How Appealing

Sunday, October 31, 2004
"Hawaiian court cases to be heard this week": The Honolulu Advertiser today contains an article that begins, "Two court cases considered pivotal to the Native Hawaiian community stand out among the 30 to be heard here this week by the 9th U.S. Circuit Court of Appeals, although the court's three-judge panel is not expected to issue any immediate decisions."

In related coverage, The Honolulu Star-Bulletin today reports that "Panel's past cases make school suit a tossup; A student challenges Kamehameha Schools on its admissions rules." And two op-eds about the dispute can be accessed here.
Posted at 23:20 by Howard Bashman



In today's issue of The Los Angeles Times: An article reports that "Gov. Pounds Away at Prop. 66; Buoyed by a new poll, he drives home his opposition to changing the three-strikes law." In related news, "Two Fathers Take Causes to Ballot Box; Motivated by their sons, they spend more than $5.6 million of their personal fortunes to put Propositions 66 and 71 before voters."

And in news from Ohio, "Gay Marriage Ban Faces Some Unlikely Foes; Top Republicans, labor groups and the state's AARP chapter oppose the wording that will appear on Ohio's ballot on election day."
Posted at 23:12 by Howard Bashman



"Court denies meeting to discuss judge's future": The Australian Broadcasting Corporation offers a report that begins, "A spokeswoman for the New South Wales Supreme Court has denied that Justice Jeff Shaw is meeting with the Chief Justice James Spiegelman about an car accident near Justice Shaw's home early last month."
Posted at 22:55 by Howard Bashman



In news from New Hampshire: The Concord Monitor today contains an article headlined "Judges spar over amendment; Court's e-mail at center of debate."
Posted at 22:52 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Rulings Expected on Ohio Poll Challenges." And in other news, "Florida Court to Review Tobacco Ruling."
Posted at 22:50 by Howard Bashman



"The road to the courts: If it's close, the Armageddon election could be about to sink into a legal purgatory." Gary Younge has this commentary in Monday's edition of The Guardian (UK).

And today's issue of that newspaper contained an interesting article headlined "America decides: From jobs to terrorism -- the issues dividing the US." The final portion of that article bears the subheadline "Supreme Court: Tipping the balance."
Posted at 22:44 by Howard Bashman



"Disagreement Over Detainees' Legal Rights Simmers": Neil A. Lewis will have this article in Monday's edition of The New York Times.
Posted at 22:42 by Howard Bashman



"Judicial SIGHT-ations: Halloween Special Issue." The blog "Underneath Their Robes" offers this timely post.
Posted at 22:08 by Howard Bashman



Greetings from Lancaster, South Carolina: As hoped, the hotel I chose to stay at this time does in fact have a working internet connection.
Posted at 22:02 by Howard Bashman



Programming note: My day job requires my presence in Lancaster, South Carolina tomorrow morning. As a result, I'll be off-line for a bit today while traveling and also for most of the day tomorrow. On this visit, I've arranged to stay in Lancaster at a different hotel, where the likelihood of a working internet connection is much greater. If all goes as planned, new posts may appear tonight and also early tomorrow morning.

In any event, "SCOTUSblog" will likely offer complete coverage of tomorrow's developments from the U.S. Supreme Court, which are likely to include an Order List and the answer to the question will Chief Justice William H. Rehnquist be back in black with gold bars presiding from the bench.
Posted at 12:33 by Howard Bashman



"Divorced Mich. fathers sue for equity in child custody; Class-action lawsuit seeks to make joint custody the first option judges consider": The Detroit News contains this article today.
Posted at 12:30 by Howard Bashman



"The fix that wasn't: A new law designed to iron out voting problems may have done just the opposite." This article appears in the November 8, 2004 issue of U.S. News & World Report. That issue also contains this related editorial cartoon.
Posted at 09:40 by Howard Bashman



"To Bush, courts don't matter": Columnist Robyn E. Blumner has this essay today in The St. Petersburg Times.
Posted at 08:30 by Howard Bashman



"Witch way is way to go for witch": The Portland (Me.) Press Herald today contains an article that begins, "For Halloween, Valerie Davis will probably dress up as a witch. Which is a little odd, since she is a witch -- a common term for a practicing Wiccan."
Posted at 08:25 by Howard Bashman



"Does accommodating religious practice violate First Amendment?" Charles C. Haynes has this essay online at the First Amendment Center.
Posted at 08:24 by Howard Bashman



In news from New Hampshire: The New Hampshire Sunday News today contains an article headlined "Top justices criticized over e-mail" that begins, "State Supreme Court justices exercised inappropriate use of power in sending an e-mail to the more than 600 judicial system employees last week asking them to reject a proposed constitutional amendment, a superior court judge said yesterday."
Posted at 08:22 by Howard Bashman



"Few same-sex couples saying 'I do'": This article appears today in The Boston Globe.
Posted at 08:20 by Howard Bashman



"CIA leak case raises fears that information could stop flowing; As a judge tries to find out who released agent Valerie Plame's name, two journalists have been cited for contempt and sentenced to jail time": The Philadelphia Inquirer contains this article today.
Posted at 08:18 by Howard Bashman



"Bench hopefuls bank on personal beliefs": This article appears today in The News & Observer of Raleigh, North Carolina.
Posted at 08:18 by Howard Bashman



"Lawyers argue over $50 fee designed to replenish fund that helps poor": The Milwaukee Journal-Sentinel contains this article today.
Posted at 08:15 by Howard Bashman



"The Election Day scene is set for a litigation mess": This article appears today in The Philadelphia Inquirer. And Jack Rakove has an op-ed today in The Los Angeles Times entitled "Here's Hoping for Chaos on Tuesday; Colorado voters can lead the way to a serious debate about our electoral college mess."
Posted at 08:14 by Howard Bashman



"Talks today to decide judge's future": The Weekend Australian today contains an article that begins, "A NSW Supreme Court judge awaiting results of a blood alcohol test after a car crash near his Sydney home is expected to discuss his future with the court's Chief Justice this morning."
Posted at 08:11 by Howard Bashman



"Republicans battle to keep slim edge in Senate; Democrats faring better in some GOP strongholds": This article appears today in The Baltimore Sun. The Philadelphia Inquirer reports today that "Republicans appear to hold the edge in races for Senate." And The Milwaukee Journal Sentinel reports today that "Senate race as sharply drawn as presidential rivalry; Feingold, Michels contest among country's most polarized."
Posted at 07:44 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "11 States to Vote on Same-Sex Marriage" and "Woman Can Pursue Schwarzenegger Complaint."
Posted at 07:40 by Howard Bashman



"Court may face radical change: The next president could reshape the Supreme Court like no other since Democrat Franklin D. Roosevelt." Gail Gibson has this report today in The Baltimore Sun. The New York Post reports today that "Winner will alter judicial outlook for business." And columnist E.R. Shipp has an essay today in The New York Daily News entitled "Of Supreme importance."
Posted at 07:35 by Howard Bashman



"Heading for easy win, Specter still outspent all other Senate candidates": The Pittsburgh Post-Gazette contains this article today.
Posted at 07:30 by Howard Bashman



Saturday, October 30, 2004
"A Long Shadow: Bush v. Gore roiled a nation; It's back--and, given Rehnquist's health, looming larger than ever." This article will appear in the November 8, 2004 issue of Newsweek.

And available online from Newsweek, Cliff Sloan has an essay entitled "A Question of Race: The Supreme Court on Election Day will consider whether prisons can ever segregate prisoners by race."
Posted at 23:55 by Howard Bashman



Presidential election news from here and there: The Washington Post today reports that "Another Wait Feared In Knowing the Winner." The Cleveland Plain Dealer reports today that "Tight race, recounts mirror 1876." Also from Ohio, The New York Times reports today that "Officials Say 2 Court Rulings Will Halt G.O.P. Challenges." The Orlando Sentinel today contains an article headlined "Don't count a recount out yet."

Yesterday, The Los Angeles Times reported that "Bush Seeks Limit to Suits Over Voting Rights; Administration lawyers argue that only the Justice Department, not the voters, may sue to enforce provisions in the Help America Vote Act." The San Francisco Chronicle reported that "Nation braces for another contested presidential election." The Atlanta Journal-Constitution reported that "Chads passe, provisional ballot is in." The Cincinnati Enquirer reported that "Dlott rulings could impact vote; U.S. judge hears 2 key Ohio pre-election battles." And The Reno Gazette-Journal reported that "Couple take battle to vote to justices."
Posted at 23:44 by Howard Bashman



"Judges PAC TV Ad: 'Dr. Kerry and Mr. Hyde.'" The organization Judges Political Action Committee issued this press release yesterday announcing a television commercial that will be aired in so-called battleground states.
Posted at 23:35 by Howard Bashman



"Legacy admissions: A heated debate; Politicians, administrators square off on policy." This article appeared in yesterday's issue of The Daily Pennsylvanian.
Posted at 23:28 by Howard Bashman



In news from the Scott Peterson trial: The Modesto Bee reports today that "Judge to give jury second-degree option; Peterson trial ruling seen as easing choice to convict." The San Mateo County Times reports that "Sentence options offered to jury; Second-degree murder would not carry the death penalty." The San Jose Mercury News reports that "Jurors given second option on conviction." And The San Francisco Chronicle reports that "Jury to be given option of 2nd-degree murder; Defense lawyers opposed possible compromise verdict."
Posted at 23:20 by Howard Bashman



"Secrecy critical to case, feds say; Judge may look at classified data before deciding if evidence in FBI terrorism sting should be restricted": The Times Union of Albany, New York today contains an article that begins, "Federal prosecutors have filed a motion saying they intend to show a judge classified information that will bolster the need to impose restrictive security measures in their case against two Albany men arrested in an FBI counterterrorism sting."
Posted at 23:15 by Howard Bashman



Say hello to "Alaskablawg": Today appears to be its first day in existence.
Posted at 21:11 by Howard Bashman



Tonight's music selection: In honor of Halloween tomorrow and the release earlier this week on DVD of the "Dawn of the Dead" remake, tonight's music selection is "Down With The Sickness" by the group Disturbed. The video is available in both Windows Media and QuickTime formats. Interestingly, the "Dawn of the Dead" DVD contains a preview for the new film "Shaun of the Dead."
Posted at 21:00 by Howard Bashman



Two more three-strikes articles: The San Diego Union-Tribune reports today that "Prop. 66 would alter 3-strikes guidelines." And The San Jose Mercury News reports today that "Crime initiative loses momentum; Governor's opposition key to turnaround." (Via "Sentencing Law and Policy.")
Posted at 20:48 by Howard Bashman



"Guantanamo Stonewall": The Los Angeles Times today contains this editorial, which concludes: "As the administration continues to stonewall judges doing what the founding fathers intended -- ensuring that the president doesn't overstep his authority -- it is not a stretch to say that Americans are witnessing the makings of a constitutional crisis."
Posted at 16:28 by Howard Bashman



"Rendell, Biden shift focus to Supreme Court": This article appears today in The Times Herald of Norristown, Pennsylvania.
Posted at 16:25 by Howard Bashman



"Ohioans consider gay-marriage ban": The Toledo Blade contains this article today. And in The Des Moines Register, columnist Marc Hansen today has an essay entitled "Question of rights for wed-unwed gay couple."
Posted at 15:25 by Howard Bashman



"New attitude for Miss. Supreme Court": This article appears today in The Clarion-Ledger.
Posted at 15:24 by Howard Bashman



In judicial election-related news: From Ohio, The Toledo Blade reports today that "Civility of Ohio high-court race upset by last-minute attack ad." The Cleveland Plain Dealer reports today that "Incumbent O'Donnell has big lead in high court race." Yesterday, The Cincinnati Enquirer reported that "Court donations line up by job." The Toledo Blade reported that "O'Donnell, O'Neill spar over judicial rules." And The Cleveland Plain Dealer reported that "High court candidates' styles clash at City Club."

From Nevada, The Reno Gazette-Journal reports today that "Justice's donation draws attention; Incumbent gets $200 from Agosti; Opponent says it aligns Douglas with tax decision."

From Kentucky, The Lexington Herald-Leader reported yesterday that "Judicial hopefuls can talk on issues; But many won't do so before Nov. 2 vote."

And from Alabama, The Mobile Register reported yesterday that "Race for high court could seal Republican grip."
Posted at 15:15 by Howard Bashman



"State has little affinity for death penalty": The Grand Forks (N.D.) Herald today contains an article that begins, "The announcement Thursday by U.S. Attorney Drew Wrigley that he will seek the death penalty if Alfonso Rodriguez Jr. is convicted of kidnapping and killing Dru Sjodin is historic: It's been more than a century since anyone was sentenced to death in North Dakota."
Posted at 15:00 by Howard Bashman



"Utah appeals N-waste ruling; U.S. Supreme Court is asked to review lower court's decision": This article appears today in The Salt Lake Tribune.
Posted at 14:44 by Howard Bashman



"Parental notice foes try wider stage; The abortion measure looks likely to pass, so opponents are focusing on the presidential race": The St. Petersburg Times contains this article today.
Posted at 14:38 by Howard Bashman



"Supreme Court judge returns home ready to face fallout over crash": This article appears in Sunday's issue of The Sun-Herald of Australia.
Posted at 14:33 by Howard Bashman



"Montco judge unseals portions of Heinz suit; Teresa Heinz Kerry sued over the death of her first husband; The Inquirer wanted the file opened": The Philadelphia Inquirer contains this article today. And The Times Herald of Norristown, Pennsylvania reports that "Heinz records to be released."
Posted at 14:27 by Howard Bashman



"Top court frees police to use infrared devices; Finding marijuana grow-ops through thermal equipment acceptable, judges rule": This article appears today in The Toronto Globe and Mail. And The Toronto Star reports today that "Court puts heat on grow-ops."
Posted at 14:22 by Howard Bashman



"Cyberstalker gets 5 years' probation; Man sentenced under first use of U.S. law barring online harassment": The Seattle Post-Intelligencer contains this article today.
Posted at 13:25 by Howard Bashman



"3-strikes measure loses ground in poll": This front page article appears today in The San Francisco Chronicle. In related coverage, The Desert Sun reports that "3-strikes measure draws attention."

And The New York Times today contains an editorial entitled "'Three Strikes' in California."
Posted at 13:15 by Howard Bashman



Bob Egelko is reporting: In today's issue of The San Francisco Chronicle, he has articles headlined "Gay marriage foes want city to pay fees" and "Pelican Bay guards lose appeal on attacks; Two were convicted of staging brawls."
Posted at 13:10 by Howard Bashman



Available online from law.com: In news pertaining to the U.S. Court of Appeals for the Ninth Circuit, Jeff Chorney has articles headlined "Call Me Ishmael -- and Call My Lawyer! Silver lining seen in 9th Circuit ruling on whales' legal standing" and "9th Circuit Will Ask: 'How Gay Do You Have to Be?' Immigration judge denied asylum to Mexican, saying he doesn't look or act gay."

In news from Georgia, Jonathan Ringel reports that "Mudslinging Judicial Campaign Draws Ethics Complaint; Watchdog group calls commercials 'misleading and inaccurate.'" And in somewhat related news, "N.Y. Judge Says Speech Limits on Judicial Candidates Deprive Voters of Information."
Posted at 10:15 by Howard Bashman



"Following Rehnquist: Chief Justice's Illness Brings Questions on Court's Transition." Charles Lane has this news analysis today in The Washington Post. The Boston Globe reports today that "Even with changes, court's shift might only be marginal." The Morning Call of Allentown, Pennsylvania reports today that "Biden says choosing Kerry crucial to Supreme Court; Delaware senator, in Montco stop, warns that Bush likes radicals." And The Kansas City Star reports today that "Top court a source of voter concern; Hot-button topics also elicit opinions."

In commentary, The Indianapolis Star today contains an editorial entitled "Senate must stop blocking nominees." And also in The Washington Post today, Cass R. Sunstein and David Schkade have an op-ed entitled "A Bench Tilting Right."
Posted at 10:00 by Howard Bashman



Friday, October 29, 2004
"Flynt brings his sex business to UK; Pornographer sets out to tempt teachers with good vibrations": This article appears in Saturday's edition of The Guardian (UK). Of course, the article mentions his magazine's victory in the U.S. Supreme Court.
Posted at 20:00 by Howard Bashman



"Sykes sworn in as justice with 7th U.S. Circuit Court of Appeals": The Associated Press provides this report from Milwaukee. Update: A photo from the swearing-in ceremony can be accessed here.
Posted at 19:58 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Courts Stall Ohio Voter Registration Challenges" and "Alabama State Constitution Language Disputed."
Posted at 19:50 by Howard Bashman



"Supreme Court Betting Pool": At "The Volokh Conspiracy," Orin Kerr links to this very interesting paper discussing "a betting pool among the Justices about the outcome of the '92 presidential election."
Posted at 17:55 by Howard Bashman



Supreme Court of Canada finds legal analysis in Kyllo v. United States not so hot: The Toronto Globe and Mail offers a news update headlined "Heat detectors don't infringe privacy: top court." You can access today's unanimous ruling of the Supreme Court of Canada at this link. The Canadian decision is not likely to increase Justice Antonin Scalia's regard for international law.
Posted at 17:45 by Howard Bashman



Soon Alaska may be the highest State in the Nation in more ways than one: Sure, Alaska has long been the northernmost State in the Nation. Now Reuters is reporting that "Alaskans to Vote on Legalizing Marijuana." And USA Today reports today that "Marijuana measures on 3 states' ballots."
Posted at 16:18 by Howard Bashman



"Supreme Court's Rehnquist Out of Hospital": Reuters provides this report.
Posted at 15:42 by Howard Bashman



"Same-Sex Marriage Foes Seek $229,000 Legal Fee": The Daily Journal today contains a subscription-only article by Peter Blumberg that begins, "An Arizona Christian advocacy group that fought to stop Mayor Gavin Newsom from issuing marriage licenses to same-sex couples is now asking San Francisco taxpayers to foot its $229,000 legal bill."

In other same-sex marriage-related news and commentary, The Clarion-Ledger of Jackson, Mississippi today contains articles headlined "Couple to 'marry' despite Miss. law" and "'Issue not going away'; Neither side aggressively campaigning."

The Chicago Tribune reports today that "Gay-marriage backers get Daley's signature."

The Washington Post reported yesterday that "Churches Key to Mich. Fight on Gay Marriage; Faithful Line Up on Both Sides of Issue."

And in commentary, E.J. Graff has an essay entitled "Self Defeat: Same-sex marriage will get routed at the polls Tuesday--but it won't matter" online at The New Republic.

Update: This post has been updated to remove reference to an ACLU press release that on closer look doesn't appear to have been issued today.
Posted at 14:33 by Howard Bashman



"Justice Rehnquist Released From Hospital": Gina Holland of The Associated Press provides this report.
Posted at 14:12 by Howard Bashman



Bankruptcy court specifies that monetary sanction against debtor corporation's only shareholder would be non-dischargeable in a later bankruptcy but forgets to specify that sanction couldn't be set aside on appeal: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this decision today.
Posted at 14:04 by Howard Bashman



In wacky legal news from overseas: Reuters reports that "Pop Star Wants Home Sex Movie Shown in Court."
Posted at 13:14 by Howard Bashman



"Ohio GOP Loses Bid to Fight Registrations": The Associated Press provides this report.
Posted at 13:12 by Howard Bashman



"Reject effort to put politics in court; Foes distort the record of top-court judge": An editorial published today in The News-Leader of Springfield, Missouri begins:
Judicial retention elections are normally snoozers. Voters go down the ballot and come across the names of a few judges who they are asked to retain or remove from office. Large majorities almost always vote yes to retention.

A loose coalition of groups is trying to change that this year. They have targeted Supreme Court Judge Richard Teitelman with a campaign that distorts facts and seeks to advance a political agenda.
Judge Richard B. Teitelman of the Supreme Court of Missouri was the May 2004 interviewee in this blog's "20 questions for the appellate judge" feature, and you can access his interview at this link.
Posted at 12:50 by Howard Bashman



"2 sides state cases in Big Blue appeal; Justices hear merits of punitive damage law": The Milwaukee Journal Sentinel today contains an article that begins, "Trial lawyer Robert L. Habush on Thursday stoutly defended the $94 million punitive damages award in the Big Blue crane collapse trial, saying the equivalent of a slap on the side of the head was more appropriate than a slap on the wrist." The article goes on to note that three construction workers were killed in "the tragic events on July 14, 1999, at the Miller Park construction site." More information about Miller Park can be accessed via this link.
Posted at 12:44 by Howard Bashman



"McDermott gets $600,000 tab in leak of illegal phone tape": The Seattle Times today contains an article that begins, "A federal judge in Washington, D.C., has ordered Congressman Jim McDermott to pay $60,000 plus attorney fees that could total more than $545,000 to a Republican congressman who sued McDermott for leaking his cellphone conversations to news reporters." The decision in question does not yet appear online at the web site of the U.S. District Court for the District of Columbia.

Update: A reader has kindly and most promptly sent along copies of the opinion and order that are the subject of this news report.
Posted at 12:25 by Howard Bashman



"Presidential election takes center stage at Supreme Court Preview": The William and Mary News issued this press release yesterday.
Posted at 12:14 by Howard Bashman



"Lott says 51 votes should confirm": The Sun Herald of Biloxi, Mississippi today contains an article that begins, "Sen. Trent Lott said it shouldn't take a 'super majority' of 60 votes to confirm a nominee to the U.S. Supreme Court, and would like to see the procedure change before a nominee comes before the Senate."
Posted at 12:11 by Howard Bashman



"Ripe for Condemnation: The Supreme Court should reject land grabs aimed at boosting tax revenue." Jacob Sullum today has this essay online at Reason.
Posted at 12:03 by Howard Bashman



"lawfulgal" reports on her "Private Time With Justice Kennedy": You can access her blog post at this link.
Posted at 12:00 by Howard Bashman



"Parks' attorneys lose bid; Archer appointment is not reconsidered": This article appears today in The Detroit News.
Posted at 11:59 by Howard Bashman



"Minnesota Court Won't Review Defamation": The Associated Press provides this report.
Posted at 11:54 by Howard Bashman



Additional materials available online relating to constitutional challenge to Pennsylvania's grandparent visitation statute that Supreme Court of Pennsylvania agreed to review on the merits yesterday: Today, the Pa. Supreme Court posted online its order granting the Petition for Allowance of Appeal that I filed in this case in late June 2004. Also available online is the Superior Court of Pennsylvania's ruling from late May 2004, which preceded my involvement in the case. Some additional information about the case can be found in my post from yesterday.
Posted at 11:20 by Howard Bashman



"Ashcroft: FBI Halliburton Probe Just 'Halloween Prank.'" "ScrappleFace" offers this report.
Posted at 11:18 by Howard Bashman



In news from Pitcairn Island: The Associated Press reports that "Six Pitcairn Island Men Sentenced." Reuters reports that "Pitcairn Men Sentenced to Jail for Underage Sex." BBC News reports that "Pitcairn sex trial men sentenced." And United Press International reports that "Pitcairn sex offenders receive sentences."

In other coverage, The Independent (UK) reports that "Pitcairn Island mayor gets three years for child rape." The Times of London offers an article headlined "'Pitcairn-lite' sentences for sex attackers." And News.com.au offers reports headlined "Only three of Pitcairn's men jailed" and "For Pitcairn's sake, rapists seek mercy."

The Australian Broadcasting Corporation offers reports entitled "Longest Pitcairn sentence 6 years"; "Some Pitcairn sex criminals express no remorse"; and "Looking to the future for Pitcairn Island."

Finally, The New Zealand Herald recently published an editorial entitled "World will keep an eye on Pitcairn" and an op-ed by Tapu Misa entitled "Pitcairn culture shackled in a time-warp."
Posted at 11:01 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit posts online an order in case involving pre-election challenges to Ohio voter registrations: Today's order can be accessed at this link.
Posted at 10:50 by Howard Bashman



"It Takes a Strong Constitution to Run as a Libertarian; Michael Badnarik has no chance of winning, but he just might siphon key votes from Bush": This article appears today in The Los Angeles Times. The article quotes Libertarian Party presidential candidate Michael Badnarik as saying, "We have this really crazy idea that the Constitution actually means something."
Posted at 09:01 by Howard Bashman



"One court-decided election is more than enough": Collin Levey has this op-ed today in The Seattle Times.
Posted at 08:15 by Howard Bashman



"The abortion debate": Erika Bachiochi has this op-ed today in The Washington Times.
Posted at 08:14 by Howard Bashman



"Judging the judges": This editorial appears today in The Bismarck (N.D.) Tribune. Columnist Rekha Basu has an op-ed today in The Des Moines Register entitled "Election could sway direction of Supreme Court." And Paul E. Kostyu today has an essay in The Canton Repository entitled "Be careful how you label judges."
Posted at 07:04 by Howard Bashman



"Partisan political cases can divide judges and courts": The Associated Press delivers this earth-shattering news.
Posted at 07:02 by Howard Bashman



"O'Connor Formally Opens New Law Building; Says Current Issues Demand an Increased Focus on Global Law": The Hoya of Georgetown University contains this article today.
Posted at 07:00 by Howard Bashman



"It's the Supreme Court, stupid; On justice for gay Americans, a Kerry presidency will make all the difference not for four years, but for the next 40": This essay by David N. Cincilline appears online at the web site of The Washington Blade.
Posted at 06:55 by Howard Bashman



Seals and Cross: The Los Angeles Times today contains an article headlined "New County Seal Will Cost $700,000, L.A. Officials Say; A revised design, minus a golden cross, will be phased in over a year or two."
Posted at 06:50 by Howard Bashman



"Specter in line to be federal court kingmaker; If he wins, he'll head the Judiciary Committee; His 'centrist' vow is a sham, his opponent says": The Philadelphia Inquirer contains this article today.
Posted at 06:42 by Howard Bashman



"Thomas hopes court can avoid election": This article appears today in The Lawrence (Kan.) Journal-World. The Kansas City Star reports today that "High court justice visits KU." And The University Daily Kansan reports today that "Justice visits campus; Clarence Thomas answers questions for law students."
Posted at 06:33 by Howard Bashman



Thursday, October 28, 2004
"Adviser in Lindh Case Sues Justice Dept.": Friday's issue of The New York Times will contain this article reporting on a lawsuit brought by Jesselyn Radack.
Posted at 23:55 by Howard Bashman



"On the Streets of Baghdad: A soldier's story about building democracy in Iraq, neighborhood by neighborhood." This week's issue of Legal Times contains an essay (subscription required) by U.S. Army Captain Matthew Scalia.

Tony Mauro has written an introduction to the essay, and the introduction begins: "Conventional wisdom has it that the children of influential people avoid the military. Matthew Scalia, the 31-year-old son of Justice Antonin Scalia, has not. Army Capt. Scalia, the sixth of Justice Scalia's nine children, served for 13 months in Iraq with the 1st Armored Division. His tour was extended when insurgent uprisings broke out in Sadr City, Karbala, and Najaf."
Posted at 23:10 by Howard Bashman



In judicial election-related news: From Ohio, The Toledo Blade reports today that "Loophole lets parties fund high court races."

From Mississippi, The Clarion-Ledger reports today that "Out-of-state funds emerge as issue in high-court race."

The Seattle Post-Intelligencer reports today that "It's the lawyer vs. the judge in Supreme Court race; Political leanings far apart for Johnson, Becker."

The News & Observer of Raleigh, North Carolina reports today that "High-court candidate left backlog; Betsy McCrodden did not finish up her cases when she was voted off the appeals bench."

The St. Louis Post-Dispatch reports that "Tort reform group will observe vote" because of concern "that trial lawyers will try to rig the Illinois Supreme Court race."

And The Louisville Courier-Journal reports that "East Kentucky race may alter divided Supreme Court."
Posted at 23:00 by Howard Bashman



The Miami Herald is reporting: Today's newspaper contains articles headlined "4 former detainees sue, say they were mistreated; Four former prisoners in the Guantanamo Bay, Cuba, camp sued top U.S. officials, claiming they were systematically abused during their two-year detention" and "Doctors, lawyers wage fierce battle on state ballot; Three amendments spawned by the bitter war between doctors and lawyers could alter the future for each profession in Florida."
Posted at 22:52 by Howard Bashman



"State's High Court Issues Schiavo Stay": This article appears today in The Tampa Tribune. The St. Petersburg Times reports today that "Court allows Schiavo appeal; The state supreme court's ruling lets the governor appeal to the U.S. Supreme Court." And in commentary, The Palm Beach Post today contains an editorial entitled "Schiavo appeal: No merit."
Posted at 22:45 by Howard Bashman



"Uncle Sam Is Watching You": In the November 18, 2004 issue of The New York Review of Books, Law Professor David Cole has this review of the books "The Intruders: Unreasonable Searches and Seizures from King John to John Ashcroft" by Samuel Dash and "The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age" by Jeffrey Rosen.
Posted at 22:35 by Howard Bashman



"Justice Thomas Hopes for Smooth Election": The Associated Press provides this report from Lawrence, Kansas.
Posted at 22:31 by Howard Bashman



"Supreme Court on the Ballot: The next president of the United States may make appointments that will alter how we live." Black Enterprise magazine posted this article online today.
Posted at 22:12 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Provisional Ballot Controversy Nears End."

In news from Colorado, "Judge to Release More Bryant Documents."

And an article is headlined "Experts: Web Searches for Sex Declining." Fortunately, web searches for appellate-related news and developments are on the increase.
Posted at 17:28 by Howard Bashman



Questioning the proper disposition of the Red Sox curse: In response to my post from late last night titled "The curse is reversed," a reader who once served as law clerk to a Justice on the California Court of Appeal writes: "Semantic appellate law/supernatural phenomena question just for fun: Is a curse like a judgment or order that can be reversed, or more like an injunction or stay that may be lifted?" Hmm, I'll try not to spend too much of my 40th birthday celebration pondering that conundrum.
Posted at 17:11 by Howard Bashman



"I Know What You Did Last Recess: Bush could appoint the tie-breaking justice in next month's Bush v. Kerry." Slate has just posted online this jurisprudence essay by Mark Moller.
Posted at 17:07 by Howard Bashman



Supreme Court of Pennsylvania accepts challenge to the constitutionality of Pennsylvania's grandparent visitation statute: Today Pennsylvania's highest court agreed to review on the merits a case presenting the following two issues:
1. Is Pennsylvania's grandparent visitation statute, 23 Pa. Cons. Stat. Ann. § 5311, unconstitutional in light of the U.S. Supreme Court's ruling in Troxel v. Granville, 530 U.S. 57 (2000), and the rulings of numerous other state courts of last resort that have, applying Troxel, declared similar statutes unconstitutional?

2. Does the trial court's order -- which grants partial custody of a child to a third-party, non-parent over the parent's objections -- violate petitioner's fundamental right to direct his child's upbringing and associations without interference by the State where it is undisputed that petitioner is a fit parent and where no evidence exists that the child will suffer any injury if the parent is allowed to decide when, where, and how the child interacts with the third-party in question?
I filed the Petition for Allowance of Appeal in this case (the Pennsylvania state court equivalent of a petition for writ of certiorari) on the father's behalf in June 2004.
Posted at 15:44 by Howard Bashman



"Next president could cause change in Supreme Court": The Pantagraph of Bloomington, Illinois contains this editorial today. And in today's edition of The Repository of Canton, Ohio, a retired state court judge has a letter to the editor that appears under the heading "Bush's appointees to court would leave lasting, extremist mark."
Posted at 15:07 by Howard Bashman



"Judge awaits test results after crash": Friday's edition of The Sydney Morning Herald contains an article that begins, "Supreme Court judge Jeff Shaw is expected to be interviewed by police next week pending the results of his blood test taken after a late-night car accident this month." That newspaper also contains an essay by columnist Richard Ackland entitled "So long as he's not bewildered in court, who are we to judge?"
Posted at 14:30 by Howard Bashman



"Judge to jurors: Please vote for me." This article appears today in The Chicago Sun-Times.
Posted at 13:55 by Howard Bashman



"Election Suits Are Filed Early and Often; Each party seeks a legal edge in close states as provisional ballots, new voters become issues": Henry Weinstein has this article today in The Los Angeles Times.
Posted at 11:47 by Howard Bashman



"Marriage amendments all expected to pass": This article appears today in The Washington Times.
Posted at 11:45 by Howard Bashman



In news from Alabama: The Birmingham News reports today that "State opposes coach in court; Sides against whistleblower in Supreme Court case alleging Title IX discrimination at Ensley."

And The Mobile Register reports today that "Prosecutors urge judge to protect fetus."
Posted at 11:40 by Howard Bashman



Never mind: The Des Moines Register today contains an article headlined "Court retracts ruling to hear sex abuse cases." The article begins: "'Oops' was the ruling from Iowa's highest court Wednesday. The Iowa Supreme Court announced it made a mistake Tuesday when it said it would hear an appeal of a district judge's decision not to dismiss two sex abuse lawsuits against the Davenport Catholic Diocese. Actually, the court decided against hearing the appeal, said spokeswoman Becky Colton."

In other coverage, The Quad-City Times reports today that "Court rescinds order after rare mistake."
Posted at 11:01 by Howard Bashman



Father of one of President Bush's Sixth Circuit nominees from Michigan endorses President Bush: The Traverse City Record-Eagle reports today that "Former Sen. Robert Griffin endorses Bush; He feels his insight may be helpful to voters." Makes one wonder for whom the parents of President Bush's other Sixth Circuit nominees from Michigan will be voting.
Posted at 10:50 by Howard Bashman



"Times v. Scalia": Michael Rips, who clerked for Justice William J. Brennan, Jr., has this op-ed today in The New York Sun in response to Adam Cohen's editorial observer column entitled "Imagining America if George Bush Chose the Supreme Court" recently published in The New York Times.
Posted at 10:40 by Howard Bashman



Oh, Canada! The Canadian Press reports that "Supreme court to hear case of living room masturbator." According to the article, the case presents the question whether a person's living room qualifies as a "public place" if what is occurring there is visible to others outside the home.
Posted at 10:34 by Howard Bashman



"Thomas shares lessons from on and off the bench; Justice goes from courtroom to classroom": This article appears today in The Lawrence (Kan.) Journal-World.

The article states, "The tentative Kansas University law students had reason to be intimidated Wednesday: The teacher in their constitutional law class was Clarence Thomas, one of nine U.S. Supreme Court justices trusted to interpret the law of the land."

And the following appears toward the end of the article:
"I look at it as a job," he told students. "When you think you're all that important, you run the risk of thinking you can raise the level at which you impact the country. I am a Title 3 (federal district court) judge, and I will not try to be God."
Get that newspaper reporter a primer on the U.S. Constitution! This photograph accompanies the article.
Posted at 09:55 by Howard Bashman



"Bench Brawl: The courts are the one thing the Left agrees on." Kay R. Daly today has this essay at National Review Online.
Posted at 09:50 by Howard Bashman



"Clinic gives law advice to Mills; With legal aid, murderer avoids death penalty": The Yale Daily News today contains an article that begins, "In New Haven's first state capital punishment case since the state reinstituted the death penalty in 1973, convicted triple murderer Jonathan Mills escaped the death penalty -- and a group of students at Yale Law School could not have been happier."
Posted at 09:24 by Howard Bashman



"Today in History - Oct. 28": Among other things, a certain appellate law blogger reaches the age of 40.
Posted at 09:20 by Howard Bashman



"High Court Warning": Collin Levey has this op-ed today in The New York Post.
Posted at 07:05 by Howard Bashman



"Barrow slows advance in Commandments battle; No more tax funds for war chest": The Athens Banner-Herald contains this article today.
Posted at 07:04 by Howard Bashman



"Lyon County judge faced assorted allegations in 1980 ouster campaign": This article appears today in The Lawrence (Kan.) Journal-World.
Posted at 07:02 by Howard Bashman



In news and commentary from New Hampshire: Yesterday's edition of The Union Leader contained an article headlined "NH justice: I oppose amendment" and an editorial entitled "Justice disrobed: Nadeau, voter guide out of bounds."
Posted at 07:00 by Howard Bashman



"Justice's illness renews talk about high court's future": This article appears today in The Cleveland Plain Dealer. And The Philadelphia Inquirer reports that "Rehnquist illness highlights an avoided issue; Neither Bush nor Kerry points up that if he wins, his high court appointments could have a big effect."

In commentary, The Wichita Eagle today contains an editorial entitled "Don't forget power to pick justices." The Charleston (W.Va.) Gazette contains an editorial entitled "High court in the balance." The Chicago Sun-Times contains commentary entitled "Roe vs. Wade figures to last far beyond Rehnquist." And The Fort Worth Star-Telegram contains an op-ed by Linda P. Campbell entitled "Don't count your justices..."
Posted at 06:46 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "U.S. Can Bar Hawaiians from Indian Status" and "Court TV Gets Its Day Before a Judge."
Posted at 06:40 by Howard Bashman



"Could there be - gulp - a tie? Imagining a Bush-Edwards triumph." This article appears today in The Philadelphia Inquirer. And Reuters reports that "Tied Presidential Election Could Be Mother of All Messes."
Posted at 06:36 by Howard Bashman



Wednesday, October 27, 2004
The curse is reversed: Congratulations to the Boston Red Sox, who moments ago won the World Series for the first time since 1918!
Posted at 23:41 by Howard Bashman



In news from Ohio: The Cleveland Plain Dealer today contains articles headlined "Court hears life-and-death arguments; Medical guardian's authority challenged"; "Top court candidates debate judicial role"; and "High court candidates help others; Both men give time to less fortunate."

And The Toledo Blade reports today that "High court rivals in Ohio square off over activism roles."
Posted at 23:40 by Howard Bashman



In Thursday's edition of The New York Times: An article will report that "Big Tobacco Draws a Small but Dedicated Crowd to Trial." And in local news, "On the Stand, Lawyer for a Terrorist Sheik Shows Strain."
Posted at 23:05 by Howard Bashman



Available online from law.com: An article reports that "Recess Appointment Saga Hits High Court; Florida drug defendant challenges President Bush's appointment of William Pryor to seat on 11th Circuit." In somewhat related news, Jonathan Ringel reports that "Strip-Search Case Provokes Tough Questions by 11th Circuit."

In news from California, "Sex Charges: Wilson Sonsini Associate Pleads No Contest."

And an article is headlined "DRI: It's the Other Face of Trial Lawyers; And it's no longer 'pale, male and stale.'"
Posted at 23:00 by Howard Bashman



"But if you're wiley, you will leave them lying, snared up in the traps that they set for you": Today's issue of The Washington Post contains this review of the book "Salt of the Earth, Conscience of the Court: The Story of Justice Wiley Rutledge" by John M. Ferren. (This post's title courtesy of Elton John).
Posted at 22:55 by Howard Bashman



"Rehnquist's illness raises debate about a court shift": This editorial appears today in The Portland (Me.) Press Herald.
Posted at 22:47 by Howard Bashman



In news from the Scott Peterson trial: The San Mateo County Times reports today that "Defense rests without calling Scott to the stand." The Modesto Bee reports that "Defense comes to roaring halt; Geragos' quick ending startles court observers, 'disappointment' for one." And The San Jose Mercury News reports that "Defense rests on burglar theory."
Posted at 22:01 by Howard Bashman



The San Francisco Chronicle is reporting: In today's newspaper, Bob Egelko has articles headlined "Judge sets hearing on same-sex marriage ban; He says lawyers on both sides must stick to legal arguments" and "Gay group appeals asylum ruling; Guadalajara police beat Mexican man."

In other news, "Voters fear repeat of 2000 election; Poll shows 6 of 10 believe there won't be a winner Nov. 3 in presidential race." And in coverage of the Scott Peterson trial, "Defense called surprisingly weak; Trial-watchers say attorney did not pursue key claims."
Posted at 21:50 by Howard Bashman



"Federal judge blocks enforcement of Prop. 208": The Sacramento Bee provides a news update that begins, "U.S. District Court Judge Frank C. Damrell Jr. on Wednesday blocked enforcement of the remnants of Proposition 208, which requires that the names of top donors to political organizations be included in advertising for political candidates or initiatives."
Posted at 21:47 by Howard Bashman



Jury recommends death penalty for drug dealer in federal criminal trial in Iowa: The Associated Press provides this report. According to the article, the death penalty is not available for criminal prosecutions in Iowa state court.
Posted at 19:25 by Howard Bashman



"Likely Voters Narrowly Prefer Bush to Pick Justices": The Washington Post provides this news update. According to the Electoral Vote Predictor 2004, that narrow majority may get its wish (or maybe not). Still to come, results of a poll on whether likely voters prefer the Justices to pick the President.
Posted at 19:14 by Howard Bashman



"Government Seeks Trial Date for Moussaoui": The AP reports here that "The government proposed Wednesday that Zacarias Moussaoui go on trial May 31, the day after Memorial Day, in the only U.S. case charging a defendant with crimes related to the Sept. 11 attacks." The federal government's motion to set a trial date, filed today in the U.S. District Court for the Eastern District of Virginia, can be accessed at this link. And Lyle Denniston of "SCOTUSblog" has a post titled "Trial date sought for Moussaoui."
Posted at 18:50 by Howard Bashman



U.S. District Court for the District of Columbia enjoins armed forces from administering anthrax vaccine to unwilling servicemembers: U.S. District Judge Emmet G. Sullivan issued this ruling today. And in early press coverage of the ruling, The Associated Press reports that "Judge Blocks Mandatory Anthrax Vaccine."
Posted at 18:46 by Howard Bashman



The federal government does not violate the U.S. Constitution in failing to confer on native Hawaiians the federally recognized status of Indian tribes: A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this decision today. As feared, the lack of tepees presented an insurmountable obstacle.
Posted at 17:57 by Howard Bashman



"The Case Against John Ashcroft: Why don't Democrats condemn the disastrous attorney general?" Slate has just posted online this jurisprudence essay by Robert Weisberg and David Mills.
Posted at 17:54 by Howard Bashman



Does the forfeiture of a minivan on account of a drug-related criminal offense run afoul of the Excessive Fines Clause of the Eighth Amendment? A divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit has ruled that it may in an opinion available at this link.
Posted at 17:49 by Howard Bashman



Mental disorder known as "institutionalization" is no defense to criminal offense of threatening to kill the President of the United States: So the U.S. Court of Appeals for the Seventh Circuit has ruled today in a decision that you can access here.
Posted at 17:45 by Howard Bashman



Divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit denies emergency stay of order protecting the free speech rights of judicial candidates running for election: Today's Sixth Circuit order can be accessed at this link. In press coverage of the trial court's ruling, The Lexington Herald-Leader reported last Wednesday that "Judicial candidates' speech rights upheld; State's ban on campaigning struck down." And The Louisville Courier-Journal reported last Thursday that "Candidate speech rules rejected; Restriction applied in judicial races."
Posted at 17:40 by Howard Bashman



"Legal wrangle over copy of Bill of Rights goes to appeals court": The AP provides this report from Richmond, Virginia.
Posted at 17:32 by Howard Bashman



The Associated Press is reporting: Hope Yen reports that "O'Connor Extols Role of International Law." And in other news involving the Nation's highest court, "Supreme Court Gives Stay in Tobacco Suit." Update: You can access the stay order at this link.
Posted at 17:27 by Howard Bashman



Programming note: Posting will resume later today after I return to the office from delivering an oral argument in a matter now pending on appeal before the U.S. Court of Appeals for the Third Circuit.

Update: As always, it is a pleasure to argue before the Third Circuit. Had an enjoyable visit with Jonathan S. Massey before the oral argument.
Posted at 10:50 by Howard Bashman



"Lawyer: Child porn, consent laws conflict." The Associated Press provides this report from Nebraska.
Posted at 10:27 by Howard Bashman



"Appeal in Error: Common Mistakes Made in Appeals." FindLaw for Corporate Counsel offers this essay by Scott P. Stolley.
Posted at 10:05 by Howard Bashman



"Sometimes, Jurors Have to Take a Stand and Say, 'No, Not in Our Name'": Lara Bazelon, a deputy federal public defender in Los Angeles, has this op-ed today in The Los Angeles Times.
Posted at 10:02 by Howard Bashman



"Legal Battles Over Ballots Put Election Rules in Flux": This article appears today in The Washington Post.
Posted at 10:00 by Howard Bashman



In today's edition of The New York Times: Adam Liptak has an article headlined "Expect Bush v. Kerry, the Chadless Sequel." In other election related-news, "Judge Rules Against 10,000 Floridians Barred From Voting."

An article reports that "Georgians to Vote on Marriage."

In other news, "Bush Aide Calls Criticism of Patriot Act Uninformed." And in somewhat related news, "Terrorist's Lawyer Denies Working to Deceive U.S."

An article reports that "Court Limits Removing Child When Mother Is Abuse Victim."

And in technology-related news, "When the Car Beside You Is an XXX Theater."
Posted at 09:50 by Howard Bashman



"Court reverses ruling on ballots; Provisional votes outside correct precinct invalid": This article appears today in The Detroit News. And The Detroit Free Press reports today that "Judges reverse ballot ruling; Voters must be in right precinct to be counted."
Posted at 09:12 by Howard Bashman



"Kimberle Crenshaw: Rehnquist and Future of High Court." Yesterday's broadcast of NPR's "The Tavis Smiley Show" included this segment (Real Player required).
Posted at 09:10 by Howard Bashman



Available online from law.com: An article reports that "For Next Attorney General, Don't Look to Deputy."

In news from New York, "Letting Children Witness Abuse Not Ground for Taking Them; New York Court of Appeals rules there must first be evidence of danger."

And in news from California, "Burglar Gets a Third Crack at Lawyer's Drug Charge" and "Courtroom Pulpit: Despite judicial chidings, attorneys continue to invoke the Bible."

Also, the web site of The Recorder, law.com's California affiliate, today contains subscription-only articles headlined "Circuit Will Ask: How Gay Do You Have To Be?" and "Wilson Associate Enters No-Contest Plea on Sex Charges."
Posted at 08:18 by Howard Bashman



"Lawyer in plea on sex charges": The San Jose Mercury News today contains an article that begins, "In a bid to avoid a prison sentence, a lawyer at a prominent Silicon Valley law firm pleaded no contest Tuesday to having sex with a 16-year-old Milpitas girl he met in an Internet chat room and e-mailing lurid photos to the girl and her underage friend."
Posted at 08:14 by Howard Bashman



"Party on, Wayne!" The Dallas Morning News today contains an article headlined "Judge's party for fugitive criticized; Legal experts call it inappropriate; jurist brushes off criticism." The article begins, "A judge's festive court welcome for a recently apprehended fugitive has some judicial watchdogs and legal experts wondering whether the use of balloons and cake in legal proceedings overstepped the bounds of court decorum."
Posted at 06:58 by Howard Bashman



"Court hears abortion arguments; Constitutionality of ban on partial-birth procedure is at issue": The Richmond Times-Dispatch today contains an article that begins, "Virginia Solicitor General William E. Thro argued yesterday to the federal appeals court in Richmond that the state's partial-birth abortion ban is constitutional and should get a trial on the evidence."
Posted at 06:50 by Howard Bashman



"In discussion, top justices voice concerns about threats to judicial independence; Complaints of 'activist judges' spur controversial legislative actions, worrying the bench": Today's issue of Stanford Report contains this article. You can watch online the video of this event -- at which U.S. Supreme Court Justice Stephen G. Breyer, the Chief Justice of the Supreme Court of California, and a judge serving on the U.S. Court of Appeals for the Ninth Circuit discussed "The Role of Politics and the Rule of Law: Judicial Independence in the 21st Century" -- by clicking here (Real Player required). I have previously linked to news coverage of this event here and here.
Posted at 06:40 by Howard Bashman



"Marshal faces Justice Dept. probe into work habits": The Boston Globe contains this article today.
Posted at 06:35 by Howard Bashman



"A.D. Mazzone, judge who led harbor effort, dies at age 76": This obituary appears today in The Boston Globe.
Posted at 06:34 by Howard Bashman



"Hopefuls' Preferences for Court Spring to Forefront; Usually Low-Key Issue Gets Attention as Rehnquist's Illness Becomes Public": Charles Lane has this article today in The Washington Post. The Los Angeles Times reports today that "Activists Mobilize Over Shaping Supreme Court; Conservatives and liberals respond to news of Rehnquist's cancer treatment by urging their party members to the polls." And The Houston Chronicle reports today that "Ills, age catching up with Supreme Court; Chances are slim the same 9 will be serving in 4 years."

The Boston Globe contains an editorial today entitled "Justice in the balance." USA Today contains an editorial entitled "A different October surprise." The Dallas Morning News contains an editorial entitled "Rehnquist Reminder: New court expected, but don't expect change." And The Milwaukee Journal Sentinel contains an editorial entitled "Is Supreme Court the issue?"
Posted at 06:14 by Howard Bashman



Tuesday, October 26, 2004
"Study details how Bush, Kerry might reshape U.S. Supreme Court; Kerry poised to make 'historic' changes; Bush impact hinges on Republican control of Senate": Washington University in St. Louis today issued this press release about a paper that will be presented later this week at this seminar at the University of North Carolina School of Law.
Posted at 19:30 by Howard Bashman



"The Rehnquist Election": Bruce Shapiro has this essay online at the web site of The Nation.
Posted at 19:27 by Howard Bashman



"The Verdict's in on Black Judges: Legal experts say there is no excuse for the lack of African American appointments to federal judgeships." Black Enterprise magazine has posted this article online today.
Posted at 19:22 by Howard Bashman



"Supreme Silence: Why the Supremes will not decide this year's presidential election." Slate has recently posted online this jurisprudence essay by Dahlia Lithwick. (Also, you can click here to learn for whom your favorite Slate writers will be voting).
Posted at 18:40 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Rehnquist Illness May Spur Court Vacancy."

In news pertaining to the U.S. Court of Appeals for the Sixth Circuit, "Court Overturns Lexmark Case Injunction" and "Appeals Court Reverses Mich. Ballot Rule."

And in other news, "Malvo Sentenced for 2nd Sniper Shooting."
Posted at 18:37 by Howard Bashman



"Behind the looming ballot clash; Courts have issued conflicting rulings over what will constitute valid 'provisional' votes": Warren Richey will have this article in Wednesday's issue of The Christian Science Monitor.
Posted at 17:44 by Howard Bashman



Circuit Judge Richard A. Posner discusses the proper use of motions for reconsideration: In an opinion that he issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, Judge Posner writes: "A motion that merely republishes the reasons that had failed to convince the tribunal in the first place gives the tribunal no reason to change its mind. It's as if the movant, when he appealed, had filed two copies of his appeal brief, and when his appeal was rejected asked us to read the second copy."
Posted at 17:02 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit posts online en banc oral argument audio for Republican Party of Minnesota v. White: The Eighth Circuit heard reargument en banc in this important judicial campaign-free speech case one week ago tomorrow. You can listen online to the oral argument audio by clicking here (Real Player required). My preview of the en banc oral argument can be accessed here.
Posted at 16:02 by Howard Bashman



"Slate's Jurisprudence: Rehnquist Cancer Treatment." Today's broadcast of NPR's "Day to Day" included this segment featuring Dahlia Lithwick (Real Player required).
Posted at 15:45 by Howard Bashman



Presidential election news from here and there: The Associated Press is reporting that "Court Won't Put Nader on Ballot in Ohio" and "Judge Rules in Electoral College Lawsuit."

And a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit this afternoon has issued its opinion in support of this past Saturday's provisional balloting decision.
Posted at 15:42 by Howard Bashman



"UNC fights frat's lawsuit; Christian group wants recognition": This article appears today in The News & Observer of Raleigh, North Carolina. The article observes, "The arguments by both sides make one thing clear: UNC-CH is in the middle of another court battle over First Amendment rights, just two years after it won a case over assigning freshmen to read a book about the Quran."
Posted at 15:35 by Howard Bashman



Judicial election news: From Ohio, The Cleveland Plain Dealer reports today that "Chief justice candidates differ in political views, experience." And The Cincinnati Enquirer reports that "Life experiences separate Supreme Court candidates."

And The St. Louis Post-Dispatch reports today that "Money flows into judicial race."
Posted at 15:25 by Howard Bashman



"Court OKs vote to ban gay marriage": The Atlanta Journal-Constitution provides this news update about a ruling that the Supreme Court of Georgia issued today.

And today's issue of The AJC contains an article headlined "Ruling overturns state hate crime law."
Posted at 15:15 by Howard Bashman



Would you like fries with that? A reader emails:
Interesting trivia bit re the D.C. metro french-fries case:

The case turns on Atwater, and when Atwater was argued (12/4/00, in the happy period between Bush v. Palm Beach and Bush v. Gore), the french-fries arrest was just weeks old, and was a headline topic in the D.C. news. So it came up at argument, in an exchange with J. Souter, joined J. Scalia and J. Kennedy. I've pasted in the segment below, and I've added the questioners where a new one started.

What is interesting about this argument is that this discussion, sans the french-fries mention, was quoted in the final opinion. The 5-4 was the odd lineup of Souter with Kennedy and the conservatives, with Souter writing. The opinion says, among other things, that there is no parade of horribles out there of people being arrested for petty offenses. Souter's opinion quotes his own Q at argument re "how bad is it out there?" from page 20 of the transcript. Here's where that passage continues into the french-fries (which come up again in Scalia's parting shot below):

[Souter Question in progress:] And the commonness of the practice leads me to question how many horrible cases like this one are there out there? Are we faced with a case in which the facts indeed are about as good for you as I think, you know, they could be, but are we, by the same token, faced with a case which is very rare and should not be the basis for constitutionalizing a general rule? How big is the problem.

MR. DE CARLI: Justice Souter, I've tried to determine how big the problem was by going to the Department of Justice, which of course provides [*19] the most authoritative statistics. Unfortunately, they don't address the issue. However, anecdotally, there, you know -- well, just a few weeks ago we saw the young girl arrested for not -- for eating french fries in the substation.

QUESTION: Where did we see this?

MR. DE CARLI: In the District of Columbia, I believe.

QUESTION: I hadn't seen it myself.

MR. DE CARLI: I'm sorry. It was in the --

QUESTION: I didn't see it.

QUESTION [Scalia]: He immerses himself in these briefs.

MR. DE CARLI: And that's good.

QUESTION [Kennedy]: It's not a constitutional violation for a police officer to be a jerk. And what we're trying to do is define whether there are some rules that we can work with. And yours seems to me so amorphous, and the brief of the respondents summarized four or five different tests being given by the amicus briefs and they're all different. And you're not even clear that your own tests -- you say on reflection this is adequate --

MR. DE CARLI: Well, Justice Kennedy, all of the tests provided by petitioners and their amici are actually remarkably similar in that they all recognize that there should be a limited amount of discretion for those close cases, however, we can carve out whether [*20] that be through offenses that involve -- of imminent threat of harm. Or if we call it a breach of the peace. Or if we draw a distinction between fine only and jailable, lines can be drawn. That's one point. To get back to Justice Scalia's comment about the fear of the problem of constitutionalizing everything, I refer to Justice Story's comment that the Fourth Amendment was indeed an embodiment of the common law.

QUESTION [Scalia]: What about deterrence? Don't you think people are going to be pretty unlikely to eat french fries on the subway in Washington.

MR. DE CARLI: That's correct, Justice Scalia --

QUESTION: And maybe in Lago Vista, not to belt up their kids?

MR. DE CARLI: Yes, but the problem --

QUESTION: Well is that worth nothing?

MR. DE CARLI: No. But that is confusing punishment with enforcement. Deterrence is a justification for punishment. And police officers should be enforcing laws and not punishing. Mr. Chief Justice, if I may, I'd like to reserve the remainder of my time.
You can access the portion of the transcript quoted via this link.
Posted at 14:35 by Howard Bashman



Also on today's broadcast of NPR's "Morning Edition": In addition to the segment about Chief Justice William H. Rehnquist's health, the broadcast contained segments entitled "Proposal Would Limit Three Strikes Law" and "Calif. Could Mandate DNA Samples from Felons."
Posted at 14:02 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Lawyers for Peterson Rest Their Case" and "Texas Judge Has Party, Sentences Fugitive."
Posted at 13:55 by Howard Bashman



Should sixteen- and seventeen-year-olds be subject to the death penalty for having committed murder? The U.S. Supreme Court oral argument transcript in Roper v. Simmons is available online at this link.
Posted at 12:15 by Howard Bashman



Today's rulings of note from the U.S. Court of Appeals for the D.C. Circuit: As luck would have it, both of today's decisions of note were written by Circuit Judge John G. Roberts, Jr.

The consequences visited on a twelve-year-old girl as a result of the DC Metrorail's "no tolerance for food policy" are not unconstitutional, the D.C. Circuit ruled today. The opinion begins:
No one is very happy about the events that led to this litigation. A twelve-year-old girl was arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later -- all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal. The district court described the policies that led to her arrest as "foolish," and indeed the policies were changed after those responsible endured the sort of publicity reserved for adults who make young girls cry. The question before us, however, is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution. Like the district court, we conclude that they did not, and accordingly we affirm.
And the first paragraph of today's other D.C. Circuit opinion of note begins: "The district judge in this case declined to sentence the defendant according to the Sentencing Guidelines because he disagreed with the Guidelines." And, not surprisingly, the first paragraph of that opinion ends, "The district judge's apparent election to sentence according to his own lights, rather than pursuant to the Sentencing Guidelines binding on him and on us, compels us to vacate and remand so that we may be certain Tucker is sentenced under the Guidelines and in accordance with the rule of law we are all duty-bound to uphold." You can access the complete opinion at this link.
Posted at 11:00 by Howard Bashman



"The court shows its age: As president, John Kerry would choose more moderate, mainstream people to replace any retiring justices": This editorial appears today in The Oregonian.

And Don Erler has an op-ed entitled "Courting constitutional disaster?" in today's issue of The Fort Worth Star-Telegram.
Posted at 10:33 by Howard Bashman



"'Two mommies' appeal dies; Colorado high court turns away case that roused GOP ire": This article appears today in The Rocky Mountain News.

From Virginia, The Associated Press reports that "Papers filed in gay-adoption appeal; They say birth certificates for children from Va. should bear adoptive parents' names."

And The Arkansas News Bureau reports today that "Support still strong for marriage amendment, poll shows."
Posted at 10:30 by Howard Bashman



"'Jane Roe' speaks in Spearfish": The Rapid City Journal contains this article today. And in related news, Norma McCorvey has today issued a press release entitled "Roe endorses Bush."
Posted at 10:27 by Howard Bashman



"U-M fights to recruit more blacks; Race case hurts school's image in students' eyes": This article appears today in The Detroit News.
Posted at 10:24 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit announces its decision in Lexmark International, Inc. v. Static Control Components, Inc.: In this closely-watched case involving the Digital Millenium Copyright Act and printer toner cartridges, each of the judges on the three-judge panel issued his own opinion. You can access the complete ruling at this link. And the Electronic Frontier Foundation offers much additional information about the case at this link.
Posted at 09:40 by Howard Bashman



"Rehnquist Recovering from Cancer Treatment": Today's broadcast of NPR's "Morning Edition" included this segment (Real Player required).
Posted at 09:35 by Howard Bashman



In news from Kansas: The Lawrence Journal-World reports today that "Jurors, ads voice support to retain judge; Door-to-door effort begins to keep Martin on bench."
Posted at 09:33 by Howard Bashman



The Associated Press is reporting: Gina Holland has an article headlined "Rehnquist May Return to Work at Top Court." And in somewhat related coverage, Terence Hunt reports that "Iraq, Rehnquist May Be 'October Surprises.'"
Posted at 09:15 by Howard Bashman



"US marshal gets full-time pay for a few hours' work; Runs errands while on duty": This article appears today in The Boston Globe.
Posted at 07:00 by Howard Bashman



Elsewhere in today's edition of The New York Times: An article reports that "U.S. Action Bars Right of Some Captured in Iraq."

In local news, an article reports that "On Stand, Terrorist's Lawyer Denies Aiding Violent Cause."

Lastly, two combatants from Bush v. Gore have op-eds today. Theodore B. Olson has an op-ed entitled "Counting on Controversy." And David Boies has an op-ed entitled "Rise of the Machines."
Posted at 06:50 by Howard Bashman



"Chief Justice Has Thyroid Cancer; The Supreme Court says Rehnquist underwent a tracheotomy, but will be back at work on Nov. 1": David G. Savage of The Los Angeles Times has this article today, along with a report headlined "Illness Adds to Urgency on Court's Direction." And in other coverage, The LATimes reports that "Thyroid Cancer Curable, Except With Rare Form; Though 85% of cases are easily treated, outside sources say Rehnquist may have a deadly type."

USA Today today contains articles headlined "Chief justice ill with cancer; Rehnquist's condition revives vacancies issue"; "One vacancy could reshape court"; and "Announcement leaves cancer experts guessing."

The Boston Globe reports that "Rehnquist has thyroid cancer; will keep schedule." Jan Crawford Greenburg and Naftali Bendavid of The Chicago Tribune report that "Rehnquist illness puts high court in spotlight; Who will nominate justices to an aging, often closely divided panel could become a key campaign issue." Michael McGough of The Pittsburgh Post-Gazette reports that "Chief Justice Rehnquist treated for thyroid cancer." The Washington Times reports that "Rehnquist's illness raises stakes in election." And Newsday reports that "Chief justice is ailing; Court: Rehnquist, 80, is fighting thyroid cancer, has surgery; news puts added stress on next week's election."

In other coverage, The New York Sun reports that "Rehnquist Ill, Making Court Election Topic." The Arizona Republic reports that "Rehnquist has cancer, U.S. has questions; Health may be crucial if election undecided." The Milwaukee Journal Sentinel reports that "Rehnquist's cancer underlines question of who'll name appointees." The Palm Beach Post reports that "Supreme Court moves to fore in Senate debate; The candidates clash over 'litmus tests' in voting on nominees to the high court." And The Lincoln (Neb.) Journal Star reports that "Rehnquist cancels plans to speak at NU Law College."

The Los Angeles Times contains an editorial entitled "Court Is Back in Voters' Sight" and an op-ed by Law Professor John C. Yoo entitled "Americans Are Electing a Supreme Court Too." The St. Petersburg Times today contains an editorial entitled "Rehnquist's reminder: The news that a Supreme Court justice is being treated for cancer should remind voters of a president's power to shape the high court." Newsday contains an editorial entitled "Rehnquist's ailment is a reminder of the stakes in Supreme Court picks." And The Arizona Republic's television writer has an essay entitled "Pundits push election to edge of life and death."
Posted at 06:32 by Howard Bashman



"Toobin: A Rehnquist vacancy would be huge." CNN.com makes available this transcript.
Posted at 06:20 by Howard Bashman



Monday, October 25, 2004
In Tuesday's edition of The Washington Post: Charles Lane will have a front page article headlined "Rehnquist Has Surgery For Cancer In Thyroid."

And in other news, "Malvo Is Set To Admit Guilt In Spotsylvania; Deal Calls for Teen Sniper To Get Life for Shootings."
Posted at 22:40 by Howard Bashman



"Rehnquist treated for thyroid cancer; Supreme Court announcement adds 'urgency' to election": Michael Doyle will have this article tomorrow in The Sacramento Bee.
Posted at 22:32 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Rehnquist Hospitalized for Treatment of Thyroid Cancer."

Shannon P. Duffy reports that "Lawyer Ordered to Pay $45K for Frivolous Appeals."

And Jonathan Ringel reports that "11th Circuit Ruling May Head Off Forum Shopping; As part of dismissal, judge imposed conditions for refiling."
Posted at 22:30 by Howard Bashman



"Georgia Court Strikes Down Law on Hate": Tuesday's edition of The New York Times will contain this article. And The Atlanta Journal-Constitution offers a news update headlined "Georgia Supreme Court overturns hate crime law."
Posted at 21:58 by Howard Bashman



"Rehnquist treated for thyroid cancer; Justice's health shifts high court's future to election forefront": Allen Pusey will have this article in Tuesday's edition of The Dallas Morning News.
Posted at 21:55 by Howard Bashman



"Rehnquist Treated for Thyroid Cancer, Supreme Court Says": Linda Greenhouse and Katharine Q. Seelye will have this article in Tuesday's edition of The New York Times.
Posted at 21:45 by Howard Bashman



"The Length of Law Review Articles": Orin Kerr offers these thoughts at "The Volokh Conspiracy."
Posted at 21:20 by Howard Bashman



"Sickness of top judge adds to poll's significance": This article will appear in Tuesday's issue of The Times of London.
Posted at 21:09 by Howard Bashman



"Prognosis for Rehnquist Depends on Which Type of Thyroid Cancer He Has": Lawrence K. Altman, M.D. will have this article in Tuesday's edition of The New York Times.
Posted at 21:04 by Howard Bashman



President Bush "said that there will be an opportunity to appoint a Supreme Court justice shortly after his inauguration, and perhaps three more high-court vacancies during his second term": That quote comes from the cover story, written by Ron Suskind, published in the October 17, 2004 issue of The New York Times Magazine. Nina Totenberg mentioned this quote in her "All Things Considered" report this evening about Chief Justice William H. Rehnquist's illness.
Posted at 20:55 by Howard Bashman



"Chief Justice Rehnquist treated for thyroid cancer": Knight Ridder Newspapers provide this report, together with an article by Stephen Henderson headlined "Revelation of Rehnquist's illness typical of Supreme Court's secrecy."
Posted at 20:24 by Howard Bashman



Totenberg two-fer: In addition to the segment about Chief Justice William H. Rehnquist's cancer diagnosis, on tonight's broadcast of NPR's "All Things Considered" Nina Totenberg also had a segment entitled "The 2004 Election and the Courts." Real Player is required to launch these audio segments.
Posted at 19:11 by Howard Bashman



President Bush is defeated in his bid for reelection but then uses a recess appointment to select the next Chief Justice of the United States: That is among the more extraordinary scenarios discussed by Lyle Denniston in this recent post at "SCOTUSblog."
Posted at 19:00 by Howard Bashman



"Rehnquist Hospitalized With Thyroid Cancer": David G. Savage of The Los Angeles Times provides this news update.
Posted at 18:04 by Howard Bashman



Charles Lane of The Washington Post reports on the impact Chief Justice William H. Rehnquist's medical condition may have: Chuck was interviewed today on MSNBC, and you can view the video at this link.
Posted at 17:44 by Howard Bashman



"Press Release Regarding Chief Justice William H. Rehnquist": The U.S. Supreme Court's official press release issued today can be accessed here.
Posted at 17:42 by Howard Bashman



Available online from Slate: Slate has just posted online a jurisprudence essay by Dahlia Lithwick entitled "Benched? What Chief Justice Rehnquist's cancer means for the election" and an explainer essay entitled "How Does a Tracheotomy Work? Will Rehnquist be able to talk next week?"
Posted at 17:35 by Howard Bashman



U.S. Court of Appeals judge sitting by designation issues opinion addressing whether the term "specially designed" is unconstitutionally vague: A judge visiting from the U.S. Court of Appeals for the Federal Circuit issued this opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit.
Posted at 17:30 by Howard Bashman



"Chief Justice Rehnquist Hospitalized with Cancer": This evening's broadcast of NPR's "All Things Considered" contains this report featuring Nina Totenberg (Real Player required).
Posted at 17:20 by Howard Bashman



Thyroid cancer, in the news: The American Cancer Society has available online information addressing "What Is Thyroid Cancer?" and also offers a "Detailed Guide to Thyroid Cancer."

The National Cancer Institute, meanwhile, offers this "Thyroid Cancer Home Page."
Posted at 16:28 by Howard Bashman



"To Fight Another Day: The real reason Guantanamo detainees have returned to the battlefield." Phillip Carter has this jurisprudence essay online at Slate.
Posted at 16:12 by Howard Bashman



"Rehnquist Cancer Shows Worrying Signs, Experts Say": Reuters provides this update. The Associated Press, meanwhile, reports that "Thyroid Cancer Afflicts Thousands Yearly."
Posted at 16:05 by Howard Bashman



U.S. Court of Appeals for the Second Circuit affirms order authorizing the federal government to involuntarily treat a criminal defendant with anti-psychotic medication to render him competent for trial: You can access today's ruling at this link.
Posted at 16:00 by Howard Bashman



U.S. District Court for the District of Columbia issues ruling in lawsuit brought by black Secret Service special agents who allege a pattern and practice of racial discrimination in job promotions: You can access the ruling, dated yesterday, at this link. On Saturday, I had this post reporting on a petition for writ of mandamus that the special agents' lawyers had filed in the D.C. Circuit complaining of the district court's delay in ruling on this matter.
Posted at 15:55 by Howard Bashman



"U.S. Chief Justice Undergoes Surgery for Thyroid Cancer": The New York Times provides this news update. The Washington Post offers a news update headlined "Chief Justice Rehnquist Hospitalized." The Los Angeles Times offers a news update headlined "Rehnquist Hospitalized With Thyroid Cancer." And CNN.com reports that "Rehnquist has thyroid cancer surgery; Chief justice expected back on bench next week."

From the wire services, Gina Holland of The Associated Press reports that "Rehnquist Has Cancer, Will Keep Working." The AP also offers items headlined "Biography Box for William Rehnquist" and "Supreme Court Justices' Health Conditions." And Reuters reports that "Justice Rehnquist Has Cancer, Raising Election Issue."

Today's broadcast of NPR's "Day to Day" contained a segment entitled "Chief Justice Rehnquist Treated for Thyroid Cancer" (Real Player required).

Finally, Lyle Denniston of "SCOTUSblog" reports here that "Chief Justice has surgery."

Thanks to all of the readers who emailed to make sure I did not miss this news. The story broke just as I was leaving to meet with a potential new appellate client, and Blogger software was not cooperating in allowing me to make visible the posts shown immediately below. (The only good news was that I have been hired for the appellate engagement, which arose after a large Philadelphia firm had to withdraw its acceptance of the matter when a conflict became apparent.)
Posted at 15:22 by Howard Bashman



"Chief Justice Rehnquist Has Thyroid Cancer": Reuters provides this report.
Posted at 12:11 by Howard Bashman



BREAKING NEWS: CNN.com is reporting that "Supreme Court Chief Justice William Rehnquist hospitalized for treatment of thyroid cancer, senior government officials tell CNN."
Posted at 12:03 by Howard Bashman



"Ga. Court Throws Out Hate Crimes Law": The Associated Press provides this report on a ruling that the Supreme Court of Georgia issued today.
Posted at 11:50 by Howard Bashman



"New book by Al-Arian prompts fresh look at Son of Sam law; Which criminals get to profit from their work depends on where they are; In Florida, Sami Al-Arian is okay to cash in on his book of poems": This article appears today in The St. Petersburg Times.
Posted at 11:45 by Howard Bashman



"Should Colorado split its electoral votes?" That's the subject of this week's "Debate Club" feature online at legalaffairs.org. Participating in the debate this week are Law Professors Richard Epstein and Sanford Levinson.
Posted at 10:34 by Howard Bashman



"Court battle over election is already on": The San Antonio Express-News contains this article today.
Posted at 10:30 by Howard Bashman



In judicial election-related news: The Cincinnati Enquirer reports today that "Ohio Supreme Court opponents disagree on revealing views; Incumbent won't speculate." (See also my monthly appellate column from May 2003, titled "Wisconsin's Voters Show That They Prefer The 'Stealth' Candidate For Judicial Office.")

From West Virginia, The Wheeling News-Register reports today that "Exec Spends To Oust McGraw."

And from Alabama, The Montgomery Advertiser reports that "Study shows spending in millions."
Posted at 10:18 by Howard Bashman



Odds and ends: Because my day job is slated to cause me to be out of town on Tuesday, November 2, 2004, I had the pleasure of voting by absentee ballot last night. As reported here, my ballot was "Naderless."

When I returned to my office two Fridays ago from Kansas City, Missouri, I saw that the mail that had arrived during the several days I had spent in the Midwest contained two notices of appellate oral arguments that I would be delivering over the next several weeks. The first will occur this Wednesday afternoon before a three-judge panel of the U.S. Court of Appeals for the Third Circuit sitting in Philadelphia. That will be the final appellate oral argument that I will deliver before reaching the age of 40, sneaking in under the wire by about eleven hours or so.

At least once in the past, I had mused online here whether I would keep "How Appealing" in existence past my 40th birthday. For better or worse, I can assure readers that this blog will continue to exist. I will, however, attempt to bring a new level of maturity to the site, so that only every other posting will be about U.S. Supreme Court Justice bobblehead dolls and the burgeoning jurisprudence of sex toys. One other change will occur -- the "20 questions for the appellate judge" feature, which has seen twenty interviews conducted by me and one conducted by a guest interviewer, has reached an end. In its place, I will be linking to the "Questions Presented" feature soon to debut at the "Underneath Their Robes" blog. And with all of my new-found spare time, I will accomplish more outside writing, beginning with a piece to be published in 2005 in The Journal of Appellate Practice and Process (more details to follow).

In addition to being away from the blog for a bit on Wednesday afternoon and early next week, I will also be away for the early part of this afternoon, in order to meet with a potential new appellate client at the office of the client's trial lawyer.

Finally, those readers who are looking for the easiest way to stay up-to-date with new posts on a variety of different blogs should give the site "Bloglines" a try. I have been using it for over a week now to view new posts on nearly forty different blogs, and it is a huge time-saver and works wonderfully. The service immediately provides access to only new posts and old posts that have been updated on as many or as few blogs as you choose to subscribe to. Even better, the service is free-of-charge and easy-to-use. I have added a "subscribe via Bloglines" link to the right-hand column of this blog, or you can subscribe to "How Appealing" manually by adding the link to this blog's XML/RSS feed to your subscription list after you have established a "Bloglines" account.
Posted at 09:24 by Howard Bashman



"Judges who kill and judges who don't": Arkansas News Bureau columnist John Brummett has this essay today.
Posted at 07:50 by Howard Bashman



"11 states tied up in Ayers-like lawsuits; Ala. case ended with $100 million going to two historically black colleges": This article appears today in The Clarion-Ledger of Jackson, Mississippi.
Posted at 07:00 by Howard Bashman



"High court gets crane collapse case; Arguments to begin 5 years after 3 men died at stadium": The Milwaukee Journal Sentinel contains this article today.
Posted at 06:55 by Howard Bashman



"U-M critic Scalia will visit law school; Supreme Court justice appears at university he blasted for discrimination in key ruling": This article appears today in The Detroit News.
Posted at 06:52 by Howard Bashman



"The Choice": A comment published today in The New Yorker magazine contains the following two paragraphs:
President Bush often complains about Democratic obstructionism, but the truth is that he has made considerable progress, if that's the right word, toward the goal of stocking the federal courts with conservative ideologues. The Senate has confirmed two hundred and one of his judicial nominees, more than the per-term averages for Presidents Clinton, Reagan, and Bush senior. Senate Republicans blocked more than sixty of Clinton's nominees; Senate Democrats have blocked only ten of Bush's. (Those ten, by the way, got exactly what they deserved. Some of them--such as Carolyn Kuhl, who devoted years of her career to trying to preserve tax breaks for colleges that practice racial discrimination, and Brett Kavanaugh, a thirty-eight-year-old with no judicial or courtroom experience who co-wrote the Starr Report--rank among the worst judicial appointments ever attempted.)

Even so, to the extent that Bush and Ashcroft have been thwarted it has been due largely to our still vigorous federal judiciary, especially the Supreme Court. Like some of the Court's worst decisions of the past four years (Bush v. Gore again comes to mind), most of its best--salvaging affirmative action, upholding civil liberties for terrorist suspects, striking down Texas's anti-sodomy law, banning executions of the mentally retarded--were reached by one- or two-vote majorities. (Roe v. Wade is two justices removed from reversal.) All but one of the sitting justices are senior citizens, ranging in age from sixty-five to eighty-four, and the gap since the last appointment--ten years--is the longest since 1821. Bush has said more than once that Antonin Scalia and Clarence Thomas are his favorite justices. In a second Bush term, the Court could be remade in their images.
You can access the complete text at this link.
Posted at 06:46 by Howard Bashman



"Independence is Specter's style; The veteran senator is known for going his own way -- at times putting him at odds with the GOP": This article appears today in The Philadelphia Inquirer.
Posted at 06:35 by Howard Bashman



Sunday, October 24, 2004
"Chasing Terrorists or Fears? Court rulings call the attorney general's claims of homefront success into question." The Los Angeles Times contains this article today.
Posted at 23:20 by Howard Bashman



"Gay-marriage vote sparks fight in state races; Many people see the issue as central": This article appears today in The Boston Globe.
Posted at 23:08 by Howard Bashman



"Bush v. Kerry? Don't Do It, Justices." Law Professor Garrett Epps has this op-ed today in The Washington Post.
Posted at 22:58 by Howard Bashman



"Legal Pressure May Chill Newsgathering": The Associated Press provides this report.
Posted at 22:38 by Howard Bashman



"Six Pitcairn men found guilty of sex crimes": The Australian Broadcasting Corporation provides this report. Update: The Associated Press reports that "Six on Pacific Island Guilty of Sex Abuses."
Posted at 22:32 by Howard Bashman



"Location of Polling Places at Stake in Ohio": This evening's broadcast of NPR's "All Things Considered" contained this segment (Real Player required).
Posted at 22:24 by Howard Bashman



"Slow Pace of Pentagon's Courts Set Off Friction at White House": This lengthy article will appear in Monday's edition of The New York Times. This article is the second in a two-part series entitled "Tough Justice." Part one, published today, can be accessed here.
Posted at 21:30 by Howard Bashman



"Judgment day on Pitcairn island": Monday's edition of The New Zealand Herald contains this article. And Monday's issue of The Herald Sun of Australia reports that "British outsiders show who's boss."
Posted at 21:02 by Howard Bashman



"U.S. detainees: Debate rages on; 'I am a civilian, so why am I being tried in a military court?'": This article consisting of a report from Guantanamo Bay, Cuba will appear in Monday's issue of Newsday.
Posted at 21:00 by Howard Bashman



"Memo Lets CIA Take Detainees Out of Iraq; Practice Is Called Serious Breach of Geneva Conventions": The Washington Post today contains a front page article that begins, "At the request of the CIA, the Justice Department drafted a confidential memo that authorizes the agency to transfer detainees out of Iraq for interrogation -- a practice that international legal specialists say contravenes the Geneva Conventions."
Posted at 19:44 by Howard Bashman



In news from Vermont: The Associated Press offers related reports headlined "High court justice's role as litigant is questioned" and "Judge asks Board to review conduct."

And last Wednesday, The Rutland Herald reported that "State Supreme Court visits city."
Posted at 19:42 by Howard Bashman



"Moses here, Moses there": James J. Kilpatrick of Universal Press Syndicate has this essay about the U.S. Supreme Court's grant of review in two cases involving the constitutionality of Ten Commandments monuments.
Posted at 18:50 by Howard Bashman



In news from Pitcairn Island: The Independent (UK) is reporting that "Judgment day arrives in the South Pacific; Descendants of the 'Bounty' mutineers will learn today whether claims of endemic sexual abuse are upheld." And last Tuesday, The Los Angeles Times contained an article headlined "The Stain on a Speck in the Sea; Tiny Pitcairn, home to descendants of Bounty mutineers, is in turmoil as Britain charges that raping girls has become part of the culture."
Posted at 18:44 by Howard Bashman



"Breyer Questions His Own Impartiality": The Associated Press provides this report. Earlier today I collected additional news coverage of this story at this link.
Posted at 18:40 by Howard Bashman



In Cedar Rapids, Iowa, Vice President and Mrs. Cheney speak about judicial nominations: The following comes from a transcript of remarks at a town hall meeting yesterday afternoon:
Q Mr. Vice President and Lynne, thank you for being here, first of all. My question really is with regards to the Senate rules that are really circumventing the appointments of our President. In doing so, are they really serving their constitutional role? And if not, and there has been some question raised about this by members of the Senate, why has not something been done? And if it is being done, would you speak to that? And is there a serious effort to ameliorate this?

THE VICE PRESIDENT: Talking now about appointments to the federal bench? Yes. Yes, it is a problem. And it has developed just in this last Congress. Specifically, the Constitution provides for us, for the President to nominate judges to go on the federal bench. And the Senate is charged with the responsibility to advise and consent on those nominations. Historically, for nominees to the federal bench, all that was required was a simple majority vote. You get 51 votes in the Senate today, you ought to get confirmed.

What has happened is the Democrats have decided to pick out and oppose a certain number of nominees, and to use the filibuster to block their approval. Filibuster under the Senate rules requires 60 votes, instead of just a simple majority of 51. And so, in effect, they've imposed a new requirement by using the filibuster to block judicial nominees. Historically, that has not been the case. That is the filibuster has generally been viewed as not applying to judicial appointments. And the motive that is behind it, I think, because of the individuals that they've picked out tend to focus on the appellate courts, the circuit courts of appeal around the country. We've worked out arrangements in many cases to get district court judges confirmed. But others we've not been able to get on the circuit court of appeals. And they're keeping some remarkable people off the bench. I can think of Janice Rogers --

MRS. CHENEY: Janice Rogers Brown.

THE VICE PRESIDENT: Janice Rogers Brown from California. She is a member of the California State Supreme Court. She is an African American, the first African American woman on the California State Supreme Court. She's got a great personal story -- daughter of sharecroppers, got an education, worked her way through school, and has done a superb job -- generally viewed as eminently qualified. And they've decided to block her nomination.

MRS. CHENEY: Miguel Estrada.

THE VICE PRESIDENT: Miguel Estrada is another one. Miguel Estrada is a man who was born in Honduras, came to this country, learned English, went to school, worked his way through Harvard Law, was editor of the Harvard Law Review, held a prominent post in the Justice Department under both Clinton and Bush administrations, and he, too, has been blocked from a circuit court appointment requiring a filibuster to let him through. These are people who can easily get 53, 54, 55 votes, but because they can't get 60 votes, because the Democrats have approached it on a block, they're kept from doing it.

A good friend of mine, a man named Bill Myers, used to work for my colleague Al Simpson from Wyoming, has been working in Idaho, was nominated to the Ninth Circuit. He's been blocked. He had 55 votes cold on the floor, but they wouldn't let it come to a vote because they used the filibuster. He was nominated to the Ninth Circuit. The Ninth Circuit was the circuit that recently handed down the decision that said when we pledge allegiance to the flag, we can't say "under God."

AUDIENCE: Booo!

THE VICE PRESIDENT: Yes. Sounds to me like they could use some new judges on that circuit. (Applause.)

There are a couple of solutions. One is elect more Republican senators. I think that helps. (Applause.) There are other -- there are some procedural moves that have been contemplated from time to time, in terms of a challenge on the floor of the Senate that basically would involve moving to change the rules of the Senate and do that by a majority vote, in effect, specifically exempting judicial nominations from the filibuster rule. That would probably -- some people call that the, sort of the nuclear option, that would start an amazing battle on the floor of the Senate. Some of us think there's a certain appeal to that kind of an approach. (Applause.)
You can access the complete transcript at this link.
Posted at 13:50 by Howard Bashman



"Amendments seek to reverse high court's rulings": The Honolulu Advertiser contains this article today.
Posted at 13:48 by Howard Bashman



"Baby's fate may rest on decision of justices": This article appears today in The Cleveland Plain Dealer.
Posted at 13:47 by Howard Bashman



"Convicted murderer still holds law license": Columnist Eric Heyl has this essay today in The Pittsburgh Tribune-Review.
Posted at 13:42 by Howard Bashman



Justices serving on Supreme Court of New Hampshire ask that State's voters to vote "no" on constitutional amendment that would give administrative control of all New Hampshire courts to the legislature: The Nashua Telegraph today prints what it describes as "An 'extraordinary' note to voters from state Supreme Court justices: Vote no on constitutional question" along with a related article headlined "Some questioning ballot question."

In other coverage, The Portsmouth Herald today contains an article headlined "Suit battles to balance power -- N.H. state justices argue constitutional amendment is unnecessary."
Posted at 13:35 by Howard Bashman



"Breyer addresses Stanford audience; Justice discusses Florida decision": This article appears today in The San Jose Mercury News. In other coverage, The San Francisco Chronicle today contains an article headlined "Judicial activism on the docket at Stanford event; 3 alumni discuss a popular topic: judicial activism."

Justice Stephen G. Breyer was at Stanford Law School yesterday to participate in a program titled "The Role of Politics and the Rule of Law: Judicial Independence in the 21st Century."
Posted at 10:50 by Howard Bashman



Ten Commandments news and commentary: The Decatur (Ala.) Daily today contains an article headlined "Battle with Roy Moore among civil rights lawyer's many fights."

And The Fort Worth Star-Telegram today contains an editorial entitled "Take two tablets..."
Posted at 10:48 by Howard Bashman



"High court: Nader won't go on Pa. ballot." The Philadelphia Inquirer contains this article today.
Posted at 10:45 by Howard Bashman



"KU law professor supports Martin; Criminal procedure expert says judge acted appropriately in extradition case": This article appears today in The Lawrence Journal-World.
Posted at 10:25 by Howard Bashman



Law Professor Rick Hasen comments on the Sixth Circuit's reversal yesterday of the provisional ballot ruling involving Ohio: You can access his comments here, at the "Election Law" blog.

In news coverage of yesterday's reversal, The Cleveland Plain Dealer reports that "Court won't allow voting in wrong precincts; In blow to Democrats, appeals judges overturn provisional-ballot ruling." The Toledo Blade reports that "Ohio won't tally votes at wrong sites; Ruling backs Blackwell on provisional ballots." And The Cincinnati Enquirer today contains an article headlined "Appeals court decision: Vote in your precinct."

Update: The Sixth Circuit's order is available online here.
Posted at 08:50 by Howard Bashman



"Judicial Races in Several States Become Partisan Battlegrounds": Adam Liptak today has this front page article in The New York Times.
Posted at 08:45 by Howard Bashman



Saturday, October 23, 2004
In news from Florida: Sunday's edition of The Tampa Tribune will contain an article headlined "Citizen Initiatives Likely To Be Attacked In Court."
Posted at 23:05 by Howard Bashman



The Los Angeles Times is reporting: Today's newspaper contains an article headlined "Prosecutor's Lips Still Sealed in Probe of Leaked Information; Who disclosed to a columnist the name of a CIA operative? A federal investigation is entering its second year with no conclusion in sight."

And yesterday's newspaper contained articles headlined "Rulings Throw U.S. Sentencing Guides Into Limbo; Two decisions holding that juries, not judges, must decide punishment enhancements cause confusion for federal jurists and prosecutors" and "Bush Pushes Stance Against 'Junk Lawsuits'; His pitch for limits on medical malpractice liability, though not a major concern among voters, serves at least a few political goals."
Posted at 22:48 by Howard Bashman



"SEC Asks Appeals Court To Reinstate AOL Lawsuit": The Washington Post today contains this article reporting on an amicus brief recently filed in the U.S. Court of Appeals for the Ninth Circuit.
Posted at 22:30 by Howard Bashman



Two articles about three-strikes: On Thursday, The Los Angeles Times published an article headlined "Three-Strikes Debate Centers on Early-Outs; Prop. 66 backers say 4,000 inmates would be eligible; Opponents say it's more like 26,000."

And on Wednesday, The LATimes contained an article headlined "Voters Favor Scaling Back 3-Strikes Law; A decade after passing strict sentencing rules, most want changes; They also support a stem cell research measure, one of 16 on the ballot."
Posted at 22:10 by Howard Bashman



"Payout in death may be state's biggest; But challenge looms for 'loophole' allowing jury to ignore malpractice cap": This article will appear in Sunday's edition of The Milwaukee Journal Sentinel.
Posted at 21:54 by Howard Bashman



"Ohio Provisional Ballot Ruling Reversed": The Associated Press reports here that "A federal appeals court ruled Saturday that provisional ballots Ohio voters cast outside their own precincts should not be counted, throwing out a lower-court decision that said such ballots are valid as long as they are cast in the correct county."
Posted at 21:51 by Howard Bashman



In judicial election-related news: The Chicago Tribune reports today that "Malpractice debate pours cash on race for justice."

The Cincinnati Enquirer reports today that "Supreme Court pits tried, true vs. fresh, new; Tort reform, school funding show candidates' polarity."

The Seattle Times reports today that "State Supreme Court races lack usual mystery."

And from Montana, The Great Falls Tribune reports today that "Younkin-Nelson race attracting chunk of change; Lawyers, others pouring money into close court race."
Posted at 18:54 by Howard Bashman



In Presidential election-related news: The Boston Globe reports today that "Another tight race could end in court."

The San Francisco Chronicle reports today that "Legal battles could cloud outcome in swing states; Fraud allegations and lawsuits over voting equipment."

The Chicago Tribune today reports that "Eased rules on special ballots battled; Case involving thousands of Ohio, Michigan votes may hit Supreme Court."

The Palm Beach Post reports today that "Outcome likely to require patience."

And The South Florida Sun-Sentinel reports today that "Specter of 2000’s fiasco still menaces."
Posted at 18:50 by Howard Bashman



"Taco trip becomes fight for rights": The Gloucester County Times contains this article today.
Posted at 18:44 by Howard Bashman



"Protesters want Baker case data; U.S. judge to decide if lawyer must tell what she was told": This article appears today in The Dayton Daily News.
Posted at 18:42 by Howard Bashman



"Governor To Take Terri Schiavo Case To U.S. High Court": The Tampa Tribune contains this article today.
Posted at 18:36 by Howard Bashman



"The courts' future: Election will decide a generation's justice." This editorial appears today in The Daytona Beach News-Journal.
Posted at 16:59 by Howard Bashman



"Starr: Church, state should work together." This article appears today in The Salem (Ore.) Statesman Journal.
Posted at 16:50 by Howard Bashman



Judge Posner misquoted? The blog "Underneath Their Robes" provides the details here. Update: More here.
Posted at 16:28 by Howard Bashman



"California Rethinking '3-Strikes' Law": This article will appear in Sunday's edition of The New York Times.
Posted at 16:21 by Howard Bashman



Justice Antonin Scalia visits New Zealand: The New Zealand Herald today contains an article that begins, "To lawyers assembled in Auckland from all around the world yesterday, their lunch speaker needed no introduction. Justice Antonin Scalia is the most conservative judge of the United States Supreme Court. His views are hailed by some but feared by others, who worry that a re-elected George W. Bush might make him America's next chief justice."

Of course, back in November 2002, law.com's Tony Mauro had an article headlined "Could Scalia Be the Chief?"
Posted at 16:02 by Howard Bashman



"High Court Won't Put Nader on Pa. Ballot": The Associated Press provides this report.
Posted at 16:00 by Howard Bashman



"The Choice on Courts": This editorial appears today in The Washington Post. The editorial concludes, "The possibility of conservative judicial radicalism, however overstated by liberal interest groups, certainly is greater today than the possibility of out-of-control liberal activism."
Posted at 15:55 by Howard Bashman



Ten Commandments news: The Washington Post today contains articles headlined "Beliefs Carved In Stone; Christians, Atheists Gather At Ten Commandments Rock" and "A New Judgment Day For Decalogue Displays; As Issue Nears High Court, Argument Develops Over Differing Versions of Ten Commandments." And The Birmingham News reports that "Atheists jeer as monument hits D.C.; National Mall stop draws protesters, curious supporters."

From Minnesota, The Duluth Budgeteer News reports that "Monument is back on display."

And from Maryland, The Cumberland Times-News reports that "Commissioners hear from citizens in Decalogue flap; Officials, out of town on moving day, deny making covert decision to transplant granite monument."
Posted at 15:45 by Howard Bashman



What does Brazil's Supreme Federal Tribunal think it is, the old D.C. Circuit? The Knight Ridder Newspapers offer an article headlined "Brazil's high court rejects a slight liberalization of the country's abortion laws" that observes, "The debate on the question was so contentious that two justices challenged each other to step outside for a fight outside chambers."
Posted at 15:40 by Howard Bashman



"'The People Themselves': Judicial Populism." In tomorrow's edition of The New York Times Sunday Book Review, Law Professor Laurence H. Tribe will have this review of the book "The People Themselves: Popular Constitutionalism and Judicial Review" by Larry D. Kramer.

Back in July 2004, The New Republic published Seventh Circuit Judge Richard A. Posner's review of the very same book.
Posted at 14:42 by Howard Bashman



"Rejected by 3-member panel, Lambert appeals to full court": This article appears today in The Lancaster (Pa.) New Era.
Posted at 14:40 by Howard Bashman



"Evangelical law students sue Hastings": Bob Egelko has an article today in The San Francisco Chronicle that begins, "The Christian Legal Society sued UC Hastings College of the Law on Friday for refusing to recognize a student chapter on its campus because the organization bars gays, lesbians and non-Christians as members."
Posted at 13:45 by Howard Bashman



"After Terror, a Secret Rewriting of Military Law": Sunday's edition of The New York Times will contain an article that begins, "In early November 2001, with Americans still staggered by the Sept. 11 attacks, a small group of White House officials worked in great secrecy to devise a new system of justice for the new war they had declared on terrorism."
Posted at 13:35 by Howard Bashman



"Lawyer Who Fought Pledge Assails Courts on Custody": The New York Times today contains this article reporting on a speech that Michael A. Newdow delivered yesterday at New York Law School.
Posted at 12:52 by Howard Bashman



United States Secret Service, on television and in the news: Tomorrow night, the National Geographic Channel will air a documentary entitled "Inside the U.S. Secret Service." The Washington Post yesterday reviewed the program in an essay entitled "Secret Service Film Goes Behind the Sunglasses," and yesterday's review in The New York Times was headlined "Protecting the President, Down to the Very Last Detail."

So what's the appellate angle? As explained in this press release issued yesterday, "Representatives of the Black Secret Service Agents (BASS) today instructed their attorneys to file a Writ of Mandamus in the U.S. Court of Appeals for the District of Columbia Circuit, compelling the court to expedite their class action race discrimination suit filed in 2000." I have obtained a copy of the petition for writ of mandamus filed yesterday in the D.C. Circuit, and you can access it online at this link (84-page scanned PDF file).
Posted at 10:50 by Howard Bashman



A post in which I mention at least one appellate seminar that I will be neither presenting at nor attending: November 12-14, 2004 in Dallas, Texas, the Council of Appellate Lawyers of the ABA Judicial Division's Appellate Judges Conference will co-host a program titled "Council of Appellate Lawyers & Appellate Judges Summit." The program looks to be quite good, and lots of CLE credit is available.

I won't be attending the program in Dallas because I am one of the faculty members presenting at DRI's fifth "Appellate Advocacy Seminar" in New York City, which occurs on November 11-12, 2004. It too offers many CLE credits. After the seminar concludes, my family will be joining me to spend the weekend in New York City, where we will enjoy a Broadway show and do lots of other fun stuff.
Posted at 10:40 by Howard Bashman



"The many faces of 'three strikes'": This article appears today in The Sacramento Bee.
Posted at 10:38 by Howard Bashman



Branching out: Law Professor Douglas A. Berman, author of the currently-indispensable blog "Sentencing Law and Policy," is guest-blogging this weekend at "Crescat Sententia."

In his first guest post, Professor Berman writes that "my own 'brand of pseudo-intellectual pageantry' centers around sports." For better or worse, Professor Berman didn't have to leave his own blog to discuss sports, as demonstrated by recent news involving Rafael Furcal or the actions of Boston police that caused the death of Victoria Snelgrove, a 21-year-old Emerson College student, in the melee that followed the game in which the Red Sox won the American League pennant.

Of course, it will be particularly impressive when Professor Berman's blog spawns one (as "Crescat Sententia" itself has done) or even two (no matter how lame) parody blogs. For that, after all, is the true mark of accomplishment and distinction in this biz.
Posted at 10:15 by Howard Bashman



"A Victory for Liberty: We applaud the 11th Circuit's defense of the Fourth Amendment." This editorial appeared yesterday in The Harvard Crimson.
Posted at 10:11 by Howard Bashman



"Direction may change for Yale suit against DoD": The Yale Daily News yesterday contained an article that begins, "A year to the month since Yale Law School faculty members filed suit against the U.S. Department of Defense over military recruitment policy, the case is still awaiting adjudication and, due to new legislation, the context of the arguments in the case may soon change."
Posted at 10:09 by Howard Bashman



Friday, October 22, 2004
"Court sends message to DAs about 'message-sending'": The Associated Press provides this report on a ruling (majority opinion here; concurring opinion here) that the Supreme Court of Pennsylvania issued yesterday.
Posted at 23:44 by Howard Bashman



"At stake Nov. 2: Abortion rights?" M.J. Andersen has this op-ed today in The Providence Journal.
Posted at 23:40 by Howard Bashman



In judicial election-related news: From Ohio, The Toledo Blade today contains articles headlined "GOP justices raise 3 times more than Democratic rivals" and "High-court candidates disagree on donations; Lanzinger: Contributions cannot influence decisions."

The St. Louis Post-Dispatch reports today that "Bar association asks judicial candidates to pull attack ads."

And The Atlanta Journal-Constitution reports today that "Big bucks buy blitz in judge's race."
Posted at 23:30 by Howard Bashman



"Ottawa sides with Big Tobacco in court": The Toronto Globe and Mail contains this article today.
Posted at 23:25 by Howard Bashman



"State high court will not revisit Schiavo matter; The Supreme Court won't reconsider its ruling that declared 'Terri's Law' unconstitutional": This article appears today in The St. Petersburg Times. The Orlando Sentinel reports that "Justices let ruling stand on Schiavo; Decision paves way to stop feeding tube." And The Miami Herald contains an article headlined "Court: Terri's Law ruling stands."
Posted at 23:22 by Howard Bashman



Available online from law.com: An article reports that "Judicial Races Get Meaner; New litigation tactics, hard cash mark bench battles."

In news pertaining to the U.S. Court of Appeals for the Eleventh Circuit, Jonathan Ringel reports that "Mural Ban Sparks Debate Over School-Sponsored Speech."

And an article is headlined "David Boies: the Lawyer, the Book ... the Movie?"
Posted at 22:22 by Howard Bashman



"Supreme Court could once again decide election": The Scripps Howard News Service provides this report.
Posted at 22:15 by Howard Bashman



The Associated Press is reporting: An article reports that "Wife Invokes Supreme Court to Tout Kerry." In other election-related news, Anne Gearan reports that "Provisional Vote Fight Nears High Court."

From California, David Kravets reports that "Christian college group sues, says excluding gays, nonbelievers is OK." And in news from Maine, "Court upholds dismissal of challenge to ban on religious school funding."
Posted at 22:10 by Howard Bashman



"Order of the court": The Lebanon (Pa.) Daily News today contains an editorial focusing on the observation that "No matter if the winner is George W. Bush or John Kerry, the chances are that he will have ample opportunity to determine the direction of the U.S. Supreme Court."
Posted at 17:46 by Howard Bashman



"Nader Loses Bid to Get on the Ohio Ballot": Reuters provides this report on a ruling that the Supreme Court of Ohio issued today.

Meanwhile, in Pennsylvania, the lone dissenting Justice from the Supreme Court of Pennsylvania's ruling rejecting Ralph Nader's bid to get on the Pennsylvania ballot explained the reasons for his vote in this dissenting opinion issued today.
Posted at 17:41 by Howard Bashman



"Court Limits Media Protection on Remarks": The Associated Press provides this report on a ruling (majority opinion here; concurring opinion here) that the Supreme Court of Pennsylvania issued Wednesday.
Posted at 17:35 by Howard Bashman



Guantanamo Bay, Cuba in the news: The Washington Post today contains a front page article headlined "Released Detainees Rejoining The Fight," while The Los Angeles Times reports that "Released Detainees Join Fight; At least eight inmates freed from Guantanamo Bay return to battle U.S. and coalition troops."

Meanwhile, in The New York Times, Neil A. Lewis today reports that "General Takes Three Officers Off Tribunal at Cuba Base."
Posted at 17:30 by Howard Bashman



"Supreme Court to decide on juvenile death penalty": This article appears today in The Michigan Daily.
Posted at 17:24 by Howard Bashman



"U-M admissions an issue": The Ann Arbor News today contains an article that begins, "In a crowded race for two seats on the University of Michigan's Board of Regents, the university's race-conscious admissions policy is an issue that divides the 10 candidates into roughly three positions."
Posted at 17:22 by Howard Bashman



In news from Detroit: The Detroit Free Press reports today that "Judge denies request to remove Parks' guardian," while The Detroit News reports that "U.S. judge upholds Rosa Parks decision; Ex-Detroit mayor appointed guardian of civil rights icon."

In other news, The Detroit Free Press reports today that "Gays fear marriage ban will end benefits," while The Detroit News reports that "Same-sex marriage ban likely to pass; News tracking poll shows 65 percent back Prop 2 and slight erosion of Bush's lead."
Posted at 17:20 by Howard Bashman



Convicted murderer is now accused of having been an impossible client: The Philadelphia Inquirer reports today that "Capano recalled as 'an impossible client'; Three former attorneys say he ignored their advice in his trial for the death of his ex-mistress." And The News Journal of Wilmington, Delaware reports today that "Capano controlled defense, lawyers say; Convicted killer seeks a new trial."
Posted at 17:05 by Howard Bashman



"Courts, judges often targeted as 'activist'": The Missoulian contains this article today.
Posted at 16:58 by Howard Bashman



"Norfolk judge has case of a lifetime": The Virginian-Pilot today contains this article reporting on Senior U.S. District Judge Robert G. Doumar's handling of litigation involving Yaser Esam Hamdi.
Posted at 16:35 by Howard Bashman



Who says administrative law is boring? The American Bar Association's Section on Administrative Law and Regulatory Practice is holding a meeting in Washington, DC yesterday and today. At this moment, attendees will be at the U.S. Supreme Court to view a program titled "Solicitors General Panel at the Supreme Court -- Speaking for the United States: How the Government's Legal Positions Are Determined." Then, later this evening, the group will be having its "Gala Reception and Dinner at the Supreme Court of the United States" hosted by Justice Sandra Day O'Connor.
Posted at 16:30 by Howard Bashman



"UPS May Appeal Ruling Mandating Deaf Truck Drivers": Reuters reports here that "United Parcel Service Inc. on Friday said it may appeal a court decision that the world's largest package carrier cannot bar all deaf people from driving its trucks." And Bob Egelko reports today in The San Francisco Chronicle that "UPS ordered to let deaf apply to drive trucks."

Yesterday's ruling of the U.S. District Court for the Northern District of California can be accessed at this link (68-page scanned PDF file).
Posted at 15:30 by Howard Bashman



Does the Equal Protection Clause require Maine to extend tuition payments to private sectarian secondary schools on behalf of students who reside in a school district that makes such payments available on a limited basis to private nonsectarian secondary schools? Today a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit answered "no" to that question in a decision that you can access here.
Posted at 15:04 by Howard Bashman



"Alan Page and his opponent differ on politicizing judicial races": Minnesota Public Radio provides this written report, which begins, "The Eighth Circuit Court of Appeals this week heard arguments about the role party politics can play in judicial campaigns in Minnesota."
Posted at 14:45 by Howard Bashman



"Appeal of Stewart Verdict Says Trial Was Full of Errors": This article appears today in The New York Times. And The Washington Post today covers the recent filing of Martha Stewart's appellate brief in article headlined "Stewart Adjusts With Chef's Touch."

By the way, am I alone in viewing the Second Circuit's requirement that an appellate brief contain, on its cover, a one-inch tall docket number as verging on the absurd?
Posted at 14:32 by Howard Bashman



"Sexual-books law covers all kids, justices say": The Arkansas Democrat-Gazette today contains an article that begins, "The Arkansas Supreme Court declared Thursday that an Arkansas law requiring that sexually oriented materials be concealed from minors should be applied to all who are under age 18. The opinion came in answer to a question posed by U.S. District Judge G. Thomas Eisele of Little Rock under an unusual procedure that allowed him to ask the Supreme Court questions related to a federal case over which Eisele is presiding. Eisele asked the court to answer four questions about how the law should be interpreted. The case before Eisele was filed by a group of state and national booksellers, libraries and publishers who contend that the law should be struck down on grounds that it violates the First Amendment right of free speech."

You can access yesterday's ruling of the Supreme Court of Arkansas at this link.
Posted at 13:23 by Howard Bashman



"Limbaugh wants appeals court to rehear medical records case": The Palm Beach post contains this article today.
Posted at 13:15 by Howard Bashman



"Justices revisit eminent domain; Condemning land for private developer at issue in case": This article appears today in The Dallas Morning News.
Posted at 13:11 by Howard Bashman



"Saving Thomas": In the current issue of The New Republic, David J. Garrow has this review of the book "Judging Thomas: The Life and Times of Clarence Thomas," by Ken Foskett.
Posted at 12:45 by Howard Bashman



"Students Rally Against Military Recruitment on Campus; Dershowitz advocates lawsuit against Federal Government over Solomon amendment": This article appears in the current issue of The Harvard Law Record. That same issue also contains an op-ed by Raffi Melkonian entitled "Let the military in."
Posted at 12:40 by Howard Bashman



"Appeals court won't rehear Clarett case": The Associated Press provides this report.
Posted at 12:35 by Howard Bashman



"Justice, local students talk at Reagan library": The Ventura County Star today contains an article that begins, "By their actions, the youth of today must demonstrate that freedom works to ensure that it's carried on to the next generation, U.S. Supreme Court Justice Anthony Kennedy said Thursday."
Posted at 12:22 by Howard Bashman



"Rethinking Texas's Redistricting": This editorial appears today in The New York Times.
Posted at 11:52 by Howard Bashman



In news from West Virginia: The Wheeling News-Register today contains an article headlined "Benjamin: Had His Day in Court."

The article begins:
West Virginia Supreme Court candidate Brent Benjamin maintains he has argued several cases before the state's high court, despite reports to the contrary that have appeared in a southern West Virginia newspaper.

During a stop in Wheeling Wednesday, Benjamin, a Republican, said the newspaper published a story that refuted his claim that he has argued a number of cases before the state Supreme Court. He said the newspaper's story, which he believes was motivated by the campaign of incumbent Justice Warren McGraw, defined "argument" as making a verbal presentation known as an oral argument before the court.

Benjamin conceded that he only has presented an oral argument before the state's high court in one case, although he couldn't remember the exact case.

However, Benjamin contends that most state Supreme Court cases, or "arguments," only require the submission of written documents known as briefs, and he said he has done that more than a few times.
In related coverage, The Charleston Gazette reports today that "Benjamin says he argued case." And The Charleston Daily Mail reports that "High court ad war intensifies; McGraw, Benjamin deny the claims made in opponents' spots."

On Wednesday, I linked to the original article in a post titled "It all depends on what your definition of 'argue a case' is."
Posted at 11:37 by Howard Bashman



"Mixed Results for Bush in Battles Over Judges": Neil A. Lewis has this front page article today in The New York Times. And inside the newspaper, he Lewis also has a related article headlined "Guessing Begins on Judgeships in a Kerry Term." And this graphic will allow you to determine for yourself whose potential nominees are the most attractive.
Posted at 10:55 by Howard Bashman



In wacky legal news from overseas: The Associated Press reports today from Hong Kong that "Man Wears 'Cocaine' T-Shirt in Court." The article begins, "It was not the best legal defense strategy: A Hong Kong man appeared in court on drug charges wearing a T-shirt that said 'cocaine' and drew a stern rebuke from the magistrate, a newspaper reported Thursday." More information is available here.

And in news from Norway, The AP reports that "Judge Voids Will That Promised Curse." The article begins, "A Norwegian's threat to haunt anyone who tampered with his will didn't hold up in -- or send a chill through -- a court." More information is available here.
Posted at 10:20 by Howard Bashman



"Genentech loses bid to toss out jury award; Ruling ordering biotech firm to pay $500 million to former research partner is upheld": The San Francisco Chronicle today contains this article reporting on a ruling that California's Court of Appeal for the Second Appellate District issued yesterday. Officials from Genentech were heard to exclaim after news of the ruling reached them, "Justice Nott!"
Posted at 10:15 by Howard Bashman



"State Judicial Races See Record Spending": The Associated Press provides this report. And The Cleveland Plain Dealer reports today that "Supreme Court candidates rake in donations."
Posted at 10:07 by Howard Bashman



"The A-List": National Journal has today posted online this essay by Stuart Taylor Jr. discussing likely nominees to fill any forthcoming U.S. Supreme Court vacancies.
Posted at 09:55 by Howard Bashman



"States ask voters to define marriage": This article appears today in The Globe and Mail of Toronto.

Meanwhile, in news pertaining to Ohio, The Associated Press reports that "Ohio voters to decide on broadest of nation's marriage amendments." And The Toledo Blade reports that "High court rejects bid to block Issue 1."
Posted at 08:40 by Howard Bashman



"Some election results may produce challenges that wind up before the Supreme Court": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 08:22 by Howard Bashman



In today's edition of The Seattle Post-Intelligencer: The newspaper contains articles headlined "'Hearsay' ruling may reopen cases; Lawyers for couple convicted of rape cite new limits on testimony" and "Ruling changes how union campaign giving counts."
Posted at 08:14 by Howard Bashman



Thursday, October 21, 2004
"Partying in prison stripes, Pitcairn men enjoy their freedom ahead of verdicts": This article appears in Friday's edition of The Independent (UK).
Posted at 22:27 by Howard Bashman



In news from Washington State: The Associated Press reports here from Seattle that "The state Supreme Court struck down a 10-year-old campaign finance rule on Thursday in a decision that will sharply limit unions' ability to contribute money to political candidates."

Today's ruling of the Washington State Supreme Court is available online here (majority opinion) and here (dissenting opinion).
Posted at 22:14 by Howard Bashman



The Associated Press is reporting: An article reports that "Ohio Supreme Court rejects legal challenge to gay marriage amendment." You can access today's ruling of the Supreme Court of Ohio at this link.

And in other news, Hope Yen reports that "Nader Tries to Get on Pa. Ballot."
Posted at 20:27 by Howard Bashman



In news from Pitcairn Island: The New York Times yesterday contained an article headlined "Letter From the South Pacific: The Pitcairn Paradise, or an Island of Depravity?"

The latest news from Pitcairn Island is that the sex crimes prosecution that has been underway there for weeks has just concluded. Reuters reports today that "Pitcairn court considers sex verdicts." And the Australian Associated Press reports that "Judges consider the fate of Pitcairn men."

In other recent coverage of that proceeding, The New Zealand Herald reports in Friday's edition that "Alleged Pitcairn sex victim was smitten, defence says." And earlier this week, The Australian contained an article headlined "Pitcairn's guilt-edged dilemma."

Last week's big news was, as reported in The Australian, that "Islanders 'win right to appeal'" should they be convicted. In other coverage of that development, The New Zealand Herald reported that "Island accused head for Privy Council" and that "Pitcairn rape accused could go free even if convicted." The Times of London reported that "Defence in Pitcairn sex case wins appeal right." And The Telegraph (UK) contained an article headlined "Legal victory for Pitcairn defendants."

And now that The Telegraph has its correspondent on Pitcairn Island, the newspaper is also publishing some non-trial-related articles, such as "Pitcairn's planned Bounty museum is all at sea" and "The breadfruit hunter who makes a meal of his sport."
Posted at 16:40 by Howard Bashman



Seal suit suffers setback: The Associated Press is reporting that "Judge Dismisses L.A. County Seal Lawsuit."
Posted at 16:25 by Howard Bashman



"Some juvenile killers deserve to die": Columnist Jeff Jacoby has this op-ed today in The Boston Globe.
Posted at 16:12 by Howard Bashman



"Appeals court to review terror suspects' extradition; Some being sent to countries accused of utilizing torture": Bob Egelko has this article today in The San Francisco Chronicle. And yesterday, The Metropolitan News-Enterprise reported that "Ninth Circuit to Rule En Banc on Extradition Issue."
Posted at 14:35 by Howard Bashman



"Why the Supreme Court Makes No Sense": Yale Law Professor Jack M. Balkin offers this response to Harvard Law Professor Charles Fried's op-ed entitled "Courting Confusion" published today in The New York Times.
Posted at 14:22 by Howard Bashman



The Associated Press is reporting: An article reports that "Some Oppose Ala. Segregation Amendment." And in other news, "Court: Whales Have No Standing to Sue."
Posted at 09:53 by Howard Bashman



Access online the appellate brief that Martha Stewart's attorneys filed yesterday in the U.S. Court of Appeals for the Second Circuit: The brief can be accessed at this link (97-page PDF file). In early news coverage, The Associated Press reports that "Stewart Asks Court to Overturn Conviction."
Posted at 09:49 by Howard Bashman



"Courting Confusion": Law Professor Charles Fried has this op-ed today in The New York Times.
Posted at 08:01 by Howard Bashman



"Mariel Cubans entitled to real due process": Today in The Miami Herald, Mark Dow has an op-ed that begins, "They are not suspected terrorists. They are not 'enemy combatants.' They are not even charged with a crime. But on Oct. 13, in Clark vs. Martinez and Benitez vs. Rozos before the U.S. Supreme Court, the Bush administration defended the executive's authority to imprison them on U.S. soil until they are dead."
Posted at 07:59 by Howard Bashman



"Lynn school plan unconstitutional, US court rules": The Boston Globe contains this article today. And The Boston Herald reports that "Lynn school desegregation plan unconstitutional."
Posted at 07:53 by Howard Bashman



"Candidate speech rules rejected; Restriction applied in judicial races": This article appears today in The Louisville Courier-Journal.
Posted at 07:52 by Howard Bashman



"Two Important Establishment Clause Issues The Supreme Court Will Decide This Term, Relating to The Ten Commandments and a Key Federal Statute": FindLaw commentator Marci A. Hamilton has this essay today.
Posted at 07:47 by Howard Bashman



"Schumer's clout wide-ranging; High on agenda is barring 'hard right' judges from federal bench": The Rochester Democrat and Chronicle contains this article today.
Posted at 07:35 by Howard Bashman



"Court hears fight over judicial campaigns; State keeps politics from judge races": The St. Paul Pioneer Press today contains an article that begins, "Minnesota's judiciary must remain nonpartisan in order to keep public trust and effectively act as a check on the legislative and executive branches of government, a state attorney told the 8th U.S. Circuit Court of Appeals on Wednesday."

Yesterday, I offered this detailed preview of yesterday's en banc oral argument in this case.
Posted at 07:25 by Howard Bashman



Wednesday, October 20, 2004
"Another round in lawsuit over judges and their party politics": Minnesota Public Radio provides this written report on today's en banc oral argument before the U.S. Court of Appeals for the Eighth Circuit.

This morning, I offered this detailed preview of this en banc oral argument.
Posted at 22:44 by Howard Bashman



"Appeals court rejects Lynn's school desegregation policy": The Associated Press provides this report from Boston.
Posted at 22:41 by Howard Bashman



"GOP rival says Newby violated law": The News & Observer of Raleigh, North Carolina today contains an article that begins, "A Republican candidate for the state Supreme Court might have violated federal election law, one of his opponents charges. Paul Newby, a federal prosecutor in Raleigh, said he apparently is the subject of an investigation by the U.S. Office of Special Counsel, which polices the political activity of federal workers."
Posted at 22:39 by Howard Bashman



"Photographer Angers Scalia at D.C. Event": Gina Holland of The Associated Press provides this report.
Posted at 22:29 by Howard Bashman



"Election could tip balance of Supreme Court; Changes could effect [sic] a range of hot-button issues": CNN.com provides this report.
Posted at 22:23 by Howard Bashman



Available online from law.com: An article is headlined "Keeping John Ashcroft: Whether the AG is in a second-term Bush Cabinet depends on his value to the president." And in other news, "Ga. Justices Delve Into Challenge to Ballot Measure Banning Gay Marriage."
Posted at 22:14 by Howard Bashman



In Thursday's edition of The Christian Science Monitor: Warren Richey reports that "Global legal trends make waves at high court; On issues such as juvenile death penalty, the court considers whether it should weigh international opinion."

And in other news, "Legal wars stirring over election 2004; Concerns about voter enfranchisement and the system's integrity have lawyers busy already."
Posted at 19:45 by Howard Bashman



The Associated Press is reporting: An article headlined "Judge: Cuba Detainees Must Have Lawyers" reports on this ruling that the U.S. District Court for the District of Columbia issued today.

In other news relating to the war on terror, "Attorneys Argue Padilla Should Be Freed."

And an article reports that "'Light' Cigarette Suit Set for November."
Posted at 19:26 by Howard Bashman



"Supremely Scary: The sudden outbreak of Supreme Court horror stories." Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 19:24 by Howard Bashman



In a case in which a party seeks to vacate an arbitration award, is the amount in controversy for diversity jurisdiction measured by the amount of the award or by the amount in dispute in the underlying litigation between the parties? I'm pleased to report that the U.S. Court of Appeals for the Ninth Circuit, confronting this question for a second time, has finally reached the correct answer. See this decision issued today.

For those curious about the first time the Ninth Circuit confronted this question, when it arrived at the wrong answer, more details are available here. That earlier decision was withdrawn and the Ninth Circuit thereafter decided that case on other grounds.
Posted at 17:56 by Howard Bashman



About Schmidt: The Washington Post today contains an obituary headlined "First Amendment Lawyer Richard Schmidt Dies." And The New York Times today contains an obituary headlined "Richard Schmidt, Lawyer, Dies at 80."
Posted at 17:49 by Howard Bashman



The Detroit Free press publishes series of articles about the battle over same-sex marriage: Today's newspaper contains articles headlined "A brief history of wedlock: 1950s image may endure, but it's just one of marriage's constantly evolving forms"; "Gay marriage ban creates 2 activists"; "Her stance is not anti-gay, she insists, it's pro-family; For supporter, it's about what's best for the children"; and "Discrimination is at heart of amendment, opponent says; Without marriage, gay couples face daunting legal issues."
Posted at 17:44 by Howard Bashman



"Ralph hits nadir in Pa. over fight to be on ballot": This article appears today in The Philadelphia Daily News. The Philadelphia Inquirer reports today that "Pa.'s high court says Nader off the ballot; The decision backed a lower court and helped allay fears of election officials; A federal review was called unlikely." The Patriot-News of Harrisburg reports that "Top state court affirms deleting Nader." And in related coverage, The Pittsburgh Post-Gazette reports that "Still no consensus on sending corrected absentee ballots."
Posted at 17:36 by Howard Bashman



"Parks' family: No reason to sue over song." The Detroit Free Press today contains an article that begins, "Family members of Rosa Parks said they are not offended by a popular rap group using the civil rights icon's name and say Parks would not object, either, if she were aware of the ongoing legal fight on her behalf." And The Detroit News reports today that "Parks' lawyers want Archer off case."
Posted at 17:30 by Howard Bashman



U.S. Court of Appeals for the First Circuit invalidates race-conscious student transfer criteria used by public school system in Lynn, Massachusetts: Today's ruling, on behalf of a unanimous three-judge panel, can be accessed at this link. Circuit Judge Bruce M. Selya is the opinion's author, thereby increasing the likelihood that a read through the opinion will enhance one's vocabulary.
Posted at 16:58 by Howard Bashman



"Oyster farmers' award overturned; Lower court gave them $1.3 billion; they now get zero": This article appears today in The Times-Picayune, along with a related article headlined "Coast is clear for restoration process; Feds had fretted over legal concerns." The Times-Picayune also offers a special section devoted to the case.

In other coverage, The Advocate of Baton Rouge reports that "Court throws out oyster-case award." And blogger Fritz Schranck has a post about the decision titled "The limits of liability under the public trust doctrine."
Posted at 16:42 by Howard Bashman



"Tort reform group is ordered to pull ad": The St. Louis Post-Dispatch today contains an article that begins, "In what may be the first test of a new Illinois campaign finance law, a judge has ordered a tort reform group to pull a radio ad about the Illinois Supreme Court race." The tort reform group's web site can be accessed here.
Posted at 16:38 by Howard Bashman



"Court Says Whales, Dolphins Cannot Sue Bush": Reuters provides this report on a ruling that the Ninth Circuit issued today, as earlier noted here.
Posted at 15:47 by Howard Bashman



Just another op-ed about "Clearance Thomas" and former Alabama Chief Justice "Ray Moore": Mark [sic] Quigley has this op-ed today in The Purdue Exponent.

In news relating to Justice Thomas, The Lawrence Journal-World today reports here (third item) that "U.S. Supreme Court Justice Clarence Thomas will be in Lawrence next week to visit with students and faculty at the Kansas University School of Law."
Posted at 14:53 by Howard Bashman



"Electoral College is facing a testing time in Colorado": This article appears today in The San Antonio Express-News.
Posted at 14:51 by Howard Bashman



"Shareholders Vs Disney's Board Opens": Reuters provides this report. And The News Journal of Wilmington, Delaware reports that "Webcast takes you inside Disney trial." The webcast can be accessed via this link.
Posted at 14:47 by Howard Bashman



On today's broadcast of NPR's "Day to Day": The broadcast contained segments entitled "Supreme Court to Rule on Prison Segregation" and "Slate's Jurisprudence: Election Day Nightmares" (Real Player required).
Posted at 14:30 by Howard Bashman



A whale of a case: May all of the world's whales, porpoises, and dolphins bring suit in their own name under the Endangered Species Act, the Marine Mammal Protection Act, the National Environmental Protection Act, and the Administrative Procedure Act? Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit answered "no" in a decision that you can access here. Presumably the attorney for these animals will now seek to communicate in some manner the court's decision to his clients.
Posted at 13:14 by Howard Bashman



It all depends on what your definition of "argue a case" is: The Charleston (W. Va.) Gazette today contains an article headlined "Benjamin statement questioned; Records show candidate hasn't had oral arguments before Supreme Court" that begins, "The Republican who wants to become the state's next Supreme Court justice has not argued a single case before the high court in his 20 years of practicing law, according to court records. That contradicts what GOP candidate Brent Benjamin told Gazette editors earlier this month, when he said that he had argued cases before the Supreme Court."
Posted at 12:02 by Howard Bashman



"Judge's costume case hits La. high court; Blackface incident isolated, defense says": The Times-Picayune today contains an article that begins, "Before a packed audience, the Louisiana Supreme Court heard arguments Tuesday in the case of a Houma district judge charged with misconduct for attending a Halloween party last year in blackface, an Afro wig and an orange jail jumpsuit."
Posted at 11:55 by Howard Bashman



"Judge tosses suit on gays, marriage; Legislators wanted to prevent challenges to Pennsylvania law": This article appears today in The Morning Call of Allentown, Pennsylvania. And The Philadelphia Inquirer reports today that "Legislators lose bid to keep gay pair from marrying."
Posted at 11:53 by Howard Bashman



The U.S. Court of Appeals for the Eighth Circuit today hears en banc argument in the judicial campaign-free speech case known as Republican Party of Minnesota v. White: According to the court's current oral argument calendar, the oral argument will occur today in St. Paul before an en banc court consisting of the Eighth Circuit's chief judge, all active judges other than Circuit Judge Michael J. Melloy, and the three senior Eighth Circuit judges who participated on the divided three-judge panel whose ruling the en banc court is reviewing.

Perhaps demonstrating the complexity of the matter, it took the three-judge panel more than fifteen months after oral argument to announce its decision in the case. An audiotape of that oral argument can be heard by clicking here (Real Player required).

Back on June 27, 2002, a sharply-divided U.S. Supreme Court announced its decision on another aspect of this very same case. My summary of that ruling can be accessed here.

Once the Eighth Circuit posts online a link to the audiotape of today's en banc rehearing, I will provide a link.
Posted at 10:32 by Howard Bashman



"Justices: Clarify marriage ban goal; Georgia Supreme Court expected to rule on referendum before Election Day." This article appears today in The Atlanta Journal-Constitution. And The Telegraph of Macon, Georgia reports that "Gay marriage ban fight goes before Ga. Supreme Court."
Posted at 09:58 by Howard Bashman



There's no First Amendment right to falsely cry "Fire!" in a crowded theater or to see depictions of U.S. Supreme Court Justices in the nude: USA Today contains in today's issue an article headlined "Behind the robes, Stewart finds controversy." According to the article, "Wal-Mart canceled its order for America: The Book after learning there were naked Supreme Court judges lurking inside." More information about the book is available from its publisher via this link.
Posted at 09:44 by Howard Bashman



"Legal Battle for Presidency Underway; Lawsuits Over Election Rules Pending, With Both Sides Gearing Up for More": The Washington Post contains this front page article today.
Posted at 07:54 by Howard Bashman



"SJC chief justice counters 'judicial activism' charge": This article appears today in The Boston Globe. And The Boston Herald reports that "Mitt's jabs don't faze SJC's chief justice."
Posted at 07:46 by Howard Bashman



Ten Commandments news: The Salt Lake Tribune reports today that "Judge nixes religious group's planned display." The Deseret Morning News reports that "Tablets to stay in park; Judge OKs monument in Duchesne; appeal planned."

And The Duluth News Tribune reports today that "Tablets will land in new locale; The Duluth monument is to be placed with a crane in its permanent home on Canal Park this morning."
Posted at 07:06 by Howard Bashman



"Judicial candidates' speech rights upheld; State's ban on campaigning struck down": The Lexington Herald-Leader contains this article today.
Posted at 07:04 by Howard Bashman



In news from South Dakota: The Argus Leader reported yesterday that "After long court battle, teacher leads Bible study."
Posted at 07:03 by Howard Bashman



In news from California: The North County Times reports today that "County board opposes covering of religious quote."
Posted at 07:01 by Howard Bashman



"Schumer Ignores Opponents' Attacks in Second Debate": The New York Times contains this article today.
Posted at 07:00 by Howard Bashman



"Coors plays to businesses; Says Senate's control over Supreme Court picks key": This article appears today in The Rocky Mountain News. And The Denver Post today contains an editorial entitled "High court's future hangs on the election; Aging justices likely will give the next president vacancies to fill on the U.S. Supreme Court, setting the stage for rulings that will affect the next generation."
Posted at 06:58 by Howard Bashman



"Estate lawyers ask judge to keep Heinz will sealed": The Pittsburgh Post-Gazette contains this article today.
Posted at 06:53 by Howard Bashman



"GOP justice key to Dems' remap hopes; Kennedy could provide swing vote in Texas redistricting case": This article appears today in The Dallas Morning News.
Posted at 06:42 by Howard Bashman



Tuesday, October 19, 2004
Seventh Circuit Judge Richard A. Posner speaks at Harvard Law School: While presenting his paper on tools of contract interpretation today, Judge Posner is quoted as having said, "my paper meanders a bit, but I will say that it's not plagiarized." Waddling Thunder provides the details here.
Posted at 22:23 by Howard Bashman



"Supreme Court is bonus for winner": Wednesday's edition of The Telegraph (UK) contains an article that begins, "The race for the White House has been given an added fillip for both Republicans and Democrats by the knowledge that the winner is likely to shape the membership of the Supreme Court for a generation."
Posted at 22:17 by Howard Bashman



"Insurer Loses Bid for Direct Recovery in Test Case Against Cigarette Makers": law.com provides this report.
Posted at 22:12 by Howard Bashman



"Ga. supreme court hears gay marriage amendment appeal": The Atlanta Journal-Constitution provides this news update.
Posted at 22:11 by Howard Bashman



"ACLU protests linkage on porn; Cache deputies will collect data at crime scenes": The Deseret Morning News today contains an article that begins, "A new policy that requires Cache County sheriff's deputies to document pornography at crime scenes violates the First Amendment, says the American Civil Liberties Union of Utah. Deputies will soon begin documenting pornography found at every crime scene and during arrests, Lt. Matt Bilodeau said. The sheriff created the new program to compile statistics that will help police determine a 'cause and effect' between pornography and crime."
Posted at 22:09 by Howard Bashman



"Court Scuttles $142M Fiber-Optic Suit": The Associated Press provides this report about a ruling that the U.S. Court of Appeals for the Seventh Circuit issued today.

After I first mentioned this ruling earlier today, a reader emailed to suggest that I highlight footnote one of the majority opinion: "Our dissenting colleague, in rejecting our approach to this case, observes that if 'a similar approach had been applied to the construction of the first transcontinental railroad, the Pony Express might still be galloping along.' We doubt that his observation is true but also note that the Pony Express might well be still galloping along if class-action lawyers were on the prowl in the 1830's."
Posted at 22:01 by Howard Bashman



"ACLJ Pleased that Federal Court Rules Utah City Acted Constitutionally in Ten Commandments Case": The American Center for Law and Justice issued this press release today.
Posted at 22:00 by Howard Bashman



"High court keeps Ralph Nader off PA ballot": The Philadelphia Inquirer provides this news update. Today's rulings of the Supreme Court of Pennsylvania can be accessed here and here.
Posted at 21:48 by Howard Bashman



Nebraska sues to ensure equal access to housing for strippers: Saturday's edition of The Omaha World-Herald reported that "Lease refusal stripped dancer of her rights, lawsuit says."
Posted at 17:56 by Howard Bashman



U.S. Court of Appeals for the Third Circuit adopts local rule amendments mandating electronic filing of appellate briefs: Among other things, the new rules (which as detailed here will take effect on November 1, 2004) provide that "The electronic version of the brief is the official record copy of the brief."
Posted at 17:11 by Howard Bashman



"The Accidental Terrorist: The burgeoning new legal category of 'enemy combatant lite.'" Slate has recently posted online this jurisprudence essay by Phillip Carter, author of the "Intel Dump" blog.
Posted at 17:04 by Howard Bashman



"Author of gay marriage decision warns against politicizing judge selection": The Associated Press reports here that "The author of the landmark gay marriage decision that triggered political backlash across the country warned Tuesday against efforts to tamper with the independent judiciary system." In related coverage, The AP reports that "Gay Marriage Plays Quiet Role in Mass." And from Georgia The AP reports that "Gay marriage ban fight before Supreme Court."
Posted at 16:28 by Howard Bashman



"Slate's Jurisprudence: Supreme Court and Election Day." Today's broadcast of NPR's "Day to Day" included this segment (Real Player required) featuring Dahlia Lithwick.
Posted at 16:04 by Howard Bashman



"NY court backs tobacco companies in HMO suit": Reuters reports here that "New York's top state court has ruled that the state's largest medical insurer cannot sue cigarette makers to recover medical costs under a consumer protection law, Philip Morris USA said on Tuesday." Today's ruling by the New York State Court of Appeals can be accessed at this link.
Posted at 15:29 by Howard Bashman



"La. Court Throws Out Oystermen Judgment": The Associated Press reports here that "The Louisiana Supreme Court threw out a $1.3 billion judgment Tuesday for oystermen who claimed that a coastal restoration project ruined their businesses." Today's ruling of the Supreme Court of Louisiana can be accessed at this link.
Posted at 15:12 by Howard Bashman



"Landgraf's ambiguous treatment of reliance has generated substantial confusion as to whether a party must prove some form of reliance in order to demonstrate that a statute is impermissibly retroactive." Can Circuit Judge J. Michael Luttig bring needed clarity to one of the most complex retroactivity dilemmas that federal immigration law has to offer? See for yourself in his majority opinion found in this ruling that a divided three-judge Fourth Circuit panel issued today.

Senior Tenth Circuit Judge Bobby R. Baldock, sitting by designation, remains unpersuaded. Judge Baldock's dissenting opinion begins, "Because this Court's opinion runs afoul of Supreme Court and Fourth Circuit precedent, and is equally puzzling as it is unpersuasive, I dissent."
Posted at 14:50 by Howard Bashman



Today's rulings of note from the U.S. Court of Appeals for the Seventh Circuit: In Smith v. Spring Communications Co., a divided three-judge panel has overturned the nationwide class action settlement in a case involving the laying of a 36,000-mile network of transcontinental fiber-optic cables across many States to provide a national telecommunications grid.

In Owens v. United States, the Seventh Circuit overruled its earlier case holding that a failure to make a Fourth Amendment objection to the admission of evidence, however meritorious the objection, cannot amount to ineffective assistance of counsel in a constitutional sense if the evidence was reliable, so that its admission, even if improper, created no risk that an innocent person would be convicted. The opinion's final paragraph states:
We conclude that Holman should be overruled, and we have therefore circulated this opinion to the full court in advance of publication, pursuant to 7th Cir. R. 40(e). A majority of the judges voted not to hear the case en banc. Judges Manion, Kanne, and Evans voted to hear the case en banc, and Chief Judge Flaum and Judge Williams did not participate in the consideration or decision of whether to hear the case en banc.
Lastly, in Richmond v. Scibana, a three-judge panel avoids deciding on the merits whether the U.S. Department of Justice policy limiting federal inmates' eligibility for placement in a community corrections center to the last ten percent of their sentence is contrary to law.
Posted at 14:29 by Howard Bashman



"Armies of Lawyers Gear Up for Election Battles": Reuters provides this report.
Posted at 13:20 by Howard Bashman



"The First Amendment Expression Policy enforced by the Association at the Cow Palace during the rodeo and the circus is unconstitutional on its face." So concludes a decision that the U.S. Court of Appeals for the Ninth Circuit issued today, in a victory for animal-rights protesters based in the San Francisco region.
Posted at 13:13 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit grants rehearing en banc in case where three-judge panel's ruling was accused of giving green light to torture: You can access today's order granting rehearing en banc at this link, and the three-judge panel's ruling is accessible here. My earlier coverage of the three-judge panel's ruling -- titled "What liberal Ninth Circuit?" -- is available at this link.
Posted at 13:06 by Howard Bashman



Is manageability is a proper criterion for courts to consider when deciding whether to certify a Fed. R. Civ. P. 23(b)(2) class action? Exacerbating a preexisting circuit split on this question, yesterday a divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued a decision answering that question in the affirmative.
Posted at 11:48 by Howard Bashman



"The Myth of Activist Judges: Flogging the courts to score political points wounds democracy." Dahlia Lithwick had this op-ed last Tuesday in The Los Angeles Times. On the subject of legislation that the U.S. House of Representatives approved to carve up the U.S. Court of Appeals for the Ninth Circuit, she wrote: "The plan -- introduced as a last-minute amendment to a larger bill -- would split that court into three, with Hawaii and California isolated into some kind of Liberal Leper Circuit."

The headline that The LATimes selected for Dahlia's essay reminds me of the title of my monthly appellate column from December 2002, "Activist U.S. Court of Appeals Judges: Myth or Reality?"
Posted at 10:30 by Howard Bashman



"Judge slammed for stripping man of citizenship and deporting him; Appeals court orders new hearing; Salvador Rivera had used false identity": This article appears today in The Seattle Post-Intelligencer. And The Seattle Times reports that "Mount Vernon man wrongly deported, appeals court says." You can access yesterday's ruling by a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:11 by Howard Bashman



"Waiting for Estrada": The New York Sun today contains an editorial that begins, "Senator Schumer's office called over the weekend to ask whether we'd be endorsing him for a second term. We sent back a cheerful message that we'd do it if the senator reversed himself and endorsed Miguel Estrada to ride the District of Columbia Circuit of the United States Court of Appeals."
Posted at 08:27 by Howard Bashman



"Playing it safe": An editorial in today's issue of The Salt Lake Tribune begins, "One of those 'activist judges' we are so often warned about was in need of a firm rebuke from his superiors, and last week he got one. It's just too bad that the part of the ruling by Utah U.S. District Judge Paul Cassell that deserved to be annihilated was merely ignored, while the appeals court passed on an opportunity to question a settled matter of law that could stand some unsettling."
Posted at 08:16 by Howard Bashman



"Abortion foes to pay legal fees": Today in The San Francisco Chronicle, Bob Egelko has an article that begins, "The U.S. Supreme Court rejected an appeal Monday from abortion opponents in Southern California who were ordered to pay legal fees to Planned Parenthood after they unsuccessfully sued the family-planning group to require it to declare a link between abortion and breast cancer."
Posted at 08:15 by Howard Bashman



"Privilege denied in missing-girl case; Supreme Court lets stand order for lawyer to talk": The Cincinnati Enquirer contains this article today. And The Dayton Daily News contains an article headlined "Court: Baker ruling stands."
Posted at 08:12 by Howard Bashman



"Courts struggle to balance rights of adult stores, cities": This article appears today in The Louisville Courier-Journal.
Posted at 08:11 by Howard Bashman



"It's time to elect judges in Virginia": Columnist Ed Lynch has this essay today in The Roanoke Times.
Posted at 08:10 by Howard Bashman



"Bar 'unhappy' with conduct in race": The Associated Press reports here from West Virginia that "With ads in the state Supreme Court race declared the 'nastiest in the nation' by one legal group, the West Virginia State Bar is asking both candidates to tone it down."
Posted at 08:08 by Howard Bashman



"'75 Ayers suit officially ends; high court won't hear appeal; Miss. Legislature to determine when schools will receive all funds": This article appears today in The Clarion-Ledger of Jackson, Mississippi. And a related article is headlined "Signs of progress accompany ruling; Despite relatively small award, colleges have gained facilities, programs over time."
Posted at 08:06 by Howard Bashman



In news from Florida: The St. Petersburg Times reports today that "High court clarifies provisional ballot use; The ballots can be cast only in a voter's home precinct." The Miami Herald reports that "Ballot ruling seen as win for governor; The Florida Supreme Court ruled unanimously that provisional ballots must be cast in the voter's home precinct for the vote to count." And The Tallahassee Democrat reports that "Court OKs voter-act restrictions; Provisional ballots valid only in voters' home precincts."
Posted at 08:03 by Howard Bashman



"Benchmarks of puppets?" Bruce Fein has this op-ed today in The Washington Times.
Posted at 07:59 by Howard Bashman



The St. Louis Post-Dispatch is reporting: An article reports that "High court will take up prisoner shackling case." You can access the Supreme Court of Missouri's ruling in the case at this link.

And in other news, "Campaign money hits record in court race."
Posted at 07:22 by Howard Bashman



"Texas remap sent back to lower court; Decision won't affect this election, but Democrats are hoping to redraw the lines in 2006": This article appears today in The Houston Chronicle.

In The Dallas Morning News, Allen Pusey reports that "Remap to face review; Lines benefiting GOP in House will stand Nov. 2, but high court keeps Democrats' challenge alive," while related articles are headlined "Ruling puts district map in flux; Experts: Configuration could stay same or revert to '01" and "Parties assess redistricting ruling; Democrats say it reveals flawed agenda; GOP calls it nonissue."

The Fort Worth Star-Telegram reports that "Justices order new look at redistricting." The Austin American-Statesman reports that "Review of Texas districts ordered; Supreme Court tells lower court to reconsider constitutionality of Republican redistricting plan." The San Antonio Express-News reports that "Justices send remap back to lower court." And The Daily Texan reports that "Justices bring redistricting back to life; Supreme Court orders Democrats' appeals to be heard."

Elsewhere, Charles Lane of The Washington Post reports that "Justices Order New Look At Tex. Redistricting Case; GOP-Crafted Plan Stays in Effect for This Election." And in The Los Angeles Times, David G. Savage and Scott Gold have an article headlined "Justices Order Review of Texas' Political Map; The Supreme Court tells a lower bench to review whether a redistricting plan that favors the GOP is unconstitutional; It won't affect Nov. 2 vote."
Posted at 07:04 by Howard Bashman



Monday, October 18, 2004
Available online from law.com: An article headlined "11th Circuit: Principal Had Right to Order Religious Slogans' Removal" reports on this ruling that the U.S. Court of Appeals for the Eleventh Circuit issued last week.

And in news from California, "Christian Legal Groups Win Party Status in Marriage Cases."
Posted at 22:52 by Howard Bashman



In news from Alabama: The Associated Press reports that "Supreme Court nominee Parker defends links to Confederate causes."
Posted at 22:48 by Howard Bashman



"Atheist activists focus on church-state issues": This article appears today in The Patriot-News of Harrisburg, Pennsylvania.
Posted at 22:45 by Howard Bashman



"Court Upholds Bush's Appointment of Pryor During Senate's Recess": The Christian Post provides this report today. And Baptist Press reports today that "U.S. court upholds president's appointment of Pryor to bench."
Posted at 22:38 by Howard Bashman



"High court refuses to hear Ayers appeal; $503M settlement can be enforced": The Associated Press reports here that "The U.S. Supreme Court has refused to hear an appeal of a Mississippi college desegregation lawsuit, ending a 29-year-old legal battle over state support of three historically black universities."
Posted at 22:31 by Howard Bashman



"Ginsburg Celebrates Role of Jewish Faith": The Associated Press provides this report.
Posted at 22:26 by Howard Bashman



"Texas Districting Challenge Is Revived by Supreme Court": Linda Greenhouse will have this article in Tuesday's issue of The New York Times.

In The Los Angeles Times, David G. Savage and Scott Gold have a news update headlined "Court Orders GOP Redistricting Plan Reviewed."

And this evening's broadcast of NPR's "All Things Considered" contained a segment entitled "Supreme Court Orders Review of Texas Districts."
Posted at 22:10 by Howard Bashman



"The Election and America's Future": The November 4, 2004 issue of The New York Review of Books contains this collection of essays. In particular, the essays by Ronald Dworkin and Anthony Lewis are likely to be of interest to readers of this blog.
Posted at 22:06 by Howard Bashman



"Tribe's plagiarism should be considered in context": The Harvard Crimson today contains this letter to the editor.
Posted at 22:04 by Howard Bashman



"Supreme Court to review Missouri death case": The St. Louis Post-Dispatch provides this news update.
Posted at 21:52 by Howard Bashman



"Texas Districting Battle Back to Lower Court": Charles Lane of The Washington Post provides this news update.
Posted at 17:27 by Howard Bashman



In an appeal presenting two issues of first impression involving the Prison Litigation Reform Act, Circuit Judge William H. Pryor, Jr. rules in favor of state prisoner suffering from HIV and hepatitis: You can access today's decision, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, at this link.
Posted at 17:20 by Howard Bashman



Antitrust laws are "unlike the Marquis of Queensberry rules": The U.S. Court of Appeals for the Second Circuit today issued this lengthy opinion reversing the dismissal of antitrust claims involving the manufacture of generic prescription drugs. More information about the Marquis of Queensberry rules is available at this link.
Posted at 16:45 by Howard Bashman



"Ten Commandments: Religious message or civics lesson?" Charles C. Haynes has this essay online at the First Amendment Center.
Posted at 16:11 by Howard Bashman



So far, Alderson Reporting Company hasn't referred to Justice Ginsburg as "Justice O'Connor": Some readers may have thought the Supreme Court of the United States had engaged in an elaborate if mistimed April Fool's joke when it recently announced that oral argument transcripts would henceforth identify which Justice was speaking when a question was posed. Yet the recently-posted transcript of the oral arguments in the 2004 Term-opening federal sentencing guidelines cases would seem to prove that the Court in fact wasn't kidding.
Posted at 16:00 by Howard Bashman



"Disney's Latest Drama: $200 Mln Courtroom Battle." Reuters provides this report.
Posted at 14:43 by Howard Bashman



"Florida 2000: The Sequel -- Five ways the election could end up in court, again." Slate has just posted online this jurisprudence essay by Law Professor Richard L. Hasen, author of the "Election Law" blog.
Posted at 14:29 by Howard Bashman



In the November|December 2004 issue of Legal Affairs magazine: My copy arrived in today's mail, and it looks to be another quite interesting issue. Seventh Circuit Judge Richard A. Posner has an essay entitled "Against the Law Reviews: Welcome to a world where inexperienced editors make articles about the wrong topics worse." And Dan Hunter has an article entitled "Marxist-Lessigism: Computer users of the world have united behind Stanford law professor Lawrence Lessig--and what they're doing is much more important than his critics realize."
Posted at 14:22 by Howard Bashman



"Florida High Court Upholds Provisional Ballot Law": Reuters provides this report. And The Associated Press reports that "Fla. Court Rules on Provisional Ballots." Today's unanimous ruling of the Supreme Court of Florida can be accessed at this link.
Posted at 14:12 by Howard Bashman



"Court to Decide Shackled Death Row Inmate Case": James Vicini of Reuters provides this report about the case that the U.S. Supreme Court agreed to review on the merits today. And The Associated Press reports that "Supreme Court to Review Missouri Case."
Posted at 12:45 by Howard Bashman



"Military recruiting on law school campuses?" That's the subject of this week's "Debate Club" feature, available online via legalaffairs.org. Participating in the debate are Phillip Carter and Adam Sofen.
Posted at 12:21 by Howard Bashman



U.S. Court of Appeals for the Eighth Circuit joins the First Circuit in holding that new U.S. Department of Justice policy limiting federal inmates' eligibility for placement in a community corrections center to the last ten percent of their sentence is contrary to law: You can access today's ruling, by a divided three-judge Eighth Circuit panel, at this link.

Last month's ruling of the U.S. Court of Appeals for the First Circuit can be accessed here, and my earlier coverage of that ruling is available at this link.
Posted at 11:36 by Howard Bashman



"Supreme Court Remands Texas Re-Redistricting Case in Light of Vieth": Law Professor Rick Hasen, at his "Election Law" blog, offers this analysis.
Posted at 11:28 by Howard Bashman



Today's U.S. Supreme Court Order List: It is available online at this link. The Court granted review in only one case today.

In early coverage of this morning's developments, Gina Holland of The Associated Press reports that "High Court Orders Review of Texas Seats." The article begins, "The Supreme Court on Monday ordered a lower court to reconsider a Texas congressional map that could give Republicans six more seats in Congress in upcoming elections and help the GOP protect its majority. The announcement is a victory for Democrats, but will not affect next month's elections." The AP is also reporting that "High Court Passes on Abortion-Cancer Case"; "Court Declines Lawyer-Client Privilege Case"; and "Court Won't Hear Ex-Governor's Appeal."

Meanwhile, from Reuters, James Vicini reports that "Supreme Court Orders Texas Redistricting Review."
Posted at 10:00 by Howard Bashman



"Acquittal by judge draws criticism": This article appears today in The Boston Globe.
Posted at 07:55 by Howard Bashman



In news from Louisiana: The Times-Picayune reports today that "Court to rule on judge's costume; Blackface incident could bring removal."
Posted at 07:54 by Howard Bashman



"Campaign 2004: Pennsylvania's U.S. Senate race provides clear choices." The Pittsburgh Post-Gazette contains this article today.
Posted at 07:53 by Howard Bashman



"Emotions run high on a gay-marriage ban; Supporters view same-sex unions as a threat to families": This article appears today in The Deseret Morning News.
Posted at 07:52 by Howard Bashman



"Did he kill her? Doubts, denial and a death penalty case." Columnist Dwight Lewis had this essay in yesterday's edition of The Tennessean.
Posted at 07:51 by Howard Bashman



"Court to hear beef checkoff arguments; Constitutionality of program will be issue in Dec. 8 hearing before high court": This article appears today in The Grand Island (Neb.) Independent.
Posted at 07:48 by Howard Bashman



The St. Paul Pioneer Press is reporting: Today's newspaper contains an article headlined "Judicial politics up for review; Challengers push to ease campaign restrictions."

And in other news, "Teen arrested for writing poetry with 'dark overtones.'"
Posted at 07:45 by Howard Bashman



"Should Reporters Go To Jail For Doing Their Jobs?" Stuart Taylor Jr. today has this essay in National Journal.
Posted at 07:31 by Howard Bashman



"Election at the crossroads -- Supreme Court: Aging judiciary heralds historic transformation." Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 07:29 by Howard Bashman



"Picking a judge: Bush accuses Kerry of having a litmus test for federal judicial selections, but critics say he has one, too." Newsday contains this article today.
Posted at 07:27 by Howard Bashman



"Wine-sale lawsuit briefs pour in; U.S. Supreme Court sets arguments for Dec. 7": This article appears today in The Sacramento Bee.
Posted at 07:20 by Howard Bashman



"Thomas Van Orden knew the law, and that was enough for him to successfully propel a case to the Supreme Court -- even though he is homeless": This editorial appears today in The Houston Chronicle.
Posted at 07:05 by Howard Bashman



"Minnesota's judicial campaigns not yet a free-speech zone": The Associated Press provides this report.
Posted at 07:02 by Howard Bashman



"Damage Control": The Washington Post today contains an editorial that begins, "The Supreme Court kicked off its term with an unusual afternoon argument concerning how to contain the damage it has wrought on criminal sentencing in America."
Posted at 06:44 by Howard Bashman



Sunday, October 17, 2004
"Supreme decisions": This article will appear in Monday's issue of Newsday.
Posted at 23:35 by Howard Bashman



In Monday's edition of The New York Times: An article reports that "As Election Nears, Parties Begin Another Round of Legal Battles."

In other news, "Legal Cloud Lingers for Civil Rights Hero."

And Adam Cohen has an Editorial Observer essay entitled "Imagining America if George Bush Chose the Supreme Court."
Posted at 23:33 by Howard Bashman



"John Kerry for President": An editorial published today in The New York Times states:
There is no denying that this race is mainly about Mr. Bush's disastrous tenure. Nearly four years ago, after the Supreme Court awarded him the presidency, Mr. Bush came into office amid popular expectation that he would acknowledge his lack of a mandate by sticking close to the center. Instead, he turned the government over to the radical right.

Mr. Bush installed John Ashcroft, a favorite of the far right with a history of insensitivity to civil liberties, as attorney general. He sent the Senate one ideological, activist judicial nominee after another. He moved quickly to implement a far-reaching anti-choice agenda including censorship of government Web sites and a clampdown on embryonic stem cell research. He threw the government's weight against efforts by the University of Michigan to give minority students an edge in admission, as it did for students from rural areas or the offspring of alumni.

* * * * *

We have specific fears about what would happen in a second Bush term, particularly regarding the Supreme Court. The record so far gives us plenty of cause for worry. Thanks to Mr. Bush, Jay Bybee, the author of an infamous Justice Department memo justifying the use of torture as an interrogation technique, is now a federal appeals court judge. Another Bush selection, J. Leon Holmes, a federal judge in Arkansas, has written that wives must be subordinate to their husbands and compared abortion rights activists to Nazis.
The complete editorial can be accessed at this link.
Posted at 23:27 by Howard Bashman



In judicial election-related news: The Cleveland Plain Dealer reports today that "Insurers, lawyers playing key roles in Ohio court race."

And from West Virginia, The Parkersburg News reported Friday that "McGraw 'failed to read' language." The Charleston Gazette reported Friday that "Massey CEO gives $1.7 million to anti-Warren McGraw group" and reported Thursday that "Mingo Democrat’s GOP endorsement ruffles feathers." Finally, The Wheeling News-Register today contains an editorial entitled "Elect Benjamin To Supreme Court."
Posted at 23:13 by Howard Bashman



"Television Without Pity": This article, on the front page of the Arts & Leisure section of today's issue of The New York Times, discusses an appeal pending on the merits before the Supreme Court of California.
Posted at 22:25 by Howard Bashman



Tonight's music selection: "Slither" by Velvet Revolver, available in Windows Media, Real Player, and QuickTime formats.
Posted at 21:00 by Howard Bashman



"Justice Kennedy to visit Reagan Library": This newsbrief appears today in The Ventura County Star.
Posted at 20:06 by Howard Bashman



"Unique court brings Disney to Delaware": The News Journal of Wilmington contains this article today.
Posted at 20:04 by Howard Bashman



"Hemp industry may blossom; Change in legal status could allow proliferation of U.S. products": This article appears today in The San Diego Union-Tribune.
Posted at 20:02 by Howard Bashman



Available online from law.com: In commentary from The Recorder, "Supreme Court Short List: If Bush Wins" and "Supreme Court Short List: If Kerry Wins."

Carolyn Elefant, who blogs at "My Shingle," has an essay entitled "The Accidental Practice: The most wild and amazing successes of a solo's career often come by sheer accident" about Donna Newman's representation of Jose Padilla.

And Shannon P. Duffy reports that "3rd Circuit Panel OKs Use of Zero Tolerance Standard in Company's Drug Policy." You can access Thursday's ruling of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 19:54 by Howard Bashman



"A really restrained judiciary: Attacking judicial activism isn't just for conservatives anymore." Drake Bennett has this essay today in the Ideas section of The Boston Globe.
Posted at 12:47 by Howard Bashman



"Executing Minors: U.S. justices should declare it unconstitutional." The Dallas Morning News, which last week published a five-part series of articles on this subject, today contains this editorial.
Posted at 12:46 by Howard Bashman



"Threat To Bush Weighed": This article about the upcoming prosecution of a former Tampa police officer accused of threatening the life of the President appears today in The Tampa Tribune.
Posted at 12:44 by Howard Bashman



"Undeclared detente in culture wars; President, Kerry skipping chances to press differences on same-sex marriage, abortion": This article appears today in The San Francisco Chronicle. The Boston Globe, meanwhile, reports that "Gay marriage is a key issue despite candidates' stances."

Elsewhere, The Atlanta Journal-Constitution reports today that "'Marriage' matters to voters; Amendment support drops when it's called gay 'union.'" The Seattle Times reports that "Proposed gay-marriage ban splits Oregon." And Boston Globe columnist Jeff Jacoby today has an op-ed entitled "Why marriage can't be left to states."
Posted at 12:40 by Howard Bashman



"Experts: Peterson framing unlikely; Only one case found where man may have been set up for a murder." The Modesto Bee contains this article today.
Posted at 12:39 by Howard Bashman



"Lawyers cram for election day; Lawyers from the 2000 recount fracas return for an anticipated Round 2, and they have reinforcements": This article appears today in The St. Petersburg Times. And The Houston Chronicle reports today that "An army of lawyers stands by for Nov. 2."
Posted at 12:37 by Howard Bashman



"Kamehameha set to test admissions case in federal appeal": The Honolulu Advertiser contains this article today.
Posted at 12:32 by Howard Bashman



"U-M exhibit will travel the state; Show details history of diversity efforts, affirmative action": This article appears today in The Detroit News.
Posted at 12:10 by Howard Bashman



"Terrorism Case Shows U.S. Flaws in Strategy": This article appeared Tuesday in The Los Angeles Times.
Posted at 12:05 by Howard Bashman



"Bible club wins in court": The Asbury Park Press today contains this article reporting on a ruling that the U.S. Court of Appeals for the Third Circuit issued on Friday.
Posted at 12:02 by Howard Bashman



In Douglas County, Kansas, voters on election day will decide whether to remove from the bench a female state trial court judge who has been criticized for imposing overly lenient sentences on defendants convicted of statutory rape: The Lawrence Journal-World today reports that "Rape case details provide sentencing insights." That newspaper has collected here links to all of its earlier articles reporting on the controversy involving Judge Paula Martin.
Posted at 11:45 by Howard Bashman



"Forensics under the microscope: Unproven techniques sway courts, erode justice." This article today kicks-off day one of a five-day special report in The Chicago Tribune (which today also endorses the reelection of President George W. Bush). A related article is headlined "Critics tell experts: Show us the science."
Posted at 11:39 by Howard Bashman



"In Court Clerks' Breach, a Provocative Precedent": Charles Lane has this article today in The Washington Post.
Posted at 09:44 by Howard Bashman



"Supreme Court on campaigns' back burner; Potential retirements, appointments would have long-lasting effects": This article appears today in The Milwaukee Journal Sentinel.
Posted at 09:41 by Howard Bashman



Ten Commandments news and commentary: The Houston Chronicle today contains an article headlined "From the streets to the Supreme Court: Homeless man gets a hearing over commandments."

The Pittsburgh Tribune-Review today contains an editorial entitled "The ten commandments." Today in The San Antonio Express-News, columnist Jan Jarboe Russell has an essay entitled "Fighting for 1st Amendment, homeless lawyer finds his cause." And today in The Lufkin Daily News, columnist Cynthia Hall Clements has an essay entitled "True faith doesn't require state approval."
Posted at 09:19 by Howard Bashman



The Philadelphia Inquirer endorses Arlen Specter (R-PA) for reelection to the U.S. Senate: Among other things, the editorial states:
The Inquirer believes Specter should get another six-year term. Preserving the legality of abortion plays no small part in this decision. Sometime in the next four years, the chairman of the Judiciary Committee will very likely find himself in the pivotal role of scrutinizing at least one new Supreme Court nominee. Assuming that Republicans are in charge of the Senate, it would be better to have the chairman's seat filled by Specter, who says Roe v. Wade is "inviolate" as the law of the land. If Specter loses, next in line among Republicans to be chairman is Sen. Jon Kyl of Arizona, who opposes abortion rights.
You can access the complete editorial at this link.

Elsewhere, The Patriot-News of Harrisburg reports today that "Campaign wears on Specter."
Posted at 09:12 by Howard Bashman



"Filibuster Politics: The judicial issue is a winner for Republicans." On Wednesday, C. Boyden Gray had this op-ed in The Wall Street Journal. And on Thursday, Alliance for Justice issued a press release entitled "Alliance for Justice Status Report on Judicial Nominations."
Posted at 08:56 by Howard Bashman



"Columbus rebuked over mass searches": This article appeared yesterday in The Atlanta Journal-Constitution. Relatedly, "BeldarBlog" offers an entry entitled "Eleventh Circuit protects your right to be blown to hell and back by terrorists," although as of this writing the blog post incorrectly asserts that Eleventh Circuit Judge Gerald Bard Tjoflat is a senior circuit judge, when in fact he remains in regular active service on that court.
Posted at 08:37 by Howard Bashman



Saturday, October 16, 2004
"Too Immature for the Death Penalty?" That's the headline of the Idea Lab feature contained in tomorrow's edition of The New York Times Magazine.

Relatedly, on Wednesday, the PBS program "The NewsHour with Jim Lehrer" contained a segment entitled "The Teen Brain."
Posted at 20:25 by Howard Bashman



In Saturday's issue of The New York Times: Yaser Esam Hamdi is the subject of The Saturday Profile, headlined "From Afghanistan to Saudi Arabia, via Guantanamo."

An article reports that "Rally Against Gay Marriage Draws Thousands to Capital."

In other news, "Judge's Ruling on Yellowstone Keeps It Open to Snowmobiles."

And an editorial is entitled "Press Freedom on the Precipice."
Posted at 20:20 by Howard Bashman



"Court: Terror Fears Can't Curb 'Liberty.'" The Associated Press provides this report on a ruling that the U.S. Court of Appeals for the Eleventh Circuit issued late yesterday. And Orin Kerr has this post about the ruling online at "The Volokh Conspiracy."
Posted at 20:04 by Howard Bashman



"Former Second Circuit Chief Judge Feinberg to Receive Devitt Award": The American Judicature Society issued this press release yesterday.
Posted at 16:26 by Howard Bashman



"Chief Justice Thomas? Uh-oh." Cynthia Tucker will have this op-ed in Sunday's edition of The Atlanta Journal-Constitution.

In related commentary, yesterday in The Dallas Morning News, Terry Eastland had an op-ed entitled "Justices only seem to be immortal." The Portland (Me.) Press Herald today contains an editorial entitled "Implications of a change on the U.S. Supreme Court are great." And yesterday in The Washington Post, columnist George F. Will had an op-ed entitled "Liberals, Lawyers, And a Choice."
Posted at 16:16 by Howard Bashman



"High court frustrates Indians": This article appeared yesterday in The South Florida Sun-Sentinel.
Posted at 16:12 by Howard Bashman



"Charges against 'Six' nixed": The Lancaster (Pa.) Intelligencer Journal today contains an article reporting that "Prosecutors Friday withdrew the disorderly conduct charges lodged against the six Lancaster men accused of dropping their pants in protest during President George W. Bush's visit to Smoketown in July." And The Lancaster New Era provides a news update headlined "DA clears anti-Bush protesters."
Posted at 16:10 by Howard Bashman



"Daschle role in judge fights at issue in S. Dakota race": The Washington Times contained this article earlier this week.
Posted at 15:58 by Howard Bashman



"Trial by Actors: Judging 'Twelve Angry Men.'" Adam Liptak will have this article in Sunday's issue of The New York Times.
Posted at 15:56 by Howard Bashman



"Let judicial candidates speak up, group says; Federal court decision due Tuesday in Family Trust Foundation suit": The Lexington Herald-Leader contains this article today.
Posted at 15:44 by Howard Bashman



"Parker shown with hate group leaders": The Birmingham News today contains an article that begins, "Republican Supreme Court candidate Tom Parker passed out Confederate battle flags at the funeral of a Confederate veteran's widow in June and spoke at a birthday party in July for the founder of the Ku Klux Klan, Parker confirmed Friday."
Posted at 15:37 by Howard Bashman



"Legal Precedents Against Fort Trumbull Folks; High Court Wants To Revisit Issue Of Eminent Domain, But Experts Not Sure Why": This article appeared yesterday in The Day of New London, Connecticut.
Posted at 15:13 by Howard Bashman



"Death penalty for juveniles is acceptable": The Bowling Green (Ky.) Daily News contains this editorial today. The Detroit Free Press, meanwhile, today contains an editorial entitled "Teen Executions: Court should ban death penalty for minors."
Posted at 15:05 by Howard Bashman



Ten Commandments news: The Courier-Journal of Louisville, Kentucky reports today that "Ousted judge to visit Louisville; Commandments stand controversial."

From Ohio, The Lancaster Eagle-Gazette reports that "Alabama Commandments coming to Rushville."

From Georgia, The Associated Press reports that "Barrow sends its Ten Commandments attorney a check."

The Omaha World-Herald today contains an article headlined "Carrying out the work of Moses: Omahan spreads the word."

And The Troy (NY) Record today contains an editorial entitled "Ten Commandments have a place in public life."
Posted at 14:48 by Howard Bashman



"Bush Judicial Nominees Bring Close Corporate Ties to the Bench; CIR Posts Judges' Financial Data Online": On Wednesday, the Center for Investigative Reporting issued this press release announcing the launch of a web site that provides online access to the financial statements filed by nearly sixty of President George W. Bush's judicial nominees. To access the financial statements online, click here, select "all" in the listing of names, and then hit the "Search" button.
Posted at 14:31 by Howard Bashman



"Ruling victory for Pryor, Bush": This editorial appears today in The Montgomery Advertiser.
Posted at 14:25 by Howard Bashman



"Federal judges won't adopt sentence ruling; The chief federal judge in Oregon says penalties will be considered on a case-by-case basis": The Oregonian on Wednesday contained an article that begins, "A federal judge's conclusion that federal sentencing rules are unconstitutional won't be adopted by the rest of the federal bench in Oregon"
Posted at 14:17 by Howard Bashman



"Law may back JAG recruiters": Yesterday's issue of The Yale Daily News contained an article that begins, "In a week in which Yale Law School celebrated the 25th anniversary of its non-discrimination recruitment policy, federal legislation that would stiffen penalties on colleges which ban military recruiters moved to within one step from becoming law."
Posted at 14:12 by Howard Bashman



"Broad Use Cited of Harsh Tactics at Base in Cuba": In Sunday's edition of The New York Times, Neil A. Lewis will have an article that begins, "Many detainees at Guantanamo Bay were regularly subjected to harsh and coercive treatment, several people who worked in the prison said in recent interviews, despite longstanding assertions by military officials that such treatment had not occurred except in some isolated cases."
Posted at 13:55 by Howard Bashman



"Bryant case revives name debate; Post, Rocky policies differ radically on identifying naming alleged rape victim": This article appears today in The Denver Post. And in related coverage, The Rocky Mountain News reports today that "Bryant documents to be released soon."
Posted at 12:28 by Howard Bashman



"Court dilutes verdict on immigrants; But court sidesteps constitutional issue": Yesterday's issue of The Deseret Morning News contained an article that begins, "A Utah judge's controversial decision that undocumented immigrants are not entitled to constitutional protections against unreasonable searches and seizures was diluted, but not directly overturned, in a Thursday appeals court decision. The 10th U.S. Circuit Court of Appeals avoided a ruling on the issue, resolving the case of Jorge Esparza-Mendoza on much narrower legal grounds and opting not to address the broader constitutional question first raised by U.S. District Judge Paul Cassell last year."

You can access Thursday's decision of the U.S. Court of Appeals for the Tenth Circuit at this link.

In its earlier coverage of the case, The Deseret Morning News reported that "ACLU joins appeal on immigrant" and "Court may avoid immigration ruling; Utah controversy centers on search, seizure of Mexican." The amicus brief that the ACLU filed on appeal can be accessed at this link.
Posted at 12:13 by Howard Bashman



Oops, she risked default judgment again: The Salt Lake Tribune yesterday contained an article headlined "Britney Spears still mum on suit; Diet pill deja vu: A drug company was accused of linking its product to the singer almost a year ago" that begins, "With a grueling tour schedule and the controversy over her recent wedding, it's easy to understand why Utah is a low priority to Britney Spears. Nevertheless, the pop sensation was ordered Tuesday by U.S. District Judge Paul Cassell to explain why she has failed to respond to a complaint filed against her in Salt Lake City almost a year ago."
Posted at 12:10 by Howard Bashman



"Ex-Inmate's Suit Offers View Into Sexual Slavery in Prisons": Adam Liptak has this front page article in today's edition of The New York Times.

Roderick Johnson, the ex-inmate in question, was also the subject of an article titled "The Problem of Prison Rape" that Daniel Brook wrote for the March|April 2004 issue of Legal Affairs magazine.

The federal court complaint that lawyers from the National Prison Project of the ACLU Foundation filed on Johnson's behalf can be accessed at this link.
Posted at 11:52 by Howard Bashman



"Court to review gas dealer law": Wednesday's issue of The Honolulu Advertiser contained this article. Linda Greenhouse of The New York Times reported that "Second Private-Property Case Accepted by Supreme Court." And David G. Savage of The Los Angeles Times reported that "Supreme Court Will Take Up Hawaii Dispute Over Rent Control; The justices will review an appeals court ruling that some government measures can constitute 'regulatory taking' of private property."
Posted at 08:25 by Howard Bashman



Enough with the Ten Commandments; this Second Amendment monument has people up in arms: The Indianapolis Star reports today that "Gun dealer's rock stirs up a fuss; Inscribed 8-foot-long stone gracing Don Davis' front yard riles new neighborhood group."
Posted at 08:10 by Howard Bashman



Friday, October 15, 2004
"Justices Agree To Hear 2 Cases On Display of Commandments; Court's 1980 Ruling On Subject Has Spawned Varying Interpretations": Charles Lane had this article in Wednesday's issue of The Washington Post. Linda Greenhouse reported in Wednesday's edition of The New York Times that "Justices Will Hear 2 Church-State Cases." law.com's Tony Mauro reported that "Supreme Court Takes Up Ten Commandments, Property Issues." Warren Richey of The Christian Science Monitor reported that "Court to take up three cases on religious liberty." And Stephen Henderson of Knight Ridder Newspapers reported that "Supreme Court to hear Ten Commandments cases."

David G. Savage reported in The Los Angeles Times that "High Court Tackles Religion; The justices will decide on the display of the Ten Commandments on public property as it applies to the 1st Amendment," while a related article was headlined "A Long Road for Man Behind the Case From Texas." Back on December 9, 2003, The LATimes published a lengthy article headlined "A Most Unusual Lawyer: A homeless man with psychological scars is challenging Texas over a Ten Commandments statue; The Supreme Court may take his case."

In other coverage focusing specifically on the case that the U.S. Supreme Court accepted from Texas, The Daily Texan reported that "Supreme Court to hear Capitol; Issue of Ten Commandments display on state grounds has not been visited since 1980" and "Homeless Austin lawyer to bring case before court; High Court to consider removal of Ten Commandments statue." The Austin American-Statesman reported that "High court to take Austin Ten Commandments case; Homeless man wants monument removed from Capitol grounds." The Houston Chronicle reported that "Supreme Court to hear commandments case; Texas challenge is among those that may affect displays nationally." The Dallas Morning News reported that "Justices take up Ten Commandments; With Texas case, high court will decide on religious symbols." The San Antonio Express-News reported that "Supreme Court to hear cases over 'supreme laws.'" And The Fort Worth Star-Telegram reported that "Abbott to defend Capitol display."

The Louisville Courier-Journal reported that "U.S. Supreme Court to hear Kentucky Commandments case."

From Alabama, The Birmingham News reported that "Supreme Court to hear Commandments cases." And The Montgomery Advertiser reported that "Decision upsets Moore."

Elsewhere, USA Today reported that "Justices take commandments cases" and "Ala. judge put issue in spotlight." Michael McGough of The Pittsburgh Post-Gazette reported that "Supreme Court takes up Ten Commandments cases; In a reversal, court decides to tackle controversy." The Pittsburgh Tribune-Review reported that "Supreme Court to carve out Commandments ruling." The St. Petersburg Times reported that "Court takes on religious displays; The U.S. Supreme Court agrees to decide whether the Ten Commandments can be displayed on government property." The Washington Times reported that "Top court to consider Commandments cases." And The Baltimore Sun reported that "Justices to review Commandment displays; Court to revisit charged issue for first time since 1980 ruling."

In other coverage, The New York Sun reported that "High Court to Resolve Clashing Cases Over Displaying Laws Given at Sinai." The Deseret Morning News reported that "Commandments heading to court; Justices to hear 2 cases in 2005 on display of tablets." And the Cox News Service offered a report headlined "Thou shalt ... or thou shalt not; Top court to rule on displays of Ten Commandments in two states."

The Knoxville News Sentinel contained articles headlined "High court to hear Commandment cases; Quiet on the matter since 1980, justices will act on Texas, Kentucky religious displays" and "Law director says action on 2001 commission vote regarding display will remain on hold." The Monroe County Advocate reported that "Magistrate may hear county’s case next week." The Wichita Eagle reported that "Kansas has seen spats over commandments." The Seattle Times reported that "Judge delays ruling on Everett monument," while The Daily Herald of Everett, Washington reported that "Court delays ruling on Everett Ten Commandments."

From Wisconsin, The La Crosse Tribune reported that "Appeals Court might delay ruling on La Crosse case." From Maryland, The Associated Press reported that "Allegany returning commandments to courthouse; County commissioners order marker to be moved back pending court decision," while The Washington Times reported that "Official laments moving Decalog." From Pennsylvania, The Express-Times of Easton reports that "Locals monitor court for decision on commandments." And from Georgia, The Anderson Independent-Mail contained articles headlined "Supreme Court to hear Ten Commandments cases"; "Hart says yes to Commandments"; and "Residents differ on Commandments."

In commentary, CBS News legal analyst Andrew Cohen had a CourtWatch column entitled "Thou Shalt Not Dis' The Judiciary." Tony Mauro had an essay entitled "Justices' choices surprise some court-watchers" online at the First Amendment Center.

The Montgomery Advertiser yesterday contained an editorial entitled "Moore ignores key differences." The Kentucky Post today contains an editorial entitled "Settle the debate." The Milwaukee Journal Sentinel contains an editorial entitled "Defining church-state line." The Las Vegas Review-Journal contained an editorial entitled "Court tackles church and state; Does display in government buildings constitute an 'establishment of religion'?" The Kalamazoo Gazette contained an editorial entitled "'Commandments' a tough case for court." The Republican of Springfield, Massachusetts yesterday contained an editorial entitled "Commandments cases should draw bold line." The Express-Times of Easton, Pennsylvania today contains an editorial entitled "Hopefully, common sense will be high court's guide." The Roanoke Times yesterday contained an editorial entitled "Thou shalt not entangle church and state: Monuments to the Ten Commandments are overtly religious and should not have a place in public buildings." The Telegraph of Macon, Georgia yesterday contained an editorial entitled "Religion and the high court." And The Berkshire Eagle yesterday contained an editorial entitled "Court's path is clear."

Finally, for those who like to listen, NPR's Nina Totenberg had a report entitled "High Court to Consider Ten Commandments Case" (Real Player required) on Tuesday's broadcast of "All Things Considered."
Posted at 23:10 by Howard Bashman



"Parker says amendment invites suits on education": The Birmingham News yesterday contained an article that begins, "A proposal to remove racist provisions from the Alabama Constitution also would open the door to education being declared a state right, Republican Supreme Court candidate Tom Parker said Wednesday."
Posted at 23:03 by Howard Bashman



"Gay and lesbian Republicans sue over 'don't ask, don't tell'": On Wednesday, Bob Egelko had this article in The San Francisco Chronicle.
Posted at 22:50 by Howard Bashman



"Court Rules Rowland Had 'Duty' To Testify": The Associated Press reports here that "Gov. John G. Rowland had a duty to comply with a subpoena to appear before the legislative panel investigating whether he should be impeached, the state Supreme Court said in a ruling released Friday. Four months after the high court ruled that Rowland must testify before committee, the court released its final written judgment on the matter."

The majority opinion that the Supreme Court of Connecticut issued today can be accessed here, while dissenting opinions can be accessed here and here.
Posted at 22:10 by Howard Bashman



"Strategic Judicial Lawmaking: An Empirical Investigation of Ideology and Publication on the U.S. Court of Appeals for the Ninth Circuit." Law Professor David S. Law has posted online this article at SSRN. (Via "Legal Theory Blog.")
Posted at 17:50 by Howard Bashman



"Archer appointed to represent Rosa Parks; Ex-mayor to guard civil rights figure's legal interests in suit against rap group OutKast": This article appears today in The Detroit News. And The Detroit Free Press reports that "Archer to safeguard Rosa Parks' legal rights; Ex-mayor asked to intercede on behalf of civil rights icon."
Posted at 17:49 by Howard Bashman



"Ten: Why the commandments make for such messy law." Slate has just posted online this jurisprudence essay by Rod Smolla, dean of the University of Richmond School of Law.
Posted at 17:46 by Howard Bashman



"Boilermakers Protest Purdue's Mascot": This newsbrief appears in the current issue of The Onion. Until that matter reaches the U.S. Court of Appeals for the Seventh Circuit, it will have to remain content with this earlier, somewhat similar piece of litigation.
Posted at 17:35 by Howard Bashman



What the @#*&%!!! The Chicago Sun-Times reports today that "Cursing judge sent for counseling." And The Chicago Tribune reports that "Judge benched over salty talk; Profanity called 'egregious lapse of decorum.'" For better or worse, judges in Chicago are still permitted to make jokes about cross-dressing at a colleague's expense.
Posted at 15:56 by Howard Bashman



"Slate's Jurisprudence: High Court's Controversial Cases." An interview with Dahlia Lithwick is featured in this segment (Real Player required) from Tuesday's broadcast of NPR's "Day to Day."
Posted at 15:31 by Howard Bashman



The inconvenience of voting does not confer on registered voters the blanket right to vote by absentee ballot: Circuit Judge Richard A. Posner, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, issued this quite interesting decision today.
Posted at 15:21 by Howard Bashman



Recognizing that challenged statute is "hardly a model of clarity," the Washington State Supreme Court upholds state law making failure to wear a seat belt a primary offense: The Seattle Times today reports that "High Court buckles down on 'Click it or Ticket' law." The Associated Press offers a report headlined "State Supreme Court upholds seat belt law" that begins, "The Washington Supreme Court upheld the state's mandatory seat belt law yesterday, much to the relief of prosecutors, law enforcement and traffic safety officials. The court, in a 7-2 opinion, allowed the law to stand, including authority for troopers to pull over motorists for failure to wear a seat belt." And The Seattle Post-Ingelligencer contains an editorial entitled "Law stands, for now."

You can access yesterday's ruling by the Supreme Court of Washington State here (majority opinion) and here (dissenting opinion). The dissent begins, "The government has determined our citizens are not intelligent enough to decide for themselves whether to wear a seat belt, yet they apparently have enough intelligence to locate and interpret an elusive federal administrative rule. Our case law establishes that the latter task cannot be properly strapped to the laps of our fellow citizens and I must dissent."
Posted at 14:54 by Howard Bashman



Deadhead transportation: Notwithstanding Jerry Garcia's death, it persists. And today Circuit Judge Andrew J. Kleinfeld, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, has issued an interesting decision that arises at the crossroads of deadhead transportation and the Computer Fraud and Abuse Act.
Posted at 13:48 by Howard Bashman



"Bryant Accuser Publicly Identifies Herself": The Associated Press reports here that "Under orders from a federal judge, the woman accusing Kobe Bryant of rape identified herself by name Thursday in a revised version of the lawsuit she filed against the NBA star two months ago."

Most news organizations, including The AP, are continuing to refrain from publishing the accuser's name. One exception is The Rocky Mountain News, which yesterday began using the accuser's name once she substituted it for "Jane Doe" in the title of her federal court civil lawsuit against Kobe Bryant. Indeed, the accuser's name is found at the very beginning of an article published in today's Rocky Mountain News under the headline "Bryant's accuser refiles suit in her name; Move complies with district judge's ruling."
Posted at 13:31 by Howard Bashman



"11th Circuit OKs Pryor's Appointment": Jonathan Ringel of the Fulton County Daily Report provides this coverage. The Montgomery Advertiser reports that "Pryor appointment upheld." The Birmingham News reports that "Court OKs Bush pick of Pryor." And The Atlanta Journal-Constitution reports that "Judge's appointment upheld."

At "SCOTUSblog," Lyle Denniston has a post titled "A touchy issue avoided -- for now." You can access yesterday's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link. The majority opinion and both dissents are well worth a look.
Posted at 13:20 by Howard Bashman



Thursday, October 14, 2004
Programming note: Additional posts will appear on Friday afternoon, after I have returned home from Kansas City, Missouri.
Posted at 18:46 by Howard Bashman



"Chinese Justice Visits Court of Appeals": The U.S. Court of Appeals for the Ninth Circuit issued this news release on Tuesday. The news release fails to note that the Ninth Circuit once heard appeals from the United States Court for China, as explained here.
Posted at 18:33 by Howard Bashman



"This panel has no authority to overrule a prior panel's decision; only the court sitting en banc can take such action. However, when a panel is confronted with varying lines of cases, the panel is 'free to chose which line of cases to follow.'" Although the en banc Fourth Circuit today rejected this approach to prior conflicting three-judge panel rulings (details here), this approach is apparently still the law within the U.S. Court of Appeals for the Eighth Circuit. See, for example, Circuit Judge William J. Riley's dissenting opinion in this interesting search and seizure case that a divided three-judge Eighth Circuit panel decided today.
Posted at 18:22 by Howard Bashman



"Hamdi Says He's Not an Enemy Combatant": The Associated Press provides this report from Saudi Arabia.
Posted at 18:17 by Howard Bashman



"The panel opinions in this case, however, raised the question of whether a panel of this court may likewise overrule a decision issued by another panel." The en banc U.S. Court of Appeals for the Fourth Circuit today issued its long-awaited (at least by appellate geeks everywhere) decision in McMellon v. United States.

I'm pleased to report that the en banc court took the opportunity to decide whether three-judge Fourth Circuit panels should abide by the principle that "When published panel opinions are in direct conflict on a given issue, the earliest opinion controls, unless the prior opinion has been overruled by an intervening opinion from this court sitting en banc or the Supreme Court." The en banc majority resolved that question in the affirmative. Circuit Judge Paul V. Niemeyer issued a quite spirited dissent on this point.

The October 2003 installment of my monthly appellate column published in The Legal Intelligencer was titled "What Should a Three-Judge U.S. Court of Appeals Panel Do When Faced With Conflicting On-Point Authority Issued By Previous Panels?" The focus of that month's column was the three-judge panel's ruling in McMellon, in which both the majority opinion and the dissenting opinion (the panel dissent was also by Judge Niemeyer) addressed that question and disagreed on its resolution.
Posted at 17:57 by Howard Bashman



Does the language of the United States Constitution constitute "clearly established Federal law, as determined by the Supreme Court of the United States"? An interesting concurring opinion that Third Circuit Judge Richard L. Nygaard issued today raises this question.
Posted at 17:49 by Howard Bashman



Supreme Court of Japan upholds death sentence imposed on appeal: The Mainichi Daily News today reports that "Revenge killer bound for gallows." The article explains that Japan's highest court upheld a death sentence that an intermediate appellate court imposed after the trial court had sentenced the defendant to life imprisonment.
Posted at 17:32 by Howard Bashman



U.S. Court of Appeals for the First Circuit refuses to permit Puerto Rico residents to cast votes for President of the United States: One week ago tomorrow, The Associated Press had a report headlined "Court Asked to Let Puerto Ricans Vote" that begins, "A Puerto Rican attorney asked a federal appeals court Friday to end 'the state of servitude' that island residents find themselves in and allow them to vote in the Nov. 2 presidential election."

Today, a divided three-judge panel of the First Circuit issued its ruling in the appeal. The lone judge on the First Circuit who resides in Puerto Rico issued a dissenting opinion.
Posted at 17:26 by Howard Bashman



"Court: Bush Judicial Appointment Legal." The Associated Press reports here that "A federal appeals court ruled Thursday that President Bush did not overstep his authority when he appointed William Pryor to the bench while the Senate was on a holiday break."

You can access today's en banc ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.

Thanks so very, very much to the multitude of "How Appealing" readers who emailed to ensure I was aware that this ruling has issued.
Posted at 17:16 by Howard Bashman



"A Big Question About Clarence Thomas": Douglas T. Kendall has this op-ed today in The Washington Post.

Update: A related list of "The Lone Opinions of Justice Clarence Thomas that Express a Willingness to Overrule or Revisit Constitutional Precedent" as compiled by Jason Rylander of Community Rights Counsel can be accessed online at this link.
Posted at 09:31 by Howard Bashman



"Convicted killer loses another federal appeal; Lisa Michelle Lambert has spent years fighting her conviction in the 1991 murder of a rival": This article appeared yesterday in The Philadelphia Inquirer. The Philadelphia Daily News reported yesterday that "Appeals court upholds Lambert's conviction." And The Lancaster New Era reported that "Lambert's conviction is upheld; Federal court ruling will keep her in jail for Laurie Show murder."

You can access Tuesday's ruling of the U.S. Court of Appeals for the Third Circuit at this link.
Posted at 09:26 by Howard Bashman



"Court strikes Nader from Pa.'s ballot": The Philadelphia Inquirer provides this report today. You can access yesterday's ruling of the Commonwealth Court of Pennsylvania at this link (444-page PDF document).
Posted at 09:20 by Howard Bashman



U.S. Court of Appeals for the Third Circuit refuses to order special election to select the next Governor of New Jersey: You can access yesterday's non-precedential ruling at this link.

The Philadelphia Inquirer reports today that "Court won't order special election." And The Newark Star-Ledger reports that "Special election is rejected; Court denies bid, saying governor has yet to resign."
Posted at 09:16 by Howard Bashman



"High Court Hears Arguments on Executing Juveniles": Tony Mauro of law.com provides this report.

In other coverage, Linda Greenhouse of The New York Times reports that "Justices Consider Executions of Young Killers." Charles Lane of The Washington Post reports that "Death Penalty Case Gets Skeptical Hearing; Supreme Court Is Urged to Reject Capital Punishment for Juvenile Offenders." David G. Savage of The Los Angeles Times reports that "High Court Weighs End to Juvenile Executions."

Stephen Henderson of Knight Ridder Newspapers reports that "Court weighs whether juveniles can be executed." The Boston Globe reports that "Justices weigh limit on death penalty; Case involving teen may signal shift." USA Today reports that "Jury should decide juvenile executions, high court is told; But lawyer for Missouri man says Eighth Amendment is being violated." The Dallas Morning News reports that "Justices weigh nuances of punishment for those who kill as youths." The Houston Chronicle reports that "Teen executions divide high court; Justices wrestle with a case that will affect 28 on Texas' death row." The Pittsburgh Post-Gazette reports that "Supreme Court asked to draw death penalty line at 18; Old enough to be executed?" And in local coverage, The St. Louis Post-Dispatch reports that "Justices hear Missouri case on juvenile executions."

Online at Slate, Dahlia Lithwick has a report entitled "The Young and the Reckless: The Supreme Court contemplates executing juveniles." At "SCOTUSblog," Lyle Denniston has a report entitled "Juvenile executions -- not ruled out?" And on yesterday evening's broadcast of NPR's "All Things Considered," Nina Totenberg had a report entitled "Executions of Men Who Killed as Teens Face Test" (Real Player required).

After I return home from Kansas City, Missouri tomorrow, I will post online some additional thoughts about this case.
Posted at 09:02 by Howard Bashman



Tuesday, October 12, 2004
Greetings from Kansas City: It turns out my hotel room's internet connection is more theoretical than real. As a result, blogging (if any) is likely to be intermittent through Friday.
Posted at 18:09 by Howard Bashman



"High Court to Rule on Tuna Can Case": Hope Yen of The Associated Press reports here that the U.S. Supreme Court today has agreed to resolve a hotly contested issue over the effect of the federal supplemental jurisdiction statute on a federal court's ability to exercise diversity of citizenship jurisdiction where one plaintiff's claim exceeds the jurisdictional minimum but another plaintiff's claim, arising from the same facts, does not exceed that amount.

You can access the First Circuit's ruling in the case, by a divided three-judge panel, at this link. My post reporting on that ruling accurately predicted that "Someday the U.S. Supreme Court will resolve the sharp division of authority that exists among the U.S. Courts of Appeals on this question."
Posted at 10:33 by Howard Bashman



Going to Kansas City: My day job requires my presence in Kansas City, Missouri through Friday morning. The hotel where I am staying has internet access, so additional posts will appear later today. Readers who wish to draw to my attention court rulings or news reports of interest are invited to do so via email, a process that can be initiated by clicking here.
Posted at 10:30 by Howard Bashman



"Supreme Court to Review Inmate Freedom Law": Gina Holland of The Associated Press reports here that "The Supreme Court agreed Tuesday to consider the constitutionality of a federal law that requires state prisons to accommodate inmate religions, from Christianity to Satanism."
Posted at 10:25 by Howard Bashman



"High Court to Hear Exxon's $1.3 Billion Case Appeal": Reuters provides this report.
Posted at 10:16 by Howard Bashman



BREAKING NEWS -- "Supreme Court to Hear Commandments Case": Gina Holland of The Associated Press provides this report.

The September 2003 installment of my monthly appellate column published in The Legal Intelligencer was titled "Take two tablets: Courts struggle over where to draw the line between Church and State." More recently, Lyle Denniston had a post online at "SCOTUSblog" titled "The Ten Commandments: time for review?" And of course, the archives of "How Appealing" contain numerous posts about Ten Commandments-related legal battles across the United States.
Posted at 10:15 by Howard Bashman



Today's U.S. Supreme Court Order List: Today's Order List, once the Court posts it online, should be accessible at this link. Because work requires me to depart for the Midwest momentarily, I will leave you in the good hands of "SCOTUSblog" for timely coverage of today's developments at the High Court. I'll be back with a wrap-up of today's noteworthy developments later this evening.
Posted at 10:01 by Howard Bashman



"'3 strikes' faces test of scope on Nov. 2; Prop. 66 addresses debate -- is the law effective or cruel?" This article appears today in The San Francisco Chronicle.
Posted at 09:38 by Howard Bashman



"2 teens charged in carjackings": The Chicago Tribune yesterday contained an article that begins, "Two teenage boys are in police custody today, charged as adults with three carjackings on Chicago's South Side and suspected in four other vehicular hijackings in the last 10 days, including an attack last week against a federal judge." I first mentioned last Friday night's carjacking of a judge serving on the U.S. Court of Appeals for the Seventh Circuit in a post you can access here.
Posted at 09:34 by Howard Bashman



"High Court Considers Deportation Cases": Today's broadcast of NPR's "Morning Edition" included this segment (Real Player required) featuring Nina Totenberg.
Posted at 09:26 by Howard Bashman



Ten Commandments news: The Atlanta Journal-Constitution reports today that "Fight on biblical laws to proceed in Barrow; Barrow votes to pay legal tab."

And from Maryland, The Associated Press reports that "Ten Commandments monument is moved to private property."
Posted at 08:55 by Howard Bashman



"Juvenile Death Penalty Faces High Court Test": This article appears today in The Hartford Courant.

USA Today reports that "Teen killers' executions weighed; Death penalty opponents seek reversal of '89 ruling allowing such sentences for ages 16-17."

The Boston Globe contains an article headlined "Brain science v. death penalty: Christopher Simmons, now 28, was sentenced to die for killing a woman when he was 17; Tomorrow, the US Supreme Court will consider whether teenagers such as Simmons can be executed for their crimes; The justices' decision will hinge in part on the latest brain research."

The New York Sun reports that "High Court Gets Passionate Plea from 48 Nations."

And The Columbia Spectator reports that "Jeffery Fagan's Research on Death Penalty for Juveniles to Play Role in Roper v. Simmons Case; Law Prof Fagan Sends Research to High Court."

The U.S. Supreme Court will hear oral argument in this case on Wednesday. Later tonight, after I arrive in the State that imposed the death sentence in question, I will have a detailed post highlighting some of the particularly interesting facets of this case.
Posted at 06:07 by Howard Bashman



Monday, October 11, 2004
"Is Harris County 'bloodthirsty' -- or dead right? Harris officials admit blunders in '92 case but say man, then 17, guilty": Tuesday's edition of The Dallas Morning News will contain this article, which is the third installment of a five-part series on the death penalty for individuals who kill before reaching the age of eighteen. And tomorrow's newspaper will also contain an article headlined "Longest-serving juvenile killer awaits fate in Haltom City case."
Posted at 23:29 by Howard Bashman



"California AG Sticks to Tradition in Marriage Brief": law.com provides this report.
Posted at 22:37 by Howard Bashman



"El Paso judge says state can't prohibit sales of sex toys": The Associated Press provides this report.
Posted at 22:05 by Howard Bashman



View online last week's debate in the U.S. House of Representatives preceding approval of legislation to split the U.S. Court of Appeals for the Ninth Circuit: Via C-SPAN, by clicking here and advancing to 28 minutes and 50 seconds into the broadcast, you can view online a videotape of last week's debate over whether to split the Ninth Circuit.
Posted at 21:55 by Howard Bashman



"Colorado voters to re-consider 'winner take all'; Ballot initiative could change how the state awards electoral votes": NBC News justice correspondent Pete Williams provides this report tonight. And in related coverage, the October 11, 2004 issue of Time magazine contains an article headlined "The Florida of 2004? If voters in Colorado decide to divide their electoral votes, we may have another contested election."
Posted at 21:51 by Howard Bashman



"Why Bush Opposes Dred Scott: It's code for Roe v. Wade." Timothy Noah has this essay online at Slate. Update: Chris Geidner offers these thoughts online at "De Novo."
Posted at 21:48 by Howard Bashman



"Stripped of US Nationality, Yasser Hamdi Is Home": Arab News offers this report from Saudi Arabia.
Posted at 21:32 by Howard Bashman



"High court to decide on Minneapolis Somali's legal status": This article will appear in Tuesday's edition of The Minneapolis Star Tribune.
Posted at 21:31 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Fla. Husband Wants Bush's Effort Rejected" and "Supporters of Gay Marriage Gather in D.C."
Posted at 21:26 by Howard Bashman



"How they'll reshape the bench; Even a single appointment to the US Supreme Court could prove decisive in the nation's most contentious legal disputes": Warren Richey will have this front page article in Tuesday's edition of The Christian Science Monitor.
Posted at 18:24 by Howard Bashman



"The Government's Opportunistic Use of the 'Enemy Combatant' Label: How This Category Is Being Used as a Prosecution Tactic." Jesselyn Radack has this essay online today at FindLaw.
Posted at 17:51 by Howard Bashman



"ACLJ Calls on Senator Kennedy to End Effort to Remove Judge Bill Pryor from Appeals Court": The American Center for Law and Justice has issued this press release today, and more information is available at this link. The organization previously filed this amicus brief in the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 17:03 by Howard Bashman



"Pressure Building on U.S. Over WWII Suit": The AP provides this report.
Posted at 13:45 by Howard Bashman



"Hamdi Returned to Saudi Arabia": The Associated Press provides this report. And Reuters reports that "U.S. Flies 'Enemy Combatant' to Saudi After Delay."
Posted at 10:44 by Howard Bashman



"Has Campaign Finance Reform Failed?" That's the title of this week's "Debate Club" feature available online at the web site of Legal Affairs magazine. This week's participants are Richard Hasen and Robert Bauer.
Posted at 10:15 by Howard Bashman



"Court to weigh death for juvenile murderers; 4 of 9 justices call for end to practice": Jan Crawford Greenburg has this article today in The Chicago Tribune. As I noted earlier here, this article is also freely available at this link through the web site of a newspaper that doesn't (yet) require readers to register before accessing content.
Posted at 10:10 by Howard Bashman



"Highest court to rule on Somali: Can U.S. deport local man to lawless nation? Justices will hear his case Tuesday." This article appears today in The St. Paul Pioneer Press.

And in somewhat related news, The Newark Star-Ledger reports today that "Freedom has its limitations for a man without a country; Agents track every movement after four years in detention center."
Posted at 08:11 by Howard Bashman



In same-sex marriage-related news and commentary: The San Francisco Chronicle today contains an article headlined "Canvassing the nation for gay marriage rights; Activists visit home towns en route to D.C. rally today."

The Arkansas News Bureau provides a report headlined "Poll: Support overwhelming for marriage amendment."

Lastly, from Michigan, The Lansing State Journal reports that "Opponents fight to keep gay marriage out of Mich.; Proposed ban on same-sex weddings heats up ballot." And Detroit News columnist Deb Price has an essay entitled "Gay opponents try to undermine courts."
Posted at 07:58 by Howard Bashman



"Still on death row though six judges think he is innocent?" Columnist Dwight Lewis has this op-ed yesterday in The Tennessean.
Posted at 07:57 by Howard Bashman



"Libertarians Win a Hearing in Debate Case": Josh Gerstein of The New York Sun today has an article that begins, "The third and final debate between President Bush and Senator Kerry has been thrown into doubt after a state judge in Arizona ordered a hearing on whether the event, scheduled for Wednesday, should be halted because the Libertarian Party's nominee for president has not been invited."
Posted at 07:55 by Howard Bashman



Judicial elections in the news: From Ohio, The Akron Beacon Journal reports today that "Supreme Court races less dirty, still feisty; Republicans have cash, Democrats have moxie."

The St. Louis Post-Dispatch reports today that "High-stakes court race attracts national attention and big money."

The Seattle Post-Intelligencer reports today that "Money pours unchecked into state's judicial races."

And from West Virginia, The Associated Press reports that "Critics 'smear' McGraw; Incumbent justice tough on criminals, state records show."
Posted at 07:49 by Howard Bashman



"US settles white males' bias suit; Justice to pay $11.5m in preferential treatment case": This article appears today in The Boston Globe.
Posted at 07:47 by Howard Bashman



"Prop. 66 campaign unleashes emotions; Initiative to ease harshest sentencing law in U.S. gaining": Howard Mintz has this article today in The San Jose Mercury News.
Posted at 07:44 by Howard Bashman



"Cotler aims to revamp system for appointing judges": The Toronto Globe and Mail today contains an article that begins, "Justice Minister Irwin Cotler hopes to revamp the federal system used to appoint lower-court judges to lessen the potential for patronage and to build a judiciary that is second to none."
Posted at 07:40 by Howard Bashman



"Flynn letter scolds Kerry on abortion": The Boston Globe today contains an article that begins, "Raymond L. Flynn, the former mayor of Boston and US ambassador to the Vatican, injected himself into the presidential race yesterday with a pointed letter to John F. Kerry, his home-state senator and fellow Democrat. Flynn, in an ad spreading across nearly an entire page of The New York Times, chided Kerry for insisting that, if elected president, he would appoint only people who support abortion rights to be justices on the Supreme Court."
Posted at 07:25 by Howard Bashman



Today is the final day of The Washington Post's two-part series about Justice Clarence Thomas of the Supreme Court of the United States: Today's lead, published on that newspaper's front page, is headlined "Clarence Thomas: The Record of a Justice; Jurist Embraces Image as a Hard-Line Holdout."

Related articles published today are headlined "Culling the Reputable, Reliable, Right-Leaning; For 'Family' of Clerks, Thomas Weighs Politics, Loyalty and, Sometimes, Hard-Luck History"; "In Sharp Divide on Judicial Partisanship, Thomas Is Exhibit A"; and "Jurist Mum Come Oral Arguments; Reticence on Bench Perplexes Observers." And three related graphics are online: "Patterns of Jurisprudence"; "A Justice's Private File"; and "Clarence Thomas Weighs In."

I have collected links to the articles published yesterday on day one of the series, in Sunday's newspaper, at this link.
Posted at 07:10 by Howard Bashman



"No reason to fear a lawyer-president": Tony Mauro has this op-ed today in USA Today.
Posted at 07:02 by Howard Bashman



"It's the Supreme Court, stupid": Timothy S. Huebner has this op-ed today in The Philadelphia Daily News.
Posted at 07:01 by Howard Bashman



"Death penalty in U.S. no longer child's play": This editorial appears today in The Republican of Springfield, Massachusetts.
Posted at 06:58 by Howard Bashman



Ten Commandments news: The Seattle Post-Intelligencer today contains an article headlined "Decision on Ten Commandments monument 'in 3 weeks.'" And The Daily Herald of Everett, Washington reports today that "Foe of biblical monument willing to take fight to top; Jesse Card says he's not sure how his lawsuit against Everett will turn out."

Meanwhile, from Indiana, The Daily Journal of Johnson County today contains articles headlined "Disputed monument on display" and "Supreme Court ends judge's three-year fight."
Posted at 06:50 by Howard Bashman



"Sentencing guidelines focus of Prop. 66; Opponents fear rise in crime; proponents say law too harsh": The Ventura County Star contains this article today.
Posted at 06:49 by Howard Bashman



"Federal sentencing guidelines": This editorial appears today in The Baltimore Sun.
Posted at 06:36 by Howard Bashman



Sunday, October 10, 2004
"Remember the high court on Nov. 2": Barbara Miner has this op-ed today in The Milwaukee Journal Sentinel.

And in The Washington Times, Bruce Fein reviews the book "Seeking Justices: The Judging of Supreme Court Nominees" by Michael Comiskey.
Posted at 23:58 by Howard Bashman



"Robed heroes of liberty": Columnist Robyn E. Blumner has this op-ed today in The St. Petersburg Times.
Posted at 23:57 by Howard Bashman



"Bush vs. Kerry could be replay of Bush vs. Gore": This article appears today in The Miami Herald.
Posted at 23:55 by Howard Bashman



"Judge's backers launch effort": The Lawrence (Kan.) Journal-World today contains an article that begins, "Supporters of Douglas County Judge Paula Martin stepped forward Saturday and began a campaign to counter a movement to oust her from the bench."
Posted at 23:44 by Howard Bashman



In news from Montana: The Bozeman Daily Chronicle reports today that "Charges of judicial activism dominate Supreme Court race."
Posted at 23:38 by Howard Bashman



In news from Alabama: The Montgomery Advertiser reports today that "Moore fans rip decrees." And in other news, The Associated Press reports that "Riley slams segregation law."
Posted at 23:33 by Howard Bashman



In same-sex marriage-related news: The Washington Times today contains an article headlined "Marriage amendment defeat stirs questions." The Cincinnati Enquirer reports today that "Gay-marriage ban gains steam; Issue getting support across party lines." And The San Francisco Chronicle today contains an article headlined "How gay GOP group lost its faith in Bush; High hopes in 2000 dissolve in dispute over marriage ban."
Posted at 23:30 by Howard Bashman



"Unlocking a deadly mind: Brain development, effect on behavior key to debate on juvenile offenders." This very interesting article, the second in a five-part series, will appear Monday in The Dallas Morning News.
Posted at 22:57 by Howard Bashman



"Supreme Court to take up issue of juvenile executions": Jan Crawford Greenburg will have this article in Monday's issue of The Chicago Tribune. I will have a few things to say about that case myself in a post that will appear online here before Wednesday's U.S. Supreme Court oral argument in the case.
Posted at 22:53 by Howard Bashman



"Condemned but cocky, killer unrepentant; Sentenced to die for one murder, ex-gang member recalls another": As I noted Saturday afternoon in a post you can access here, The Dallas Morning News today begins a five-part series entitled "Old enough to kill, too young to die?"

In addition to the lead article and related graphic noted in that earlier post, today's newspaper also contains an article bearing the headline noted at the outset of this post.

The article begins, "Eddie C. Johnson looks to be one of the happiest men on death row. He smiles, he laughs and he charms, even when he's telling a reporter how he murdered an innocent man. One of 29 juvenile offenders under death sentence in Texas, Mr. Johnson was convicted in 1997 of killing a Fort Worth man in a driveway robbery. He denies doing that. But he breezily admitted during a prison interview to a crime for which he has never been tried: the slaying of a young college student who made the mistake of wearing the wrong coat."
Posted at 22:42 by Howard Bashman



"Clarence Thomas: The Record of a Justice; Jurist Embraces Image As a Hard-Line Holdout." This article will appear on the front page of Monday's edition of The Washington Post. This article is the second of a two-part series. I have collected the articles from the series that appeared in today's newspaper at this link.
Posted at 22:32 by Howard Bashman



"Sentencing Guidelines: A Response." Today's broadcast of NPR's "Weekend Edition - Sunday" included this segment (Real Player required).
Posted at 19:24 by Howard Bashman



What an amazing Atlanta Braves victory against the Houston Astros this afternoon! The Braves survive to see another day in the 2004 Major League Baseball playoffs. Update: Details here, here, here, and here and celebratory photo here.
Posted at 16:35 by Howard Bashman



"Medical marijuana advocates likely to get a break under Kerry; Democrat says he would stop pot club raids pushed by Bush": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 16:32 by Howard Bashman



"'A forgotten man'; Prosecutors refuse to reconsider inmate's case despite evidence supporting his claim": The Times-Picayune contains this article today.
Posted at 16:29 by Howard Bashman



"Judges: Teacher may help with club." This article appeared yesterday in The Argus Leader of Sioux Falls, South Dakota.
Posted at 16:26 by Howard Bashman



Death penalty volunteer in the news in Connecticut: In today's edition of The Hartford Courant, Lynne Tuohy has articles headlined "A Consistent Resolve To Die; Ross' Wish Hasn't Changed Over The Years, Lawyer Says" and "Reprieve From Rell Among Ways To Delay Execution."
Posted at 16:20 by Howard Bashman



"Capital murder case tests law": The Lufkin (Tex.) Daily News today contains an article that begins, "The capital murder case of an Angelina County man charged with helping his girlfriend in an at-home abortion may be among the first to test a state law written to protect unborn babies."
Posted at 16:15 by Howard Bashman



In today's edition of The Los Angeles Times: An article reports that "Apprentices Take Law Into Their Own Hands." And Michael Kinsley has an op-ed entitled "The Cult of the Source."
Posted at 14:34 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains a lengthy article headlined "Family Feud Reaches Beyond Grave; As Haft Lay Dying, Questions About Companion, Competency Swirled." In news from Maryland, "School Board Considers Censoring Books, Handing Out Bibles, Teaching Creationism; Some Teachers Decry List of Ideas as Attempt to Inject Christian Values Into Curriculum." And in news from Virginia, "Moving Evidence Requires Special Tactics; Police Facility Worry Pushes Property Room Up a Floor."

Yesterday's newspaper, meanwhile, reported that "Judge Allows Crosses on Markers at Loudoun School." On Friday, I made a copy of that ruling available online via this post.
Posted at 14:20 by Howard Bashman



In today's edition of The New York Times: An article reports that "A Father Waits as the U.S. and the Saudis Discuss His Son's Release."

In other news, "Canadian Supreme Court Hears Arguments Over Gay Marriages."

Lastly, Adam Liptak reports that "Little-Tested Law Is Used Against Journalists in Leak." And a related op-ed by Arthur Ochs Sulzberger Jr., chairman and publisher, and Russell T. Lewis, chief executive, of The New York Times is entitled "The Promise of the First Amendment."
Posted at 14:02 by Howard Bashman



"Federal judge is carjacked at gunpoint in Hyde Park": The Chicago Tribune today contains an article that begins, "A federal appeals judge was carjacked at gunpoint Friday night in the alley behind her Hyde Park home, Chicago police and the U.S. Marshals Service said Saturday. Ann Williams, 55, had just gotten out of her 2002 Toyota Camry in the 5400 block of South Cornell Avenue when three men, one carrying a shotgun, approached, pointed a gun at her and demanded money and her keys, which she gave them, said police spokeswoman JoAnn Taylor." The article suggests that Seventh Circuit Judge Ann Claire Williams, who in 1999 became the first African-American judge to serve on that federal appellate court, was not physically harmed in the incident.
Posted at 13:35 by Howard Bashman



"Black farmers win suit, harvest little; First, the USDA had to set aside $2.3 billion to settle a loan discrimination lawsuit; now, claimants say they're being unfairly refused their share": The Chicago Tribune contains this article today.
Posted at 09:29 by Howard Bashman



"Running Over the Defense? Clara Harris argues that Justice Nuchia, the ex-chief of police, has never met a conviction he didn't like." This article appears in the October 7, 2004 issue of Houston Press.
Posted at 08:40 by Howard Bashman



Saturday, October 09, 2004
"Public Will Give Its Verdict With Its Vote": The author of this letter to the editor published today in The Los Angeles Times does not approve of many of President Bush's more controversial judicial nominees.
Posted at 23:44 by Howard Bashman



"Martha now 'living' in Alderson, W.Va.": This article appears today in The Pittsburgh Post-Gazette. And The Washington Post reports today that "Stewart Begins Prison Term; 5-Month Sentence Starts as Appeals Continue."
Posted at 23:40 by Howard Bashman



"Judge has 'serious doubts' suit against gay couple will survive; Lawmakers want to stop Bucks pair from challenging state law": The Allentown Morning Call today contains an article that begins, "A Bucks County judge said Friday he is skeptical about a lawsuit filed by a group of state legislators who want to stop a New Hope gay couple from challenging Pennsylvania's marriage law." And The Philadelphia Inquirer today reports that "Judge indicates ruling may favor gay couple; The New Hope couple seek to marry; Twelve lawmakers and a Western Pa. company sued to block them."
Posted at 23:34 by Howard Bashman



"Funds pile up in court races; High-court incumbents outpace their opponents' funds by up to 10-to-1": The Clarion-Ledger of Jackson, Mississippi contains this article today.
Posted at 23:33 by Howard Bashman



"Prison, pardon, parenthood -- Once she was a poster child for what some call unfair drug-sentencing guidelines; Now Kemba Smith is telling others: Learn from my mistakes." This article appears today in The St. Petersburg Times.
Posted at 23:32 by Howard Bashman



"Appeals court allows Cianci conviction to stand": The Providence Journal today reports here on the denial of rehearing en banc in the U.S. Court of Appeals for the First Circuit.
Posted at 23:30 by Howard Bashman



"Ottawa takes aim at Internet child porn; Legislation would outlaw advertising and distribution of voyeuristic material": This article appears today in The Toronto Globe and Mail. The Toronto Star reports today that "Tougher child porn bill unveiled; Proposal would increase jail terms for offenders; Conservatives say legislation doesn't go far enough." And Reuters reports that "Canada unveils 'world's toughest' child porn laws."
Posted at 23:25 by Howard Bashman



The Athens Banner-Herald is reporting: Today's newspaper contains articles headlined "Lawsuit funding again short in Ten Commandments fight" and "Justices hold court at UGA; Room for argument: Law school a Supreme host."
Posted at 23:23 by Howard Bashman



"Order for new trial overturned in Moore personal injury case": The Birmingham News today contains an article that begins, "The Alabama Supreme Court on Friday overturned an Etowah County Circuit Court's order of a new trial in a personal injury case in which Kayla Moore, wife of former Chief Justice Roy Moore, had won a $270,558 jury verdict."
Posted at 23:10 by Howard Bashman



"Gore Lawsuit Challenges Australian Election Results": "ScrappleFace" provides this report.
Posted at 22:59 by Howard Bashman



"Pitcairn fears for future of community": Sunday's edition of The Independent(UK) contains an article that begins, "Another day, another defendant and another set of harrowing allegations of child rape and sex abuse in Britain's most remote territory. In the dilapidated hall that is Pitcairn Supreme Court, the ceiling fans whir slowly. The carpet is coated in mud after three days of torrential rain. The wooden benches in the public gallery are empty."
Posted at 22:53 by Howard Bashman



The St. Louis Post-Dispatch is reporting: Today's newspaper contains articles headlined "Dentist held in hospital refuses plea bargain"; "Pace of executions slows in state"; and "Trust fund bill would exclude many asbestos victims."
Posted at 22:46 by Howard Bashman



"Environmental Group Cites Partisanship in the Judiciary; Study Shows Divide Between Democratic, GOP Appointees": The Washington Post contains this article today. You can access the study in question, issued by the Environmental Law Institute, at this link.
Posted at 17:13 by Howard Bashman



"Hamdi stays in S.C. brig as release is negotiated": This article appears today in The Virginian-Pilot.
Posted at 15:23 by Howard Bashman



"Scalia talks up legal 'originalism' in UVM speech": The Associated Press provides this report.
Posted at 14:45 by Howard Bashman



"Old enough to kill, too young to die? High court to hear arguments on execution of teen offenders": This article -- the first in a five-part series -- will appear in Sunday's issue of The Dallas Morning News. A related graphic can be accessed at this link.

In somewhat related coverage, The Associated Press reports that "Mo. Case Center of Death Penalty Debate."
Posted at 14:36 by Howard Bashman



"Woman Changed Part of Story; Bryant's accuser sent a letter to prosecutors a month before trial was to begin, retracting portions of original statements, according to newly released evidence": This article appears today in The Los Angeles Times.
Posted at 14:31 by Howard Bashman



"Redefining Rights in America: The Civil Rights Record of the George W. Bush Administration, 2001–2004." This draft report is available online from the web site of the U.S. Commission on Civil Rights. At this link, you can access the draft report's discussion of some of President Bush's judicial nominees.
Posted at 14:15 by Howard Bashman



Sunday's edition of The Washington Post will contain a series of articles about Justice Clarence Thomas of the Supreme Court of the United States: The lead article, appearing on the front page of tomorrow's newspaper, is headlined "Clarence Thomas: The Style of a Justice; Enigmatic on the Bench, Influential in the Halls -- Image as an Uncompromising Jurist Belies His Engaging Demeanor as a Mentor."

Related articles in tomorrow's newspaper are headlined "Thomas's Across-the-Aisle Aid Puzzles Even the Beneficiaries; Clinton Judicial Nominee Surprised by Support"; "Yale Law Lacks Portrait -- And Thomas's Goodwill; Jurist Won't Permit Picture in Protest, Some Say"; and "Thomas v. Blackmun: Late Jurist's Papers Puncture Colleague's Portrait of a Genteel Court." Finally, a photo gallery can be accessed via this link.
Posted at 14:02 by Howard Bashman



"Dog Beheading Case Illustrates Prop. 66 Battle; A La Habra man with a violent past gets 25 years to life for the crime; If voters revise the state's three-strikes law, he'll be released within months": Claire Luna has this article today in The Los Angeles Times.
Posted at 13:58 by Howard Bashman



"Lockyer outlines state defense of ban on same-sex marriages": Howard Mintz has this article today in The San Jose Mercury News. The Los Angeles Times reports that "State Argues on the Right to Marry; Lockyer defends laws upholding 'traditional understanding of marriage' while dismissing criticisms of same-sex unions." And in The San Francisco Chronicle, Bob Egelko reports that "Lockyer defends ban as tradition; Attorney general argues state law not discriminatory."

Update: You can also access online a press release entitled "Attorney General Lockyer Files Opening Brief on Behalf of California in Same-Sex Marriage Lawsuit" along with the brief filed yesterday.
Posted at 07:50 by Howard Bashman



Available online from law.com: An article reports that "Fee Award Rule Under Review by New York High Court." In other news, "San Francisco's 'Blakely' Waivers Prompt War Over Wording." And in news from the war on terror, "Whistleblower Case Raises New Issues for Terror Trial."
Posted at 07:48 by Howard Bashman



"An Inexplicable Vote for Death": This editorial appears today in The New York Times.
Posted at 07:46 by Howard Bashman



"Papers Show Confusion as Government Watch List Grew Quickly": This article appears today in The New York Times.
Posted at 07:35 by Howard Bashman



Friday, October 08, 2004
"Look at Them Toe-lickers, Ain't They Somethin'?" You can access the latest monthly column from Justice William W. Bedsworth of the California Court of Appeal at this link.
Posted at 17:59 by Howard Bashman



"Science at the Bar": Law Professor Jennifer L. Mnookin has this review of the book "Laws of Men and Laws of Nature: The History of Scientific Expert Testimony in England and America" in the November-December 2004 issue of American Scientist magazine.
Posted at 17:55 by Howard Bashman



"Commercial Potential: How marijuana and wine can improve our balance." Jacob Sullum has this essay online today at Reason.
Posted at 17:53 by Howard Bashman



Pitcairn Island in the news: Saturday's issue of The New Zealand Herald contains articles headlined "Feared court delays begin to bite" and "Pitcairn father 'fell in love' with 13-year-old."

The Weekend Australian reports in Saturday's issue that "The Mouth utters a guilty plea."

And The Independent (UK) reports today that "Pitcairn magistrate denies sex charges."
Posted at 17:50 by Howard Bashman



"Freelance battle far from over, Globe executive says": The Toronto Globe and Mail today contains an article that begins, "A class-action copyright battle between The Globe and Mail and thousands of past freelance contributors over the use of their material in electronic databases is far from over, a Globe and Mail executive said yesterday."
Posted at 17:46 by Howard Bashman



"States set for sniper trials": The Washington Times today contains an article that begins, "Prosecutors in Louisiana, Alabama and Maryland are prepared to begin pre-trial proceedings against sniper mastermind John Allen Muhammad within the next six months."
Posted at 17:35 by Howard Bashman



Race and the judiciary: The Oklahoman today contains an article headlined "Colbert first black named to high court."

And The Cape Times of South Africa reports today that "Whites 'not overlooked in appointments to judiciary.'"
Posted at 17:27 by Howard Bashman



"Alabama Supreme Court rules in favor of Roy Moore's wife": The Associated Press provides this report.
Posted at 17:22 by Howard Bashman



"Wiggins accepts offer of life term; Death sentence was overturned by Supreme Court last year; Eligible for parole hearing soon": The Baltimore Sun today contains an article that begins, "A Maryland man whose death sentence in the murder of an elderly Woodlawn woman was overturned last year by the U.S. Supreme Court accepted yesterday an offer from prosecutors for a life prison term." And The Washington Post reports that "Md. Inmate Gets Life In '88 Case."
Posted at 17:11 by Howard Bashman



"Ayers ruling imminent; Mississippi legislature could owe $503M after case": The Daily Mississippian today contains an article that begins, "Whatever the U.S. Supreme Court decides in the coming days will create waves, not ripples in Mississippi’s higher education funding."
Posted at 17:08 by Howard Bashman



"Arguments for special election heard by federal appeals panel; A plaintiff said Gov. McGreevey in effect resigned in August; Not until a formal letter is filed, the state argued; Judges peppered both sides with questions": This article appears today in The Philadelphia Inquirer. And The Newark Star-Ledger reports that "Governor's job may still be in play; Federal judges to consider ordering special election by year's end."
Posted at 17:03 by Howard Bashman



"Law governing explicit works vexes justices": The Arkansas Democrat-Gazette today contains an article that begins, "Arkansas Supreme Court justices repeatedly expressed frustration Thursday over a request for an advisory opinion regarding a state law regulating the display of sexually explicit materials harmful to minors." The article proceeds to explain that the matter came before Arkansas' highest court as a certified question from a federal district court in Little Rock.
Posted at 16:50 by Howard Bashman



"Court denies rehearing in Bible study case": The Argus Leader of Sioux Falls, South Dakota provides this news update. Yesterday's order of the U.S. Court of Appeals for the Eighth Circuit can be viewed at this link.
Posted at 16:33 by Howard Bashman



"Hollywood asks top US court to weigh file trading": Reuters provides this report. And The Associated Press reports that "Court Asked to Settle File-Sharing Dispute."
Posted at 16:30 by Howard Bashman



"Supreme Court gets adoption case; Key West gay couple granted custody, but they can't adopt": This article appears in today's issue of The Washington Blade.
Posted at 16:22 by Howard Bashman



Same-sex marriage-related news: The Arkansas Democrat-Gazette reports today that "Same-sex marriage ban stays on ballot; Title not vague, high court rules."

From Georgia, The Atlanta Journal-Constitution reports that "Court to hear appeal in suit against vote on gay marriage."

The Philadelphia Inquirer offers a news update headlined "Judge likely to rule for New Hope gay couple."

From Louisiana, The Associated Press reports that "Appeals filed on amendment against same-sex marriage."

Yesterday from New Jersey, The Newark Star-Ledger reported that "Justices order gay marriage case to be heard in state appeals court."

And from Canada, The Toronto Globe and Mail reports that "Charter must not be used to alter definition of marriage, court told; Province of Alberta, religious groups argue against same-sex legislation," while The Toronto Star reports that "Top court grills gay-wedding foes; Bill threatens religious freedom, opponents warn; Many institutions have changed, one justice says."
Posted at 15:49 by Howard Bashman



How to serve less time in federal prison for counterfeiting U.S. currency: Seventh Circuit Judge Frank H. Easterbrook explains in this opinion that he issued today on behalf of a unanimous three-judge panel.
Posted at 14:56 by Howard Bashman



"Good to be in DC!" JibJab has posted online this humorous Shockwave video featuring some very familiar individuals, including the members of the U.S. Supreme Court.
Posted at 14:43 by Howard Bashman



"US judge denies AMD bid for access to Intel files": Reuters provides this report. So much for AMD's victory earlier this year in the U.S. Supreme Court.
Posted at 14:34 by Howard Bashman



"Court Orders Restoration Of Cross-Engraved Bricks": Yesterday's issue of Leesburg (Va.) Today contained an article that begins, "Loudoun County Public Schools lost a federal lawsuit filed by a group of parents challenging the decision to remove six cross engraved pavers from the Potomac Falls High School 'Walk of Fame.'"

Update: I have obtained and posted online here (46-page scanned PDF file) a copy of the ruling of the U.S. District Court for the Eastern District of Virginia that is the subject of this newspaper article.
Posted at 14:27 by Howard Bashman



"Reporter for Times Is Facing Jail Time": Adam Liptak has this article today in The New York Times. And The Washington Post reports that "Journalist Cited for Contempt in Leak Probe; Reporter Refused To Discuss Sources."
Posted at 12:37 by Howard Bashman



"U.S. Vividly Wraps Up Case Against Lawyer for Sheik": The New York Times today contains an article that begins, "Prosecutors in the trial of Lynne F. Stewart, a lawyer accused of aiding terrorism, rested their case yesterday with a jolt to the jury, rereading vicious threats against Americans by a client of hers and suggesting links to Osama bin Laden in their evidence against her."
Posted at 12:35 by Howard Bashman



Martha Stewart Living (in jail): In case you haven't heard, Martha Stewart reported to prison early this morning at the Federal Prison Camp in Alderson, West Virginia (more info here). The Federal Bureau of Prisons has issued this press release, and Stewart herself had this to say on her trial-related web site.

In press coverage, The New York Times offers a news update headlined "Martha Stewart Reports to Prison." And The Washington Post offers a news update headlined "Stewart Enters Prison; CEO Breaks News on Web Site," while today's edition of that newspaper reports that "Town Is at Home With Martha Stewart; Residents and, especially, the media anticipate the mogul's arrival at a West Virginia prison today."

Meanwhile, Stewart's appeal from her conviction continues, as this letter issued yesterday by her lead appellate counsel makes clear.

Finally, and most remarkably, be sure to take a look at a survey announced yesterday under the headline "Unprecedented Survey Data Shows That Martha Stewart's Media Comments Could Have Affected Appellate Decision Outcome; A crucial minority of appellate judges acknowledge susceptibility to how defendants present themselves in the media, according to research by the University of Pittsburgh School of Law and Levick Strategic Communications." I would love to know the identities of the appellate judges who would agree to participate in a survey such as this.
Posted at 12:12 by Howard Bashman



"Groups: Don't ID Kobe Bryant's Accuser." The Associated Press provides this report.

In related coverage, The Denver Post reports today that "Accuser shield remains at issue" and reported yesterday that "Bryant accuser must reveal name in lawsuit." And The Rocky Mountain News reported yesterday that "Bryant's motion backed; Accuser must use her real name in lawsuit, judge rules."
Posted at 10:35 by Howard Bashman



D.C. Circuit denies rehearing en banc of divided three-judge panel's decision holding that collegiate wrestlers, coaches, and alumni lack standing to challenge the Department of Education's interpretation of Title IX regulations barring gender discrimination in college athletic programs: You can access today's order, accompanied by a dissent, at this link. And the divided three-judge panel's ruling can be accessed here.
Posted at 10:25 by Howard Bashman



"The Missing Issue: The death penalty vanishes from national politics." Ramesh Ponnuru has this essay today at National Review Online.
Posted at 10:13 by Howard Bashman



"Arrests of Bush protesters seem to have no legal merit": Mitchell Sommers has an op-ed today in The Philadelphia Inquirer that begins, "I will give the Lancaster County District Attorney's Office this much: The sight of a bunch of pasty-looking guys forming a pyramid while wearing nothing but their skivvies on a hot day is pretty offensive."
Posted at 10:07 by Howard Bashman



"Flag disputes pit rights, order; A Freedom High clash shows the line schools walk between the rules and letting students celebrate their heritage": This article appears today in The St. Petersburg Times. And The Tampa Tribune reports today that "Some Penalties Lifted In Flag Display Incident."
Posted at 09:46 by Howard Bashman



"Lawyer Group Raising Bar on Gifts to Judges; Proposed ABA rules warn against accepting travel or other perks that might cast doubt on 'impartiality, integrity or independence'": David G. Savage has this article today in The Los Angeles Times.

Given this news, those desiring use funds previously earmarked for judicial gifts to purchase gifts for their favorite law bloggers should know that this new book from The New Yorker magazine is at the top of my list this holiday season. No need to get me the new BlackBerry 7100t, however, as I received one in the mail yesterday. The device will be put to the test soon because work requires my presence in Kansas City for much of next week.
Posted at 07:00 by Howard Bashman



"Where's debate about Supreme Court?" Columnist Derrick Z. Jackson has this op-ed today in The Boston Globe.
Posted at 06:58 by Howard Bashman



"Justice Scalia comes to town; Tries not to be noticed": Doug Smith had this essay in yesterday's issue of The Arkansas Times.
Posted at 06:57 by Howard Bashman



In news from Montana: The Billings Gazette today reports that "State solicitor pursues job on high court."
Posted at 06:56 by Howard Bashman



"How Reining in Judges Gave Them Too Much Power": Bloomberg News columnist Ann Woolner has this essay today.
Posted at 06:54 by Howard Bashman



"Lawyers poised to jump in; Anticipating repeat of 2000 meltdown, hundreds volunteer": This article appears today in The Chicago Tribune.
Posted at 06:53 by Howard Bashman



"Bush's Court Picks: Be Afraid. Very Afraid." Katha Pollitt has this essay online at the web site of The Nation.
Posted at 06:42 by Howard Bashman



"Thanks for the memories: Ashcroft recognizes Hatch for service." This article appears today in The Salt Lake Tribune.
Posted at 06:39 by Howard Bashman



"2nd Circuit: Having a Lawyer Satisfies Test for Court Access." law.com provides this report.
Posted at 06:34 by Howard Bashman



Thursday, October 07, 2004
"The Original Meaning of the Recess Appointments Clause": Law Professor Michael Rappaport has this post at "The Right Coast" blog. And his new paper bearing that title can be downloaded from SSRN via this link.
Posted at 19:57 by Howard Bashman



In Friday's edition of The Christian Science Monitor: An article is headlined "Ballot wars over same-sex marriage: Initiatives in 11 states, from Oregon to Ohio, are dividing electorates and shaping the Bush-Kerry race."

And in other news, an article reports on "The prison that Martha Stewart will call home."
Posted at 19:52 by Howard Bashman



The wire services are reporting: Reuters reports that "Arkansas Refuses to Strike Gay Ban from Nov Ballot." Today's ruling of the Supreme Court of Arkansas can be accessed at this link.

And The Associated Press reports that "Couple Asks Neb. Court to Spare Dog's Life."
Posted at 17:27 by Howard Bashman



Order excluding judicial gadfly from being present in and around certain state courthouses in Vermont gives rise to 85-page Second Circuit ruling: Today's ruling can be accessed at this link.
Posted at 15:20 by Howard Bashman



"The same federal court that objected to the words 'under God' in the Pledge of Allegiance now says strippers in Arizona have a constitutional right to simulate sex acts with customers." So begins this report from CNSNews.com.
Posted at 15:18 by Howard Bashman



With under ten minutes to go, the current bid on a complete set of three U.S. Supreme Court Justice bobblehead dolls produced by The Green Bag is just $821.00: Still plenty of time for last minute madness to break out.

Update: The auction has ended, and the sale price ended up at $945.00.
Posted at 14:58 by Howard Bashman



The Associated Press is reporting: An article is headlined "Reporter Held in Contempt in CIA Probe." And Hope Yen reports that "Judge Admonishes Lawyers in Anthrax Case."
Posted at 14:55 by Howard Bashman



"Judges Take Second Look at E-Mail Privacy Decision": TechNewsWorld today provides this report.
Posted at 14:49 by Howard Bashman



Iran's Ministry of Defense achieves only a partial victory in the U.S. Court of Appeals for the Ninth Circuit: You can access today's ruling at this link.
Posted at 14:02 by Howard Bashman



"A typical Sixth Circuit Court of Appeals ruling probably doesn't contain words like 'Get Off Your Ass and Jam.'" So begins David Adler's essay "Sample Sale: Will the Sixth Circuit's ruling on sampling really hurt hip-hop" posted today at The New Republic Online.
Posted at 13:55 by Howard Bashman



Retired federal appellate judge Bailey Brown has died: He had served on the U.S. Court of Appeals for the Sixth Circuit. The Commercial Appeal of Memphis, Tennessee today contains an obituary headlined "Judge Brown ordered school desegregation; Retired jurist described self as 'prudent liberal.'"
Posted at 12:08 by Howard Bashman



Lyle Denniston is reporting: Online at "SCOTUSblog," he has posts titled "The judgeship filibuster lives" and "U.S. v. Detainees -- 'No rights at all.'"
Posted at 11:25 by Howard Bashman



In news from Texas: The organization Texas Watch Foundation yesterday issued a press release entitled "Texas Supreme Court Establishes New Record for Anti-Consumer Bias; Texas Families Prevail in Only 12% of Cases." The organization's complete report can be accessed here, and a related graph is available at this link.

In press coverage, The Dallas Morning News reports today that "High court rarely backs consumer, study says; Spokesman for justices says annual report takes decisions out of context." The Fort Worth Star-Telegram reports that "Court goes largely against public, group says." The San Antonio Express-News reports that "High court accused of favoring big business." And The Daily Texan reports that "Report finds past year's Texas high court rulings lopsided; Foundation says dissention rare among justices."
Posted at 11:04 by Howard Bashman



The Oregonian is reporting: Today's newspaper contains articles headlined "Judge in Oregon lashes out on federal sentencing rules; An opinion criticizes efforts by John Ashcroft and Congress for what it says is a move to end judicial discretion" and "Judge, lawyers worry convict will kill someday if free; Most agree Jason Cory Westfall is dangerous, but the law prevents giving him a longer sentence."
Posted at 11:00 by Howard Bashman



"Chamber of Commerce Gets Behind Judicial Campaigns": Today's broadcast of NPR's "Morning Edition" included this report (Real Player required).
Posted at 10:20 by Howard Bashman



At 3:08 p.m. eastern time today, an eBay auction of a complete set of all three U.S. Supreme Court Justice bobblehead dolls that The Green Bag has produced so far will end: As of this moment, the high bid for the complete set is $750.00.

Since this auction began, I have been writing that I expect the final price to exceed $1000. Here's why: Yesterday an eBay auction of a Justice Sandra Day O'Connor bobblehead doll concluded with a sale price of $310.00. On September 28, 2004, an eBay auction of a Justice John Paul Stevens bobblehead doll concluded with a sale price of $405.00. And on September 1, 2004, an eBay auction of a Chief Justice William H. Rehnquist bobblehead doll concluded with a sale price of $374.90. The sum of those three amounts is $1089.90.
Posted at 09:39 by Howard Bashman



Don't ask, don't tell, don't recruit on the campuses of prestigious law schools: Will Baude and Amber Taylor, who attend law school at Yale and Harvard respectively, have engaged in an interesting discussion of military on-campus recruitment. Their discussion can be read in blog posts available here, here, and here.

In the interest of full disclosure, I represent several law student groups, and in that capacity have filed this amicus brief, in an appeal pending in the U.S. Court of Appeals for the Third Circuit involving a challenge to the Solomon Amendment. Additional information relating to that appeal can be accessed via this link.
Posted at 09:20 by Howard Bashman



"High court takes up pollution case; Hearing on suit against Cooper Industries relates to Superfund sites": This article appears today in The Houston Chronicle. And The Dallas Morning News reports today that "Companies battle over cleanup at Love Field; Firms tell Supreme Court that wording of law is on their side."
Posted at 07:35 by Howard Bashman



Ten Commandments news: The Idaho Statesman reports today that "Judge says city can't put Ten Commandments initiative on ballot; Coalition will appeal to Idaho Supreme Court."

And The Pittsburgh Tribune-Review reports today that "Court OKs Commandments plaque."
Posted at 07:33 by Howard Bashman



"Supreme performance: A Boston lawyer goes to Washington." This article appears in the October 8, 2004 issue of The Boston Phoenix.
Posted at 07:31 by Howard Bashman



"Secret Rule Requiring ID for Flights at Center of Court Battle": Sara Kehaulani Goo has this article today in The Washington Post.
Posted at 07:06 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 06:58 by Howard Bashman



In today's edition of The New York Times: Adam Liptak reports that "7 Dissenters on U.S. Court Cannot Stop an Execution."

A lengthy article is headlined "After Convictions, the Undoing of a U.S. Terror Prosecution."

And in regional news, "Plea for New Custody Trial Cites Lawyers' Internet Tie."
Posted at 06:32 by Howard Bashman



Wednesday, October 06, 2004
"Town curbs prayers; Culpeper ministers may challenge town's suggestion on dropping 'Jesus' from prayers at meetings": This article appears today in The Free Lance-Star of Fredericksburg, Virginia.
Posted at 22:22 by Howard Bashman



Available online from law.com: In news from Florida, "Limbaugh, ACLU to Fight Medical Records Ruling."

An article reports that "CBS Document Debacle at Issue in Texas High Court Race."

Shannon P. Duffy has an article headlined "3rd Circuit: 'Processing Bodily Waste' Is 'Major Life Activity' Under ADA."

And in other news, "2nd Circuit Upholds Use of False Pretrial Claims to Impeach at Trial; Statements undermined defendant's credibility."
Posted at 22:12 by Howard Bashman



"Judge rejects Kobe accuser's anonymity request": The Rocky Mountain News provides this update. And The Associated Press reports that "Judge says Bryant's accuser must be identified in court." This ruling applies to the claim for damages against Kobe Bryant filed in federal district court in Colorado. The judge's decision, according to press coverage, will not take effect for two weeks, allowing the suit to be withdrawn or emergency appellate review to be sought in the interim.
Posted at 19:45 by Howard Bashman



U.S. District Court for the District of Columbia rejects challenge to the constitutionality of U.S. Senate filibusters against judicial nominees: You can access today's ruling, by U.S. District Judge Colleen Kollar-Kotelly, at this link. The suit was brought by Judicial Watch, Inc.
Posted at 19:39 by Howard Bashman



"Preview of U.S. Supreme Court's Docket": Today's broadcast of NPR's "The Tavis Smiley Show" included this segment (Real Player required).
Posted at 17:41 by Howard Bashman



The Associated Press is reporting: In news from New Jersey, "State Supreme Court leaves gay marriage case with appeals court."

In other news, "10th Circuit considers challenge to restricting inmate subscriptions."

An article reports that "Michigan Supreme Court Hears Dow Case."

And in news from Alabama, "Rudolph Prosecutors Won't Use ATF Expert."
Posted at 17:35 by Howard Bashman



At 7:18 p.m. eastern time today, this eBay auction of a Justice Sandra Day O'Connor bobblehead doll will end: I'll probably be too enmeshed in this afternoon's Atlanta Braves playoff game to provide any live coverage of the end of that eBay auction. In recent weeks, other copies of that particular bobblehead have sold on eBay for $300.00 and $285.00. The current high bid on the item to be sold today is $232.50. [Update: The Justice O'Connor bobblehead ended up selling for $310.00!]

And then tomorrow at 3:08 p.m. eastern time, this auction of a complete set of all three U.S. Supreme Court Justice bobblehead dolls that The Green Bag has produced so far will end. As of this moment, the high bid for the complete set is $711.00.
Posted at 15:33 by Howard Bashman



"Supreme Court Debates Pollution Cleanup": Gina Holland of The Associated Press provides this report on a case argued today before the U.S. Supreme Court.
Posted at 15:31 by Howard Bashman



U.S. Court of Appeals for the Second Circuit overturns default judgment totaling more than $71 million, on account of alleged human rights violations, against political party whose members have ruled Zimbabwe since 1980: You can access today's ruling at this link.
Posted at 14:54 by Howard Bashman



U.S. Court of Appeals for the Fifth Circuit rejects Ralph Nader's challenge to Texas Election Code: You can access today's per curiam ruling at this link.
Posted at 14:52 by Howard Bashman



Perhaps the Congressman from Alaska doesn't enjoy Rice-A-Roni? Alaska Congressman Don Young issued a press release yesterday after the House of Representatives approved legislation to divide the U.S. Court of Appeals for the Ninth Circuit into three separate U.S. Courts of Appeals. In the press release, Congressman Young is quoted as saying, "This is good for the State of Alaska because we will no longer be governed by adverse court decisions made for San Francisco and that way of life."

Also yesterday, California Congressman Adam Schiff, who is opposed to the legislation, issued a press release entitled "Schiff Speaks Out Against 9th Circuit Split; House Passes Amendment to Divide Western U.S. Court of Appeals in Three."
Posted at 13:54 by Howard Bashman



The Associated Press is reporting: Now available online are items headlined "U.K. Gov't Argues for Terror Detentions"; "Gay Marriage Law Up to Canada's Top Court"; "Tenn. Wrangles With 'Choose Life' Plates"; and "Cases Involving 'Choose Life' Tags."
Posted at 13:51 by Howard Bashman



Ten Commandments plaque on state courthouse in Allegheny County, Pennsylvania does not violate the U.S. Constitution's establishment clause, divided three-judge Third Circuit panel rules: You can access today's ruling at this link. Circuit Judge Julio M. Fuentes wrote the majority opinion, in which Circuit Judge D. Brooks Smith joined. Senior Circuit Judge John R. Gibson, sitting by designation from the Eighth Circuit, dissented. To view a photograph of this particular Ten Commandments plaque, click here.
Posted at 13:41 by Howard Bashman



"Simpson Wins House Passage of Ninth Circuit Split": U.S. Congressman Mike Simpson, an Idaho Republican, issued this press release yesterday.

And after passage of the proposed legislation yesterday in the U.S. House of Representatives, Senator Dianne Feinstein (D-CA) took to the floor of the U.S. Senate to announce that she would "place a hold" on the bill, thereby ensuring that it would not become law. You can access Senator Feinstein's remarks via this link.
Posted at 11:47 by Howard Bashman



"Court: Limbaugh Records Properly Seized." The Associated Press provides this report on a ruling that Florida's Fourth District Court of Appeal issued this morning.
Posted at 11:44 by Howard Bashman



"Law School bombing case remains unsolved": This article appears today in The Yale Daily News.
Posted at 11:10 by Howard Bashman



"Court-split plan imperils bill to add federal judges; A proposal seeks to break up the 9th Circuit, which some say is too liberal": This article appears today in The Sacramento Bee. And The Fairbanks Daily News-Miner reports today that "House votes to split 9th Circuit into three."

The debate on this measure in the U.S. House of Representatives yesterday can be accessed via this link.

In today's issue of The Daily Journal, a California-based legal newspaper, Brent Kendall has an article (not freely available online) headlined "House Passes Bill Splitting Up 9th U.S. Circuit; California, Hawaii Would Stay in 9th; Others Would Go." Here are some noteworthy passages from Kendall's article:
The vote caught some members of Congress and judges of the 9th Circuit by surprise.

"This came out of the blue," said 9th Circuit Chief Judge Mary Schroeder. "Thirty-six hours ago, nothing was happening."

Rep. Mike Simpson, R-Idaho, the amendment's sponsor, said his legislation was motivated by concerns of judicial efficiency, not by displeasure with some of the 9th Circuit's decisions.

***

A majority of the 9th Circuit's judges have been opposed to dividing the circuit.

Schroeder held a vote by mail on the issue in April, and 30 judges opposed a circuit split, while nine favored it. Eight judges abstained from voting.

Rep. Howard Berman, D-Calif., cited that vote during the House debate.

"Congress has never split a circuit over the objections of the affected judges," Berman said.

"A split of the 9th Circuit would constitute an unprecedented interference with the judicial system," he said.

"I am stunned," Judge Alex Kozinski said of Tuesday's House vote. "They are making a terrible mistake."

"The 9th functions very well," said Kozinski, who testified on the issue before a House Judiciary subcommittee in October 2003. "It is getting bigger, but all courts are getting bigger. Law firms get bigger. We have to learn how to manage the court."

"We think the circuit works fine the way it is," Schroeder said.

She noted that a split would be costly at a time when the courts are facing severe budget troubles.

"Overall, it is not terribly responsible to talk about increasing judicial staff and employees when we don't have a budget and we're laying off probation officers and have no funds to get drug treatment to Indians on reservations," Schroeder said.

Dick Carelli of the Administrative Office of the U.S. Courts said that a three-way circuit split would have startup costs of between $101 million and $131 million.

Carelli said the additional annual costs of a three-way split would be $21 million a year.

Judge Diarmuid O'Scannlain, who favors a 9th Circuit split, could not be reached to comment.

After the House passed the circuit-splitting amendment, the underlying judge bill passed by voice vote.

The Senate had passed the judge bill, and it was unclear Tuesday how Senate leaders would deal with the House amendment.

Shortly after the House vote, Feinstein appeared on the Senate floor and announced that she would place a "hold" on the legislation, which would prevent Senate action on the measure.

"This is no way to undertake such a momentous change," she said.

University of Pittsburgh law professor Arthur Hellman, who has been studying the 9th Circuit for 25 years, said the House vote was "very regrettable."

Hellman said that one could make a case for some sort of split "but this is just a terrible way of doing it."

"I don't know if it's the worst of all that have come down the road, but it certainly ranks high among the very bad ones," he said.

Hellman said that leaving California in a circuit with no other state but Hawaii would lead to a lack of diversity in judicial appointments on the 9th Circuit.

The judiciary committees in both the House and Senate had held hearings this session on splitting the circuit but had not acted on any legislation.

The last time a federal circuit was divided was in 1980, when the 11th Circuit was split off the 5th Circuit.

The Senate voted in 1997 to split the 9th Circuit, adding the measure to a spending bill. However, the Senate relented in the face of opposition from the House.
The April 2003 installment of my monthly appellate column was headlined "When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How."
Posted at 10:32 by Howard Bashman



"Presidential Election Could Affect High Court": Today's broadcast of NPR's "Morning Edition" included this segment (Real Player required) featuring an interview with Nina Totenberg.
Posted at 10:25 by Howard Bashman



En banc U.S. Court of Appeals for the Sixth Circuit upholds Tennessee death sentence by a vote of 8-7: Today's complete decision, including a dissenting opinion that features a color photograph, can be accessed at this link.

This case is noteworthy because it has previously produced another sharply divided en banc ruling from the Sixth Circuit that went in the prisoner's favor.

The original three-judge panel ruling in the case was decided by three judges who now all have senior status. Two of the senior judges combined with six active judges in producing today's majority, which is another way of saying that the active judges participating in today's en banc ruling were evenly divided.
Posted at 10:12 by Howard Bashman



Editorial writers examine the fate of the federal sentencing guidelines: The Christian Science Monitor today contains an editorial entitled "Judges Reasonably Doubted." And The Portland (Me.) Press Herald today contains an editorial entitled "High court correct to examine guidelines."
Posted at 10:07 by Howard Bashman



Editorial writers consider possible U.S. Supreme Court vacancies: The Milwaukee Journal Sentinel today contains an editorial entitled "Supreme Court opening?" And The Washington Times today contains an editorial entitled "Supreme consequences."
Posted at 08:23 by Howard Bashman



In judicial election-related news: From West Virginia, The Charleston Gazette reports today that "State Supreme Court race grows more contentious."

And from Montana, The Billings Gazette reports today that "Justice Nelson fights charges."
Posted at 08:20 by Howard Bashman



The Washington Post is reporting: Today's newspaper contains articles headlined "Most at Guantanamo to Be Freed or Sent Home, Officer Says" and "Muhammad's Fairfax Case Officially Ends; Judge Upholds Ruling On Right to Quick Trial."
Posted at 08:19 by Howard Bashman



In news from Canada: The Toronto Globe and Mail today reports that "Ottawa confirms support for same-sex marriages."

And The Toronto Star today contains articles headlined "'Principle' will survive court scrutiny: Cotler; Same-sex bill could require changes; Delay disappoints bill's proponents" and "Years of living dangerously; Two men recall 1974 marriage as court hears case; 'We were spoken of as if we were evil,' pioneer says."
Posted at 08:14 by Howard Bashman



"Appeals judges hear foreign lawyers case; Immigrants seeking to take La. bar exam": The Times-Picayune today contains an article that begins, "Emily Maw, a British citizen and a 2003 Tulane Law School graduate, had a front row seat Tuesday as three federal appeals court judges heard arguments on a pair of cases whose outcome will determine whether Maw and others like her have a future as Louisiana lawyers."
Posted at 08:12 by Howard Bashman



"High court to review voting rights; With the election less than a month away, the Florida Supreme Court has agreed to hear a lawsuit demanding that all provisional ballots be counted regardless of where they are cast": This article appears today in The Miami Herald.
Posted at 08:10 by Howard Bashman



In news from Louisiana: The Advocate of Baton Rouge today contains articles headlined "Judge: Same-sex marriage amendment invalid" and "Activists applaud, criticize gay marriage ban ruling." The Times-Picayune reports today that "Same-sex marriage ban is nullified; Judge says one vote covered two issues." And The Advertiser of Lafayette reports that "State judge reverses same-sex marriage ban amendment."

Elsewhere, The Los Angeles Times reports that "Louisiana Judge Throws Out State Ban on Gay and Lesbian Marriages; He finds amendment's wording too broad; Conservatives see only a minor legal setback." The Atlanta Journal-Constitution reports that "Gay marriage ban nixed in Louisiana." And The Washington Times reports that "Marriage amendment overturned."
Posted at 08:03 by Howard Bashman



"Scholars: Judge's remarks troubling." This article appears today in The Orlando Sentinel.
Posted at 08:00 by Howard Bashman



"The Supreme Court Reconsiders the Constitutionality of Executing Minors: The Case of Roper v. Simmons." FindLaw columnist Sherry F. Colb has this essay today.
Posted at 07:58 by Howard Bashman



"Ex-judge barred for life from bench; Disciplinary court's order is latest setback for Pazuhanich": This article appears today in The Morning Call of Allentown, Pennsylvania.
Posted at 07:38 by Howard Bashman



Ten Commandments news and commentary: The Daily Herald of Everett, Washington reports today that "Monument case heard; Judge will decide on Ten Commandments in Everett." The Seattle Post-Intelligencer reports today that "Judge to rule in Ten Commandments case." And The Seattle Times reports today that "Constitutionality debated in suit over monument."

From Alabama, meanwhile, The Montgomery Advertiser today contains an editorial entitled "Moore's case over, at least legally."
Posted at 07:23 by Howard Bashman



Tuesday, October 05, 2004
"Definition of 'Subparagraph' Is Debated in Court": Charles Lane will have this article in Wednesday's edition of The Washington Post.
Posted at 23:33 by Howard Bashman



"House Votes to Gerrymander the Ninth Circuit Court of Appeals; Sneak vote to split federal appeals court threatens environment": The organization Earthjustice issued this press release today.
Posted at 23:30 by Howard Bashman



"News: Use Bryant accuser's real name; Federal judge's ruling sought in civil suit against Lakers star." The Rocky Mountain News today contains an article that begins, "The Rocky Mountain News asked a federal judge Monday to require the woman who has accused Kobe Bryant of rape to use her real name in the civil lawsuit she has filed against the basketball star. Bryant's lawyers also filed a motion Monday opposing her request to remain anonymous, saying it would result in 'unfairness and prejudice' to Bryant."
Posted at 23:24 by Howard Bashman



"Rape victim's records debated; Prosecutors urge tighter security for such material after an attorney got sensitive information": This article appears today in The Salt Lake Tribune. And The Deseret Morning News reports today that "Justices mull case involving mis-sent file."
Posted at 23:15 by Howard Bashman



"Mother prevails in ruling; State high court OKs right to seek support from Texan": The Rocky Mountain News today contains an article that begins, "The Colorado Supreme Court ruled 4-3 Monday that a woman now living in Colorado need not return to Texas to seek child support from the allegedly abusive man she says forced her to leave." You can access yesterday's ruling of the Supreme Court of Colorado at this link.
Posted at 23:09 by Howard Bashman



"Ohio court race attracts big money": This article appears today in The Cincinnati Enquirer.
Posted at 22:58 by Howard Bashman



"Activists challenge feds on marijuana; Berkeley group wants U.S. recognition of medical use of pot": Josh Richman of The Oakland Tribune has this article today.
Posted at 22:55 by Howard Bashman



"Closure for $503M Ayers case may be imminent; Attorney for plaintiffs says case is not about money, but opportunities": The Clarion-Ledger of Jackson, Mississippi today contains an article that begins, "The U.S. Supreme Court could decide as early as next week whether years of appeals in the nearly 30-year-old Ayers college desegregation case finally will end."
Posted at 22:53 by Howard Bashman



"Suit targets judicial canon": This article appears today in The Forum of Fargo, North Dakota. And in other coverage, The Associated Press reports that "Group challenging judicial speech restrictions."
Posted at 22:50 by Howard Bashman



Denials of certiorari in the news: The day after the U.S. Supreme Court issues a 70-page Order List unsurprisingly produces an abundance of newspaper articles reporting on the denial of review. In posts preceding this one, I have already noted many such articles. But there's more.

The Alameda Times-Star reports that "High court rejects suit on gun ban; Alameda County can keep weapons show from using fairgrounds." The Contra Costa Times reports that "High court passes up challenge to gun-show ban."

The Arizona Republic reports that "Ban on firefighter drug tests upheld."

The Lexington Herald-Leader reports that "Death Row inmate loses his final appeal."

The Baltimore Sun reports that "Carjack killing trial can proceed; Justices reject appeal in Historic District case; Comments to police admissible."

And Howard Mintz of The San Jose Mercury News reports that "Court denies killer's appeal; Execution possible for man convicted of double slayings."
Posted at 22:22 by Howard Bashman



"Congress Overturns Trucker Rules Decision": The Associated Press provides this report. The decision in question came from the U.S. Court of Appeals for the D.C. Circuit.
Posted at 22:12 by Howard Bashman



"The Key to the Court -- The moral of Baker Botts: If at first you don't succeed in getting a high-end appellate practice, buy, buy again." law.com's Tony Mauro provides this report.
Posted at 22:03 by Howard Bashman



U.S. District Court for the District of Oregon declares federal sentencing guidelines unconstitutional due to Congress's passage of the Feeney Amendment: You can access today's ruling, issued by Senior U.S. District Judge Owen M. Panner, at this link.

In today's ruling, Judge Panner has concluded that the federal sentencing guidelines system, in its present form, is unconstitutional because it violates the separation of powers doctrine. The dispositive issue was not the judge-versus-jury issues implicated in Blakely v. Washington, but rather the changes brought about by the Feeney Amendment. Judge Panner announces in his opinion that he will treat the guidelines as advisory only, when imposing sentence in this and all future cases. Appeals from the District of Oregon go to the U.S. Court of Appeals for the Ninth Circuit, which all but guarantees that this matter is likely to remain interesting for quite some time to come.
Posted at 19:28 by Howard Bashman



"Politics and the Future of the Supreme Court": Today's broadcast of NPR's "Talk of the Nation" included this lengthy segment (Real Player required) featuring David G. Savage of The Los Angeles Times and Law Professors Stephen B. Presser and David Strauss.

Coincidentally, those two law professors had articles (see here and here, respectively) in the September|October 2004 issue of Legal Affairs magazine on this very subject.
Posted at 18:01 by Howard Bashman



In other news from The AP: Hope Yen has an article headlined "Court Weighs Harm of Misleading Car Loans" reporting on a case argued today before the Supreme Court of the United States.

And Anne Gearan has an article headlined "EBay Seeks New Trial in $29M Patent Case" reporting on a case argued today before the U.S. Court of Appeals for the Federal Circuit.
Posted at 17:57 by Howard Bashman



"House votes to break up San Francisco based-9th Circuit court": The Associated Press provides this report.
Posted at 16:46 by Howard Bashman



U.S. Supreme Court Justice bobblehead mania: Over the next two days, two more eBay auctions of U.S. Supreme Court Justice bobblehead dolls will conclude.

Tomorrow at 7:18 p.m. eastern time, this auction of a Justice Sandra Day O'Connor bobblehead doll will end. As of this moment, the current bid is $228.00. In recent weeks, this item has sold at auction on eBay for $300.00 and $285.00.

And then on Thursday at 3:08 p.m., this auction of a complete set of all three U.S. Supreme Court Justice bobblehead dolls that The Green Bag has produced so far will end. As of this moment, the current bid is $560.00. Given the prices for which these three bobblehead dolls have individually sold at auction on eBay, it is quite likely that a complete mint set of three will sell for more than $1000.00.
Posted at 16:23 by Howard Bashman



On today's broadcast of NPR's "Day to Day": A segment entitled "Slate's Jurisprudence: Supreme Court Sentencing Fight" features an interview with Dahlia Lithwick.

And other segments of interest are entitled "The Marketplace Report: High Court's Business Rulings" and "Slate's Explainer: Voting Rules for Felons."

Real Player is required to launch these audio segments.
Posted at 16:20 by Howard Bashman



"Judge tosses same-sex marriage ban": The Advocate of Baton Rouge, Louisiana provides this news update. And The Associated Press reports that "Amendment Banning La. Gay Marriage Tossed."
Posted at 15:43 by Howard Bashman



"Canada Top Court Seen Leaning Toward Gay Marriage": Reuters provides this report.
Posted at 15:14 by Howard Bashman



U.S. Court of Appeals for the First Circuit grants rehearing en banc in United States v. Councilman: You can access today's order granting rehearing en banc, which invites amicus briefs and instructs the parties to address specified issues of particular concern to the court, at this link.

Back on September 3, 2004, I had a post stating:
"Feds try again for wiretapping conviction": Declan McCullagh of c|net News.Com reports here today that "The U.S. Department of Justice has asked a full appeals court to review a controversial ruling saying an e-mail provider did not violate federal wiretapping laws by allegedly reading messages meant for customers." The article also notes that several civil liberties groups have filed an amicus brief in support of the federal government's request. In this blog post at "The Volokh Conspiracy," Law Professor Orin Kerr explains why that amicus brief is quite persuasive -- he is one of its authors. You can access the ruling of a divided three-judge panel of the U.S. Court of Appeals for the First Circuit in the case at this link.
Stay tuned for additional coverage of this interesting development.
Posted at 15:11 by Howard Bashman



"States May Ban Abortion if Roe Overturned": The Associated Press provides this report.
Posted at 15:08 by Howard Bashman



"Ninth Circuit Posts (Some) Memoranda Dispositions Online": The blog "Criminal Appeal" offers this post.
Posted at 14:46 by Howard Bashman



U.S. House of Representatives has passed legislation to split the U.S. Court of Appeals for the Ninth Circuit into three parts: You can access details of the legislation at this link. The vote on the amendment to split the Ninth Circuit, sponsored by Idaho Congressman Mike Simpson was 205 for, 194 against, and 33 not voting.
Posted at 14:02 by Howard Bashman



"Ultimate price a matter of justice, vengeance: Debating future of kids on death row; U.S. Supreme Court will look at the issue in murder case on appeal this month." The Montreal Gazette contains this article today.
Posted at 12:42 by Howard Bashman



"White House lawyer defends U.S. actions; He says suspects handled legally": This article appears today in The Courier-Journal of Louisville, Kentucky.

And in somewhat related coverage, The Washington Post reports today that "U.S. Defends Detentions."
Posted at 12:37 by Howard Bashman



"Maine judge panel a first for 1st Circuit": The Bangor Daily News today contains an article that begins, "Three appeals court judges made history Monday when they convened in the federal courthouse for a judicial version of the Red Sox State of Maine Day. It was the first time in the 113-year history of the Boston-based 1st U.S. Circuit Court of Appeals that three judges appointed to that body from Maine have served together on the same panel."
Posted at 12:33 by Howard Bashman



"Federal sentencing decision could affect R.I. cases; A Roger Williams University professor helps to write a legal brief in the two sentencing cases before the U.S. Supreme Court": This article appears today in The Providence Journal.
Posted at 12:30 by Howard Bashman



"Law Tribune Critical Of Chief Justice": The Hartford Courant today contains an article that begins, "The weekly Connecticut Law Tribune, for the first time in its 29-year history, ran an editorial on its front page Monday, criticizing Supreme Court Chief Justice William J. Sullivan for what the paper said was a conflict of interest and violation of the rules of judicial conduct."
Posted at 12:21 by Howard Bashman



"City killer's case raises basic questions; High court: Must jury fully know death penalty alternatives?" The Morning Call of Allentown, Pennsylvania contains this article today.
Posted at 12:13 by Howard Bashman



"'They. Are. Women.': Abella, Charron sworn in to Supreme Court; Appointments hailed as victory for women." This article appears today in The Toronto Star, along with an article headlined "'So proud to be a Canadian'; Judges sworn in amid tears, cheers; Abella, Charron have day in court."

The Toronto Globe and Mail, meanwhile, reports today that "New judges fill gaps in spectrum; The swearing in of Abella, Charron means four of nine top judges are women."
Posted at 12:07 by Howard Bashman



"State Farm case ends after 23 years": The Salt Lake Tribune today contains an article that begins, "After two decades of contentious litigation, it's official: State Farm Mutual Automobile Insurance Co. must pay $9 million in punitive damages to a Lewiston couple who took on the insurance giant and won."
Posted at 12:05 by Howard Bashman



"Justices hear Saginaw cases": The Saginaw News today contains this article reporting on one of the cases argued yesterday morning before the U.S. Supreme Court.
Posted at 11:49 by Howard Bashman



"Justices slam the door on al-Marri; Former Bradley University student accused of working with terrorists": This article appears today in The Peoria Journal Star.
Posted at 11:45 by Howard Bashman



"The Advocate as Politician; Career as Lawyer Molded Edwards": The Washington Post contains this front page article today.
Posted at 11:41 by Howard Bashman



"Aisenbergs are denied appeal to Supreme Court": This article appears today in The St. Petersburg Times. And The Tampa Tribune today reports that "Aisenbergs' Appeal Won't Be Considered."
Posted at 11:37 by Howard Bashman



"'Do-not-call' list survives": The Denver Post contains this article today.
Posted at 11:37 by Howard Bashman



"A case that the parties variously describe as being about the right to intimate association, the right to privacy and the right to be free of arbitrary state action tends to excite the constitutional imagination." Not to mention a case that is alleged to involve a lesbian relationship between a high school teacher and her former student. Circuit Judge Jeffrey S. Sutton issued this opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit.
Posted at 10:36 by Howard Bashman



"Scalia gets a cor-X-tion": This article appears today in The New York Post.
Posted at 10:30 by Howard Bashman



"Trial involving quote in courtroom moved; The judge had disqualified the entire Riverside County bench from hearing the case": The Press-Enterprise of inland southern California today contains an article that begins, "A lawsuit challenging whether Riverside County can cover an engraved presidential quote in a historic courtroom was transferred to San Bernardino County Superior Court after all of Riverside County's judges were recused from the case."
Posted at 10:26 by Howard Bashman



"U.S. high court hears arguments in Michigan case": Booth Newspapers provide this report.
Posted at 10:24 by Howard Bashman



"Hatch-backed nominee gets tame endorsement": The Salt Lake Tribune yesterday contained an article that begins, "Federal appeals court nominee Thomas Griffith received a lukewarm endorsement from the American Bar Association, though Senate Judiciary Committee Chairman Orrin Hatch remains committed to seeing Griffith confirmed."
Posted at 10:13 by Howard Bashman



"Lawyer sues U.S. for arrest in bombing; Brandon Mayfield, falsely accused in the Madrid case, says he was targeted for his Muslim faith": This article appears today in The Oregonian.
Posted at 10:07 by Howard Bashman



"Barbie settles grudge for sake of a record deal": Reuters provides this report. Apparently Mattel has decided to heed Ninth Circuit Judge Alex Kozinski's suggestion that "The parties are advised to chill."
Posted at 09:59 by Howard Bashman



"High Court Examines Limits on Truth in Lending Act": NPR's Nina Totenberg had this report (Real Player required) on today's broadcast of "Morning Edition."
Posted at 09:54 by Howard Bashman



"CSI: Baker Street." Seventh Circuit Judge Richard A. Posner has this review of "The New Annotated Sherlock Holmes: The Complete Short Stories" in the October 11, 2004 issue of The New Republic.

Fans of Judge Posner may also enjoy reading two emails from him in this post found on the blog "Velvel on National Affairs."
Posted at 09:28 by Howard Bashman



"Justices won't hear gaming case": Josh Richman has this article today in The Oakland Tribune.
Posted at 09:24 by Howard Bashman



"High court returns to sentencing issue; Constitutionality of US system questioned": The Boston Globe contains this article today.
Posted at 07:06 by Howard Bashman



"Justices debate sentence reforms": This article appears today in The Portland (Me.) Press Herald.
Posted at 07:05 by Howard Bashman



"Justices seem skeptical over sentencing": Jan Crawford Greenburg has this article today in The Chicago Tribune.
Posted at 07:02 by Howard Bashman



"High court blocks Moore": The Birmingham News today contains an article that begins, "Former Alabama Chief Justice Roy Moore's efforts to return to office reached the end of the line Monday, when the U.S. Supreme Court refused without comment to hear his case." And The Montgomery Advertiser reports today that "Moore vows battle not over."
Posted at 07:00 by Howard Bashman



Bob Egelko is reporting: Today in The San Francisco Chronicle, he has articles headlined "High court declines religious dispute over contraceptives; Catholic Charities challenged law on drug coverage"; "High court denies appeal of gun ban at county fairgrounds; Free speech and right to bear arms seen as under fire"; and "Justices spurn appeal of Indian gaming."
Posted at 06:57 by Howard Bashman



"Sentencing guidelines, chapter 2; Supreme Court may quell turmoil or provoke more": This article appears today in The Houston Chronicle.
Posted at 06:56 by Howard Bashman



"Supreme Court seems unreceptive to federal sentence guides": Michael McGough has this article today in The Pittsburgh Post-Gazette.
Posted at 06:51 by Howard Bashman



"U.S. Supreme Court hears Beloit man's case": The Wisconsin State Journal today contains an article that begins, "Beloit drug dealer Freddie Joe Booker, in an Oshkosh prison cell hundreds of miles away from the nation's capital, was deeply enmeshed Monday in the U.S. Supreme Court's arguments about the way federal criminals are sentenced."
Posted at 06:49 by Howard Bashman



USA Today is reporting: Today's newspaper contains articles headlined "Justices suggest new sentencing system is likely; Federal guidelines on prison time may violate constitutional right to jury trial" and "Credit card war may loom at banks; Court opens door to new issuers."
Posted at 06:47 by Howard Bashman



The Los Angeles Times is reporting: In today's newspaper, David G. Savage has articles headlined "High Court Poised to Topple Federal Sentencing Rules; Reversing the guidelines, which allow judges to add to terms, could have broad ramifications" and "Justices Reject Appeal of California Contraception Law."

And in other news:Also, Amitai Etzioni has an op-ed entitled "There Are Too Few Lawsuits, Not Too Many; Malpractice filings encourage better medical treatment."
Posted at 06:32 by Howard Bashman



Monday, October 04, 2004
Round-up of blog posts on today's U.S. Supreme Court oral arguments in the federal sentencing guidelines cases: Tom Goldstein of "SCOTUSblog" has two thoughtful posts here and here.

Jason Hernandez of "Blakely Blog" provided three telephonic reports, which now that they have been transcribed can be accessed here, here, and here.

Finally, Law Professor Douglas A. Berman has returned home to Ohio to what promises to be a late night consisting of multiple postings on today's oral arguments at his "Sentencing Law and Policy" blog. His first major update, entitled "Reflections on the SG's argument on Blakely's applicability," can be accessed directly at this link.
Posted at 23:59 by Howard Bashman



On this evening's broadcast of the PBS broadcast "NewsHour with Jim Lehrer": The program's lead segment was entitled "Presidential Election Could Transform Federal Judiciary." And you can listen to that segment in Real Audio by clicking here.

This evening's broadcast also included a segment entitled "Supreme Court Starts New Term, Considers Sentencing Cases" (Real Player required) featuring an interview with Jan Crawford Greenburg.
Posted at 23:07 by Howard Bashman



Another similar "sentencing mess" is now in the process of being cleaned-up in Arizona: The Arizona Republic today contains an article headlined "Jury spares murderer's life in retrial" reporting on the first of thirty cases in which judge-imposed death sentences were vacated in favor of resentencing before a jury as required by the U.S. Supreme Court's ruling in Ring v. Arizona. And a related article published today in that newspaper is headlined "More cases wearing on resources of courts."
Posted at 22:59 by Howard Bashman



"Court revives child porn case against Orange County judge": David Kravets of The Associated Press provides this report on a non-precedential ruling that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 22:53 by Howard Bashman



"Sentencing Rules Get Hearing; Justices Question Constitutionality of Federal Guidelines": Charles Lane will have this article in Tuesday's issue of The Washington Post.
Posted at 22:43 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Supreme Court Considers Federal Sentencing Guidelines After 'Blakely.'"

And Jonathan Ringel reports that "11th Circuit Overturns Child Porn Conviction."
Posted at 22:39 by Howard Bashman



The Associated Press is reporting: David Kravets reports that "Supreme Court OKs Calif. Gun Show Bans." In other news, "High court hears argument on amount Colorado owes Kansas." And an article reports that "Tobacco Lawyer Denies Knowing of Documents."
Posted at 22:34 by Howard Bashman



"Justices Show Inclination to Scrap Sentencing Rules": Linda Greenhouse will have this article in Tuesday's edition of The New York Times.
Posted at 22:34 by Howard Bashman



"Supreme Court looks at federal sentencing; 'Blakely' ruling limits judges' power to boost jail time in jury trials": This article will appear in Tuesday's edition of The Baltimore Sun.
Posted at 22:16 by Howard Bashman



"Justices weigh sentencing dispute; Federal judges' impact on punishments, right to jury trial at issue": The Dallas Morning News provides this news update.
Posted at 22:11 by Howard Bashman



"Batman and the Penguin Eat Blakely: The Supreme Court term opens with strange bedfellows." Slate's Dahlia Lithwick offers this report on today's U.S. Supreme Court oral arguments.
Posted at 20:56 by Howard Bashman



"Supreme Court hears arguments on federal sentencing guidelines": Stephen Henderson of Knight Ridder Newspapers provides this report on today's U.S. Supreme Court oral arguments.
Posted at 20:42 by Howard Bashman



Ceci n'est pas une pipe: The web site of the U.S. Court of Appeals for the Sixth Circuit this month has begun to offer access to opinions described as "non published." That characterization brings to mind a certain painting by René Magritte.
Posted at 20:13 by Howard Bashman



"One Pitcairn Islander pleads guilty to sex charges": The New Zealand Herald provides this news update.

In earlier coverage, The Independent (UK) reports today that "Pastor denies church knew of child sex abuse on Pitcairn" and reported yesterday that "Pitcairn trial hears a litany of child sex abuse."

And The Telegraph (UK) reports today that "Sex trial accused join prosecutors in prayer."
Posted at 19:57 by Howard Bashman



"Smaller court may hear tobacco case in Madison County": The St. Louis Post-Dispatch today contains an article that begins, "The Illinois Supreme Court could take up as early as next month the appeal of the mammoth Philip Morris verdict from Madison County, but only six of the seven justices are likely to decide it."
Posted at 19:50 by Howard Bashman



"Storm Center: The year ahead in the Supreme Court." Law Professor Thomas E. Baker has this jurisprudence essay online at Slate. In previewing some of the most noteworthy cases to be argued this Term, Baker writes: "the 9th Circuit had to be taking long bong hits to rule that the federal drug laws cannot be applied to the nonprofit production and distribution of marijuana for 'medical' use."
Posted at 18:55 by Howard Bashman



"More cases, same budget for courts; Local federal district may fall short $1.4 million but won't need additional layoffs": The Houston Chronicle contains this article today.
Posted at 17:51 by Howard Bashman



"Crusader racks up legal victories for the cause; Toronto veteran of key gay-equality cases set to make her big pitch to Supreme Court": This article appears today in The Toronto Globe and Mail.
Posted at 17:50 by Howard Bashman



"Judge gives Lauderdale law firm OK to use 1-800-PITBULL in ads": The South Florida Sun-Sentinel today contains an article that begins, "The Florida Bar barked up the wrong tree in its attempt to muzzle a Fort Lauderdale law firm from advertising its phone number as 1-800-PITBULL, a judge recently concluded."
Posted at 17:44 by Howard Bashman



You mean the U.S. Supreme Court heard oral arguments today in cases that don't involve the federal sentencing guidelines? Indeed so. The Associated Press offers a report headlined "Court Weighs Legal Rights of Mich. Poor" that begins, "With backing from a fifth of all states, Michigan asked the Supreme Court on Monday whether a state can refuse to pay for appeals by indigent defendants who plead guilty to crimes."
Posted at 17:40 by Howard Bashman



"First reactions to the Booker/Fanfan oral argument": Law Professor Douglas A. Berman offers these initial thoughts online at his "Sentencing Law and Policy" blog.
Posted at 17:22 by Howard Bashman



The wire services report on today's U.S. Supreme Court oral arguments in the federal sentencing guidelines cases: Gina Holland of The Associated Press has a report headlined "Supreme Court Addresses Prison Sentences," while James Vicini of Reuters has a report headlined "Top Court Opens Term, Hears Sentencing Cases."
Posted at 16:58 by Howard Bashman



"Blakely Blog" posts about today's U.S. Supreme Court federal sentencing guidelines oral arguments: You will find a quite detailed report on just the federal government's presentation at this link.
Posted at 16:53 by Howard Bashman



A first-hand report on today's U.S. Supreme Court oral argument in the federal sentencing guidelines cases: The following report has arrived via email:
People in the courtroom: I didn't see anybody really famous, but that may be more of a function of me not recognizing them than them not being there. SCOTUSblog blogger Tom Goldstein was there. The usual Supreme Court reporters were there. Somebody near me commented that Nina Totenberg was especially elegantly dressed (and I guess I would tend to agree).

Number of attorneys in the courtroom: I didn't leave to go to the Supreme Court until around 11 am (I took a cab) and was worried that I didn't leave early enough. However, I was able to get a great seat. I was surprised that there were still a fair number of empty seats in the lawyer seating area.

About the counsel arguing: Paul Clement argued for the government. He did a very good job. He didn't use any notes or papers, except for his rebuttal (he had one legal pad). The first attorney for respondent, Mr. Kelly, did a pretty good job. He seemed to have difficulty dealing with the Court's hypotheticals (which would have been very difficult) and some of the Justices seemed to get impatient about that. He didn't do a bad job--I certainly have seen attorneys argue major cases who have done much worse (Lawrence v. Texas and Zelman v. Simmons-Harris come to mind). But he seemed to be struggling a bit. The second attorney for respondent, Ms. Scapicchio, seemed to manage a bit better. She had a noticeable northeastern accent. Not a strong one, but noticeable when she said words like court, opportunity, Fanfan, before, charge, mandatory, manner, etc. I guess I'm just used to hearing attorneys without noticeable accents, or if they have one, it's usually a bit southern. I noticed that during most of the argument, she kept her hands clasped behind her back. When she gestured with her right hand, she would still keep her other arm behind her back.

How the argument started: In announcing the case, at first Chief Justice Rehnquist said "Freddie J. Bookie" instead of Booker, but then corrected himself. Paul Clement argued first, and it was a few minutes before any of the Justices asked him a question.

The first few questions came from Scalia. Clement was discussing some case law and Scalia asked "You say there's no serious Sixth Amendment issue. Was the right to a jury trial raised [in those cases]?" He also commented that the right to a jury trial is fairly clear and stark, and he didn't recall seeing it argued in those cases.

Clement referred to a Stevens dissent as being "quite prophetic" and Stevens responded "They don't listen to me as much as they should." [Laughter]

Scalia then indicated that the problem he had with the government, insofar as it did not urge the Court to reverse Blakely, was that you have a cure that doesn't correspond to the disease. The maximum was not prescribed by the legislature, but by a quasi-judicial agency. With the right to a jury trial, you're not worried about the legislature, you're worried about the judge. He said he didn't know what the Sentencing Commission was, but it is not a court.

Bon mot of the day: Scalia was commenting that if you get a lenient judge, that's lagniappe, as they say in Louisiana.

Aphorism of the day: "In for a penny, in for a pound" which was repeated several times.

But I'm very fond of my hypothetical: Clement kept trying to use fraud with hundreds of victims as an example, but Stevens kept trying to get him to address cases involving drugs or weapons. In response, Clement said "If I could use the fraud example...." [Laughter]

Other questions: Ginsburg seemed concerned about determinations regarding sentencing made by Congress, or by the Commission at the direction of Congress.

The judges to the right side of the bench (O'Connor, Kennedy, Thomas, and Breyer) didn't ask any questions at all for the first 20 minutes, and for the first 40 minutes, Kennedy was the only one who asked a question.

Kennedy seemed to be trying to find some middle ground, noting that the paradigm in cases like Blakely, Apprendi, etc. is issues like amount of drugs, use of a weapon, violence against the victim, that a jury could decide, but issues like lack of remorse after a verdict would be different. He asked if it was "In for a penny, in for a pound?"

He also asked what test he or commentators suggest regarding permitted kinds of facts that a judge could find. Clement said the Court could use analysis similar to affirmative defenses.

Stevens asked a lot of questions about how many cases would be affected. The figure Clement kept referring to was 65% of cases raise Blakely issues. Stevens kept asking, and seemed to think, that the percentage would be much smaller if you only looked at cases in which the sentence was higher than what the jury verdict would have authorized.

Regarding the impact of the ruling, Scalia commented that the Court's decision might have a significant one-shot impact for cases decided without Blakely in mind, but changes could provide for jury findings whenever there’s a need. He also asked whether provisions regarding the Guidelines that said "court" could be read as "jury." Clement listed several provisions where that would not work (listing several very specific provisions, without any notes...impressive) and commented that "that is the sum total of the carnage." [Laughter]

Breyer asked his first question about 40 minutes into the argument (he asked quite a few questions later), noting four kinds of things that would be difficult for a jury to decide. He also suggested that a simpler approach might be to read "shall" in the Guidelines as "may" and thus the Guidelines would be advisory, and asked what was wrong with that approach. Clement said nothing would be wrong. Then Breyer said that he had thought of something. Scalia said "Could it be that 'shall' does not mean 'may'?" [Laughter] Breyer noted that if the Guidelines were viewed as advisory, the Court would still have to review decisions for reasonableness, and in effect the Supreme Court would become the Sentencing Guidelines Commission, saying "I thought I had escaped." [Laughter]

O'Connor's first question came about 50 minutes into the argument. She noted that viewing the Guidelines as permissive just seemed so contrary to what Congress intended, and that there's no evidence Congress meant it to be advisory. She said she found it difficult to see how appellate review would apply.

Her only other question came when the attorney for the second respondent argued that severability would not apply to downward departures but would apply to upward departures (about 1:35 into the argument). She noted that maybe the Court should leave it for Congress to decide and that Congress intended there to be factfinding for both upward and downward departures.

In his rebuttal, Clement mentioned Mistretta and US v. Hudson (1812) and said that the defendants' position would result in a "huge sentencing windfall."
I thank my correspondent very much for this quite interesting report.
Posted at 16:44 by Howard Bashman



Former Alabama Supreme Court Chief Justice Roy S. Moore issues statement regarding U.S. Supreme Court's denial of certiorari in his case: You can access the press release, issued today, at this link.
Posted at 16:12 by Howard Bashman



Tom Goldstein opines on today's U.S. Supreme Court federal sentencing guidelines cases: Tom attended this afternoon's oral argument, and he offers his initial thoughts in blog posts that you can access here and here.
Posted at 15:46 by Howard Bashman



With apologies to Dahlia Lithwick: One week ago today, I posted online here the text of Justice John Paul Stevens' speech in which he took issue with Dahlia Lithwick's New York Times op-ed entitled "Off the Bench."

This past Saturday evening's broadcast of C-SPAN's "America and the Courts" began with a video of Justice Stevens (non-bobblehead version) delivering the speech whose text I linked to last Monday. You can view the video by clicking here (Real Player required). We should learn by later today whether, as a result of ticking-off someone who is reputed to be the Court's nicest member, Dahlia's assigned seat in the courtroom this year is behind a marble pillar.
Posted at 15:33 by Howard Bashman



"Should judges quit the ABA?" At National Review Online, Justin Katz has this essay today.
Posted at 15:29 by Howard Bashman



"Slate's Jurisprudence: Supreme Court's New Session." Today's broadcast of NPR's "Day to Day" included this report (Real Player required) featuring Dahlia Lithwick.
Posted at 15:14 by Howard Bashman



In news from the U.S. Court of Appeals for the Fifth Circuit: The Associated Press reports that "Court Takes Up Law Used Against Traders."
Posted at 14:35 by Howard Bashman



"No review for Saddam Hussein, Roy Moore and State Farm": Lyle Denniston of "SCOTUSblog" provides this report on today's U.S. Supreme Court denials of certiorari.
Posted at 14:19 by Howard Bashman



"Supreme Court Addresses Prison Sentences": Gina Holland of The Associated Press offers this early report on this afternoon's U.S. Supreme Court oral arguments.
Posted at 14:15 by Howard Bashman



And the result is: The Supreme Court of the United States this afternoon will hear oral arguments in two cases that will allow the Court to determine whether and how its ruling in Blakely v. Washington affects application of the U.S. Sentencing Guidelines.

Two U.S. Courts of Appeals have heard reargument en banc on this question, and both of those intermediate appellate courts issued orders shortly after the rearguments announcing how the courts had voted on the important question presented. Those orders announcing the results reached following reargument preceded by quite some time the opinions that the judges participating in those en banc courts issued in support of or in dissent from those rulings.

In just a few days from now, the Justices of the U.S. Supreme Court will hold a conference at which they will vote on the outcome of the two Blakely-related cases being argued this afternoon. No one expects, however, that the Supreme Court would announce the outcome of these cases before it has prepared opinions, even if the outcome is as straightforward as a holding that Blakely does not preclude the U.S. Sentencing Guidelines from being applied in the future as they have been applied in the past.

Why won't the U.S. Supreme Court announce the outcome it has reached in these cases before it is prepared to issue its opinions? That's just not how the highest Court in the land conducts its business.

Update: In response to this post, a reader emails:
Certainly true as a general matter. However, in the past, there have been occasions when the Supreme Court has done precisely that -- judgment first with more detailed opinion to follow. The best-known of these instances is Ex Parte Quirin, 317 U.S. 1 (1942). Slightly more recently, the same procedure was followed in the ballot-access case of Ray v. Blair, 343 U.S. 154 (1953) (Court "now announces its decision and enters its judgment in advance of the preparation of a full opinion which, when prepared, will be filed with the Clerk"). Today, the latter case would probably have been handled as an interim stay application with the merits to follow at a later time (or perhaps dismissed as moot after the stay was denied).

Is this the most recent instance?
The answer to that question would indeed be interesting to know.
Posted at 13:34 by Howard Bashman



"The First Monday in October": This editorial appears today in The New York Times.
Posted at 11:26 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access today's Order List at this link (70-page PDF document). The Court today granted review in no additional cases. The Court did, however, call for the views of the Solicitor General's Office in two cases, including one in which two Justices (Sandra Day O'Connor and Stephen G. Breyer) are recused.

In early news coverage, Reuters reports that "Top Court Upholds Visa, MasterCard Ruling." And James Vicini reports that "Top Court Upholds Do-Not-Call Registry"; "High Court Won't Review Drug Tests of Firefighters"; and "Supreme Court Won't Review Case of Al Qaeda Suspect."

Meanwhile, from The Associated Press, Gina Holland reports that "Supreme Court Upholds Contraceptive Ruling"; "Supreme Court Avoids Credit Card Dispute"; and "Gaming Allowed Still for Calif. Tribes." Hope Yen reports that "Supreme Court Won't Hear Firefighter Case." And in other coverage from The AP, "Supreme Court Won't Hear Do Not Call Case"; "Supreme Court Rejects Commandments Case"; "Supreme Court Won't Rule on Saddam Case"; and "Supreme Court Lets Campaign Case Stand"; "Golf Scores Won't Be Distributed Real-Time"; "Supreme Court Lets Stand Murder Charges"; and "Supreme Court Won't Hear Terrorism Case."
Posted at 10:00 by Howard Bashman



In other news and commentary on the occasion of the official start of the U.S. Supreme Court's October 2004 Term: The Salt Lake Tribune reports today that "Juries might face added duty; Court ruling could give them more sentencing discretion."

The Pasadena Star-News reports today that "High court to open new term; Criminal justice cases to be forefront."

The St. Louis Post-Dispatch reports today that "Case could end executions in U.S. for crimes by minors."

And USA Today contains an editorial entitled "Ballots may tip bench, too."
Posted at 09:56 by Howard Bashman



"Justices to Weigh Soured Car Deal; Local Dispute Has National Implication": Charles Lane has this article today in The Washington Post.
Posted at 09:55 by Howard Bashman



BREAKING NEWS -- Justice Antonin Scalia isn't personally an advocate of sexual orgies after all: The Harvard Crimson issued this correction today.
Posted at 09:52 by Howard Bashman



"High Court: Same As It Ever Was?" CBS News commentator Andrew Cohen has this "CourtWatch" column today.
Posted at 09:39 by Howard Bashman



"The Supreme Quiz: Test Your Knowledge of the Court." Charles Lane of The Washington Post has this item in today's newspaper.
Posted at 09:33 by Howard Bashman



"A rare chance to reshape top court": This article appears today in The Washington Times.

The Arizona Daily Star today contains an article headlined "Shaping high court is social issues key; Election winner could appoint up to 4 justices."

And The Baltimore Sun today contains an editorial entitled "The next Supreme Court."
Posted at 09:28 by Howard Bashman



Choose litigation: From Louisiana, The Associated Press reports that "License Plates Caught in Abortion Conflict."

And from Tennessee, The AP reports that "Specialty plates PAIN4TENN; Judge's 'Choose Life' ruling forcing state to try to draw lines, save license program."
Posted at 09:19 by Howard Bashman



"High Court To Consider Sentencing Guidelines": NPR's Nina Totenberg had this report (Real Player required) on today's broadcast of "Morning Edition."
Posted at 09:14 by Howard Bashman



"High court to consider appeals issue for poor": The Associated Press provides this preview of a case to be argued today before the U.S. Supreme Court.
Posted at 09:13 by Howard Bashman



"Students' lawyers tell U-M to pay; They want $2 million in fees for affirmative action case of 1997": This article appears today in The Detroit News.

And in somewhat related coverage, The Ann Arbor News reported on Saturday that "U-M makes moves for more diversity; New steps emphasize attracting minorities."
Posted at 09:05 by Howard Bashman



"Wine, Dogs and Drugs on High Court Agenda: The cases are just some of those before the justices this session; Other issues could have far-reaching effects on the legal system." David G. Savage of The Los Angeles Times had this article in yesterday's issue of that newspaper.
Posted at 07:06 by Howard Bashman



"Supreme Court starts term with prison sentencing rules": Joan Biskupic of USA Today provides this report.

Michael McGough of The Pittsburgh Post-Gazette reports that "Sentencing guidelines gain court priority."

And The Baltimore Sun reports that "Justices take up sentencing guidelines; The Supreme Court opens by considering judges' power."

The very same "How Appealing" reader who has provided exclusive (and anonymous) reports on previous U.S. Supreme Court oral arguments of significance expects to attend today's federal sentencing guidelines oral arguments. Stay tuned for additional coverage throughout the day.
Posted at 07:00 by Howard Bashman



23 Questions for Seventh Circuit Judge Diane S. Sykes: [Editor's note: The Fall 2004 issue of The Appellate Advocate, the newsletter of the Indiana State Bar Association's Appellate Practice Section, has just been distributed to that section's membership. The newsletter contains an interview that Thomas M. Fisher of the Office of the Indiana Attorney General conducted in writing with Seventh Circuit Judge Diane S. Sykes. When the scheduled October 2004 "20 questions" interviewee advised that he was unable to participate shortly after receiving the questions that I had prepared for him, I asked Tom if I could reprint his interview with Judge Sykes in its place. Tom, the newsletter's editor-in-chief, and Judge Sykes have all agreed. With many thanks to all three of them, what follows is a verbatim republication of the interview contained in the Fall 2004 issue of The Appellate Advocate.]

Earlier this summer, the Honorable Diane Sykes filled a seat on the Seventh Circuit vacated by Judge John L. Coffey, who has assumed senior status. She is the first new judge on the Seventh Circuit since Judge Ann Claire Williams joined the Court in 1999. Judge Sykes, formerly a Justice on the Wisconsin Supreme Court, was nominated by President Bush on November 14, 2003. The Senate confirmed Judge Sykes on June 24, 2004, and she received her commission on July 1. Judge Sykes received her B.S. from Northwestern University in 1980, and her J.D. from Marquette University School of Law in 1984. Following law school she clerked for fellow Seventh Circuit Judge Terence T. Evans when he was a Judge of the United State District Court for the Eastern District of Wisconsin, and then practiced law for a number of years before becoming a judge of the Milwaukee County Circuit Court, where she served from 1992 until 1999. She was elevated to the Wisconsin Supreme Court by Governor Tommy G. Thompson in 1999.

Judge Sykes has graciously agreed to respond to some questions that I provided to her in writing. But first due credit goes to the amazing Howard Bashman of How Appealing fame, from whom I am shamelessly borrowing this idea. My questions are in italics, and each is followed by Judge Sykes' response in plain type.

1. First, some incidentals: Who administered the oath of office to you, and where are your chambers located?

Judge Evans administered the oath of office in his chambers in Milwaukee on the morning of July 4th. (There will be a formal investiture ceremony in the fall.) My chambers will eventually be located next door to Judge Evans in the Milwaukee Federal Courthouse. In the meantime, I am using his old district court chambers, where I started my legal career as his law clerk twenty years ago.

2. You have been on the Court for a little over a month now. So far, what are the main differences from being a Justice on the Wisconsin Supreme Court?

It's a little early for comparisons. Because I joined the court during the summer, my first (and so far only) panel assignment was on one of the court's so-called "short argument" days. I sat with Chief Judge Flaum and Judge Bauer and enjoyed it very much.

There will be obvious differences in the volume and subject matter of the cases. I would anticipate that deciding cases as a panel of three judges will be somewhat different from deciding cases as a court of seven. An important aspect of the work of a state high court justice is deciding which cases to accept, and I will obviously no longer have that role. Also, a significant part of my job on the Wisconsin Supreme Court involved administrative matters primarily related to regulation of the bar and the court system -- attorney discipline, judicial discipline, bar admission, appointments to judicial branch committees and commissions. Also, the court's rule-making authority (rules of procedure, ethics, and so forth) was regularly invoked. We would usually decide a half dozen or so rule-making petitions each term. My sense is that administrative and rule-making matters are not a substantial part of a circuit judge's regular routine unless the judge is called to become actively involved in federal court governance.

3. You clerked for Judge Evans when he was a district court judge, and now you are colleagues on the Seventh Circuit. What was he like to clerk for, and have you attempted to emulate his approach to judging and writing opinions?

I was very lucky to land that clerkship with Judge Evans. He is one of our nation's best judges, and it was a privilege to watch him work in the courtroom and to work on opinions with him in chambers. He was a wonderful trial judge. I learned a great deal from his deft handling of attorneys, defendants, jurors, and witnesses, which served me well as a state trial court judge. His sense of humor is legendary. He is blessed with an enviable combination of a keen intellect, abundant common sense, and an incisive wit; I think all three qualities are apparent in his opinions. He expansively included his clerks in all aspects of the work of his district court chambers, viewing clerkships as an opportunity for the clerk to learn as well as be helpful to the judge. I can only hope to have Judge Evans' flair for opinion-writing. I have emulated his direct style. Perhaps now that I have life tenure I can go for a little humor in an opinion now and then.

4. Judge Posner has described himself as a "pragmatist" Judge Easterbrook has described himself as a "legalist" or "textualist." Do you have an overarching philosophy of judging or of the law more generally?

I generally follow a textualist approach to statutory interpretation and look to text and history in constitutional interpretation. I have been cautious about the expansion of the common law and generally have not been in favor of recognizing new causes of action or expanding existing theories of liability unless there is a sound, compelling reason to do so and a clear set of governing legal principles can be articulated to define the claim or scope of liability. For example, see State ex rel. Kalal v. Circuit Court, 2004 WI 58, ___ Wis.2d ___, 681 N.W.2d 110 (statutory interpretation); State v. Hayes, 2004 WI 80, ___ Wis.2d ___, 681 N.W.2d 203 (concurrence; statutory interpretation); Bruno v. Milwaukee County, 2003 WI 28, 260 Wis.2d 633, 660 N.W.2d 656 (statutory interpretation); Vincent v. Voight, 2000 WI 93, 236 Wis.2d 588, 614 N.W.2d 388 (concurring in part, dissenting in part; constitutional interpretation, state constitution education clause); Kerl v. Rasmussen, 2004 WI 86, ___ Wis.2d ___, 682 N.W.2d 328 (common law, franchisor vicarious liability); Green v. Smith & Nephew, 2001 WI 109, 245 Wis.2d 772, 629 N.W.2d 727 (dissent; common law, design defect product liability); Ziervogel v. Washington County Bd. Of Adjustment, 2004 WI 23, 269 Wis.2d 549, 676 N.W.2d 401 (regulatory law, zoning); State v. Outagamie County Bd. Of Adjustment, 2001 WI 78, 244 Wis.2d 613, 628 N.W.2d 376 (plurality opinion; regulatory law, zoning); ABKA Ltd. P'ship v. Wisconsin Department of Natural Resources, 2002 WI 106, 255 Wis.2d 486, 648 N.W.2d 854 (dissent; regulatory law, rights of riparian property owners).

5. In your experience, how valuable is oral argument? How do you prepare for oral argument, and how do you use oral argument to help you decide cases? What do you like to hear at oral argument that can change your mind? What causes you to lose faith in an argument?

I generally find oral argument to be helpful. I read the briefs, the parts of the record that are important to the appeal, and the significant governing law prior to oral argument but do not generally prepare specific questions in advance, other than perhaps jotting down certain general areas of inquiry. Oral argument can help test the basic foundation of a party's legal argument and identify its weaknesses and outer limits. I like to hear a straightforward discussion of the legal principles that govern the appeal and how the facts of the case do or do not satisfy those principles. Beyond that, it's important for counsel to think about and be prepared to discuss the broader consequences of a ruling in the client's favor. In the Wisconsin Supreme Court it was almost always the case that at least one of the parties was asking for a change in the common law or a new interpretation of a statute or constitutional provision -- otherwise, why would we have taken the case? Even in appeals that seem routine, however, counsel should be prepared to talk about how the case before the court might affect the development of the law in the event that that court views the case as nonroutine. I will begin to lose faith in an argument when counsel overreaches on the law or facts, or argues the case with too much drama or emotion or sky-is-falling rhetoric, as if before a jury.

6. Do you typically find amicus briefs to be helpful to the court and a good use of resources, or do you find them to be annoying distractions bound for the circular file?

I don't have a good general answer to this question. In some cases I have found amicus briefs to be very helpful -- sometimes better than the parties' briefs. In other cases the amicus briefs have been simply repetitive.

7. What brief writing techniques do you find most persuasive? What common mistakes should lawyers strive to avoid in writing briefs?

The usual rules about good writing prevail in this context. A good brief will be clear, concise, and well-organized.

Some basic rules: Take the time to identify and state the issues with precision and clarity. Begin the argument section with the legal standards that govern the appeal, and then discuss and resolve the individual issues in the case. Do not overstate case holdings or legal propositions in the case law. Remember to tell the court what you want in terms of a holding -- something more specific than "affirm" or "reverse."

Common mistakes are: weak articulation of the issues; poor organization; too much factual detail; too many block quotes; long headings and subheadings; hyperbole. For other rules, perils, and pitfalls, reread (or read for the first time) Strunk & White's Elements of Style. I return to this classic often. The following admonition from the book is humbling, but time-honored and true: "Think of the tragedies that are rooted in ambiguity, and be clear! When you say something, make sure you have said it. The chances of your having said it are only fair."

8. How many law clerks do you hire, how do you use them, and what do you look for when hiring them?

I have hired three clerks for my first year at the Seventh Circuit and anticipate continuing to maintain a staff of three clerks. They will prepare short bench memos to assist in oral argument preparation and will also work on draft orders and opinions. I look for solid academic qualifications, strong analytical and writing ability, interesting life experiences, and an easy personality.

9. More broadly, what is your process for deciding cases?

My frame of reference on appellate decision-making is my service on the Wisconsin Supreme Court. Cases in a court of permissive review require the degree of background research and big-picture thinking that goes along with deciding highly consequential, precedential cases. I anticipate that there will be some cases at the Seventh Circuit that would be characterized as more routine, calling for the application of settled law to the facts before the court, and will not require the same expansive consideration of the legal underpinnings and consequences of the court's decision. Either way, the process is both contemplative and deliberative. I will usually come to a tentative conclusion after reading the briefs and the law, and then test that conclusion in oral argument and in the conference room. It may hold up, it may not, or it may hold up with modifications. On a few occasions my vote has changed after reviewing the draft opinion or finding that an opinion assigned to me cannot be written as originally contemplated in the conference room.

10. Before going to law school, you worked as a newspaper reporter. When did you become interested in the law as a career, and what prompted that interest?

My father was a city manager in a suburban Milwaukee community and a cabinet-level manager in Milwaukee County government. My interest in government and the law initially came from dinner table conversations about his job and attending board meetings to watch him work. I remained interested in the law as a journalism student at the Medill School at Northwestern University. But I enjoyed journalism, wanted to work as a reporter, and had a job opportunity at The Milwaukee Journal after graduating from Northwestern. I was assigned to cover suburban governments, but occasionally, also covered the criminal courts and the police beat, which brought my interest in the law back to the surface. I applied to law school with the intention of a career in public service -- perhaps as a prosecutor, a legislator, or a judge.

11. When did you first become interested in being a judge, and what prompted that interest?

I went to law school with public service in mind. Clerking for Judge Evans drew me to the judiciary. The role of independent arbiter appealed to me. After seven years in private practice following my clerkship, the opportunity to serve the public and contribute to the rule of law as a judge was compelling, and seemed to be a good fit for a person of my background as a generalist with an interest in writing. I have found my work on the bench to be very rewarding.

12. Who are some of your role models in the law?

My personal role models in the law include Judge Evans, of course, for all of the reasons stated in my response to your third question. Initial role models are highly important, and I was fortunate to start my career learning from one of the best.

Also, Janine Geske, a good friend and distinguished professor of law at Marquette University Law School, has been an important influence on me. She was a Milwaukee County Circuit Court judge when I was in private practice, and we overlapped for a year on the Milwaukee Circuit Court. She was then promoted to the Wisconsin Supreme Court, where she served for five years. From her position at Marquette Law School, she has been called upon to serve the community in a variety of sensitive and difficult assignments. Her intelligence, her sense of fairness, and her steady temperament were an inspiration to me as an aspiring judge. She is also a person of tremendous personal grace, character, and faith; I have found strength in her example.

When I became a judge, I was fortunate to be assigned a wonderful mentor for my first two weeks on the bench: Judge Michael Sullivan of the Milwaukee County Circuit Court is one of our most respected state trial judges. Judge Sullivan, now chief judge in Milwaukee County Circuit Court, has high intelligence and excellent judgment. He also has that rare gift of knowing exactly what to say at those unpredictable and challenging moments that arise in a busy, urban courtroom many times a day. Whatever the decision, people leave his courtroom knowing they have been treated fairly.

13. You were nominated for the Seventh Circuit by President Bush after being recommended, along with three others, by a bipartisan commission. Wisconsin Senators Herb Kohl (D) and Russell Feingold (D), and Rep. James Sensenbrenner (R), who chairs the House Judiciary Committee, forwarded all four names recommended by the commission to the White House. Such a process is somewhat unusual, but your nomination was not bogged down by a threat of filibuster in the Senate, and while your confirmation was not unanimous, Senators Kohl and Feingold voted in favor of your confirmation. Could you please tell us more about how this process worked and your thoughts about it?

For the most part the process was straightforward and noncontroversial. The bipartisan commission process involved a detailed written application and then an interview with the commission. Senators Kohl and Feingold then interviewed each of the finalists and indicated their support for all four of us. The fact that my nomination was produced by a bipartisan commission and had the support of Wisconsin's senators, both Democrats, seemed to reduce the political and partisan controversy that has characterized the judicial confirmation process.

14. How did your Senate Judiciary Committee Hearings go? How did they compare with your expectations in terms of contentiousness?

My confirmation hearing was nonconfrontational and relatively brief. I was on a panel with two noncontroversial district court nominees, Juan Sanchez from Pennsylvania and James Robart from Washington, and the hearing for all three of us lasted about forty-five minutes. I was pleased that it did not become contentious, as others have been.

15. What are your particular academic interests in the law, or what aspects of the law interest you more than others?

I have a special interest in criminal law. Six of my seven years on the state trial court bench were spent in the criminal division, and I taught criminal law and procedure at the Wisconsin Judicial College for several years. Also, I served on the Criminal Penalties Study Committee, a legislatively created committee charged with the responsibility of reclassifying the criminal code and developing discretionary sentencing guidelines in connection with Wisconsin's transition to Truth-in-Sentencing. I also especially enjoy constitutional law and tort law.

16. Do you have any particular areas of interest with respect to the structure and operation of the federal courts?

Not yet -- I've been a state court judge for 12 years and will have to learn more about the operation and governance of the federal courts as I continue in my new job.

17. What are your views on permitting cameras in federal courtrooms?

Wisconsin has long allowed cameras in state courtrooms, pursuant to a court rule and subject to the judge's authority to control the conduct of proceedings in the courtroom. My own experience with cameras in court has been positive, both in the trial court and the Supreme Court Electronic media coverage of court proceedings can be accomplished in a way that preserves the solemnity and integrity of the legal process; I believe the public can benefit from this sort of direct, firsthand information about court proceedings. Having said that, however, I do not have a strong opinion that the federal rule should be changed. There does not appear to be a groundswell of public interest in television or still camera access to federal courtrooms. Tradition and historical practice generally prevail until a reasonably strong case can be made for change.

18. Earlier this year the Federal Judicial Center's Advisory Committee on Appellate Rules recommended to the Standing Committee on Rules of Practice and Procedure that proposed Rule 32.1, which would uniformly permit citations to unpublished opinions in federal courts (currently such citations are largely prohibited in the Seventh Circuit), be approved and transmitted to the Judicial Conference for consideration. But this past June the Standing Committee referred proposed Rule 32.1 back to the Advisory Committee for further study. What are your views on whether it would be good policy to permit citation to unpublished court decisions?

I am opposed to allowing citation to unpublished opinions. Wisconsin has prohibited citation to unpublished opinions since our intermediate court of appeals was created over 25 years ago. There have been periodic efforts to change the rule, the most recent of which was denied last year. The rules petition considered by the court last year proposed to change the noncitation rule to allow citation to unpublished opinions for persuasive value. I voted with the majority to deny the petition and filed a concurrence explaining my position. See In re the Amendment of Wis. Stat. § (Rule) 809.23 re: Citation to Unpublished Opinions, 2003 WI 84, ___ Wis.2d ___, 670 N.W.2d 525. In a nutshell, I believe that allowing citation to unpublished opinions runs contrary to the nature and purpose of unpublished opinions and interferes with the ability of an intermediate appellate court to balance its error-correction and law-development functions. It would also impose new professional obligations on lawyers regarding the scope of legal research, with a likely corresponding increase in the cost in legal services. My views on this subject are more extensively discussed in my concurrence to the per curiam denial of the rules petition cited above; my position will likely be the same on the proposed federal rule.

19. What are some of your interests outside law?

Most of my time is consumed by my kids and my work on the court. When I do have free time, I enjoy reading, gardening, and exercising.

20. What are you reading for pleasure?

I'm reading The Jane Austen Book Club, a novel by Karen Joy Fowler, and Dearest Friend, a biography of Abigail Adams by Lynne Withey. I am also browsing through Never Give In! The Best of Winston Churchill's Speeches, selected and introduced by his grandson Winston S. Churchill. Earlier this summer I read The Faithful River, a 1912 novel by Stefan Zeromski set during the 1863 January Uprising of the Poles against their Russian occupiers.

21. What is your favorite word that you have ever used in an opinion?

I don't know that I have a favorite word in an opinion, but I do have a favorite graphic: "Justice," the mosaic from the State Capitol rotunda, appears in my separate opinion concurring in part, dissenting in part in State v. Picotte, 2003 WI 42, 261 Wis.2d 249, 661 N.W.2d 381. (You'll have to use the books or Westlaw to see it.)

22. Judge Evans recently wrote an opinion in Crue v. Aiken, 370 F.3d 668 (7th Cir. 2004), in which he managed to catalogue dozens of colorful collegiate nicknames, including (I am obliged to observe) that of my alma mater, the Little Giants of Wabash College. Outside of your alma maters Northwestern and Marquette, what is your favorite college nickname or mascot?

Bucky Badger, of course.

23. The Milwaukee Brewers used to be in the American League, but now they are in the National League and Chicago, of course, has a team in each league, which naturally leads to the following question: Are you a fan of the designated hitter rule?

I have attended far more Little League games than professional baseball games. In Little League everybody hits, and I liked that. So I guess that makes me an opponent of the designated hitter rule.

[Thomas Fisher is Special Counsel to Indiana Attorney General Steve Carter. The questions posed in this interview reflect Mr. Fisher's views and opinions alone and do not constitute the views or opinions of the Indiana Attorney General or the State of Indiana.]
Posted at 00:00 by Howard Bashman



Sunday, October 03, 2004
"Law students sacrifice to repay debt; Grads forced to take private sector jobs to pay off loans": Thursday's edition of The Stanford Daily contained an article that begins, "Allegations that a Stanford Law School graduate worked as a prostitute partly in order to repay her loans have raised questions among students and administrators about the difficulties law school students face in paying back their educational debt."
Posted at 23:49 by Howard Bashman



"Judges: Look Here!! A Template for your rejection letters to clerkship candidates you didn't choose!!" Harvard Law student Jeremy Blachman offers this assistance to judges overwhelmed by a deluge of clerkship applications.
Posted at 22:17 by Howard Bashman



"Sentencing Tops Justices' Agenda as Term Begins": Linda Greenhouse will have this article in Monday's issue of The New York Times.
Posted at 22:05 by Howard Bashman



In news from Michigan: The Associated Press reports that "Supreme Court begins term with prominent Dow medical testing case."
Posted at 22:04 by Howard Bashman



"High-court sentencing showdown; The justices begin their term Monday by reviewing judges' role in federal sentences": Warren Richey will have this article in Monday's issue of The Christian Science Monitor.
Posted at 18:32 by Howard Bashman



In judicial election-related news from here and there: The Sunday Gazette-Mail of Charleston, West Virginia today contains articles headlined "Court attack ads part of a trend; Crime cases are common target in national efforts to unseat justices" and "Decision to make convicted man a janitor disputed."

The Reno Gazette-Journal today contains an article headlined "Court forum sparks debate" that begins, "Whether judges should continue to be elected came up time and again Saturday during a forum among six Nevada Supreme Court candidates at the National Judicial College in Reno."

The Charlotte Observer today contains an article headlined "Soliciting taken out of judicial races; Public financing makes the case: A judge should be beholden to no one."

And The Star Press of Muncie, Indiana today contains articles headlined "Judicial campaign marked by secretly taped conversation" and "Other judicial campaigns have sparked disciplinary action."
Posted at 15:54 by Howard Bashman



For only $265.00, this Justice Sandra Day O'Connor bobblehead doll can be yours: Instead of an eBay auction, this item is up for sale using eBay's "Buy It Now" feature. Details of the U.S. Supreme Court bobblehead doll auctions that are now underway at eBay can be accessed via this link.

Update: Less than forty minutes after my post appeared, the Justice Sandra Day O'Connor bobblehead doll sold for the amount requested, $265.00.
Posted at 15:25 by Howard Bashman



"Same-sex marriage is new front in culture wars": This article appears today in The Baltimore Sun.
Posted at 15:22 by Howard Bashman



"Minority programs eroding on campus; Supreme Court ruling has prompted colleges to rethink and revamp offerings that promote affirmative action": Wednesday's edition of The Chicago Tribune contained this article.
Posted at 15:20 by Howard Bashman



"Debate on death penalty escalates; Pending executions, election, moratorium raise issues": This article appears today in The Charlotte Observer.
Posted at 15:17 by Howard Bashman



The Houston Chronicle is reporting: Today's newspaper contains articles headlined "Asbestos lawsuits create U.S. legal crisis; Cases fill courts and firms go broke; Total liability may reach $265 billion"; "Career, firm built on asbestos cases; Dallas lawyer tagged as brilliant and opportunistic"; and "Asbestos litigator defies stereotypes; Clean-living teetotaler has even aided corporations."
Posted at 15:12 by Howard Bashman



"Most judicial candidates keep opinions to themselves; New ruling prompts one to blast high court": This article appears today in The Cleveland Plain Dealer.
Posted at 14:50 by Howard Bashman



"US Court to Decide Sentencing, Death Penalty Cases": James Vicini of Reuters provides this preview of the U.S. Supreme Court's new Term.
Posted at 14:46 by Howard Bashman



"Major Parties Already Honing Recount Strategy; Teams of lawyers across the country are ready if the presidential count is contested, as in 2000; The Democrats aren't waiting to sue": This article appears today in The Los Angeles Times.
Posted at 14:42 by Howard Bashman



"U.S. High Court to Rule on Sentencing, Death Penalty": Today's broadcast of NPR's "Weekend Edition - Sunday" contained this report (Real Player required).
Posted at 14:35 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit in the news: The New York Times today contains an article headlined "Congress Moves to Protect Federal Whistleblowers."

The article explains:
Congress has repeatedly tried to protect conscientious civil servants, under laws adopted in 1978, 1989 and 1994. But lawmakers said these efforts had been frustrated by the court that hears appeals from aggrieved federal employees, the United States Court of Appeals for the Federal Circuit.

The court often assumes that a federal agency acted properly unless an employee offers "irrefragable proof to the contrary."

The Senate committee cited this as one of many issues on which the court had misinterpreted the law and the intent of Congress. "By definition," it said, "irrefragable means impossible to refute. This imposes an impossible burden on whistleblowers."

By contrast, the House and Senate bills would protect the disclosure of any information that a whistleblower "reasonably believes" to be evidence of government illegality or misconduct.
The legislation would also prohibit the Federal Circuit from using obscure words such as "irrefragable" when words within an ordinary person's vocabulary would suffice.
Posted at 12:05 by Howard Bashman



"A life of challenging racial assumptions": The Baltimore Sun today contains an op-ed by Ken Foskett that begins, "In researching my biography of Supreme Court Justice Clarence Thomas, I was continually struck by the depth and ferocity of the attacks against him by black intellectuals, academics and politicians."
Posted at 09:35 by Howard Bashman



"Scalia doesn't seem like the orgy type": Justice Antonin Scalia mentions a propensity for sexual orgies, and now it appears that he will never hear the end of it. This op-ed by columnist Jeff Edelstein appears today in The Trentonian.

And Newsday columnist Ellis Henican today has an op-ed that begins "Antonin! Oh, Antonin! You little devil you!" and concludes "The nation's highest legal orgy will come to order now!"
Posted at 09:30 by Howard Bashman



"Supreme court politics": Columnist Ellen Goodman has this op-ed today in The Boston Globe.

And in The Dallas Morning News, Allen Pusey has an essay entitled "Why isn't court's future a campaign issue?"
Posted at 09:24 by Howard Bashman



"Restored Supreme Court once again has its day; Justice O'Connor helps dedicate Royal Street site": The Times-Picayune today contains an article that begins, "U.S. Supreme Court Justice Sandra Day O'Connor on Saturday helped celebrate completion of the painstaking restoration of the historic Beaux Arts building on Royal Street that once again is home to the Louisiana Supreme Court."
Posted at 09:20 by Howard Bashman



The U.S. Supreme Court's October 2004 Term officially begins on Monday: Back from maternity leave, Jan Crawford Greenburg of The Chicago Tribune reports that "High court to weigh far-reaching issues; Criminal justice cases in view." And in related coverage, that newspaper reports that "Famed convicts get new hope; High court cases may key shorter terms."

In The Washington Post, Charles Lane reports that "Supreme Court to Consider Federal Sentencing Guidelines."

The Boston Globe reports that "Supreme Court to start new term tomorrow; Decision on sentencing to be revisited."

Bob Egelko of The San Francisco Chronicle reports that "Nuts-and-bolts term anticipated for Supreme Court; In break with past, justices to focus on less-than-sexy issues, like states' authority."

The Houston Chronicle reports that "Divided high court is set for new term; Watchers say justices have kept independence, favoring neither right nor left."

The Dallas Morning News reports that "Supreme Court set to clarify confusing opinions."

The Portland Press Herald reports that "Maine case in high court will have wide impact."

And The Oklahoman reports that "Supreme Court to review sentencing guidelines."
Posted at 08:45 by Howard Bashman



"Senate panel OKs pledge for schools; The measure makes recitation mandatory at all grade levels": The Detroit News contains this article today.
Posted at 08:43 by Howard Bashman



"Free-speech ruling costs Ann Arbor schools $102,738": This article appeared yesterday in The Detroit Free Press.
Posted at 08:42 by Howard Bashman



"Druid Hills club to alter rules": The Atlanta Journal-Constitution yesterday contained an article that begins, "Druid Hills Golf Club -- found by an Atlanta city commission to be violating gay rights -- has agreed to changes to its member benefits, a move aimed at putting off possible sanctions by the city and a looming court fight."
Posted at 08:40 by Howard Bashman



"Gay marriage ban headed for passage; Religion and moral issues play a large role in support": Yesterday's edition of The Detroit Free Press contained this article.
Posted at 08:38 by Howard Bashman



"Group challenges limit on judicial candidates' speech; Opinions sought on conservative issues": This article appeared yesterday in The Courier-Journal of Louisville, Kentucky.
Posted at 08:30 by Howard Bashman



Saturday, October 02, 2004
"When Big Law Firms Trip Over Their Own Clients": This article will appear in Sunday's issue of The New York Times.
Posted at 22:55 by Howard Bashman



"Of supreme importance": The Boston Globe contains this editorial today.
Posted at 20:26 by Howard Bashman



"Administration unbound: While trying to spread democracy around the world, the Bush administration undermines it at home with policies that ignore constitutional restraints." This editorial appears today in The St. Petersburg Times.
Posted at 20:24 by Howard Bashman



"Supreme Court at odds in key cases": CNN.com provides this report.
Posted at 20:20 by Howard Bashman



Justice Sandra Day O'Connor in the news: The October 11, 2004 issue of U.S. News & World Report will contain an article headlined "A supremely kind spouse."

And from New Orleans, The Associated Press reports that "Supreme Court moves back home."
Posted at 20:18 by Howard Bashman



"Potomac Watch: High court's future direction may hinge on Nov. 2." The Seattle Post-Intelligencer contains this article today.
Posted at 20:13 by Howard Bashman



"National group enters fray over courthouse quote": The North County Times of California today contains an article that begins, "A Catholic civil rights group jumped into the fray Friday over a religious quote on a wall of downtown Riverside's historic courthouse Friday, suggesting that the truncated seven-word statement by a former president be replaced with his complete 85-word quote rather than be eclipsed by a wooden panel."

And in other coverage, The Press-Enterprise reports today that "Courtroom quote to stay on wall - for now; Officials say they won't cover it up until a judge decides a suit seeking to protect it."
Posted at 20:04 by Howard Bashman



In today's edition of The Idaho Statesman: An article headlined "Judge holds off on monument decision" begins, "Boise voters have to wait a little longer to find out if they will get a chance to decide if a Ten Commandments monument belongs in Julia Davis Park."

And in other news, "Idaho Falls mother breaks her silence and talks about the high-profile custody battle with her gay ex-husband." I previously reported on this matter in a post you can access here.
Posted at 19:51 by Howard Bashman



"Supreme Court Returns to Divisive Issues": Gina Holland of The Associated Press provides this report.
Posted at 17:26 by Howard Bashman



In today's edition of The Arkansas Democrat-Gazette: An article headlined "High court votes 4-3 to put Nader back on ballot" reports on a decision that the Supreme Court of Arkansas issued yesterday.

And Justice Antonin Scalia, who seems to be everywhere these days, was in Little Rock yesterday to deliver the inaugural Arnold Lecture at the William H. Bowen School of Law. The Democrat-Gazette today contains an article headlined "In LR lecture, Scalia relates dismay at mingling of politics, law."
Posted at 17:15 by Howard Bashman



"Orgy in the Court: Scalia's gone wild." Where else but in The New York Post would you expect to find an article bearing this headline?

The New York Daily News, meanwhile, today contains an article headlined "Scalia: Orgies ain't so hot." The article begins:
The Supreme Court was put in the awkward position yesterday of having to deny that conservative Justice Antonin Scalia is a fan of sexual orgies.

The backtracking came after The Harvard Crimson, the Ivy League school's student newspaper, quoted Scalia as saying group sex can "eliminate social tensions and ought to be encouraged."

But it appears the jurist was making a rhetorical point - not revealing himself to be a swinger in black robes. The quote was taken "out of context," court spokeswoman Kathy Arberg said.

The text of Scalia's Harvard speech shows that his "orgies" comment came as he derided a European court decision that struck down a ban on group gay sex. "Let me make it clear that the problem I am addressing is not the social evil of the [ruling]," he said.

"I accept for the sake of argument, for example, that sexual orgies eliminate social tensions and ought to be encouraged."
The original article published in The Harvard Crimson, which apparently quotes Justice Antonin Scalia's remarks out of context (if not inaccurately altogether) can be accessed here.

Perhaps Justice Scalia can now look forward to receiving recusal requests in cases involving sexual orgies. And this absurd new brouhaha casts in a new light Justice Scalia's description of sleeping arrangements on a Louisiana duck hunting trip in his opinion refusing to recuse from the Vice President Cheney Energy Task Force case. As Justice Scalia explained in his opinion, "It was not an intimate setting. *** Sleeping was in rooms of two or three, except for the Vice President, who had his own quarters."
Posted at 08:12 by Howard Bashman



"U.S. Supreme Court opens term; Death penalty, medical marijuana dominate 2004-05 session": "How Appealing" reader Pete Williams, who serves as Justice Correspondent for NBC News, provides this report.
Posted at 08:11 by Howard Bashman



"High court to tackle sentencing confusion; Cases help clarify prison terms after method was struck down": Howard Mintz of The San Jose Mercury News has this article today in that newspaper.
Posted at 08:09 by Howard Bashman



"ACLU asks Supreme Court to rule on Florida's gay adoption ban": The South Florida Sun-Sentinel contains this article today. I collected a bunch of related links in this post from yesterday afternoon.
Posted at 08:07 by Howard Bashman



"Pazuhanich: Ban would be 'overkill'; Disgraced ex-judge, at court hearing, denies he molested girl." This article appears today in The Morning Call of Allentown, Pa.
Posted at 08:06 by Howard Bashman



"Court Takes Issue With Child-Porn Conviction": The Associated Press offers this report on a ruling that I earlier mentioned here.
Posted at 08:04 by Howard Bashman



Friday, October 01, 2004
"Judge rules against schizophrenic": The San Antonio Express-News today contains an article that begins, "A federal judge Thursday decided a schizophrenic inmate is sane enough to be executed, even if the prisoner truly believes the state represents the forces of evil and that it wants to kill him because he preaches the gospel." And The Houston Chronicle reports that "Mentally ill man ruled competent; Inmate will stay on death row, district judge rules."
Posted at 23:21 by Howard Bashman



"Civics lesson costs King County thousands of dollars; More money likely for man who waited years for documents about stadiums": This article appears today in The Seattle Post-Intelligencer. And The Seattle Times reports that "Court decision on public records is mixed."

Yesterday's ruling of the Supreme Court of Washington State produced a majority opinion, a concurring opinion, and three separate opinions concurring in part and dissenting in part (see here, here, and here).
Posted at 23:14 by Howard Bashman



"Lawyers Weigh In on Debate Over Sentencing Guidelines; 'Blakely' amicus briefs support broad range of views": law.com offers this preview of two of the four cases to be orally argued at the U.S. Supreme Court on Monday. The article makes clear that the Fanfan case does not involve diet drugs that have been removed from the market as too dangerous. Similarly, Fen-Phen litigation does not usually implicate the U.S. Sentencing Guidelines.
Posted at 23:04 by Howard Bashman



Newly available from "Underneath Their Robes": The host(ess) launches a 20 questions feature described as follows:
(1) the 20 questions, to be posed and answered over e-mail, will be devoid of substantive legal discussion (no surprise there);

(2) the questions will, for the most part, be sycophantic and adoring in tone--like the softballs tossed at Hollywood celebrities by the writers of puff pieces for InStyle or Vanity Fair;

(3) if you feel a question is inappropriate--which is not inconceivable, since A3G has been known to explore the boundaries of good taste--you may simply decline to answer it (and A3G will, consistent with Griffin v. California, not make fun of or otherwise comment on your exercising the right to remain silent); and

(4) any interviewee will be entitled to immunity from gentle mockery in the pages of UTR for, um, "a while."
And if that's not enough fun for one visit, Seventh Circuit Judge Richard A. Posner, in a post you can access here, accepts the challenge to determine once and for all whether the author of that blog is or is not female. Judge Posner, as the author of "Sex and Reason," would seem eminently qualified to use reason to determine another's sex (or should I say "gender"?). And Judge Posner will undoubtedly approach this task with appropriate sensitivity, having himself recently been the subject of good-natured gender-related ribbing.
Posted at 22:44 by Howard Bashman



How much money would you pay for a U.S. Supreme Court Justice bobblehead doll? Bidding on the complete set of three U.S. Supreme Court Justice bobblehead dolls being auctioned on eBay has exceeded the $400 mark. I project that soon the amount bid on this complete mint set will exceed $1000.

But who needs a complete set when you can own only a Justice Sandra Day O'Connor bobblehead doll and practice your oral argument skills before the Court by repeatedly calling the doll "Justice Ginsburg"? The eBay auction of a Justice O'Connor bobblehead will wrap-up almost a day before the auction of the complete set of three concludes. Justice O'Connor bobblehead dolls have recently sold on eBay for amounts in the neighborhood of $300 (see here and here). The top bid in the current auction is a mere $187.50.

The stock market may be stagnant, interest rates quite low, and bonds are going nowhere fast. But the market in U.S. Supreme Court bobblehead dolls continues to skyrocket beyond belief. As someone once observed, "Who among us can afford not to subscribe to The Green Bag?"
Posted at 22:30 by Howard Bashman



Pitcairn Island update: Saturday's edition of The Independent (UK) contains an article headlined "Pitcairn: An island a world apart; A people torn apart," while today's newspaper reports that "Former Pitcairn islanders tell of rape as a way of life."

Saturday's edition of The Telegraph (UK) contains an article headlined "As remote as their island," while today's newspaper reports that "Pitcairn men 'given free rein' to use young girls for sex."

Saturday's issue of The Sydney Morning Herald reports that "Norfolk Islanders reach out to homeland." And The Australian Associated Press reports that "Third Pitcairn sex trial underway."

The Washington Times reports that "Mutineers' descendants face rape charges." And this evening's broadcast of NPR's "All Things Considered" contained a segment entitled "Tiny Island Rocked by Rape Charges" (Real Player required).
Posted at 22:22 by Howard Bashman



"Limousine driver files federal suit in fight over rates; The lawsuit contends that Hillsborough County officials violated the man's rights by punishing him for charging discount rates": This article appears today in The St. Petersburg Times.
Posted at 22:14 by Howard Bashman



"ACLU Asks U.S. Supreme Court to Hear Appeal in Challenge to Florida Gay Adoption Ban": The American Civil Liberties Union issued this press release today, and the petition for certiorari that the organization filed today can be accessed here.

My coverage of the Eleventh Circuit's ruling in this case can be accessed here and here.

In July 2004, the Eleventh Circuit denied rehearing en banc in the case by an evenly divided vote of 6-6. You can access at this link the lengthy post I wrote about the order denying rehearing en banc and accompanying opinions on the day they issued.

In early news coverage of today's request for U.S. Supreme Court review, The Associated Press reports that "ACLU Seeks to Challenge Gay Adoption Ban."
Posted at 17:55 by Howard Bashman



"Scalia Jokes About Orgies in Mass. Speech": Gina Holland of The Associated Press provides this report.
Posted at 17:53 by Howard Bashman



"Judge Williams teaches a lesson in fairness; The chief justice helps youngsters at the Anthony J. Carnevale Elementary School learn the importance of solving problems": The Providence (R.I.) Journal today contains an article that begins, "Chief Justice Frank J. Williams of the state Supreme Court brought lessons of conciliation to second-graders at Anthony J. Carnevale Elementary School yesterday, donning his robe and taking a seat at a table-turned-judge's bench."
Posted at 17:45 by Howard Bashman



"Mexico trucks hit roadblocks": The Arizona Republic today contains an article that begins, "Despite a U.S. Supreme Court victory, new roadblocks have popped up in the path of Mexican truckers who are trying to win permission to enter the United States."
Posted at 17:42 by Howard Bashman



"Gay marriage ban fails; Musgrave's amendment falls short in House vote": This article appears today in The Rocky Mountain News.
Posted at 17:40 by Howard Bashman



Unanimous three-judge Eleventh Circuit panel holds unconstitutional as exceeding the U.S. Congress's power under the Commerce Clause a law making intrastate possession of child pornography a federal crime: This opinion, written by Circuit Judge Gerald Bard Tjoflat, is very big news. Either federal prosecutors royally fouled-up this particular prosecution, or federal prosecutions for child pornography possession within the Eleventh Circuit will from this point forward be next to impossible.
Posted at 15:14 by Howard Bashman



You're out of order: The U.S. Court of Appeals for the Second Circuit today confirms the propriety of its reputation for being quite miserly when it comes to granting rehearings en banc.

In a case presenting the question whether New York's statute that disenfranchises currently incarcerated felons and parolees is subject to challenge as unlawful under Title II of the federal Voting Rights Act, the Second Circuit today entered an order denying rehearing en banc. A total of four active judges expressly dissented from the denial of rehearing en banc (see here and here).

Another four active judges, in a short statement concurring in the denial of rehearing en banc, reserve the right to grant rehearing en banc in the case should the U.S. Supreme Court refuse to grant review on the question presented in the case. And the author of the original opinion by a three-judge Second Circuit panel agrees, in a separate opinion concurring in the denial of rehearing en banc, that the problem should be left for resolution by the Supreme Court.

The oddity of having U.S. Court of Appeals judges defer a decision on whether to grant rehearing en banc until after the U.S. Supreme Court decides to grant review in the very same case does not go unremarked. Second Circuit Judge Dennis Jacobs, in his dissent from denial of rehearing en banc, writes:
I have no qualm about the panel's scholarly opinion; but I vote in favor of the poll nevertheless, because a majority now expresses--or signals--an interest in hearing this appeal in banc. Unless our in banc practice is to become a dead letter altogether, this is a circumstance in which our full Court should convene. It is no proper solution for us to forgo in banc review "without prejudice," and thus expressly reserve an opportunity to hear the case as a full court if the Supreme Court does not: the Court of last resort is on First Street, not on Foley Square.
Indeed.
Posted at 14:37 by Howard Bashman



Effort to obtain second death sentence for convicted DC-area sniper John Allen Muhammad hits road block: The Washington Post offers a news update headlined "Charges Dismissed Against Muhammad; Judge Rules Prosecutors Violated Right to Speedy Trial." You can access at this link the order of dismissal and accompanying opinion letter entered today in the Circuit Court of Fairfax County, Virginia.
Posted at 13:19 by Howard Bashman



Tenth Circuit rejects former law student's quadruple jeopardy argument: The Salt Lake Tribune today contains an article headlined "Appeals court rejects inmate's claim of 'double-double' jeopardy; The man, at the time a law student, was tried three times for the same offenses" reporting on this non-precedential decision that the U.S. Court of Appeals for the Tenth Circuit issued on Tuesday.
Posted at 13:11 by Howard Bashman



"Next President Could Get to Reshape High Court": James Vicini of Reuters provides this report.
Posted at 12:11 by Howard Bashman



Holding a criminal jury trial inside the prison where the defendant is already serving time fails to provide the defendant with a fair trial, Oregon's highest court concludes: The Oregonian today contains an article headlined "Court overturns inmate's conviction; The state high court ruling means a new trial for the man accused of assaulting a corrections officer." And you can access yesterday's ruling of the Supreme Court of Oregon at this link.
Posted at 10:55 by Howard Bashman



"Nader case can't move faster, says irked justice": This article appears today in The Arkansas Democrat-Gazette. And The Arkansas News Bureau reports that "High court hears Nader ballot arguments."
Posted at 10:53 by Howard Bashman



"One word in statute cuts prison sentence": The Kansas City Star today contains an article that begins, "For Robert C. Holmes, one word meant having to serve nine fewer years in prison. Because of the imprecise use of one word in a Kansas law, the Mound City, Kan., man on Thursday saw his 18-year prison sentence halved. He is at least the sixth person convicted of killing someone while driving drunk to be resentenced after the Kansas Supreme Court ruled this year that there was a flaw in the law in question."
Posted at 10:51 by Howard Bashman



"Utah man's challenge to state ban on sodomy, premarital sex is dismissed in appeals court": Elizabeth Neff of The Salt Lake Tribune today has this article reporting on a ruling that the Utah Court of Appeals issued yesterday.
Posted at 10:45 by Howard Bashman



"New pledge case could make it to U.S. Supreme Court": Gina Holland of The Associated Press provides this report.
Posted at 10:44 by Howard Bashman



"Texas sodomy law still on the books; Bar association members argued at meeting whether legislature should be prompted to erase sodomy law": This article appears in today's issue of The Houston Voice.
Posted at 10:41 by Howard Bashman



"Suspected Enemy Combatant Still Being Held": The Associated Press provides this update on the status of Yaser Esam Hamdi.
Posted at 10:02 by Howard Bashman



Pimps 'n' hos: On Wednesday, The Metropolitan News-Enterprise published an article headlined "Court of Appeal Rules: Calling Father 'Pimp' Not Defamatory Where True in the Past." The article reports on an opinion that California's Court of Appeal for the Second Appellate District issued on Tuesday of this week.

The opinion begins:
A Vanity Fair magazine article quoted defendant and respondent Albert Hughes, Jr., as saying, "Our dad's a pimp." A USA Today article quoted defendant and respondent Allen Hughes, Albert Jr.'s twin brother, as saying their father "dabbled in the pimptorial arts." The Hughes brothers maintained the statements were true. Their father, plaintiff and appellant Albert Hughes, Sr., sued Albert Jr. and Allen for defamation, claiming the statements were false. A jury found that the Hughes brothers did not make defamatory statements.
The USA Today article at issue can be accessed here, and the language in question is found in the accompanying sidebar.
Posted at 09:47 by Howard Bashman



"Court must weigh pope's words; A judge must decide: Does a statement by the pope override earlier rulings that Terri Schiavo wouldn't want to be kept alive by artificial means?" This article appears today in The St. Petersburg Times. And The Tampa Tribune reports today that "Schiavo's Parents Cite Pope In Legal Fight."
Posted at 09:22 by Howard Bashman



In news from Wisconsin: The Milwaukee Journal Sentinel reports today that "Justices return Nader to ballot; Democrats' attorney says party can't appeal decision." And The Wisconsin State Journal reports today that "Nader lands back on state's ballot."
Posted at 08:14 by Howard Bashman



"Trial balloon?" The Fort Worth Star-Telegram today contains an editorial that begins, "Norma McCorvey's attempt to reopen Roe vs. Wade, the abortion case for which she was named plaintiff Jane Roe, was quietly rejected last month by the 5th U.S. Circuit Court of Appeals. But the ruling should not pass into the law books without note."
Posted at 07:03 by Howard Bashman



Sometimes the cover-up is worse than the Establishment Clause violation: The Press-Enterprise of inland southern California reports today that "Lawsuit complicates courtroom solution; A Temecula law firm says a plan to hide the engraving would alter a protected building." And The Associated Press reports that "Teddy Roosevelt quote in Riverside courthouse to be covered up."
Posted at 07:01 by Howard Bashman



"Conduct Unbefitting the Congress: The So-Called Pledge Protection Act Passed by the House of Representatives." Online at FindLaw, Vikram David Amar and Alan Brownstein have this essay today.
Posted at 07:00 by Howard Bashman



"Orgies are the way to ease social tensions, claims US judge": The Guardian (UK) contains this article today.

And in other U.S. Supreme Court-related news, please join me in wishing Chief Justice William H. Rehnquist a very happy 80th birthday.
Posted at 06:54 by Howard Bashman



"Sentencing case effects not severe; 358 judge decisions to get second look after U.S. Supreme Court ruling": This article appears today in The St. Paul Pioneer Press.

And Universal Press Syndicate columnist James J. Kilpatrick today has an essay entitled "The Big Bang of 'Blakely.'"
Posted at 06:45 by Howard Bashman



"Court's new business looks like old business": Joan Biskupic today has this article in USA Today. And The New York Sun reports today that "High Court's New Term to Reshape Criminal Justice."
Posted at 06:35 by Howard Bashman




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