after his confirmation by the U.S. Senate in a 96-0 vote on Wednesday."
Posted at 15:45 by Howard Bashman



Ninth Circuit invalidates Drug Enforcement Agency regulations that ban the manufacturing and selling of food and cosmetic products made from hemp seed and oil: The first paragraph of the conclusion to today's opinion by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit states:
The DEA's Final Rules purport to regulate foodstuffs containing "natural and synthetic THC." And so they can: in keeping with the definitions of drugs controlled under Schedule I of the CSA, the Final Rules can regulate foodstuffs containing natural THC if it is contained within marijuana, and can regulate synthetic THC of any kind. But they cannot regulate naturally-occurring THC not contained within or derived from marijuana--i.e., non-psychoactive hemp products--because non-psychoactive hemp is not included in Schedule I. The DEA has no authority to regulate drugs that are not scheduled, and it has not followed procedures required to schedule a substance.
You can access the complete opinion at this link.
Posted at 13:31 by Howard Bashman



"BeldarBlog" tells the story of Law Professor Charles Alan Wright's having referred to a particular nineteenth century U.S. Supreme Court Chief Justice as "Chief Justice of the Supreme Court." Was Wright right? Read to the end of this blog post to learn the answer.
Posted at 13:08 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Two More Guantanamo Prisoners Get Lawyers" and "Calif. Police Return Marijuana to Men."

Relating to the first of those two articles, the U.S. Department of Defense today has issued a press release entitled "Guantanamo Detainees Assigned Defense Counsel."
Posted at 12:50 by Howard Bashman



Available today from National Review Online: Byron York has an essay entitled "There Are More Democratic Memos; A fired GOP aide says they contain evidence of wrongdoing." And Hadley Arkes has an essay entitled "Consolation Prize: The supreme court in Massachusetts gets one thing right."
Posted at 12:48 by Howard Bashman



"Wake judge's words again spark appeal; Teen challenges sentence in shooting": The News & Observer of Raleigh, North Carolina today contains an article that begins, "A Raleigh teenager is challenging the sentence handed down by Wake Superior Court Judge Evelyn Hill because of her 'offensive' remarks, including saying, 'You have no black pride. I have more black pride than you have.'" The newspaper also provides additional excerpts from the trial transcript.
Posted at 12:43 by Howard Bashman



Access online alleged dirty bomber Jose Padilla's brief in opposition to the federal government's petition for writ of certiorari: The brief in opposition can be accessed here. (Thanks to attorney Peter Goldberger for the pointer). The federal government's cert. petition, to which the brief in opposition responds, is available here.
Posted at 12:35 by Howard Bashman



It was very nice to finally meet "Election Law" blogger Rick Hasen this morning: The weather outside remains frightful, but Rick (who is visiting Philadelphia from Los Angeles) and I had a most enjoyable breakfast together this morning. Rick kindly picked up the tab, using what appeared to be "soft money."
Posted at 12:30 by Howard Bashman



Law blogger breakfast, and how to succeed without really trying: This morning I will be meeting Law Professor Rick Hasen, author of the "Election Law" blog, for breakfast in center city Philadelphia. He was supposed to bring warm California-like weather with him but apparently has failed to do so, because Philadelphia's current weather includes lots of freezing rain. Wish me a safe commute. The breakfast will be sponsored by Microsoft, as I will attempt to persuade Rick to treat using the fee he recently became entitled to for having an essay published online at Slate, while Rick will try to persuade me to pay because the fee that I received for my 2002 Slate essay was nearly twice as much as that publication is now paying.

In other news, The Legal Intelligencer on Monday, February 9, 2004 will publish my latest appellate column. Recently many people who are new to the practice of law have been asking me for advice on how they might become appellate advocates. This month's column attempts to answer that question based on my own experiences and observations.
Posted at 07:20 by Howard Bashman



"Democrats Hammer at Court Choice; Senate critics worry about William Myers' approach to the environment; The GOP chairman praises his record." Henry Weinstein has this article today in The Los Angeles Times. In The New York Times, Neil A. Lewis has an article headlined "Another Clash on a Judicial Nominee, but the Issue Is New." And the Gannett News Service reports that "Judge nominee's past scares some Democrats."
Posted at 06:11 by Howard Bashman



"Scalia Joined Cheney on Flight; Justice's Ride on Air Force Two Adds New Element to Conflict Issue": This article appears today in The Washington Post. And The Los Angeles Times today contains an editorial entitled "Scalia's Blind Eye."
Posted at 06:10 by Howard Bashman



"Maryland U.S. Attorney Frustrated Over Prosecutor's Death; Two Months Pass Since Federal Prosecutor Found Dead In Pa." WBAL-TV had this report on Wednesday.
Posted at 06:05 by Howard Bashman



Thursday, February 05, 2004
Elsewhere in Thursday's newspapers: The Boston Globe reports that "SJC affirms gay marriage; Court deems civil unions insufficient." In related coverage, "Officials, state legislators ponder their next moves"; "Legislators' vote due on same-sex measure"; and "Justices' opinions reveal deep division." In other local news, "Geoghan's sister vows to pursue facts of his slaying; Intends to sue unless abusers, officials named" and "Stricter rules urged for sex offender registry." Editorials are entitled "Equal under the law" and "A case full of abuses." And Joan Vennochi has an op-ed entitled "Legislator feels the heat on gay marriage."

In The Los Angeles Times, David G. Savage and Richard A. Serrano report that "Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows; The revelation cast further doubts about whether Scalia can be impartial in Cheney's upcoming case before the Supreme Court." Henry Weinstein reports that "Groups Fight Nominee for 9th Circuit." In other news, "Massachusetts Grants Gays Right to Marry; The landmark court ruling makes it the first state to uphold full marriage rights for same-sex couples, not civil unions and similar separate arrangements." In celebrity justice-related news, "Fraud Trial Put Off While Geragos Defends Peterson; Judge warns he may remove the celebrity attorney if further conflicts arise"; "Old Allegation Could Affect Jackson Case; Accuser in the 1993-94 sex abuse investigation can be called, but not compelled, to testify"; and "Prosecutors Seek Victim's Fingernail in Spector Case." An article reports that "California Prisoner's Gruesome Death Probed; Officials want to know if Corcoran guards, who were watching the Super Bowl, were negligent." And in other local news, "College Wants Law on Its Side; Judge issues a temporary ruling in Western State's bid to keep national accreditation; Fullerton school says the ABA is hostile to for-profits"; "Scholarship Hopes Die at Berkeley; UC officials miss the deadline for 30 students' Fulbright applications"; "U.S. Plans to Drop Wiretap Evidence"; "Cages Used to Educate Youth Prisoners Are Coming Under Fire"; and "Court Orders Delay in Tribe Ousters; Attorneys for a Pechanga panel, which is accused of trying to restrict the sharing of casino profits, say the judge lacks jurisdiction."

The Washington Times reports that "Court approves homosexual 'marriages.'" In related news, "President calls gay 'marriage' ruling 'troubling'" and "Ohio ready to outlaw same-sex 'marriages.'" In news from Virginia, "Senate kills Confederate history resolution." And an editorial is entitled "An anti-democratic ruling."
Posted at 23:31 by Howard Bashman



Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) has a few choice words to say about the Ninth Circuit: See Senator Hatch's statement from today's hearing on Ninth Circuit nominee William Gerry Myers III.
Posted at 21:50 by Howard Bashman



Ten Commandments news: From Georgia, The Atlanta Journal-Constitution reports that "Barrow loses bid to halt Commandments suit." And The Athens Banner-Herald reports that "Judge says no to bid for halt in ACLU suit; Barrow Commandments battle."

From Utah, The Deseret Morning News reports that "Judge delays ruling on monolith for city."

From Pennsylvania, The York Dispatch reports that "In Hanover, T-shirts oppose moving Wirt Park monument." And The Evening Sun reports that "One Ten Commandments T-shirt design off shelf; Hanover News Agency objects to wording on one of the designs."

Finally, from Alabama, The Montgomery Advertiser contains an editorial entitled "Moore's case validates system."
Posted at 21:40 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Senate Democrats Question Court Nominee" and "10 Commandments Part of Display in Ala."
Posted at 21:33 by Howard Bashman



Big news from Canada for Big Tobacco: CBC News is reporting this evening that "Judge throws out class-action lawsuit against tobacco companies." The article begins, "An Ontario judge has thrown out what could have been Canada's biggest class-action lawsuit."
Posted at 19:07 by Howard Bashman



Nano, nano: The Harvard Journal of Law & Technology has recently posted online an article titled "Nanotechnology and Regulatory Policy: Three Futures" by Glenn Harlan Reynolds of "InstaPundit" fame.
Posted at 18:53 by Howard Bashman



Enron's ex-chairman doesn't share the same first and last names as senior Eighth Circuit judge: A careful reader emails to note that Ed Lazarus's FindLaw column today speaks of "Enron's Donald Lay." Um, Donald P. Lay is a senior Eighth Circuit judge. Kenneth Lay is Enron's former chairman.
Posted at 18:51 by Howard Bashman



In other news from The AP: From Morgan City, Louisiana comes a report headlined "Scalia and Cheney's outing: not an ordinary duck hunt." Anne Gearan reports that "Pentagon Eases Terror Tribunal Rules." And in other news, an article reports that "Consumer Reports magazine is enlisting its readers in a campaign to defend against allegations it doctored road tests that determined a sport utility vehicle could tip over."
Posted at 17:28 by Howard Bashman



"Girl suspended for saying h-e-double-hockey-sticks": This article appears today in The Pittsburgh Post-Gazette.
Posted at 17:22 by Howard Bashman



Tomorrow, Alabama Attorney General, and Eleventh Circuit nominee, Bill Pryor will speak to the Harvard Law School Federalist Society: Adam White, who so kindly coordinated arrangements for my recent meeting with that same group, has the details here.
Posted at 17:19 by Howard Bashman



The San Francisco Chronicle is reporting: An article reports that "Yogis go to court over poses; Copyright dispute turns yoga into a legal exercise." Bob Egelko has an article headlined "Strong opposition to execution; And it's not just death-penalty foes." And in other news, "Peterson defense witness dies; Elderly neighbor said she saw victim walking with dog" and "FedEx error costs 30 UC students fellowships; Applications for Fulbright grants not mailed by deadline."
Posted at 16:45 by Howard Bashman



"So far, two winners in fight over Pledge; Essayists from Elk Grove Unified to see high court's 'under God' debate." This article appears today in The Sacramento Bee. Yesterday I provided links here to both winning essays.
Posted at 16:25 by Howard Bashman



The Associated Press is reporting: Jesse J. Holland reports that "Key Frist Staffer to Resign Over Leak." Meanwhile, in news from Boston, "Mass. Lawmakers Mull Gay Marriage Ruling" and "Gay Marriage Ruling Stirs Lobbying Furor."
Posted at 16:20 by Howard Bashman



The only thing that's missing is a dissent by Judge Gould and then he'd have all the bases covered: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision in which the listing of opinions states: "Opinion by Judge Gould; Concurrence by Judge Gould."
Posted at 13:33 by Howard Bashman



Supreme Court of California rejects the oral argument waiver notice used by California's Court of Appeal, Fourth District, Division Two: The supreme court's unanimous opinion issued today begins:
We consider in this case the propriety of a notice form regularly utilized by the Fourth District Court of Appeal, Division Two, in ascertaining whether appellate counsel will waive oral argument in appeals pending before that appellate court. As we shall explain, we conclude that there exists a danger that the language of the waiver notice employed here suggests too strongly (1) that the appellate court already has finally decided the case and will not be affected by oral argument, and (2) that appellate counsel might face adverse consequences if oral argument is requested. As such, the notice has a real potential to interfere with a party's proper exercise of the right to present oral argument on appeal.

Under these circumstances and in the exercise of our supervisory power over the courts, we shall direct the Court of Appeal to refrain from utilizing this waiver notice in future cases. Further, because defendant's appellate counsel brought this issue to the Court of Appeal's attention in a petition for rehearing and indicated that the language of the waiver notice in fact had deterred counsel from requesting oral argument, we shall reverse the judgment and transfer the matter to the Court of Appeal with directions to calendar the matter for oral argument and reconsider the cause in light of such argument.
You can access the complete ruling at this link.
Posted at 13:03 by Howard Bashman



"Anti-gay teacher can't claim charter protection: B.C. court." CBC News provides this report from Canada. You can access Tuesday's ruling of the British Columbia Supreme Court at this link. A Web site devoted to supporting the teacher in this litigation can be accessed here.
Posted at 12:32 by Howard Bashman



"Judge rules Maurice Clarett eligible for NFL draft": The AP offers this coverage.
Posted at 12:10 by Howard Bashman



"Court Preserves Gitmo Isolation, for Now": Anne Gearan of The Associated Press provides this report.
Posted at 12:07 by Howard Bashman



New York-based federal district judge declares National Football League's rule limiting eligibility to players three seasons removed from their high school graduation illegal, orders Maurice Clarett eligible to participate in 2004 draft: You can access today's ruling by District Judge Shira A. Scheindlin of the U.S. District Court for the Southern District of New York at this link. The eligibility rule was found to violate federal antitrust law.
Posted at 09:41 by Howard Bashman



"Leak staffer ousted; Frist aide forced out in an effort to assuage Dems": This article appears today in The Hill.
Posted at 09:04 by Howard Bashman



Coming soon from the Supreme Court of California: At 10 a.m. pacific time today, the Supreme Court of California will issue its ruling in a case that presents the question "Does the standard oral argument waiver notice used by the Court of Appeal, Fourth District, Division Two, improperly infringe upon a defendant's right to oral argument?" Back on December 4, 2003, Denise Howell had this write-up about the case.
Posted at 07:44 by Howard Bashman



"Scientists win Kennewick Man ruling; Court rejects tribes' appeal to bury ancient bones": This article appears today in The Seattle Post-Intelligencer.
Posted at 07:00 by Howard Bashman



In Thursday's newspapers: The New York Times reports that "Massachusetts Gives New Push to Gay Marriage in Strong Ruling." In related news, "Bush Expected to Endorse Amendment on Marriage." An article reports that "Judges Back Study of Ancient Human Remains." In celebrity justice-related news, "Witness Describes Stewart Cover-Up"; "In Pursuit of Justice, a Primer on Recreational Drugs"; and "Jury in Trial of Ex-Nets Star Won't Hear of Pet's Killing." In technology news, "Protecting the Cellphone User's Right to Hide." An article reports that "In Court, AIM Members Are Depicted as Killers." In other news, "Bush, in Reversal, Supports More Time for 9/11 Inquiry." In news from California, "Missed Pickup Means 30 College Students Lose Chance at Fellowship." And Norman Ornstein has an op-ed entitled "The Quorum After."

In The Washington Post, Charles Lane reports that "Mass. Court Backs Gay Marriage; 'Civil Unions' Rejected; Same-Sex Couples to Have Equal Status for First Time." A related article is headlined "A Ruling With Resonance; Massachusetts Decision Likely to Affect National Politics." In election law-related news, "McCain-Feingold Unmade? New Election Regulator Opposes Campaign Finance Law." In news from New York, "Stewart Ordered Sale, Says Witness; Broker's Assistant Tells Jury About ImClone Tip" and "N.Y. City Council Passes Anti-Patriot Act Measure." A front page article reports that "Extension of 9/11 Probe Backed; Bush Reverses Stand, Wants July 26 Deadline." In business news, "Trader Tries To Overturn 1998 Ruling; But SEC Wants Him Found Guilty of Fraud." In local news, "Dean Bill Targets Justice Department's Planned Detention Center." And Richard Leiby's "The Reliable Source" column today begins, "Speaking suavely in French, film buff and Supreme Court Justice Stephen Breyer introduced himself yesterday to actress Jeanne Moreau, who mesmerized the world in such movies as 'Jules and Jim' and is visiting Washington for a career retrospective."

Finally, OpinionJournal has an op-ed by Massachusetts Governor Mitt Romney entitled "One Man, One Woman: A citizen's guide to protecting marriage."
Posted at 06:32 by Howard Bashman



"No Visible Suffering: The Kevin Zimmerman execution raises more questions about the Texas death march." This article appears in today's issue of The Austin Chronicle.
Posted at 06:21 by Howard Bashman



"Groups Fight Nominee for 9th Circuit": Henry Weinstein of The Los Angeles Times today has this article about Ninth Circuit nominee William Gerry Myers III, who is to be the subject of a Senate Judiciary Committee confirmation hearing scheduled for this morning. The hearing, due to start at 10 a.m., can be viewed live online at this link (Real Player required).
Posted at 06:20 by Howard Bashman



"Scalia Was Cheney Hunt Trip Guest; Ethics Concern Grows": David G. Savage and Richard A. Serrano have this article in today's edition of The Los Angeles Times. And FindLaw today offers an essay by Edward Lazarus entitled "Why Justice Scalia Is Wrong To Refuse to Recuse Himself From a Case Involving Dick Cheney and His Energy Task Force."
Posted at 06:10 by Howard Bashman



Wednesday, February 04, 2004
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports that "Geragos' Big Trials Make for Jilted Judge; Jurist orders lawyer for Scott Peterson, Jackson to prove he has time for O.C. embezzlement case." In other celebrity justice-related news, "Defense Pushes on Procedures; Detectives testify that Bryant willingly talked to them after the alleged rape but admit that reports were changed months after the interrogation"; "Broker's Former Aide Says Martha Stewart Was Tipped"; and "Judge's Ruling Hurts Blake Defense Plan; Testimony suggesting that Marlon Brando's son killed the actor's wife, Bonny Lee Bakley, will not be allowed." An article reports that "Morpheus Maker Upping the Ante; As entertainment firms' copyright fight heats up, StreamCast releases new file-sharing software." In other news, "Defense Attacks Questioning of Inmate." An article reports that "Disarray in Juvenile Prisons Jolts Capital." In sports-related news, an article is headlined "Justice Delayed: Synchronized swimmer is sentenced to jail, but not until after she is scheduled to compete in Athens." And an editorial is entitled "A Junkyard for Young Lives."

USA Today reports that "Accused combatant allowed to see lawyers." And in other news, "Bryant's lawyers want interview, evidence barred."

The Washington Times reports that "Snipers could face new trials in swap." And in news from Virginia, "Partial-birth abortion ban ruling faulted."

The Boston Globe reports that "Lawyers seek state raises; Defenders of poor say pay is abysmal." In other news, "Geoghan report faults prison; Officials blamed in fatal transfer." And an article is headlined "Fully engaged: The state hasn't decided what to do about gay marriage, but at least one couple is already planning a walk down the aisle."
Posted at 23:33 by Howard Bashman



"Scalia Was Cheney Hunt Trip Guest; Ethics Concern Raised": David G. Savage and Richard A. Serrano will have this article in Thursday's issue of The Los Angeles Times.
Posted at 23:28 by Howard Bashman



"One 'hell' of a fracas follows suspension": This article appears today in The Pittsburgh Tribune Review. Perhaps this second-grader is planning to become an actress when she grows up?
Posted at 22:52 by Howard Bashman



Old man: BBC News reports that "Science wins ancient bones battle; A US appeals court has given permission to scientists to study a 9,000-year-old skeleton - despite the objections of some American Indian tribes." And Reuters reports that "Science Trumps Ritual in Mystery Skeleton Row."
Posted at 22:48 by Howard Bashman



"US state court says gays can wed": BBC News provides this report.
Posted at 22:45 by Howard Bashman



Available online from law.com: Marcia Coyle has an article headlined "A Case of Art and Law: Can U.S. courts undo an old wrong?" In news from California, "Death Case OK'd, Even With Clergy Input." And in news from New York, "Dramatic Testimony Given by Stewart Broker's Aide; Faneuil imitates voices, provides details of key conversations."
Posted at 22:44 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Judge worries Mark Geragos' big cases delaying low-profile case"; "Judge rules against gay parents seeking new certificates"; "Houston asks legislators to reduce size of Supreme Court"; and "Captain's kin: 'Perfect Storm' hyped as true, but wasn't quite."
Posted at 22:28 by Howard Bashman



"Pledge of Allegiance essay winners win trip to Supreme Court": The Sacramento Bee reports here today that "The two winners of Elk Grove Unified School District's Pledge of Allegiance essay contest were announced Wednesday in surprise classroom visits." You can access the winning essays here (Pledge is constitutional) and here (Pledge isn't constitutional).
Posted at 22:24 by Howard Bashman



"Logs show juror met with Durst five times in jail": The Houston Chronicle today reports here that "A juror who found Robert Durst not guilty of murder has visited the millionaire real estate heir in jail five times since Durst's trial ended in November."
Posted at 22:19 by Howard Bashman



"Mass. Court: Marriage, Not Unions, for Gays." Tonight's broadcast of NPR's "All Things Considered" contained this report (Real Player required).
Posted at 22:01 by Howard Bashman



"Religious-rights lawsuit by student actress is back": This article appears today in The Salt Lake Tribune. And The Deseret Morning News contains an article headlined "Ex-U. actress to get jury trial in bias lawsuit" that includes a photograph of the barely foul-mouthed actress.
Posted at 19:40 by Howard Bashman



"20 Questions for an Incompetent and Largely Unqualified Appellate Judge": Jeremy Blachman, the quite clever Harvard Law student who was part of the group with whom I had dinner during my recent speaking appearance sponsored by the Harvard Journal of Law & Technology, has this very funny parody of my "20 questions for the appellate judge" feature. Moreover, it's Jeremy's birthday.
Posted at 19:31 by Howard Bashman



"Mass. High Court Grants 'Marriage' Benefits to Singles": "ScrappleFace" provides this report.
Posted at 18:31 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Supreme Court Mulls Enemy Combatant Case." Meanwhile, in other news, "Court: Scientists Can Study Kennewick Man"; "Judge Grants Stay of Execution in Texas"; "Girl Says 'Hell' in School, Suspended"; and "Ga. Lawmakers Mull Smoking-In-Cars Law."
Posted at 17:45 by Howard Bashman



"Bush gives nod to Finch for 2nd term on federal bench": This article appears today in The Virgin Islands Daily News. You can access the White House's notice of the reappointment at this link.
Posted at 17:41 by Howard Bashman



First you write a compelling 30-page petition for writ of certiorari, and then some editorial cartoonist comes along and sums it up perfectly in two panels: Thanks so very much to a Honduras-based reader for sending along this link to a cartoon published recently in the TIEMPO newspaper. In the cartoon's first panel, Uncle Sam is saying to McNab, "GUILTY!!! Of violating Honduran laws!!!" to which McNab responds "But the Hondurans say I'm innocent." In the cartoon's second panel, Uncle Sam responds, "JA!!! What do they know about those laws???"
Posted at 16:08 by Howard Bashman



"Legal journalists and law professors discuss law and the media": JURIST's new "Law Reporting" blog has turned out to be quite interesting, and I'm NOT saying that simply because of the nice write-up my recent "20 questions for the appellate judge" interview of Ninth Circuit Judge Stephen Reinhardt received there.
Posted at 15:55 by Howard Bashman



Secretary of the Interior and Indian tribes lose effort to give "Kennewick Man" an immediate proper burial, as the Ninth Circuit approves plan to allow scientists to conduct further scientific study of his remains: Today's unanimous opinion written by Circuit Judge Ronald M. Gould for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit begins (with footnotes omitted):
This is a case about the ancient human remains of a man who hunted and lived, or at least journeyed, in the Columbia Plateau an estimated 8340 to 9200 years ago, a time predating all recorded history from any place in the world, a time before the oldest cities of our world had been founded, a time so ancient that the pristine and untouched land and the primitive cultures that may have lived on it are not deeply understood by even the most well-informed men and women of our age. Seeking the opportunity of study, a group of scientists as Plaintiffs in this case brought an action against, inter alia, the United States Department of the Interior, challenging various Indian tribes' claim to one of the most important American anthropological and archaeological discoveries of the late twentieth century, and challenging the Interior Department's decision honoring the tribes' claim. The discovery that launched this contest was that of a human skeleton, estimated by carbon dating to be 8340 to 9200 years old, known popularly and commonly as "Kennewick Man," but known as "the Ancient One" to some American Indians who now inhabit regions in Washington, Idaho, and Oregon, roughly proximate to the site on the Columbia River at Kennewick, Washington, where the bones were found. From the perspective of the scientists-Plaintiffs, this skeleton is an irreplaceable source of information about early New World populations that warrants careful scientific inquiry to advance knowledge of distant times. Yet, from the perspective of the intervenor-Indian tribes the skeleton is that of an ancestor who, according to the tribes' religious and social traditions, should be buried immediately without further testing.

Plaintiffs filed this lawsuit seeking to stop the transfer of the skeleton by the government to the tribes for burial, and the district court held in favor of the scientists-Plaintiffs. The Secretary of the Interior and the intervenor-Indian tribes appeal. We have jurisdiction under 28 U.S.C. § 1291 and affirm the judgment of the district court barring the transfer of the skeleton for immediate burial and instead permitting scientific study of the skeleton.
You can learn much more about Kennewick Man at this link.
Posted at 15:27 by Howard Bashman



Caution -- melodrama and heated rhetoric ahead: The Ninth Circuit has sorted out whatever prevented its precedential rulings issued today from being accessed online. The en banc ruling, which I noted two posts below, contains a concurring opinion from Circuit Judge Alex Kozinski that begins:
I join Judge Wardlaw's excellent opinion in full and parts III, IV and V of Judge Trott's fine concurrence. I write separately to confess my befuddlement that we're not unanimous. I can't help scratching my head at my dissenting colleagues' dogged insistence that they've found a plausible way to reach the result they prefer. (Befuddlement and head-scratching often cause me to be melodramatic and use heated rhetoric, so delicate souls are cautioned to continue reading only under strict medical supervision.)
Hmm, looks like I'll need to read the whole thing.
Posted at 15:17 by Howard Bashman



"More Judges Leaving Bench for Better Pay": The Associated Press provides this report.
Posted at 15:08 by Howard Bashman



In en banc news from the Ninth Circuit: The Web site of the U.S. Court of Appeals for the Ninth Circuit indicates here that the court today has issued its en banc opinion in Ellis v. United States District Court, which had been reargued en banc on March 25, 2003. For whatever reason, I cannot currently access the en banc ruling. The three-judge panel's ruling, from June 21, 2002, can be accessed here. The question presented to the en banc court was: "Under Federal Rule of Criminal Procedure 11(e)(4), may a district court vacate a previously accepted guilty plea over the objections of both the defendant and the United States?"
Posted at 13:30 by Howard Bashman



"Washington state appeals court upholds gay equity ruling": The Associated Press reports here that "A ruling that same-sex couples are subject to the same principles as married couples in disputes over joint assets when they separate has been upheld by the state Court of Appeals." You can access yesterday's ruling by the Court of Appeals, Division III, of the State of Washington at these links: majority opinion; concurring opinion.
Posted at 12:01 by Howard Bashman



"Buckley is Dead, Long Live Buckley: The New Campaign Finance Incoherence of McConnell v. Federal Election Commission." Law Professor Rick Hasen, who I will be meeting for breakfast in Philadelphia on Friday, will have this article in a forthcoming issue of the University of Pennsylvania Law Review.
Posted at 11:44 by Howard Bashman



BREAKING NEWS -- Supreme Judicial Court of Massachusetts rules that same sex couples must be allowed to marry; civil unions won't suffice: The ruling issued today (but apparently dated yesterday) can be accessed here. And in early coverage, The Associated Press is reporting that "Supreme Judicial Court rules civil unions aren't enough, same-sex couples entitled to marriage."
Posted at 11:38 by Howard Bashman



Access online yesterday's Ten Commandments monument ruling from the U.S. District Court for the Western District of Wisconsin: The decision is available online here. I previously collected at this link news coverage of the ruling.
Posted at 11:09 by Howard Bashman



The San Francisco Chronicle is reporting: In today's newspaper, Bob Egelko reports that "Death verdict OKd despite Bible consultations." And in other news, "4 arrested at death-penalty protest; S.F. priest, Wavy Gravy among jailed."
Posted at 10:11 by Howard Bashman



Hit the ground running: Everything is on schedule for me to file tomorrow my first appellate brief at my new law firm. I have been inundated with emails wishing me the best in my new endeavor, and I haven't had a chance to respond to each well-wisher individually, but I greatly appreciate each and every one of your messages. In addition, and as some of you had predicted, dozens of resumes and related inquiries have arrived from lawyers interested in knowing when I might be hiring. But be forewarned -- in the words of one reader who will be clerking at the U.S. Supreme Court next year, the boss here is reputed to be a martinet.

For those who need to contact me about non-blog-related matters, my new contact information is:
Law Offices of Howard J. Bashman
1250 Virginia Drive
Suite 1000
Fort Washington, PA 19034
Phone: (267) 419-1230
Telecopy: (267) 419-1231
Email: hjbashman@comcast.net
For blog-related email, the address remains appellateblog@hotmail.com.

One well-wisher even wrote to suggest that I consider using his wife to set-up and design my new law firm's Web site. I appear to have prematurely hit the delete button on that email because I wasn't yet ready to focus on the subject, but now I am. If any readers wish to recommend Web site designers for me to use in setting-up my law firm's Web site, please send me an email at hjbashman@comcast.net. Remember, though, that the boss is reputed to be a martinet.
Posted at 09:15 by Howard Bashman



In the Senate Judiciary Committee, the show will go on: Today's confirmation hearing for judicial nominees, including Ninth Circuit nominee William Gerry Myers III, will take place in Rayburn 2141, a room assigned to the House Judiciary Committee, because the Senate office building in which the hearing was scheduled to occur remains closed today. I sincerely hope that all of my friends and readers associated with the U.S. Senate are doing well under the circumstances, and the thoughts of the Nation are with you. On a more selfish note, I also hope that a certain Chief Justice Rehnquist bobblehead doll emerges from this crisis entirely uncontaminated.

Update: I overlooked that this hearing, in addition to being moved to a new location, has been postponed until tomorrow.
Posted at 07:07 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports that "Terror Suspect, Attorneys Meet for 1st Time." In other news, "Court Tells EPA to Get Tough With Region on Ozone Pollution." An article reports that "Lentz's Release Sought; Prosecutor's Conduct Scrutinized." In news from Colorado, "Bryant Never Told of Miranda Rights During Questioning; Defense in Rape Case Wants Evidence Barred." In local news, "Va. Defense Of Indigent Denounced; Study Says Competency, Pay Of Lawyers Still Problematic" and "Governor Opposes Md. Weapons Ban; Legislation Would Prohibit 45 Assault-Style Firearms." In business news, "Broker's Aide Says He Was Told To Tip Off Stewart; Faneuil Also Testifies to Other Misdeeds." An editorial is entitled "Beneath Even Texas." And letters to the editor appear under the headings "Let the Lawmakers Make the Laws" and "Justice for All."

The New York Times reports that "Insanity Issue Lingers as Texas Execution Is Set." In local news, "New Jersey Court Raises State Death-Case Burden." An article reports that "Ohio Legislature Votes to Ban Same-Sex Unions." In other news, "Defense for Bryant Tries to Show That Evidence Was Not Collected Freely." In business news, "Former Broker's Aide Testifies That Boss Had Him Tip Off Stewart" and "A Touch of High Drama and Some Odd Details." In news from Boston, "Inquiry Lists Errors in Killing of Pedophile Priest in Prison." An article reports that "Inmates' Elaborate Plans to Escape From Sing Sing Are Thwarted." And an op-ed by Bethany McLean and Peter Elkind is entitled "Uneven Justice."
Posted at 06:40 by Howard Bashman



"Ninth Circuit Oral Arguments Online!" So reports Jonathan Soglin of the "Criminal Appeal" blog. You can access the Ninth Circuit's announcement here. Now all that court needs to do is put appellate briefs online, and you'll be able to knowledgeably predict which cases are likely headed for reversal long before they reach the U.S. Supreme Court.
Posted at 06:35 by Howard Bashman



And in other news from Iowa: The Des Moines Register reports today that "Ruling renews gambling fight at Statehouse; Racetrack casinos owed $112 million." The Quad-City Times reports that "Court rules in favor of racetrack casinos" and contains an editorial entitled "Iowa justices don't know Iowa gambling." And The Sioux City Journal reports that "High court rules Iowa casino tax system flawed."
Posted at 06:30 by Howard Bashman



"Iowa High Court to Review Lesbian Divorce": The Associated Press provides this report.
Posted at 06:26 by Howard Bashman



"Judge orders La Crosse to remove Ten Commandments monument": The La Crosse Tribune contains this article today. And The Milwaukee Journal Sentinel reports that "La Crosse ordered to remove Ten Commandments tablets; Advocacy group vows to appeal federal judge's ruling that monument must go."
Posted at 06:24 by Howard Bashman



"Ginsburg recounts women's history in law": This article appears today in The Crimson White.
Posted at 06:05 by Howard Bashman



Tuesday, February 03, 2004
Elsewhere in Tuesday's newspapers: The Los Angeles Times reports that "New Charges Keep Inmate Behind Bars; Citing the 'cancerous nature' of a 1980 murder conviction, a judge orders prisoner freed, but the D.A. acts quickly to prevent his release." An article reports that "Death Penalty Upheld Despite Misconduct; Jurors in a murder case did not affect the outcome by discussing the case with their clerics, the state Supreme Court rules." You can access yesterday's ruling by the Supreme Court of California at this link. In celebrity justice-related news, "Memo Left Out Key Report on Jackson; County officials did not include a psychologist's belief that the pop star had abused a boy, 12"; "16 Computers Seized at Neverland; Raid last fall at Michael Jackson's compound also netted a digital camera and at least 20 videotapes and DVDs, court documents show"; "Media Circus Puts Down Stakes at Courthouse; San Mateo County tries to recoup its costs for the Scott Peterson murder trial"; "Bryant Misses Crucial Hearing; 'Flu-like symptoms' are cited for absence, and proceeding is completed without Laker star; He's due back in court today"; "Key Witness Can Testify Against Stewart, Judge Rules; O'Donnell Shows Support; Also, testimony from a Waksal executive assistant and a Merrill employee is heard"; "Media Restrictions Are Upheld in Blake Case; A pretrial motion for gavel-to-gavel coverage is denied, and the judge makes a series of rulings on allowable evidence in the actor's murder trial"; and "Abramson Takes On Spector's Defense." And in local news, "Rape Case to Stay With D.A.'s Office; Defense attorneys had argued that Orange County prosecutors singled out their client, an assistant sheriff's son; A judge disagrees"; "Ex-Official Gets Lenient Sentence; A former Carson city councilwoman will serve home detention for extortion scheme"; "Youth Prison System Unsafe, Unhealthful, Reports Find; Inmates and staff are in danger, experts say, and medical care and counseling fall short"; "Fight Over Tribal Status Moved; A federal judge remands lawsuit to state court; More than 100 Indians could be stripped of Pechanga identity and lose casino revenues"; and "Funding for Public Safety Left to Judge; Both sides in an ongoing battle over Ventura County's law enforcement budget air their views in a critical hearing Monday."

The Boston Globe reports that "Lawyers balk at state fee on prolonged civil cases."

USA Today reports that "Kobe Bryant judge hears private testimony; Lakers star out sick, expected back today."

Finally, The Washington Times contains an op-ed by Bruce Fein entitled "Writ large for terror." And Monday's issue contained an op-ed by Nat Hentoff entitled "Detaining Hamdi."
Posted at 23:55 by Howard Bashman



Available online at law.com: Shannon P. Duffy has an article headlined "Recusal Refusal: Federal judge won't step down from asbestos cases." In news pertaining to the U.S. Court of Appeals for the Federal Circuit, "Decision in Patent Case Could Reverse 20 Years of Precedent." In other news, "Court Clerk on Trial for Leaking Information to Drug Gang; Georgia case raises concerns about security of federal court documents." In news from Florida, "Challenge to Sentencing Rules Rebuffed." In other news from Georgia, "GOP Wants to Mandate Ten Commandments Displays; Legislative proposal would place representations in county courts." And in news from New York, "Qualified Immunity Extended to Spitzer's Office in Right to Die Case."
Posted at 23:45 by Howard Bashman



Tenth Circuit's f-bomb ruling riles-up at least one "How Appealing" reader: In response to this post from earlier tonight, a reader currently clerking for a judge on the New York Court of Appeals emails:
Of all the cases I have read about since becoming a lawyer, I have found none more ridiculous than the wannabe actress who has no problem with saying shit, but has a problem with saying fuck and goddamn while acting. I mean, Jesus, she is supposed to be acting! If she finds repugnant words that are regularly used in many plays (since they reflect how many people really speak), she has no business wanting to be an actress. It is like someone wanting to be a swimmer and claiming to be offended by water. Am I wrong? Well, the Tenth Circuit thinks so. Bastards.
Of all the possibly objectionable words used in this email, only the email's very last word does not appear in the Tenth Circuit's opinion.
Posted at 23:40 by Howard Bashman



Today's Ten Commandments news: From Wisconsin, today The La Crosse Tribune reports here that "U.S. District Court Judge Barbara Crabb ruled Tuesday that the city of La Crosse must move the Ten Commandments monument from Cameron Park."

In news from North Carolina, "Display Of 10 Commandments Causes Problems In Murder Trial; Judge Agrees To Cover Display During Trial."

From Idaho comes word that "Ten Commandments Ruling In Boise Will Have To Wait."

In news from central Pennsylvania, "Group Calls For Removal Of 10 Commandments From Public Park; Local Churches, Groups Offer Home For Monument."

And finally from Alabama, The Birmingham News today contains an editorial entitled "That sucking sound: Moore's symbolic stand is still draining state resources."
Posted at 23:31 by Howard Bashman



"Supreme Court hears Lara": This article appears in Indian Country Today, along with an item headlined "U.S. v. Lara in summary."
Posted at 23:25 by Howard Bashman



"DNA-case ruses damage integrity of legal system": Today's edition of The Seattle Times contains this op-ed by John R. Muenster.
Posted at 23:17 by Howard Bashman



"Federal judge seeks advice on Price libel case": The Associated Press reports here that "A federal judge asked the Alabama Supreme Court for guidance Tuesday in deciding if Sports Illustrated can be forced to reveal confidential sources used in a story about former Alabama football coach Mike Price."
Posted at 23:15 by Howard Bashman



"Death penalty for youths under review; Student and faculty opinion about laws permitting capital punishment for minors is split on the USC campus." The Daily Trojan contains this article today.
Posted at 23:14 by Howard Bashman



"How public should court data be?" This article will appear in Wednesday's issue of The Minneapolis Star Tribune.
Posted at 23:09 by Howard Bashman



No one has ever lived to complain about being executed using pancuronium bromide: A Texas State Senator who happens to be a licensed anesthesiologist had an op-ed Sunday in The Dallas Morning News entitled "Attack on Texas' lethal injections is bogus." (Thanks to the "Texas Law Blog" for the pointer.) Nevertheless, The Associated Press is reporting today from Florida that "One day before scheduled execution, inmate challenges method used."
Posted at 23:05 by Howard Bashman



"9th Circuit hears appeal in Grokster-StreamCast file-sharing case": The Associated Press provides this report from Pasadena. And Reuters reports that "Media, Web Sites Tangle in Landmark Piracy Case."
Posted at 23:00 by Howard Bashman



And in other news from Iowa: "Iowa Supreme Court To Review Lesbian Divorce Case."
Posted at 22:59 by Howard Bashman



Supreme Court of Iowa shows U.S. Supreme Court who's boss: The Quad-City Times reports here today that "The Iowa Supreme Court moved once again Tuesday to toss out Iowa's structure for taxing riverboat and racetrack casinos, sidestepping a U.S. Supreme Court ruling and raising the odds in a high stakes debate over gambling." The Des Moines Register reports that "High court sides with racetrack casinos." And KCRG-TV9 offers a report headlined "Ruling: State Can't Tax Casinos Differently." You can access today's ruling of the Supreme Court of Iowa at this link. One of the dissenting opinions concludes, "It is never an easy decision to dissent, but that decision has never been easier than in this case." The U.S. Supreme Court's ruling from June 2003 in this case can be accessed here, and my coverage of that ruling is available here (third item).
Posted at 22:57 by Howard Bashman



"The Patriot Act's Problem Parts": Tomorrow's edition of The Onion contains this infograph.
Posted at 22:30 by Howard Bashman



"Enemy Combatant Hamdi Meets With Lawyer": The Associated Press provides this coverage, while Reuters reports here that "U.S. Citizen Caught in Afghanistan Gets Lawyer Visit." Additionally, this evening's broadcast of NPR's "All Things Considered" contained a report entitled "Lawyer Sees Taliban Suspect Hamdi."
Posted at 22:15 by Howard Bashman



What's a rapper doing in Sing Sing? Trying to escape, according to this report from The Associated Press.
Posted at 22:10 by Howard Bashman



"Supreme Court Justice loves heavy metal; Justice Ireland sets multiple powerlift records": This article about Washington State Supreme Court Justice Faith Ireland appears in today's issue of The Olympian.
Posted at 22:00 by Howard Bashman



She wouldn't say the f-word: Today the U.S. Court of Appeals for the Tenth Circuit issued an opinion that begins:
In 1998, Plaintiff Christina Axson-Flynn entered the University of Utah's Actor Training Program (ATP). Axson-Flynn, who is Mormon, refused to say the word "fuck" or take God's name in vain during classroom acting exercises. During Axson-Flynn's first semester in the program, Defendants--all ATP faculty members--told Axson-Flynn to "get over" her refusal to use those words, saying that not using the words would stunt her growth as an actor. Axson-Flynn did not "get over" her refusal to say the words and eventually left the ATP (and the University of Utah) before the end of her second semester; although never ordered to leave, she assumed that she would eventually be forced out.

Axson-Flynn then brought this action under 42 U.S.C. § 1983, claiming that Defendants had violated her free speech and free exercise rights under the First Amendment. She argued that requiring her to utter certain offensive words when performing a script constituted "compelled speech," and that not accommodating her religious beliefs violated her free exercise rights. The district court granted summary judgment to Defendants on both claims and found that they were also entitled to qualified immunity. Axson-Flynn filed a timely notice of appeal.

We take jurisdiction pursuant to 28 U.S.C. § 1291 and REVERSE and REMAND.
Presumably the defendants will have some choice words to say when they learn of this ruling.
Posted at 20:48 by Howard Bashman



"Sitting Ducks: Ruffled feathers over the Supreme Court's recusal rules." Dahlia Lithwick has this essay posted online tonight at Slate.
Posted at 20:00 by Howard Bashman



"Scalia Urged to Step Aside from Cheney Case": NPR's "Morning Edition" today contained this report (Real Player required).
Posted at 17:14 by Howard Bashman



Eleventh Circuit grants rehearing en banc in federal murder for hire case: Back on September 2, 2003, when a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued its opinion in this case, I had a post titled "It's best not to ask a friend known to be an ATF agent for help in plotting the murder of one's spouse." I may have spoken too soon, however, because today the Eleventh Circuit issued an order granting rehearing en banc in the case.
Posted at 17:01 by Howard Bashman



Judges serving on the U.S. Court of Appeals for the Federal Circuit unanimously oppose three of the proposed amendments to the Federal Rules of Appellate Procedure: You can access at this link a letter from that circuit's chief judge setting forth the objections.
Posted at 16:46 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Enemy Combatant Hamdi Meets With Lawyer" and "N.J. High Court Rules on Death Penalty." You can access today's ruling of the Supreme Court of New Jersey at this link.
Posted at 14:51 by Howard Bashman



"Supreme Court justice makes stop in Lubbock": The Lubbock Avalanche-Journal reports here that Justice Clarence Thomas is visiting Texas Tech University as the guest of men's basketball coach Bob Knight. Whether Justice Thomas will attend tonight's game as Coach Knight's guest, as had been previously scheduled, now that Knight has been suspended for five days beginning tonight remains to be seen.
Posted at 14:31 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Ohio Man Executed for Abduction, Murder"; "9/11 Volunteer Gets Lenient Sentence"; "Police Search for Okla. Bombing Video"; "Judge Rejects Calif. Tribe's Request"; "Suit Alleges Wal-Mart Locked in Janitors"; "Jury Selection Starts in 1975 AIM Slaying"; and "Web-Surfing on Neb. Senate Floor Gets OK."
Posted at 14:04 by Howard Bashman



"Honduras asks U.S. Supreme Court to overturn conviction": The Associated Press provided this report Friday from Tegucigalpa.
Posted at 10:55 by Howard Bashman



Justice Antonin Scalia as Elmer Fudd: Cartoonist Mark Fiore presents "'Duck Season!' with Antonin Scalia."
Posted at 10:44 by Howard Bashman



"Possible Ricin Find Closes Senate Offices": Jesse J. Holland of The Associated Press provides this report. I have seen no announcement yet concerning whether the closure will extend through tomorrow and, if so, what impact it will have on the confirmation hearing that the Senate Judiciary Committee has scheduled for tomorrow.
Posted at 10:33 by Howard Bashman



D.C. Circuit rejects Hustler magazine's assertion of First Amendment right to embed with U.S. troops in combat: The U.S. Court of Appeals for the District of Columbia Circuit today issued this decision in the case of Larry Flynt v. Donald H. Rumsfeld. The opinion by a unanimous three-judge panel concludes: "Because we hold that there is no constitutionally based right for the media to embed with U.S. military forces in combat, and because we further hold that the Directive was not applied to Flynt or Hustler magazine in any unconstitutional manner, the District Court's judgment is affirmed."

In other recent Hustler-related news, The Cincinnati Post reported this past Saturday that "Hustler's I-75 banner to reappear elsewhere."
Posted at 10:19 by Howard Bashman



"Cindrich says federal judges handcuffed by guidelines": This article appeared yesterday in The Pittsburgh Tribune-Review.
Posted at 07:54 by Howard Bashman



Not recusing: The opinion and order that U.S. District Judge Alfred M. Wolin issued yesterday denying motions to recuse him from continuing to preside over several large asbestos-related bankruptcy cases can be accessed here. The U.S. Court of Appeals for the Third Circuit, on December 18, 2003, issued an opinion directing Judge Wolin to reconsider, based on an expanded record, whether to recuse. The entities that are seeking Judge Wolin's recusal will soon be back before the Third Circuit urging reversal of yesterday's decision.
Posted at 07:50 by Howard Bashman



"Ford Pays Punitive Damages in Rollover; At the end of 'a long road,' the family of three people killed in a 1993 accident will get a total of about $41 million." This report from Bloomberg News appears in today's issue of The Los Angeles Times.
Posted at 07:14 by Howard Bashman



"Court reduces killer's death sentence": The St. Louis Post-Dispatch today contains this report on a ruling yesterday by the U.S. Court of Appeals for the Eighth Circuit that I previously noted here.
Posted at 07:11 by Howard Bashman



"Execution challenged by Cooper's lawyers; Lethal injection, evidence dispute at heart of tactic": Bob Egelko has this report in today's edition of The San Francisco Chronicle.
Posted at 07:10 by Howard Bashman



"High court denies inmate's appeal of execution today at Lucasville": The Associated Press provides this report concerning Ohio death row inmate John Glenn Roe.
Posted at 07:08 by Howard Bashman



"Totenberg delivers Harrelson Lecture": The Technician, the student newspaper of North Carolina State University, today contains this article.
Posted at 07:07 by Howard Bashman



"U.S Supreme Court Justice Speaks at Albritton Lecture": Dateline Alabama provides this report on an address that Justice Ruth Bader Ginsburg delivered yesterday at The University of Alabama School of Law. You can view a related photo here. In other coverage, The Associated Press reports that "U.S. Supreme Court justice speaks about progress of women in law."
Posted at 07:05 by Howard Bashman



"Abortion curbs ruled illegal; Virginia will appeal U.S. judge's decision on 'partial-birth' ban": This article appears today in The Richmond Times-Dispatch.
Posted at 07:00 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports that "Va. Late-Term Abortion Ban Struck Down; Federal Judge Calls Law Unconstitutional." An article reports that "Oklahoma Blast Probe Widens to Virginia; Centreville Home Searched for Tape." In business news, "Stewart's Trades 'Suspicious'; Merrill Worker Testifies at Trial." In local news, "La Plata Lawyer Guilty Of Stealing $680,000; Forged Signatures Used to Defraud Estates." Allan Sloan has an essay entitled "Proposed Changes in Bankruptcy Law Twist Meaning of 'Reform' Beyond Recognition." An editorial is entitled "Still Cruel and Unusual." And a letter to the editor appears under the heading "True Conservatism?"

The New York Times reports that "In a Complex World, Even Lawyers Need Lawyers." An article reports that "Murder Trial Revives Intrigue of the 70's Indian Movement." In celebrity justice-related news, "Stewart Trial Witnesses Set Stage for Main Testimony"; "Raid Took Jackson Computers, Papers Show"; and "Hearings' Focus Shifts to Player's Statements." In news from Delaware, "DaimlerChrysler Trial Set to Resume Next Week." In news from California, "Citing Thin Evidence, Judge Voids a 1980 Murder Verdict." And letters to the editor appear under the headings "The Age of a Murderer" and "Since the Oil Spill."
Posted at 06:30 by Howard Bashman



"Pheasant hunt dogs Cheney": Rush & Molloy have this essay today in The New York Daily News.
Posted at 06:24 by Howard Bashman



"Lott's family ties draw ire from critics; Lott's brother-in-law Scruggs accused of benefiting from political double standard": Today's issue of The Hill contains this article.
Posted at 06:22 by Howard Bashman



"Judge balks over call to step aside; Some asbestos case creditors will appeal ruling to 3rd Circuit": This article appears today in The Star-Ledger of Newark, New Jersey.
Posted at 06:20 by Howard Bashman



Giving thanks: Thanks to The Legal Intelligencer, Philadelphia's daily newspaper for lawyers, for running a front page article yesterday reporting on the opening of my new law firm focusing on appellate litigation.

And thanks to The Daily Journal of Los Angeles and San Francisco, both of which today contain an article headlined "Reinhardt Sees Risk in Judiciary Driven by One Ideology" (not freely available online) that reports on my "20 questions for the appellate judge" interview of Ninth Circuit Judge Stephen Reinhardt, which I published here yesterday.
Posted at 06:10 by Howard Bashman



Monday, February 02, 2004
"Judge declines to remove himself from asbestos cases": The Associated Press provides this report from Newark, New Jersey. And USG Corporation has issued a press release entitled "Bankruptcy Judge Denies USG Motion for Recusal; USG to Seek Review Of Decision."
Posted at 21:45 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Judge overturns Virginia 'partial-birth' abortion law"; "Cincinnati Mayor Challenges Gay Rights Ban"; "Cameras Banned for Rest of Peterson Case"; and "Idaho Inmate Dies While Awaiting Execution."
Posted at 19:20 by Howard Bashman



"Court to Hear Landmark P2P Case": Wired News provides this preview of a case to be argued tomorrow before the U.S. Court of Appeals for the Ninth Circuit. You can access the decision that is the subject of the appeal at this link, and my earlier coverage of that trial court ruling is available here and here.
Posted at 18:29 by Howard Bashman



"Lawsuits drain school dollars; Legal matters siphon away money that Hillsborough and Pinellas school districts could better utilize in the classroom." Today's issue of The St. Petersburg Times contains this article. Coincidentally, Circuit Judge Terence T. Evans makes some of these same points in his partial dissenting opinion from this per curiam Individuals with Disabilities Education Act decision that the U.S. Court of Appeals for the Seventh Circuit issued today.
Posted at 17:50 by Howard Bashman



"Prisoner returns as promised; No one except the judge who gave him temporary freedom thought he'd come back on his own." This article appeared Saturday in The Sacramento Bee.
Posted at 17:43 by Howard Bashman



View online the cert. petition filed in the latest acrimonious death penalty case from the Sixth Circuit: The cert. petition can be accessed online at this link. A lengthy excerpt from Circuit Judge Eric L. Clay's dissent can be found on page ten of the petition, which appears on page 16 of the PDF file. My earlier report on this matter can be accessed here. Thanks much to the readers who forwarded the cert. petition so that I could post it online.
Posted at 17:40 by Howard Bashman



"Report of People For the American Way in Opposition to the Confirmation of William G. Myers III to the United States Court of Appeals for the Ninth Circuit": The organization People For the American Way today issued this report (21-page PDF file). As I previously noted here, the Senate Judiciary Committee is scheduled to hold a confirmation hearing for Ninth Circuit nominee William Gerry Myers III on Wednesday of this week.
Posted at 17:00 by Howard Bashman



"Proculian Meditations: Uncontrolled outbursts and intemperate remarks by an angry untenured law professor." Via "The Volokh Conspiracy" I find this witty new blog. But how dare the undisclosed author mock the Ninth Circuit's stance (permalink not working, so scroll to the post of Friday, January 30, 2004 at 9:23 PM) concerning proposed Federal Rule of Appellate Procedure 32.1! Remember folks, blog posts don't count as official comments, although to leave an official comment you apparently have to supply more than just a first name.
Posted at 16:45 by Howard Bashman



But does "difficult to draw" signify "difficult to convict"? The Wall Street Journal today contains a front-page article headlined "Struggling Artists: Why Martha Stewart Is a Difficult Subject; Domestic Doyenne Creates Own Trials for Sketchers; Trouble With Being Pretty." (Via "Obscure Store.")
Posted at 16:20 by Howard Bashman



The Philadelphia Inquirer is reporting: Today's newspaper contains articles headlined "Bucks judge on terror panel a longtime Rumsfeld friend; Edward G. Biester Jr. is on a review board for military trials" and "Constitution Center names new president; Richard Stengel comes from Time magazine and will start March 1; One goal is to draw more visitors to the center."

In connection with the second item, the National Constitution Center today issued this press release. Stengel won the presidency on a platform that promised no more head-bonking of visiting U.S. Supreme Court Justices.
Posted at 15:53 by Howard Bashman



The U.S. Court of Appeals for the Ninth Circuit issued no published opinions today: Here's the official announcement. Instead, all members of the Ninth Circuit's bar have been instructed to read today's quite fascinating installment of "20 questions for the appellate judge" featuring Circuit Judge Stephen Reinhardt.
Posted at 15:03 by Howard Bashman



"Miguel Estrada: 'Es una barbaridad.'" Before much longer, I will offer a proper explanation of why U.S. Supreme Court review is justified in the case of McNab v. United States and also post online the documents filed with the Court, which is now considering whether to grant certiorari.

For now, however, I'll simply link to some of the coverage the case has been receiving in the Honduras-based newspaper Diario La Prensa. The article whose headlined serves as the title of this post can be accessed here. And in other coverage, "Compatriota preso en EUA por violar leyes hondureñas" and "Justicia y soberanía, temas en caso McNab." To understand these items, it helps to be conversant in Spanish.
Posted at 14:40 by Howard Bashman



Even more Sixth Circuit acrimony in a death penalty appeal: This time, as best as I can tell, the U.S. Court of Appeals for the Sixth Circuit had granted rehearing en banc to consider on the merits the arguments raised by John G. Roe, who is scheduled to be put to death tomorrow in Ohio. Then last Friday, the Sixth Circuit rescinded the order granting rehearing en banc based on a vote in which a circuit judge who had previously recused from Roe's case participated and voted against en banc rehearing. The vote to rescind the rehearing en banc, with the previously recused judge voting to rescind, was 6-5. Circuit Judge Eric L. Clay issued a passionate dissent from the vote canceling the rehearing en banc, in which three of his colleagues on the Sixth Circuit joined. The case is now pending before the U.S. Supreme Court, where a cert. petition and request for a stay have been filed.
Posted at 13:30 by Howard Bashman



On remand from the U.S. Supreme Court for reconsideration in light of Ring v. Arizona, divided three-judge Eighth Circuit panel vacates federal death sentence because "the indictment * * * failed to charge a federal capital offense": As a result, the defendant will be sentenced to life imprisonment without parole. The dissenting judge would have upheld the death sentence. You can access today's ruling at this link.
Posted at 12:05 by Howard Bashman



"Peterson Case to Open With Legal Motions": The Associated Press provides this report. Two of the best places to keep up with the Scott Peterson murder trial are the Web pages devoted to covering that trial provided by The San Mateo County Times and The Modesto Bee. Today's coverage from The San Mateo County Times is headlined "First hearing scheduled for today."
Posted at 11:00 by Howard Bashman



"Accused flasher serves as own attorney, claiming he's 'pre-law'": That's how the "Obscure Store" site links to this article published Friday in The Durango Herald.
Posted at 10:56 by Howard Bashman



"Ted's Excellent Idea: Disclosing Admissions Preferences." Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 08:30 by Howard Bashman



"Moore Trouble: Alabama's former chief justice may challenge Bush for the religious vote." John Fund has this essay online today at OpinionJournal.
Posted at 08:28 by Howard Bashman



Today's "20 questions for the appellate judge" featuring Ninth Circuit Judge Stephen Reinhardt: Some have already called it the best installment of "20 questions" yet. You can access the interview here and here. Mentions of the interview across the blogosphere (see here and here, for example) can be tracked via this link. Anyone who wishes to contact me concerning my interview of Judge Reinhardt will have the best luck reaching me today via email.
Posted at 07:10 by Howard Bashman



"One huntin' buddy judges another": The Wilmington (N.C.) Star-News contains this editorial today.
Posted at 07:05 by Howard Bashman



"Pickering's just appointment": This editorial appears today in The Post and Courier of Charleston, South Carolina.
Posted at 07:02 by Howard Bashman



In Monday's newspapers: In The Washington Post, Charles Lane has an article headlined "Caseload Reflects Court's Altered Role." A report from North Carolina is headlined "Eager to Face Any Jury -- and the Voters; Edwards Shows the Traits That Made Him a Feared Litigator." A front page article reports that "Girl's Slaying Opens Window On Intimidation." In other news, "Bush Moves to Defuse Environmental Criticism." In local news, "Lamb Slaughter Rankles Va. Community" and "Va. Bills Renew Fight Over Traffic Cameras." And an editorial is entitled "Mr. Arar's Lawsuit."

The New York Times reports that "Google Protests Give Web Site an Audience." In local news, "Stress of Harlem's Rebirth Shows in School's Move to a New Building" and "New York Lawmakers Still Wrestling Over School Financing Mandate." An article is headlined "Getting Credit for Inventions." An editorial is entitled "9/11 and the Political Calendar." And a letter to the editor appears under the heading "Benefits of Marriage."
Posted at 06:45 by Howard Bashman



Pennsylvania appellate boutique: This past Friday was my last day at the law firm of Buchanan Ingersoll. Today I am opening my own law firm, which has appellate litigation as its central focus. More details and my new work address and phone numbers can be found in this press release.

While this move makes perfect sense from every conceivable perspective, I will miss all of my many friends and colleagues at Buchanan Ingersoll, especially those excellent attorneys who were part of the group in which I arrived at that law firm in early 2001. One thing that I will not miss is my daily commute to center city Philadelphia, which took one hour each way. My new office is just a five minute drive from my home.

This Web log, which has already brought me to the attention of so many potential referral sources and potential new clients, will be unaffected by my move. Indeed, at my new office, I'll be sharing a T-1 line with far fewer people.

Ironically, the only thing that I won't be offering my appellate clients from the very first day is a law firm Web site, although that will follow quickly, and I'll be sure to announce it here once it goes live. I doubt that in the meantime anyone will contend that I have too little of a presence on the Internet. Also, the archive of my monthly appellate columns is in the process of moving to this address, and those columns also will be available through my law firm's Web site when it becomes operational.

Although I count this as the first formal announcement of my new law firm, my earlier mention of the news has already generated hundreds of congratulatory emails from readers and dozens of mentions across the Web. I am so very much looking forward to this new phase in my career, and I thank each and every one of you for your good wishes.
Posted at 06:00 by Howard Bashman



20 Questions for Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit: "How Appealing" is delighted that Circuit Judge Stephen Reinhardt of the U.S. Court of Appeals for the Ninth Circuit has agreed to participate in this Web log's recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Reinhardt was born in New York City in 1931. He attended undergraduate school at Pomona College and law school at Yale. After law school, he served as a Lieutenant in the Office of General Counsel of the Secretary of the Air Force and then as a law clerk to Judge Luther W. Youngdahl of the U.S. District Court for the District of Columbia. After that clerkship, Judge Reinhardt entered and remained in the private practice of law until he was confirmed to serve on the Ninth Circuit. During that period he also served in a number of civic posts, including President of the Los Angeles Police Commission and Secretary of the Los Angeles Organizing Committee for the 1984 Olympics.

In November 1979, President Jimmy Carter nominated Reinhardt to fill a newly created seat on the Ninth Circuit. The U.S. Senate confirmed Judge Reinhardt in September 1980.

Judge Reinhardt has his chambers in Los Angeles, California, and the Ninth Circuit has its headquarters in San Francisco, California.

Questions appear below in italics, and Judge Reinhardt's responses follow in plain text.

1. What are your most favorite and least favorite aspects of being a federal appellate judge?

My most favorite aspects include: (1) The ability to make a contribution to society, to promote fairness and justice, and to try to ensure that our Constitution stands strong and firm; (2) The opportunity to work on challenging and important legal problems; and (3) Sharing my working days (a majority of my waking hours) every year with a number of extremely bright, young, enthusiastic law clerks who then go on to make their own significant contributions to the law and the nation.

My least favorite aspects are: (1) The overly-restrictive view of individual rights and liberties that is prevalent in today's judiciary and limits the ability of the federal courts to play their intended role properly; (2) The inability to spend enough time on each case due to the overwhelming workload; and (3) The inordinate number of hours it is necessary to work in order to try to do a decent job, and the resultant inability to spend as much time as I'd like with my family.

2. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

Justice William Brennan, whose philosophy of the constitution I admire deeply. He attempted, usually successfully, to apply the proper balance of factors in deciding constitutional questions so that the underlying principles and objectives would survive and flourish in our contemporary society. He had a broad and generous, rather than a cramped and niggardly, view of the law and its functions. He understood that the ultimate role of the law was to serve the interests of justice and, unlike many contemporary jurists, he possessed an essential qualification for the job: compassion. My next favorite is John Marshall, who had the vision to create a strong and independent federal judiciary and to give life to the essential concept of judicial review of the actions of the other branches of government. Finally, although neither a state nor federal judge, I'd add Aharon Barak, Chief Justice of the Supreme Court of Israel, to my all-time all-star list of jurists.

3. When did it first occur to you that your views concerning the proper resolution of important and controversial cases would often differ from the view taken by a majority of Justices serving on the U.S. Supreme Court, and do you believe it is appropriate for observers of the law to hold in higher regard those federal appellate judges whose decisions the Supreme Court commonly affirms and to hold in lesser regard those federal appellate judges whose decisions the Supreme Court commonly reverses?

Today's federal judiciary is substantially more conservative than it was when I was appointed by President Carter. It takes a far narrower view of the Constitution and of individual rights; it is far more concerned with elevating the rights of states and of entrenched authority. When I was appointed, my views on constitutional interpretation and the role of social justice in adjudication were generally in accord with those of the majority of the Supreme Court and of the members of the federal judiciary. That has changed for the worse.

I suppose that I first realized that my views would often differ from those of the majority of the Supreme Court in 1986, when President Reagan elevated Justice Rehnquist to Chief Justice and appointed Antonin Scalia to be an Associate Justice. President Reagan made no secret of his desire to alter radically the composition of the federal judiciary from his first days in office. What these appointments did was make it plain that future Supreme Court opinions would not only reach different results, but would generally look and sound much different from those issued during the post-New Deal era of enlightenment -- that there would be a retrenchment in the scope of the rights afforded all Americans. As the President appointed more and more federal judges -- with very few exceptions individuals who passed the Reagan Administration's various ideological and issue-specific litmus tests -- the courts gradually shifted farther and farther to the right of the ideological spectrum. Even those who would argue that the shift was not radical would be hard pressed to say that the judicial system, as a whole, was not considerably more conservative and far more interested in states rights and less in civil rights in 1988 than it was in 1980 when I was appointed. This rightward turn was made complete in 1990 and 1991, when the first President Bush replaced Justices Brennan and Marshall with Justices Souter and Thomas, thereby replacing the last true liberals on the Supreme Court with one moderate and one extreme conservative. Unfortunately, the policy of "judicial restraint" that we were told would result from this transformation has paradoxically resulted in an increasingly active judiciary, willing to strike down a litany of congressional laws and executive regulations that previously would have been considered unexceptional. The casualty of this movement has been the concern for social justice and individual rights that once served as the guiding principle of the judicial branch.

I would like to think that observers of the law would hold in high regard all judges who perform their jobs with integrity, dedication, and intellectual rigor, regardless of disagreements over judicial philosophy or rates of reversal in the Supreme Court. To be sure, there are many times when we are forced to think about how the Supreme Court might resolve an unsettled question of law in a particular controversy that comes before us. In certain types of cases we will try to divine what the court will do in order to reach what we believe will be the appropriate decision. It is not, however, our job to anticipate when the current justices of the Supreme Court will cut back on individual rights and to rush to do the dirty deed for them. Many times when my court has been reversed, it is because we have properly applied existing law, but in reviewing our decision the Supreme Court has adopted a new and different interpretation than it had previously given a statute or constitutional provision -- a new reading that is far more restrictive of individual or group rights. I certainly do not think that legal observers should hold in high regard those judges who are eager to anticipate how the Court will next choose to erode our rights and liberties and condemn those who respect stare decisis and apply the law as it exists at the time the case comes before them.

4. Some of your critics assert that you exemplify a discredited approach to judging whereby a judge decides how to rule based on his or her own personal preferences, divorced from precedent and other traditional tools of adjudication, and then manipulates the law to justify the result. Do you view that description of your approach to judging as accurate to any extent, and why or why not? Also, is this a criticism that in your view would sometimes appropriately be directed toward politically conservative judges, and what decisions would exemplify the use of that approach on the conservative side?

Conservative politicians eager to pack the courts with right-wing ideologues, and some of their camp followers in academia, have deliberately distorted the jurisprudence of judges who treat the Constitution as a living, breathing instrument. These distortions are nothing more than political slogans designed to vilify judges whose views differ from their own. This is regrettable. No judge I know, liberal or conservative, acts in the manner described in your question. Most, if not all, judges do their very best to follow the law as they understand it, to respect precedent, and to use the traditional tools of adjudication. The disagreements frequently result from differing views of what the Constitution mandates, of the proper role of the federal judiciary in a democratic society, or even of what legal principles apply to the construction of statutes. For example, when examining the purposes and objectives of a congressional enactment, one side may consider whether an interpretation that leads to unfairness and injustice is consistent with what Congress intended. The other may not care so much about what Congress may have had in mind, but instead may view the statutory question through a far narrower and more rigid set of legal rules. Usually, however, both sides are applying what they sincerely believe to be the proper jurisprudential principles. Each side may believe the other is misguided. Neither should accuse the other, however, of being dishonest or of refusing to follow the law.

We all frequently apply the law in ways we would prefer not to. I have sat on a host of cases in which, had I been imposing only a Solomonic sense of justice unconstrained by the Constitution, federal statutes, or precedent, I would have come to a different result than I was compelled to reach. It is not a happy task to have to uphold an unjust or unfair result. But it is one that, at least on some occasions, every appellate judge must perform. I am regularly required by law, for example, to affirm deportation orders and deny petitions for writ of habeas corpus in instances in which it appears to me that the result is unjust and in which I believe the individuals are being deprived of due process of law. However, the federal statutes involved, or an applicable precedent from this court or the Supreme Court, often leave me no choice.

None of this is to say that one's personal life experiences play no role in what one does as a federal judge. As judges, we are called upon to bring our full range of such experiences to bear upon the cases we decide. Indeed, we are appointed and confirmed partially on the basis of the "diverse" experiences we bring to the bench. One aspect of every judge's experience is, of course, his views of the proper role of courts in a democratic society, how the Constitution ought to be interpreted, how statutes should be read, and what judges ought to do in the face of manifest injustice.

So to answer your question directly, I do not view the description of my jurisprudence you have posited to be accurate or appropriate. Liberal judges -- and we are a small minority these days -- do not manipulate law to reach a predetermined result. We apply a particular philosophy of law -- often infused by concepts like "rights" and "social justice" that may appear foreign to the admirers of the jurisprudential views of those who see the Constitution only as a technical framework for the allocation of powers. The jurisprudential views we espouse are those we believe to be most faithful to the text, structure, and history of the Constitution. Conservatives -- be they "strict constructionists," "texualists," or "originalists," -- apply their own philosophy of law to the very same legal problems we face. It is naive, if not disingenuous, to assume that liberals are simply imposing a "personal preference," while those conservative judges who continually reach the same restrictive result, in case-after-case, are simply "following the law." Different legal philosophies produce divergent legal consequences. We can debate which constitutional philosophy is the more appropriate one, but it is intellectually dishonest, and ultimately a disservice to the law, to accuse those who subscribe to a competing philosophy of being lawless or engaging in misconduct.

5. You publicly criticized President Clinton and his administration for failing to nominate sufficiently liberal judges to counterbalance the conservative nominees that Presidents Reagan and Bush made in the 1980s and early 1990s. Such public criticism of a President's judicial nominees is a bit unusual coming from a sitting federal judge. In retrospect, do you believe you acted appropriately in making that statement, and why or why not? Also, what reaction, if any, to those remarks did you receive from other judges and from the White House and the Senate?

Yes. I believe it is appropriate for members of the judiciary to educate both officeholders and the public with respect to what is transpiring in the judicial system. President Clinton's immediate predecessors declared that they intended to bring about a judicial revolution which would reverse the dominant judicial philosophy then prevailing in the federal courts. They did so. When President Clinton, a graduate of the Yale Law School, and his wife, a fellow graduate of my alma mater, took over the White House, many persons inside and outside the legal profession assumed that the new president would attempt to restore the prior balance to the judicial system by nominating judges who were compassionate and were interested in protecting individual rights and liberties. This is not to say that the President did not choose a number of highly distinguished, qualified, and enlightened judges -- indeed, we have several Clinton appointees on our court today who help provide an important counter-balance to the increasingly conservative drift of the federal judiciary, including our own circuit. Still, in the main, President Clinton's appointments were not of the Warren-Brennan-Marshall-Blackmun school of jurisprudence. President Clinton's principal interest lay in avoiding battles over judicial nominees -- perhaps because he did not deem the composition of the judiciary sufficiently important to justify expending his political capital to fight in the Judiciary Committee and the Senate. And given that Senator Hatch, the Chairman of the Judiciary Committee, issued a number of "no liberals" ultimata, the President was deterred from nominating many highly qualified liberal candidates and too often accepted in their place individuals whose judicial philosophy was more akin to that of the opposing party. The few liberals, or perceived liberals, he was persuaded to nominate frequently saw their candidacies linger or die in the Judiciary Committee because the President refused to fight for their confirmations. To understand how far our courts have moved to the right, one need only note that three of the four former Justices named above, who exemplified the enlightened judicial philosophy rejected by the Reagan-Bush Court, were the appointees of Republican Presidents, and at the time of their appointment were considered moderates.

Finally, it is not uncommon for federal judges to be asked their opinions of potential judicial appointees by the White House, or the Justice Department, or even the Senate Judiciary Committee. In my view, it would have been hypocritical for me to have participated in that process without being willing to state publicly how the administration was conducting the important function of appointing judges, and what effect its policies would have on the administration of justice. Although I am aware that a number of politicians were unhappy with my comments and that some judges undoubtedly disapproved, no one ever directly expressed their disagreement to me either with regard to the substance of my comments or their appropriateness.

6. The U.S. Senate's consideration of your nomination to the Ninth Circuit did not proceed to confirmation as rapidly or smoothly as did the federal appellate court nominations of others made at that time. How did you come to President Carter's attention as a possible Ninth Circuit nominee? And what do you recall, positively or negatively, about your confirmation process?

I came to President Carter's attention initially because I was one of a group of approximately twenty-one persons recommended for ten newly-created judicial positions on the Ninth Circuit by a merit selection committee appointed by the President and composed principally of local attorneys. All ten appointments were made from the list of twenty-one. I know that after the list was announced, the Mayor of Los Angeles, Tom Bradley, spoke to President Carter directly about my candidacy and urged him to appoint me. I was at the time serving as the president of the Los Angeles Police Commission, having been appointed as a commissioner by the Mayor, with the assignment of trying to bring a measure of civilian control to the Police Department, as called for by the city's charter. I undoubtedly also came to the President's attention because I was the only judicial candidate in the nation who represented organized labor rather than corporate institutions. I am aware of only two labor lawyers who had previously been appointed to the federal bench -- Arthur Goldberg and Abner Mikva, who had practiced together in the same labor law firm in Chicago.

The confirmation proceeding was extremely unpleasant, but it taught me a lot about many subjects. Although my nomination was endorsed by the Republican attorney general of California, the elected Republican sheriff of Los Angeles County, and an extremely conservative Los Angeles Police Department chief of police with whom I had regularly and publicly disagreed, a group of extreme right-wing individuals and organizations opposed my confirmation by the use of perjury, false accusations, and even a fabricated police report, including a bizarre accusation that I was related to mobsters whose names I was familiar with only through the public media. Incredibly, I was also accused of a number of other acts, all of which were made up out of whole cloth, mainly by a confidential government informant who was then in the witness protection program under the jurisdiction of the FBI -- a witness the government continued to rely on in subsequent years to obtain criminal convictions in various parts of the nation. After a long, thorough, and painful investigation, the charges were all found to be without substance by the Justice Department and the Senate. Although my nomination was held up for a substantial amount of time, in the end only Senators Thurmond and Hatch voted against me. All other Republican senators, including those on the judiciary committee, voted in favor of my nomination, perhaps because it ultimately appeared on the consent calendar pursuant to an agreement between the Republican and Democratic Senate leadership. One thing I learned, however, was to view politically-motivated charges with skepticism and to refrain from assuming that persons are guilty in the absence of objective and persuasive evidence, even when the rumors or stories are spread by individuals connected with law enforcement. Another lesson was that opposition to injustice is not the sole property of members of either political party. Among those who came forward to support me when the false charges became public were a number of Republican lawyers who disagreed with many of my views but cared more about the truth and the integrity of the confirmation process.

7. The filibustering of judicial nominees whom the Republican party depicts as the antithesis of you is likely, whenever the Democratic party regains the White House, to lead to the filibustering of nominees perceived as too much like you. Is a moderates-only judiciary something to be preferred over a judiciary filled with Borks and Reinhardts, and if not are you willing to urge Senators to stop filibustering judicial nominees on the basis of the nominees' perceived ideology?

I do agree that a judicial system is better off with a mix of able, intelligent conservatives and liberals who may disagree on issues, than with a monolithic, mediocre group of moderates whose main virtue is acceptability. Nevertheless, I do not believe that it is in the interests of the country to have a president appoint only judges with extremely conservative views. So long as the president follows a policy of making his appointments for ideological reasons, and of appointing only judges who share his philosophical point of view, the opposing party has the right, if not the obligation, to block at least some of the most extreme of those nominees in order to attempt to bring some balance to the judiciary. If, on the other hand, a president decides to be a "uniter, not a divider," by appointing some judges with independent or differing judicial philosophies, and to insure some balance in the federal courts, there would be less reason for the type of opposition that we have witnessed in the past two or three years. In short, given the present circumstances, I would be more inclined to urge the president to change his approach to judicial appointments than I would to urge the senators to stop filibustering the most extreme of his nominees. So long as appointments are made on ideological grounds, and there is no room for the appointment of persons with different points of view, opposition based on ideology is perfectly appropriate, as is the use of all proper procedural means to make that opposition effective.

Much of the purported outrage over the use of the filibuster to block nominees appears to me to be both hypocritical and cynical. It can best be explained as part of a purely partisan attempt to manipulate public opinion. The use of a filibuster is indisputably more democratic than the use of the one-Senator "holds" that were so often used, frequently in secret, to defeat nominees during the Clinton Administration. The Republican controlled Senate blocked 63 Clinton nominees between 1995 and 2000. Since 2001, the time at which the "filibuster crisis" allegedly began, the Senate has failed to confirm just 6 of the President's 168 nominees.

Finally, after reading Slouching Towards Gomorrah: Modern Liberalism and American Decline, I reject any suggestion that I am in any way comparable to Judge Bork. I would not nullify the Bill of Rights by allowing Congress to overrule the courts' constitutional decisions by a majority vote. And, unlike Judge Bork, who once analogized the Ninth Amendment to a text covered by an "ink blot," I believe that each and every part of our Constitution has meaning that binds federal judges. Liberalism is still a part, a critical part, of the American mainstream; those who reject fundamental constitutional principles, such as judicial review, are not.

8. If you could reverse or alter the outcome of any single U.S. Supreme Court ruling, which ruling would you select and why?

For many years, the Supreme Court ruling I found most objectionable was Bowers v. Hardwick, 478 U.S. 186 (1986). In 1988, I dissented from two of my colleagues' decision to strike down the military's exclusion of homosexuals from service, as I felt bound to do by Supreme Court and Ninth Circuit precedent. In that dissent, I wrote that "history will view Hardwick much as it views Plessy v. Ferguson. And I am confident that, in the long run, Hardwick, like Plessy, will be overruled by a wiser and more enlightened Court." Watkins v. U.S. Army, 847 F.2d 1329, 1358 (9th Cir.1988) (internal citations omitted). The fact that Lawrence v. Texas, 123 S. Ct. 2472 (2003), was decided by a 6-3 margin of a highly conservative Court is itself evidence that the odious view of liberty and privacy adopted by the Bowers Court was obviously wrong.

Other wrongly decided cases remain on the books, although few, if any, seem as evidently wrong to me as did Bowers. One I would reverse is Korematsu v. United States, 323 U.S. 214 (1944) (upholding the constitutionality of the internment of American citizens of Japanese descent), which, while it has been widely discredited, has never been explicitly overruled. I also find the Supreme Court's interpretation of the Eleventh Amendment plainly wrong in terms of text, history, and structure. Thus, I would reverse the case that started it all, Hans v. Louisiana, 134 U.S. 1 (1890), and hold that the Eleventh Amendment does not bar a federal court from hearing a suit against a state by one of its citizens when such a suit is authorized by act of Congress. Finally, I would overrule the Slaughter-House Cases, 83 U.S. (16 Wall.) 36 (1873), which unnecessarily imposed a constricted interpretation on the provision of the Fourteenth Amendment that was originally intended to do the most work -- the "privileges or immunities" clause. The overturning of any one of these cases would be a significant victory for the Constitution and our nation.

9. You and other highly intelligent liberals have not hesitated to criticize the U.S. Supreme Court when you believe that it has unfairly curtailed the rights of convicted criminals or individuals seeking to enforce federal rights against the States. On the other hand, in recent years the Supreme Court has issued many decisions that have enraged conservatives, such as Lawrence v. Texas, Grutter v. Bollinger, and decisions upholding a constitutional right to abortion. Instead of depicting the Supreme Court as monolithically conservative or liberal, isn't that Court more accurately viewed as moderate in an overall sense?

No. Even the Supreme Court's harshest critics have not asserted that the Supreme Court is wrong in every case. So in that sense, I suppose it is correct to say that the Court is not "monolithically conservative." But the fact that this Court has reached the plainly right result in some cases involving highly controversial social issues, as it did in Lawrence, and has crafted compromise solutions in others, as it did in Casey, and by reaching an obvious middle ground in the two recent affirmative action cases, is not evidence that this is a "moderate" Court. In fact, what has usually happened in the few cases in which the current Court has departed from its customary strict conservative views is that one member of the five judge conservative bloc has for one particular reason or another decided to agree in that particular instance with the four judge moderate minority. Such occasional individual switches do not mean that the Court as a whole is not deeply conservative, nor that it is not just one vacancy away from becoming "monolithically conservative" by any standard.

The fact that conservatives have been upset with one or two decisions in the past several terms says nothing about the overall ideological composition of the Court. The Supreme Court has moved far to the right in numerous areas of law -- federalism, habeas corpus, the interpretation of federal civil rights statutes, the power of Congress to enact such statutes, Indian law, and criminal justice generally are only a few examples. Simply put, the conservative view is unquestionably dominant in today's Supreme Court, as exemplified by the ever-shrinking Fourth Amendment (notwithstanding Justice Scalia's property-oriented, but still surprising, decision in Kyllo). I think most people who say otherwise either aren't being honest or are being disingenuous. I doubt that many conservatives would advocate a return to the Court on which Justices Brennan and Marshall sat in the 1970's and 1980's, to say nothing of how they would feel about a return to the Warren Court of the 1950's and 1960's. And just as the handful of examples of "conservative" decisions from the heyday of the Warren Court does not transform the ideological preferences of that Court, the occasional occurrence of a reasonable, or a compromise, decision does not make the current Court "moderate," or anything other than a straight, unabashed, highly conservative institution.

10. A reporter who covers the Ninth Circuit advises me that you have never voted to uphold a death sentence. Is the reporter correct as a factual matter? And what do you perceive to be the most significant flaws in this Nation's capital punishment system?

The reporter is correct only if one does not count the cases in which I have declined to call death penalty cases en banc, and have allowed executions to proceed without casting a vote in opposition.

It is true that I have not, since becoming a member of the Ninth Circuit, voted affirmatively to uphold a death penalty. But that is not in my view of particular significance. My review of the record indicates that in over twenty-three years on the bench I have participated in only twelve three-judge panels that decided to affirm or to reverse an individual's death sentence. That rate amounts to just slightly more than one case every two years. In the vast majority of those cases, nine out of twelve, I voted with the majority to overturn the death sentence. In one of the three in which I dissented -- a case involving clear racial bias against a black defendant -- the en banc court overwhelmingly rejected the majority's decision in an opinion written by the author of the reversed opinion, a Reagan appointee, who had experienced a well-deserved change of heart between the time he wrote the original opinion and the time he decided, correctly, that the death sentence imposed in the case was unconstitutional. See Coleman v. Risley, 839 F.2d 434 (9th Cir. 1988), rev'd en banc sub nom. Coleman v. McCormick, 874 F.2d 1280 (9th Cir. 1989). Thus, in only two cases in twenty-three years did I disagree with a court majority on the merits of whether a particular death penalty sentence comported with the requirements of the Constitution. In none of the cases in which I voted to reverse a death sentence did either the en banc court or the Supreme Court subsequently overturn the panel's decision or hold that the death sentence at issue was constitutional. In my view, the constitutional violations in each of the cases in which I voted to reverse the death penalty were egregious. Each was dictated by the controlling law, and I remain firmly convinced that each was correct by any standard.

In almost all of the capital cases that come before us, there is no dispute that the state court committed some type of constitutional error. The question we are most frequently called upon to resolve is whether the person should be executed notwithstanding the errors committed below. In the two instances in which I have differed with a majority of my colleagues on the merits in a capital case, it has been over whether certain errors were substantial enough to warrant reversal. I do believe that "death is different" -- a belief repeatedly mocked by some conservatives -- not only because in our system taking the defendant's life is the "ultimate penalty," but also because once the penalty has been imposed, there is no way of rectifying a wrong decision. Perhaps fortunately, I have not yet been compelled to cast a vote in a case in which I believed that a proper application of the controlling law would require me to affirm a death penalty. If I were to confront such a case, I would have no choice but to so vote.

With respect to the flaws in our current system, a fundamental problem is the impossibility of arriving at objective standards for separating those society chooses to execute from those it decides to punish by lifetime incarceration. A regrettably large number of individuals commit crimes that make them eligible for death sentences under the various state laws. Yet few of them ever receive the ultimate penalty, and those who do are not in any objective sense more deserving of execution than those who do not. A multitude of subjective decisions are made along the way, by prosecutors, defense lawyers, judges and jurors. Standards are applied inconsistently and unequally from case-to-case. Frequently, geography determines whether a capital defendant lives or dies. Two crimes identical in every respect except the counties in which they were committed will result in a death sentence in one case and a sentence of life-without-parole in another.

The result of all these disparities and arbitrary inequalities is that those who are ultimately designated for execution are frequently society's most vulnerable rather than its most culpable. Poverty, race, histories of family troubles, sexual abuse, and mental disabilities all end up playing unacceptably large roles in determining who lives or dies. In almost every case of which I am aware in which an individual has been executed, he had been a victim of serious and persistent sexual abuse as a child, usually at the hands of a close relative, and in addition possessed a severely limited mental capacity. An example is Rickey Ray Rector, who was missing half his brain at the time of his trial. Rector put aside his dinner on the evening of his execution so that he could enjoy it later. Earlier that afternoon he watched television and saw Governor William Jefferson Clinton, who had rushed back to Arkansas on the eve of the New Hampshire primary to be present in the state capital to avoid any hitches in the execution (and, some believe, to get his picture in the next day's national press as a tough on crime, law and order kind of a guy). On seeing Clinton's familiar face, Rector commented enthusiastically, "I like that man. I voted for him." Finally, as if all of this were not enough, many capital defendants receive wholly inadequate defenses, resulting in death sentences for those whose offenses warrant only life imprisonment, and dramatically increasing the risk that the state will kill innocent defendants. In short, choosing those to be executed is not a science. It is an extremely subjective process, and thus an arbitrary one; the decision is all too often determined by the biases and prejudices of the decision-maker, and is, in the end, one that may be beyond the capacity of ordinary mortals to make.

When you have reviewed death sentences for over twenty years, you begin to see how irrational the line between state-ordered life and death is in our criminal justice system. Human life is too precious to have its continued existence depend on fortuities such as the geographical location of the crime, the individual proclivities of prosecutors, jurists, and other decision-makers, and the luck of the draw in the assignment of judges and of counsel who may or may not be sufficiently dedicated and experienced to do one of the most difficult jobs in the legal profession at considerable personal sacrifice in terms of time and money. If the Constitution does not tolerate inequalities in the standards used to recount ballots in a presidential election, it certainly should not tolerate disparities in the administration of the capital system that are far more troubling and consequential. It was a recognition of these truths that led Justice Blackmun to shun forever "tinker[ing] with the machinery of death."

11. Should federal judges ever consider the likely public reaction to their rulings when determining what decision to render in a case? And what is your reaction to calls that some legislators have made, based at least in part on rulings in which you have joined, to strip the federal judiciary of the ability to decide cases involving certain subject matters?

It is plainly not the job of a federal judge to consider the likely public reactions to his decisions. We are required to resolve cases and controversies properly brought before us in accordance with the Constitution, relevant statutes, and precedents. We are often called upon to defend rights and liberties enshrined in the Constitution, and to provide protection against public passion or popular will, particularly when those rights are being exercised by unpopular individuals or groups. Indeed, the Bill of Rights was designed to protect unpopular minorities against the tyranny of the majority. Allowing ourselves to be influenced by what an unhappy majority might say would constitute a violation of our duties as federal judges. I would exclude from this, of course, those cases in which we are required as a matter of law to examine public attitudes. The Eighth Amendment cases provide one example. See Atkins v. Virginia, 536 U.S. 304, 312-14 (2002).

Calls for Congress to pass jurisdiction-stripping provisions are nothing new. In the 1950s, for example, the proposals were designed to prevent courts from interfering with states' rights to discriminate against blacks. Since then, legislators have regularly offered bills to strip the federal courts of jurisdiction to hear cases involving the social issue du jour. As long as the federal courts act to defend constitutional liberties against legislative encroachment, I expect that some members of the political branches will continue to call for limitations on the judiciary's power to hear cases in those areas. Fortunately, responsible legislators have always rebuffed such efforts, and I am confident that they will continue to do so.

12. Two of your colleagues on the Ninth Circuit -- Diarmuid F. O'Scannlain and Andrew J. Kleinfeld -- have previously answered "20 questions" here, and each explained the reasons why he favors splitting the Ninth Circuit into two (or perhaps three) smaller circuits. What is your view concerning whether the Ninth Circuit should be split into two or more circuits, and how do you respond to the reasons favoring a split that Judges O'Scannlain and Kleinfeld have raised? Also, do you deserve any credit for convincing Circuit Judge Alex Kozinski to oppose a split?

First, as a matter of fundamental judicial policy, I am opposed to splitting the circuit for partisan political reasons -- and that indeed is the basis of the various current proposals. Second, a split would make little practical sense as close to eighty percent of the work of our circuit involves decisions by courts located in California. The most sensible of the proposals for a new separate northwest circuit would leave our old circuit with almost as much work as we now have and fewer judges. It would not accomplish any of the objectives cited by those who claim that the circuit is too large. Third, there is a substantial advantage to insuring against provincialism in judicial decisions. The breadth and depth of our circuit provides just such a guarantee. Notwithstanding the above, I am not entirely opposed to a split if the judges, public officials, and lawyers from the Northwest generally wish to secede, as opposed to just those who belong to one political party. I am not convinced that there is presently any such bipartisan desire in the northwest to sever relations with the remainder of the Ninth Circuit. We should all be willing, however, to examine the question afresh from time to time. Incidentally, I have never claimed credit for convincing Judge Kozinski of anything. He is very independent and makes up his own mind, which is why some people find him to be so unusual a jurist.

13. The Judicial Conference of the United States has recently asked Congress to authorize seven more active judges to serve on the Ninth Circuit, which would give your court a total of thirty-five authorized active judgeships. Would a Ninth Circuit with thirty-five active judges cause you to favor a split of the circuit? If not, is there some size, either in total number of judges or in caseload, or some other threshold that if reached would cause you to favor splitting the court into two or more circuits?

Again, the question of how large a circuit is feasible is one we should examine from time to time. We will find the answer only after we determine, on the basis of actual experience, how well or poorly the court is functioning in the particular circumstance. As of now, I believe our court is functioning well and that little would be served by splitting off a number of states. There are no figures of which I am aware that would cause me to say that the time to split has come, nor am I certain how we would handle the problem nationally if the caseload continues to increase as it has. As the population grows and litigation increases, there is more and more work for the federal courts. The obvious answer is more federal judges. More circuits, however, would mean more inter-circuit conflicts and more uncertainty in the law. Indeed, additional circuits might well lead to an intermediate appellate court and, thus, to another level of courts through which already overburdened litigants would be forced to wend their ways. Chief Justice Burger's dream of such a multi-layered system may not be beyond resurrection, if we start on the course of circuit-splitting. Incidentally, I also don’t believe that it is an acceptable solution to give judges an unmanageable number of cases to handle and then simply stamp "affirmed" on habeas cases, immigration appeals, or pro se prisoner appeals.

14. The Ninth Circuit decides cases in which rehearing en banc has been granted using eleven randomly selected judges (from a potential total of twenty-eight active judges and any eligible senior judges). Not infrequently, none of the panel judges are selected to sit on the en banc panel. Only six judges are needed to form a majority on an en banc panel. Thus, fewer than one-fourth of the active judges can declare binding circuit law. Moreover, it is possible that those six judges may actually have been "outvoted" by up to eight other Ninth Circuit judges who have heard the same issue -- five dissenters on the en banc panel plus the three judges on the original panel. Isn't this procedure flawed, and how can it be justified?

To some extent there is randomness in the selection of the judges who make the decisions at every level below the Supreme Court. Most federal appellate courts hear cases en banc infrequently. While on average the Ninth Circuit hears approximately 18 or 19 cases per year en banc, the Second Circuit hears an average of one. The D.C. Circuit heard only a total of 33 cases en banc throughout the 1990s. Panels of three judges decide the remainder of the cases, often by the votes of two of the three panel members. The views of two or three judges are far more likely to be in conflict with those of a substantial number of their colleagues than are the views of our en banc court.

Our en banc system constitutes a practical compromise that works quite well. We have conducted statistical studies in an attempt to determine how frequently our decisions might be different if all of us sat together en banc rather than leaving the final decision to a representative number of our judges. The answer has been clear -- only rarely might the result have been different. It is important to keep in mind that the en banc procedure is used in a very small percentage of cases. In most instances, binding circuit law is established in the circuits generally by the votes of judges who constitute somewhere between one-eighth and one-fifth of the full court, not, as in the case of our en banc court, between one-quarter and two-fifths of the court's active members. Therefore, the problem you pose is a nice abstract one, but in reality the advantages of a representative en banc court far outweigh its disadvantages. Among other things, the use of en banc review along the lines developed by our court will ultimately help avoid a proliferation of circuits.

15. How did you happen to become Judge Kozinski's close friend, what interests do you have in common with him, and how do you avoid letting the major disagreements the two of you have had over cases from becoming personal? Also, did you mind when Judge Kozinski suggested that you might try to obtain title to his Lamborghini through wrongful means or when Legal Affairs magazine called him, and not you, the Ninth Circuit's "most controversial judge"?

My friendship with Judge Kozinski is a collegial and professional one. I believe that each of us has respect for the other's intellectual integrity. Because our views differ so dramatically, we have frequently been asked to discuss our legal philosophies before audiences of lawyers or law students. We both feel that it is a part of our job to help educate the public in the workings of the judicial system. Accordingly, neither of us is reluctant to explain publicly why we possess the particular philosophies or jurisprudential attitudes we do or to examine the work the judiciary is currently doing. On occasion, our serious disagreements over important issues have indeed caused tensions, and one case in particular came close to causing a permanent rift. Nevertheless, our mutual respect allowed us to overcome our differences and to continue to share our views jointly with audiences as disparate as the ACLU, the American Constitution Society, and the Federalist Society.

Did I mind Judge Kozinski's Lamborghini line in Kremen v. Cohen? Of course not. Judge Kozinski has long written opinions that are not only legally precise, but also entertaining. He is free to use my name in his opinions any time -- particularly if he prefaces it with the words: "I have decided once again to follow the principle so wisely articulated by my able colleague . . ."

Nor do I mind that Judge Kozinski has been identified by Emily Bazelon, a talented and brilliant young writer, as our Circuit’s "most controversial" judge. I have never desired to be controversial. I would hope, rather, to be one of many judges who share the same enlightened legal philosophy and values. I would enjoy my job more were I one-of-many than I do in my current role as one-of-a-few.

16. You have previously defended the Ninth Circuit's local rule that prohibits citation to your court's non-precedential decisions. Currently, a proposed amendment to the Federal Rules of Appellate Procedure is under consideration that, if approved, would allow citation to non-precedential and unpublished opinions in all federal appellate courts beginning in December 2005. Why does the Ninth Circuit prohibit citation to its non-precedential decisions, do you continue to support your court's current practice, and what impact if any do you anticipate the new rule will have on the way the Ninth Circuit operates?

As I said earlier, I often find the work overwhelming. Most of us spend a tremendous amount of time on published opinions. We do so, in part at least, because we know that each aspect of our opinion may someday serve as precedent in circumstances which we may not have foreseen or to which we may have given insufficient thought. We must be particularly careful that what we think we are deciding not have unintended and undesirable consequences in future cases. That takes careful writing. Over eighty percent of our decisions are unpublished. If we were required to give those cases the attention we currently give to published opinions, we would not be able to do a proper job in any case. I would suspect that if a mandatory rule passes requiring all circuits to allow all decisions to be cited, even if only for their persuasive value, you will see a huge number of dispositions that provide far less information than they do under our present procedure. If the new rule is adopted, we will have little choice but to avoid saying much at all in the overwhelming majority of our cases, and in the end the quality of our published opinions will likely suffer as well. The losers would be the litigants who now receive a far fuller explanation of how we decide their cases, for or against them, in our unpublished dispositions than they will receive in the future.

17. Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Yes, the salary paid to federal judges is far too low. Our law clerks frequently make more the first year after they leave us than we do. Judges who wish to send their children to college have a difficult time unless they have independent incomes. More judges have left the federal bench in recent years than in our entire prior history, and the reason has been that they are simply unable to meet their obligations, given the current unwillingness of Congress to pay judges anything near what successful lawyers in most major cities receive. An even greater concern is that younger lawyers with family responsibilities, including providing for their parents, will be unable to accept judicial appointments and only the wealthy will become jurists. The bipartisan commission recently appointed by President Bush, the Volcker Commission, described the current level of judicial salaries as "the most egregious example of the failure of the federal compensation policies." That same commission found that American judges make far less than our counterparts in England and Canada. As to what the appropriate salary should be, I am willing to leave that to independent bodies such as the Volcker Commission and the earlier bipartisan quadrennial commissions.

18. Of all of the many opinions you have written since joining the Ninth Circuit, which opinion or opinions stand out as your favorites?

It is difficult for me to single out one opinion as my favorite. Were I forced to choose a few, however, I might well select from among the following: my probable all-time favorite is Compassion in Dying v. Washington, 79 F.3d 790 (9th Cir. 1994) (en banc), a case involving physician-assisted suicide which I predict will someday become the governing law in this country; the dissent I wrote in Campbell v. Wood, 18 F.3d 662, 692 (9th Cir. 1994) (en banc), in which I, joined by several of my colleagues, wrote that executing people by hanging was unconstitutionally cruel and unusual under the Eighth Amendment; Yniguez v. Arizonans for Official English, 69 F.3d 920 (9th Cir. 1991) (en banc), another en banc opinion of mine in which our court struck down as facially overbroad under the First Amendment a provision of the Arizona Constitution which prohibited state officials from using any language but English while performing official acts;[FN.1] Armster v. United States District Court for the Central District of California, 792 F.2d 1423 (1986), an opinion I authored in which I and two of my colleagues held that civil jury trials were a matter of constitutional right under the Seventh Amendment and that the Administrative Office of the U.S. Courts was without the power to order district courts to withhold such trials from litigants because of the anticipated unavailability of Congressional funding; and, most recently, my majority opinion in Gherebi v. Bush, 2003 U.S. App. LEXIS 25625 (9th Cir. Dec. 18, 2003), a case in which we held that district courts have jurisdiction to hear habeas petitions filed by persons detained at Guantanamo Bay.
FN.1: The Supreme Court vacated our decision for reasons unrelated to the merits, but the Arizona Supreme Court subsequently followed our analysis in holding the measure unconstitutional in Ruiz v. Hill, 191 Ariz. 441 (1998).
19. What are the most significant ways that attorneys practicing before the Ninth Circuit can improve their appellate briefs and their appellate oral arguments?

Attorneys should become more familiar with the facts and the record. It would also be helpful if they would arrange for moot courts in which they could practice their arguments; if they did, they would be less likely to be surprised by the questions we ask and better able to answer them. Finally, lawyers would do better if they answered the questions we ask rather than told us that the issues in their case are different. We already know that when we ask the question.

20. What do you do for enjoyment and/or relaxation in your spare time?

For enjoyment and relaxation, I attend sporting events or watch them on television. I also attend movies, plays and occasional concerts, usually classical. I am a Yankees fan, a Raiders fan, and a Lakers fan. I love almost all movies, good and bad, and go to the theater almost every evening when my wife and I are in New York. Perhaps my greatest pleasure is spending time with my wife, my children, and my grandchildren. I am presently trying to watch a one-year-old and a one-and-a-half-year-old granddaughter grow and develop during their early childhood. Although they both live within a mile of my home, I have far too little time to spend with them because I work most evenings and every Saturday. I have even less chance to see my three grandchildren who live in Massachusetts. Perhaps upon retirement I will have a greater opportunity to enjoy the role of grandfather, as well as father and husband, before it is too late.
Posted at 00:00 by Howard Bashman



Sunday, February 01, 2004
In just two hours from now: At midnight, I will be posting online here February 2004's installment of "20 questions for the appellate judge" featuring Ninth Circuit Judge Stephen Reinhardt. Given how far behind schedule the Super Bowl is running, those east coast-based readers who watch the debut of "Survivor All-Stars" shouldn't have long to wait after that show ends before the interview appears.
Posted at 22:00 by Howard Bashman



In Sunday's newspapers: In The New York Times, Law Professor Jeffrey Rosen has an essay in the Week in Review section entitled "The Justice Who Came to Dinner" concerning Justice Antonin Scalia's recent duck hunting trip with Vice President Dick Cheney. An obituary reports that "Robert Zampano, Federal Judge in Connecticut Court, Dies at 74." In news from overseas, "Battle Against Indonesian Press Moves Into the Country's Courts." The Magazine section contains an article headlined "The Company They Kept" that mentions my former law firm several times. An article is headlined "A Little Detour From Life in the Fast Lane." And letters to the editor appear under the heading "Our Marriages, Our Government."

The Washington Post reports that "Diverse Groups Back Cigarette-Tax Plan; Tobacco Firms Join Anti-Smoking Lobby to Seek Tough Penalties on Mail-Order Sales." And columnist George F. Will has an op-ed entitled "Freedom vs. Equality."
Posted at 21:00 by Howard Bashman



As of today: A Google search for "Pennsylvania 'appellate boutique'" returns only one response, this page. Coincidentally, the only mention of an appellate boutique found on that page is of my friend Roy T. Englert, Jr.'s Washington, DC-based law firm.
Posted at 20:30 by Howard Bashman



"U.S. sabotages international court at its own peril": David H. Scheffer, visiting professor at Georgetown University Law Center and the former U.S. ambassador at large for war crimes issues, has this op-ed today in The Seattle Post-Intelligencer.
Posted at 20:00 by Howard Bashman



"Patent holder has major bone to pick with ham rival": The Houston Chronicle contains an article today that begins, "For a guy who claims a small slice of the ham market, local entrepreneur Pink Logan puts up an expensive fight. Logan has invested tens of thousands of dollars to protect his patented ham product, even as the patent's expiration date spirals closer."
Posted at 19:53 by Howard Bashman



Risque business: The Journal News of Westchester, New York today contains an article headlined "Giggles is no laughing matter."
Posted at 19:51 by Howard Bashman



In news from Georgia: The Atlanta Journal-Constitution today contains articles headlined "Perdue: 'E' word belongs in curriculum; He jumps into fray over evolution vs. 'changes over time'"; "Scientists decry 'evolution' deletion"; and "Can judge who erred recover? Neglect of her child casts shadow on bright career."

Additionally, The Associated Press reports that "Hundreds hear Moore, Georgia Republicans at church rally."
Posted at 18:10 by Howard Bashman



"Blacks, whites split by drive to ban affirmative action": The Flint Journal today contains this article.
Posted at 13:10 by Howard Bashman



"Courthouse tragedy could occur any time": Columnist Bill Nemitz has this essay today in The Portland (Me.) Press Herald.
Posted at 13:08 by Howard Bashman



"Is a local cell phone call really interstate? Giordano case could decide": The Associated Press reports here that "One of the most sordid trials in Connecticut history could turn on a rather mundane technical question: Is a local cell phone call really an interstate call? The answer will help determine whether portions of former Waterbury Mayor Philip Giordano's conviction on charges involving sexual contact with children are upheld."
Posted at 13:07 by Howard Bashman



Super Bowl Monday: At midnight tonight, I will be posting online here, and at the companion "20 questions for the appellate judge" site, my interview of Ninth Circuit Judge Stephen Reinhardt. Be sure not to miss it.
Posted at 12:04 by Howard Bashman



One more similarity between Australia and Kansas: Australia-based reader David Starkoff emails, in response to my post yesterday observing that "and" still means "and" in Kansas, to note that in 2003 Australia's highest court likewise ruled that "and" means "and." You can access David's blog post on the Australia court's ruling from late September 2003 at this link.
Posted at 08:45 by Howard Bashman



"It's a Blog World After All: Seeking greater visibility? A Web log may be for you." Attorney Carolyn Elefant had this essay (free registration required) in last Monday's issue of Legal Times. Sadly, the essay contains an incorrect link to (and address for) "How Appealing," but if you're reading this post you probably already have a pretty good idea of how to get here.
Posted at 08:39 by Howard Bashman



Ten Commandments news from here and there: From Ohio, The Associated Press reports here that "The Adams County school board has asked a federal appeals court to reconsider its ruling forbidding displays of the Ten Commandments on public school grounds."

From Pennsylvania, The AP reports that "Group seeks monument condemning gay victim." Unlike at locations in other States where similar monuments have been proposed, the location in question in Lebanon, Pennsylvania is not home to a Ten Commandments monument.

And from Georgia, The Athens Banner-Herald reports that "Judge hears Barrow's plea for delay until appeal ruling; Commandments battle." The Gainesville Times reports that "Barrow official pronounced dead, revived; News comes as Commandments lawsuit is argued in federal court." And The Atlanta Journal-Constitution reports that "Barrow leader hospitalized; Commandments hearing proceeds."
Posted at 08:03 by Howard Bashman



"Secrecy: Is Cheney ducking under privilege?" Dan Thomasson of the Scripps Howard News Service has this essay today.
Posted at 07:56 by Howard Bashman



"Florida's win is a loss for children; Gay advocates should seek repeal of biased state law": The Miami Herald today contains this editorial. And The Detroit Free Press yesterday contained an editorial entitled "Adoption Rights: Gay fathers should continue legal battle."
Posted at 07:54 by Howard Bashman



"Too young to die": This editorial against the juvenile death penalty appeared yesterday in The St. Petersburg Times.
Posted at 07:52 by Howard Bashman



"Family's award in Wenatchee sex case reversed; Appeals courts issue different rulings": The Seattle Post-Intelligencer yesterday contained an article that begins, "A state Court of Appeals in Spokane has reversed a decision by a state Court of Appeals in Seattle, overturning a $3 million jury award to a family acquitted of criminal charges in the discredited Wenatchee child sex ring investigations of 1994-1995."
Posted at 07:51 by Howard Bashman



"By quitting, judge averted removal; Pasco-Pinellas Circuit Judge Charles Cope resigned as legislators prepared to impeach him." The St. Petersburg Times today contains this article.
Posted at 07:47 by Howard Bashman



"The Peterson Trial: Trial judge no stranger to gory cases; Delucchi maintains no-nonsense ethic." This profile of the judge currently assigned to preside over the Scott Peterson murder trial appears today in The San Francisco Chronicle.
Posted at 07:28 by Howard Bashman



"Class-action habit is a hard one to kick": The Times-Picayune contains this article today.
Posted at 07:25 by Howard Bashman



"Still battling barriers; Costs, intricate rules make goal of 1990 disabilities law elusive": This article appears today in The Denver Post.
Posted at 07:01 by Howard Bashman



Canada's Supreme Court administers a spanking: On Saturday The Toronto Star reported that "Top court upholds, but limits spanking; Justices deeply divided in 6-3 decision; Ruling says infants, teens should not be hit." The Star also contained related articles headlined "Law a Charter violation, dissenting judge argues; 3 justices disagree with majority in spanking ruling; Teachers shouldn't get the same legal protection: Binnie" and "To talk about it is still taboo." In other coverage, The Toronto Globe and Mail reported that "Top court sets limits on spanking." You can access Friday's ruling from the Supreme Court of Canada at this link.
Posted at 01:30 by Howard Bashman




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Posted at <$MTEntryDate format="%I:%M %p "$> by Howard Bashman




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