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Monday, February 28, 2005
"Debate Resumes on Court Picks; Myers Is One of 7 Blocked Nominees Resubmitted by Bush": This article will appear Tuesday in The Washington Post.

In Tuesday's issue of The New York Times, Neil A. Lewis will have an article headlined "A New G.O.P. Tack on a Judicial Nominee."

Online at Salon.com, Dan Noyes reports that "Big biz battles for Bush's bench: Last year the Senate rejected former mining and cattle lobbyist William Myers for the Court of Appeals; Now Bush is trying again -- and this time Myers' business pals are waging a multimillion-dollar campaign for him."

Finally, Tuesday's edition of The Hill will contain an article headlined "Specter Judiciary debut irks some conservatives."
Posted at 23:45 by Howard Bashman


"How Eminent Is A City's Domain?" The Hartford Courant last week contained this article reporting on the U.S. Supreme Court oral argument in Kelo v. City of New London, Connecticut. And in earlier coverage, Lynne Tuohy had articles headlined "High Court To Test Seizure Of Homes; Eminent Domain Is Focus Of New London Case" and "Holdouts Stick Together."

The Day of New London, Connecticut last week contained extensive coverage:Elsewhere, Warren Richey had an article headlined "Public use, property rights and the courts; A Connecticut battle between property rights and government power comes before the Supreme Court" in The Christian Science Monitor.

Linda Greenhouse of The New York Times reported that "Justices Appear Reluctant to Increase Land-Use Oversight."

In The Washington Post, Charles Lane had an article headlined "Defining Limits of Eminent Domain: High Court Weighs City's Claim to Land," while Dana Milbank had an article headlined "Numbers Down but an Even Keel."

In The Chicago Tribune, Jan Crawford Greenburg had an article headlined "Top court hears eminent plea: Leave us our homes." She also reported on the case for the PBS program "The NewsHour with Jim Lehrer."

In The Los Angeles Times, David G. Savage reported that "Cases Lift Hopes for Property Rights; Two disputes coming to the high court, dealing with rent control and eminent domain, could revive the fortunes of a conservative movement." And Martin Garbus had an op-ed entitled "Is Your Stuff Yours? The Answer Isn't So Simple; Seeking to limit government seizures, conservatives take the issue to court."

Online at Reason, Jacob Sullum has an essay entitled "Revolting Development: Can the Supreme Court stop the spread of blight?" And The Economist offered a preview of the case headlined "Eminent domain: Despotism by stealth."
Posted at 23:20 by Howard Bashman


"Justices to hear Ten Commandments cases below image of Moses": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 23:15 by Howard Bashman


"U.S. Must Charge Padilla With Crime or Release Him; Judge Rules That Indefinite Imprisonment of American 'Enemy Combatant' Is Illegal": This article will appear Tuesday in The Washington Post.
Posted at 23:14 by Howard Bashman


"Disabled Cruise Passengers Ask for Justices' Protection": Linda Greenhouse will have this article in Tuesday's edition of The New York Times.

And The Los Angeles Times offers a news update by David G. Savage headlined "Justices Weigh Rights of Disabled on Cruise Ships."
Posted at 23:10 by Howard Bashman


C. Boyden Gray's "Memorandum on Judicial Filibusters": The Committee for Justice today posted online this memorandum.
Posted at 23:00 by Howard Bashman


"Hail to the chief?" That's the subject of this week's "Debate Club" feature online at legalaffairs.org. The participants in this week's discussion are Law Professors Kermit Roosevelt and Richard W. Garnett.
Posted at 22:54 by Howard Bashman


Available online from law.com: Tony Mauro reports that "High Court Appears Split on Question of ADA and Cruise Ships."

In related news, "Supremes Agree to Hear Diversity Jurisdiction Case."

The March 2005 issue of The American Lawyer will contain an article headlined "The Fen-Phen Follies: Mistaken assumptions, greedy lawyers and suggestions of fraud have made fen-phen a disaster of a mass tort."

And in news from California, "Gorillas, Employees and Breasts, Oh My!"
Posted at 22:50 by Howard Bashman


Saving FACE: Today a divided three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reaffirmed that court's decision from 1997 holding that the Freedom of Access to Clinic Entrances Act is a valid exercise of Congress's authority under the Commerce Clause. By a 2-1 vote, the panel rejected the argument that the U.S. Supreme Court's intervening ruling in United States v. Morrison, 529 U.S. 598 (2000), required a different outcome. Circuit Judge Emilio M. Garza wrote today's majority opinion.
Posted at 21:54 by Howard Bashman


The answer is "yes," 28 U.S.C. sec. 1367 does overrule case law that required each individual plaintiff in a federal diversity suit to satisfy the amount in controversy requirement: "SCOTUSblog" previews tomorrow's initial oral argument at the U.S. Supreme Court. Of course, the enactment of recent federal class action legislation makes the issue somewhat less important than before. This very Court split 4-4 the last time this issue was presented, making Justice Sandra Day O'Connor, then a recused non-participant, the holder of tomorrow's dispositive vote. Of course, if the Court gets the answer right, the margin of victory won't matter.
Posted at 19:12 by Howard Bashman


"White House Must Charge or Free Suspect": The Associated Press provides this report.
Posted at 18:55 by Howard Bashman


"High Court Weighs Disability Rules on Foreign Cruise Ships": This evening's broadcast of NPR's "All Things Considered" included this report (RealPlayer required) from Nina Totenberg.
Posted at 18:00 by Howard Bashman


"Federal Judge Orders 'Enemy Combatant' Jose Padilla Released; Government Expected To Appeal Ruling": WYFF News 4 in South Carolina provides this report.
Posted at 17:50 by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined:
Posted at 16:54 by Howard Bashman


BREAKING NEWS -- U.S. District Court in South Carolina orders federal government to release alleged enemy combatant Jose Padilla in forty-five days: You can access today's decision of the U.S. District Court for the District of South Carolina at this link.

The U.S. Supreme Court's decision from June 2004 in Rumsfeld v. Padilla can be accessed here.

Today's ruling represents another defeat in court for President Bush's war on terror. Keep in mind, however, that the U.S. Court of Appeals for the Fourth Circuit would hear any appeal from today's ruling.
Posted at 16:48 by Howard Bashman


"Grounded: Millionaire John Gilmore stays close to home while making a point about privacy; He's unable to travel because he refuses to present a government-approved ID." This article appeared yesterday in The Pittsburgh Post-Gazette. Gilmore's case, which has a web site devoted to it, is now pending on appeal before the U.S. Court of Appeals for the Ninth Circuit.
Posted at 16:15 by Howard Bashman


"Why Not Sandra Day O'Connor For Our Chief Justice?" The Day of New London, Connecticut today contains this essay by syndicated columnist Marianne Means.
Posted at 16:12 by Howard Bashman


Available online from C-SPAN: On Saturday, I collected in a post you can access here news coverage of last week's press briefing by Senate Judiciary Committee Chairman Arlen Specter (R-PA).

C-SPAN has made available online at this link (RealPlayer required) the entire press briefing. And Saturday's broadcast (RealPlayer required) of "America & the Courts" contains a portion of Senator Specter's press briefing followed by remarks in response from Senator Charles E. Schumer (D-NY). Thereafter, the broadcast shows former Solicitor General Theodore B. Olson receiving the Lifetime Service Award from the Federalist Society's student chapter at Georgetown University Law Center.
Posted at 15:15 by Howard Bashman


"The 'Advice' in Advice and Consent: Must the president consult with the Senate on Nominations?" Andrew C. McCarthy has this essay today at National Review Online.
Posted at 14:45 by Howard Bashman


Holding or dicta? A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued an opinion written by Circuit Judge Johnnie B. Rawlinson that begins, "This case requires us to tread into the thorny thicket of the separate judgment rule."

The decision is of particular interest to me because it addresses the 2002 amendments to the Federal Rules of Civil and Appellate Procedure intended to eliminate the theretofore endless opportunity to appeal in a civil case in which judgment had not been entered on a separate document. Those amendments were the central focus of my April 2002 appellate column.

As I explained in that column, the amendments themselves did not specify how they should be applied to cases fully decided before the effective date of the amendments in which judgment had not been entered on a separate document:
The first difficult question that federal courts will have to grapple with is the impact of new FRCP 58 and new FRCP 4(a)(7) on civil cases in which a final decision was entered without a judgment on a separate document more than 180 days (or 210 days if the federal government was a party) before December 1, 2002, when the new rules take effect.

The Supreme Court's orders amending the FRAP and FRCP usually provide that rule amendments shall apply to pending cases "insofar as just and practicable." This paraphrases 28 U.S.C. sec. 2074(a) of the Rules Enabling Act, which provides that new procedural rules may be applied to pending cases unless it "would not be feasible or would work injustice, in which event the former rule applies."

First, courts could conclude that the amendments to FRAP 4(a)(7) and FRCP 58 do not apply to cases in which a final decision without a judgment on a separate document was entered before December 1, 2002. Such a conclusion would preserve the endless opportunity to appeal that had previously existed in those cases, which makes this approach unlikely to be adopted.

Second, on December 1, 2002, when the amendments take effect, courts could start the 150-day clock running toward the entry of an appealable, final judgment in pending civil cases that have a final decision but no judgment on a separate document. This would give all parties in such cases at least 180 days from December 1, 2002 in which to file an appeal.

Third, the rule could be applied in a fully retroactive manner, so that as of December 1, 2002 appeals could no longer be filed in civil cases lacking a judgment on a separate document in which the final decision was reached more than 180 days (or 210 days if the federal government is a party) earlier. Parties in such cases who have reason to fear the consequences of this third option should file their notices of appeal or post-judgment motions before December 1, 2002, not after.
Today's Ninth Circuit decision ignores the Rules Enabling Act and the specific language of the Supreme Court's orders adopting these amendments. Instead, the decision relies on an inapt Ninth Circuit ruling from 1988 for the proposition that "An appellate court must apply the law in effect at the time it renders its decision." Then, based on that quote, the panel holds that it must apply the amended rules in a fully retroactive manner, so that the appeal would have been untimely had the final decision been reached more than 180 days before the notice of appeal was filed. Because the appeal was filed within that 180 period, however, the Ninth Circuit today ruled that the appeal was timely.

But what if the panel's method of reasoning is dicta? The appellant's appeal in this case would have been timely no matter which of the three possible ways of applying the 2002 amendments the Ninth Circuit panel had chosen. Accordingly, does today's choice of a particular method of applying those amendments (the fully retroactive approach) constitute dicta or a holding that will bind future panels unless overruled en banc? Perhaps time will tell if other Ninth Circuit panels are confronted with this issue in a case in which the choice among the three possible ways of applying the 2002 amendments actually makes a difference as to an appeal's timeliness.
Posted at 14:25 by Howard Bashman


U.S. Court of Appeals for the Eighth Circuit rejects Bivens beef against federal meat inspectors: Today's ruling arises in the context of an appeal from the denial of qualified immunity. In holding that it was proper for the court to first resolve whether Bivens afforded the plaintiff any claim against the defendants, the Eighth Circuit today appears to have issued a ruling in direct conflict with this decision that the U.S. Court of Appeals for the Ninth Circuit issued last year.
Posted at 12:00 by Howard Bashman


"Toying with your freedom": Today in The Pittsburgh Tribune-Review, columnist Dimitri Vassilaros has an essay that begins, "'The Heart of Dixie' has no love for sex toys."

Of course, last Tuesday the U.S. Supreme Court declined to review a ruling from the U.S. Court of Appeals for the Eleventh Circuit that upheld as constitutional an Alabama law prohibiting the sale of sex toys.

In news coverage of that development, The Associated Press reported that "Supreme Court declines review of sex toy ban." The Birmingham Post-Herald reported that "Alabama set to ban sex toys." And Wired News columnist Regina Lynn had an essay headlined "You Have an Rx for That Vibrator?"
Posted at 11:50 by Howard Bashman


The Associated Press is reporting from the U.S. Supreme Court: Hope Yen reports that "High Court to Clarify When to File Suits" and "Top Court to Weigh Reservation Gas Tax." And in other news, "High Court to Address Whistleblower Suit."
Posted at 10:50 by Howard Bashman


There's more than one way to reverse the conviction of a khat importer: A ruling that a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued today includes an opinion from each judge on the panel.
Posted at 10:35 by Howard Bashman


On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "High Court Considers Disability Access on Cruise Ships" (featuring Nina Totenberg) and "Senate Debates Bankruptcy Restrictions." RealPlayer is required to launch these audio segments.
Posted at 10:20 by Howard Bashman


Today's U.S. Supreme Court Order List: The list can be accessed at this link.

The Court today granted review in a total of four cases, including one that presents the question "Whether, and to what extent, a court of appeals may review the sufficiency of evidence supporting a civil jury verdict where the party requesting review made a motion for judgment as a matter of law under Rule 50(a) of the Federal Rules of Civil Procedure before submission of the case to the jury, but neither renewed that motion under Rule 50(b) after the jury's verdict, nor moved for a new trial under Rule 59?"

The Court also asked for the views of the Solicitor General of the United States on whether to grant review in a case involving a patent that claims a method for detecting a form of vitamin B deficiency. Apparently the question concerns whether the patent is invalid because one cannot patent "laws of nature, natural phenomena, and abstract ideas." So much for my plan to patent the laws of nature. Expect additional coverage at "Patently-O: Patent Law Blog" sometime soon (update: here it is).
Posted at 10:00 by Howard Bashman


"Lawblogging": Glenn Reynolds has this new post up at GlennReynolds.com.
Posted at 09:02 by Howard Bashman


While you were out: Thanks to all the many readers who forwarded links via email last week while I and my family were on vacation in a much warmer climate. This blog's switch-over to Movable Type remains in the works and will happen when I least expect it. I returned home to find among the accumulated emails two gracious if tentative invitations to participate in events scheduled to take place at enticing locations within the jurisdiction of the U.S. Court of Appeals for the Ninth Circuit. More details may follow as appropriate.
Posted at 08:55 by Howard Bashman


"Cellblock Silliness": The New York Post today contains an editorial that begins, "In effectively banning the temporary segregation of prison inmates by race, the U.S. Supreme Court has struck a blow for equal rights -- at the expense of common sense."
Posted at 08:50 by Howard Bashman


"A victory for privacy": Columnist Robyn E. Blumner had this essay yesterday in The St. Petersburg Times.
Posted at 08:48 by Howard Bashman


"Justice speaks at symposium; Kennedy: Free society produces 'marvelous writers and thinkers.'" Yesterday's edition of The Richmond Times-Dispatch contained an article that begins, "Defense of the First Amendment must not be misconstrued as endorsement of moral relativism, Associate U.S. Supreme Court Justice Anthony M. Kennedy said yesterday at St. Christopher's School."
Posted at 08:45 by Howard Bashman


Seals and Cross: The Los Angeles Times reports today that "Churches Help Campaign to Restore Cross; With little cash to back its drive for a ballot measure, a group favoring the old county seal makes appeals at places of worship."
Posted at 07:55 by Howard Bashman


"The Ten Commandments Reach the Supreme Court": Linda Greenhouse has this article today in The New York Times.

Allen Pusey of The Dallas Morning News reports today that "Commandments fight reaches high court; Plaque at Texas Capitol among 2 cases to be argued Wednesday." That newspaper today also contains an editorial entitled "Not a Threat: Commandments marker -- An easy call" and an op-ed by Terry Eastland entitled "Thou shalt leave the monument on Capitol grounds."

Patty Reinert reports today in The Houston Chronicle that "Austin religious battle reaches Supreme Court; Texas challenge breaks justices' 25-year silence on display of Commandments."

And yesterday, The Austin American-Statesman contained an article headlined "Austin case subject of national debate: Do Ten Commandments on Capitol lawn violate Constitution?"
Posted at 07:45 by Howard Bashman


"Blowing up the Senate: Will Bush's judicial nominees win with the 'nuclear option'?" Jeffrey Toobin will have this article in the March 7, 2005 issue of The New Yorker.
Posted at 07:42 by Howard Bashman


"Taking New London": This editorial appears today in The Washington Post. Later today, I expect to post more about last week's oral argument in this case.
Posted at 07:40 by Howard Bashman


"High court U. scholar's next stop? Michael McConnell: The Court of Appeals judge is often mentioned as a possible future nominee." The Salt Lake Tribune contains this article today.
Posted at 07:38 by Howard Bashman


"Pesky filibuster serves its purpose": This editorial appears today in The Indianapolis Star.
Posted at 07:37 by Howard Bashman


"Abortion Debate Still Tangled in Bankruptcy Bill; The proposed law, which would make it harder for people to have their debts erased, may again have a provision aimed at clinic protesters": The Los Angeles Times contains this article today. And Financial Times reports today that "US bankruptcy bill faces rough Senate ride."
Posted at 07:35 by Howard Bashman


"Candidates scouted for federal judgeship; Potential replacements for McKnight include top prosecutors, lawyers": This article appears today in The Charlotte Observer.
Posted at 07:30 by Howard Bashman


In the March 7, 2005 issue of Time magazine: An article is headlined "The Rough Justice of War: Is prosecution getting too aggressive? Two thorny new cases, both against U.S. citizens, spotlight the difficulty of melding American legal principles with the global pursuit of terrorists."

Related articles are headlined "Terror Goes on Trial: Since 9/11, Justice lawyers have sometimes used pre-emptive prosecution--busting suspected terrorists before they could strike; The charges don't always stand up" and "Did He Go Too Far? How a shooting in Iraq led to murder charges against a respected Marine."

The magazine also contains Andrew Sullivan's essay entitled "The Case for Compromise on Abortion: How the pro-choice side is wielding a new principle that's tough to argue with."
Posted at 07:22 by Howard Bashman


"Court to assess US law's global reach": Today in Financial Times, Patti Waldmeir has an article that begins, "The US Supreme Court will today test the power of US law to reach across borders, in a case that asks whether foreign-registered cruise ships must comply with the nation's stringent disability law."
Posted at 07:20 by Howard Bashman


Sunday, February 27, 2005
Available online from law.com: Marcia Coyle has an article headlined "Cruise Ships Resist Docking With ADA; High court to consider if ADA applies to foreign-flagged ships."

In other news, "N.Y. Attorneys Get Firsthand Look at Guantanamo Conditions; Allen & Overy sends latest group to Cuba for detainee habeas interviews."

And Mark Scarsi has an essay entitled "Has the Cyberlaw Clinic Struck Out?"
Posted at 20:55 by Howard Bashman


"There were times that Dad's pranks bordered on what your out-of-control activist judges might call felonies." So begins Ian Frazier's Shouts & Murmurs essay, published in the February 28, 2005 issue of The New Yorker, parodying a passage from The Reverend Jerry Falwell's autobiography. The issue also contains David Remnick's tribute to that magazine's last Grammarian.
Posted at 20:34 by Howard Bashman


"Fight over making ships fit for the disabled; Monday the Supreme Court considers whether 'foreign flag' cruise lines have to follow US legislation": Warren Richey will have this article in Monday's issue of The Christian Science Monitor.

In largely unrelated news, while on vacation I managed to resist the temptation to visit the rather small pink building that houses the Supreme Court of the Commonwealth of The Bahamas.
Posted at 19:45 by Howard Bashman


Former Senate Judiciary Committee Chairman Joseph R. Biden, Jr. (D-DE) says he would not vote in favor of Antonin Scalia for the post of Chief Justice: You can access the transcript of today's broadcast of the NBC News program "Meet the Press" at this link.
Posted at 17:35 by Howard Bashman


"GOP Leaders Refuted by Their Own Briefing Book on Nuclear Option": People For the American Way issued this press release on Tuesday to announce the publication of Ralph G. Neas's paper, "No Defense for the 'Nuclear Option': Response to Harvard Journal of Law and Public Policy Article." The article to which Neas is responding can be accessed here.
Posted at 17:30 by Howard Bashman


"Robertson: GOP Must Push Judges Through." This segment (RealPlayer required) appeared on this past Wednesday's broadcast of NPR's "Day to Day." My round-up from early this morning of judicial confirmation-related news published while I was away last week on vacation can be accessed here.
Posted at 17:20 by Howard Bashman


"Oregon's assisted-suicide law to get high court airing; Supreme Court agrees to review Bush administration's bid to block the nation's only doctor-assisted suicide law": This article appeared Wednesday in The Christian Science Monitor.

In local coverage, The Oregonian on Wednesday contained articles headlined "Justices enter suicide fight" and "Portland plaintiff wants to keep death options open; Don James, fighting prostate cancer, signed on to Oregon's suit to keep doctor-assisted suicide legal," along with an editorial entitled "Let Oregon go its own way: The state has become the 'laboratory' on assisted suicide and end-of-life care that the Supreme Court envisioned."

One week ago today, The Oregonian reported that "Assisted suicide under siege in courts and Capitol; Oregon's unique law could get swept up in a legal challenge to medical marijuana or attacked by a more hostile Congress." And on Thursday, columnist David Reinhard had an essay entitled "Is Uncle Sam beating up on poor Oregon?"

Wednesday's edition of The Salem (Ore.) Statesman Journal contained articles headlined "High court to review assisted-suicide law; Oregonians twice approved Death with Dignity Act" and "Patient with cancer hopes assisted-suicide law stays."

In The New York Times, Linda Greenhouse reported that "Justices Accept Oregon Case Weighing Assisted Suicide."

In The Washington Post, Charles Lane reported that "Justices to Hear Challenge to Oregon Assisted-Suicide Law."

In The Los Angeles Times, David G. Savage reported that "Justices to Hear Case on Oregon's Suicide Law; High court's ruling on the issue could affect whether states pursue 'right-to-die' measures."

In USA Today, Joan Biskupic reported that "High court to review USA's only assisted-suicide law."

In The San Francisco Chronicle, Bob Egelko reported that "Top court to review assisted suicide; Oregon lets doctors provide death drugs."

And Stephen Henderson of Knight Ridder Newspapers reported that "Supreme Court decides to review Oregon's assisted-suicide law."

In commentary, The Denver Post today contains an editorial entitled "Suicide law has legal foundation."

The St. Petersburg Times on Thursday contained an editorial entitled "Oregon law should stand."

At National Review Online, Wesley J. Smith had an essay entitled "Prescription for Chaos: Understanding the lethal Oregon case that's hitting the Supreme Court."

Bloomberg News columnist Ann Woolner had an essay entitled "Death With Dignity Faces a Final Day in Court."

And CBS News legal analyst Andrew Cohen had an essay entitled "Life And Death."
Posted at 17:00 by Howard Bashman


In today's edition of The New York Times: The newspaper contains an article headlined "Bush's Next Target: Malpractice Lawyers."

A front page article reports that "Private Health Care in Jails Can Be a Death Sentence."

An article in the Week in Review section is headlined "Putting God Back Into American History" and features a graphic headlined "The Faiths of Our Fathers."

In news relating to the war on terror, "Within C.I.A., Worry of Prosecution for Conduct" and "Case Adds to Outrage for Muslims in Northern Virginia."

Lastly, in regional news, "State Offers Details Online to Help Determine if Food Is Truly Kosher."
Posted at 16:12 by Howard Bashman


"Imagine a Nation Without Roe v. Wade": Cynthia Gorney has this essay today in the Week in Review section of The New York Times. A graphic headlined "Legal Patchwork" accompanies the essay.

The essay and chart raise an interesting question concerning the effect of a U.S. Supreme Court ruling that declares a state law unconstitutional. Assume that the Court issues a decision holding that the U.S. Constitution prevents a State from criminalizing certain specified conduct (e.g., early term abortion or consensual sodomy). Later, assume that the Court reverses course and holds that the U.S. Constitution does not prevent a State from criminalizing that same specified conduct.

Is the effect of the first ruling to wipe from the books in all States, or in any States, the laws criminalizing the specified conduct? Would the second ruling allow States to begin enforcing the laws that were in existence when first ruling issued that the first ruling had declared or implied were unconstitutional? Or would the second ruling require States that wished to criminalize the specified conduct to pass new laws doing so, even if those States had identical laws on the books when the Court's first ruling issued?
Posted at 10:40 by Howard Bashman


"Appeals judges: Call the votes." The Grand Rapids Press today contains an editorial that begins, "Three years after President Bush nominated three Michigan jurists for the federal bench -- and almost that long for a fourth nominee -- they and the president are owed up or down votes on the Senate floor."
Posted at 10:35 by Howard Bashman


"Specter rides again: Sen. Bait-and-switch." This editorial appears today in The Pittsburgh Tribune-Review. That newspaper today also contains a gossip column headlined "Who might succeed an ailing Arlen Specter?"
Posted at 10:32 by Howard Bashman


"High court in low gear": UPI Legal Affairs Correspondent Michael Kirkland had this news analysis last week.
Posted at 10:30 by Howard Bashman


"Keep Ten Commandments monument in state Capitol; Marker on Austin grounds recognizes legal foundation": Texas Attorney General Greg Abbott has this essay today in The Houston Chronicle.
Posted at 10:28 by Howard Bashman


"Rehnquist's Mixed Legacy": This editorial appears today in The Los Angeles Times.

And last Tuesday, Newsweek posted online an essay by Cliff Sloan entitled "A Final Chapter for the Chief Justice? The Supreme Court is hearing two cases that may help Rehnquist define his legacy."
Posted at 10:24 by Howard Bashman


"The Ten Commandments Reach the Supreme Court": Linda Greenhouse has this article today in The New York Times.

The Fort Worth Star-Telegram reports today that "Justices to deliberate religious monument."

The St. Petersburg Times today contains an article headlined "Supreme Court shalt decide on displays; Should the Ten Commandments be displayed on public property? The high court will hear arguments this week in a Texas case."

The Montgomery (Ala.) Advertiser reports today that "Court to weigh religious displays."

The St. Louis Post-Dispatch reports today that "High court shall rule on church, state issue."

And last Monday, The Washington Post contained a front page article headlined "Supreme Court on a Shoestring: Homeless Man Takes On Texas, Religious Display."
Posted at 09:00 by Howard Bashman


Last week's U.S. Supreme Court opinions and Order List: The Supreme Court of the United States last week issued three opinions in argued cases.

1. Last Wednesday, in Johnson v. California, No. 03-636, the Court ruled by a vote of 5-3 (or 6-2, depending on how you categorize Justice John Paul Stevens' dissent) that the California Department of Corrections' unwritten policy of racially segregating prisoners for up to sixty days each time they enter a new correctional facility is subject to strict scrutiny an express racial classification.

The case arose from the U.S. Court of Appeals for the Ninth Circuit, where one of that court's more conservative judges issued the opinion on behalf of a unanimous three-judge panel.

Four Ninth Circuit judges, including two on senior status, dissented from the denial of rehearing en banc. I questioned, in a post I wrote on the day the Ninth Circuit put that dissent from denial of rehearing en banc online, how judges prohibited from voting in favor of rehearing en banc could dissent from its denial, but in retrospect those dissenting senior judges have emerged quite prescient.

This stereotypical use of a racial classification by California prison authorities has resulted in a non-stereotypical reversal of the Ninth Circuit -- the reversal of a Ninth Circuit ruling that a majority on the Supreme Court viewed as too conservative. I'm sure that won't stop circuit split supporters from counting the reversal as one more reason why a split should occur immediately if not sooner.

In news coverage of the ruling, Linda Greenhouse reported in The New York Times that "Justices Tighten Review of California Prison Segregation."

In The Washington Post, Charles Lane reported that "Justices Rule Against Prisoner Segregation; Calif. Policy Targeted Racial Violence."

In The Los Angeles Times, David G. Savage and Jenifer Warren reported that "Justices Reject Segregation in State's Prisons; The Supreme Court says California's policy of separating incoming inmates by race, meant to curb violence, is constitutionally shaky."

In The San Francisco Chronicle, Bob Egelko reported that "Top U.S. court limits state's segregation of inmates; Justices allow rare exceptions, such as for gang affiliations."

The Sacramento Bee reported that "Prisons' racial policy in doubt; U.S. Supreme Court is making it tougher to segregate inmates."

And from National Public Radio, Thursday's broadcast of "Day to Day" contained a segment entitled "Court Rejects Segregated Prison Cells," while Wednesday's broadcast of "Talk of the Nation" contained a segment entitled "High Court Rules on Prison Segregation."

2. Last week's two other Supreme Court rulings issued on Tuesday and involved cases from Massachusetts. In Smith v. Massachusetts, No. 03-8661, the Court issued an interesting double jeopardy ruling. One of the reasons this 5-4 ruling was interesting is that it apparently represents (as Eugene Volokh notes here) the first time since Justice Stephen G. Breyer joined the Court that this group of nine Justices divided this precise way in a 5-4 decision. The majority consisted of Justices Antonin Scalia (the author of the opinion of the Court), John Paul Stevens, Sandra Day O'Connor, David H. Souter, and Clarence Thomas. In dissent were Justice Ruth Bader Ginsburg (author of the dissenting opinion), the Chief Justice, and Justices Anthony M. Kennedy and Stephen G. Breyer. Because the Court's composition is likely to change quite soon, I would expect that any remaining other heretofore unseen line-ups will be employed before the Court's current Term concludes.

3. The Court's unanimous (Chief Justice William H. Rehnquist not participating) decision in Stewart v. Dutra Constr. Co., No. 03-814, resolved whether the dredge known as the Super Scoop, a floating platform with a bucket that removes silt from the ocean floor and dumps it onto adjacent scows, qualified as a "vessel" for purposes of the Longshore and Harbor Workers' Compensation Act. Because the dredge intentionally moved itself around Boston Harbor (albeit ever so slowly) as part of the "Big Dig" highway construction project, the Court answered the question presented in the affirmative.

The Boston Globe covered these two rulings involving Massachusetts in an article headlined "High court reverses two Mass. findings."

Last week's Order List can be accessed here. The Court granted review in four cases (two of which were consolidated and present generally the same questions), including the assisted suicide case once known as Oregon v. Ashcroft. That grant provides the Court with a more stereotypical opportunity for reversing the Ninth Circuit. My coverage of the Ninth Circuit's ruling in that case can be accessed here, while a copy of the federal government's cert. petition is available at this link.

Finally, as noted here at "SCOTUSblog," the Court also granted review in two cases (the consolidated pair mentioned earlier) presenting the question whether employees at meat processing plants are entitled to compensation under the Fair Labor Standards Act for time they spend each day acquiring, donning, and doffing the special safety equipment their jobs demand. Fearing the consequences of a denial of review, the Order List notes here (at page 10) that the National Chicken Council filed an amicus brief in support of the petition for writ of certiorari.
Posted at 08:30 by Howard Bashman


"Top Court to Weigh Ten Commandments Cases": The Associated Press provides this report.
Posted at 00:30 by Howard Bashman


"New Round of Speculation About Rehnquist's Farewell": Neil A. Lewis and Linda Greenhouse had this article last Tuesday in The New York Times.
Posted at 00:28 by Howard Bashman


"Senator Critical of Proposal on Filibusters": In Friday's edition of The New York Times, Neil A. Lewis had an article that begins, "The Republican chairman of the Senate Judiciary Committee said Thursday that his party's proposal to change the Senate's rules if Democrats continued to block President Bush's judicial nominees would wreak havoc in the Senate."

In other coverage, The Washington Post on Friday contained articles headlined "Specter Predicts Turmoil May Grow From Impasse; Senator Blames Both Sides for Stalemate on Judges" and "Unrepentant Specter Is Finding Life Lonely in the Center," along with an editorial entitled "Adult Leadership." And on Thursday, columnist Ruth Marcus had an op-ed entitled "Specter Unbound."

Friday's edition of The Los Angeles Times reported that "Specter Indicates He'll Be His Own Man as Judiciary Chairman; Pennsylvania Republican says he opposes ending filibusters and vows to seek compromise."

The Philadelphia Inquirer on Friday contained articles headlined "Specter warns against eliminating filibusters on judicial nominees; He said Judiciary, which he heads, and the Senate would erupt; Hearings on nominees are to start" and "Specter hires wife of man who hired Specter's wife; Carolyn Short is on the Judiciary Committee staff; Her husband hired Joan Specter in 1998."

The Pittsburgh Post-Gazette reported that "Specter seeks smoother path for Bush picks."

Newsday reported that "Specter seeks to bargain."

The Washington Times reported that "Specter partly blames GOP."

Financial Times contained an article headlined "Warning over Bush judicial nominees."

Jesse J. Holland of The Associated Press reported that "Specter Blames Both Parties for Impasse."

Reuters reported that "Sen. Specter Urges Caution on Bush Judicial Showdown."

The Cox News Service reported that "Specter warns of turmoil over judges; Judiciary panel chief urges GOP not to change filibuster rule."

And Human Events Online reported that "Schumer Signals 'Nuclear' War on Nominees."

Earlier, The Hill on Wednesday contained an article headlined "I'm there if needed, says Hatch."

In commentary, The Roanoke Times yesterday contained an editorial entitled "The judicious Mr. Specter." And last Wednesday, The San Jose Mercury News contained an editorial entitled "Democrats must block activist judges."

At National Review Online, Byron York last Tuesday had an essay entitled "The GOP's New Plan: Will the high road work for Republicans?" And Harold Johnson last week had an op-ed entitled "Justice Janice Rogers Brown: She's Worth Going Nuclear Over" in The Orange County Register.

Elsewhere, The Mobile Register on Friday reported that "Timetable for Bill Pryor's renomination up in the air."

On Wednesday, The Washington Post reported that "Judicial Nominee Cleared in BLM Case; Interior IG's Report Critical of Others," while The Casper Star-Tribune contained an article headlined "Inspector lifts blame from nominee."

From Louisiana, The Times-Picayune reported yesterday that "Landrieu is in GOP's sights; Opposition on judge picks may be issue."

The Senate Judiciary Committee has two separate judicial confirmation hearings scheduled for the week of February 28, 2005. On Tuesday, March 1, 2005, the committee will hold its second hearing in as many years (view the notice of the first hearing at this link) for Ninth Circuit nominee William Gerry Myers III.

And on Thursday, March 3, 2005, three North Carolina nominees as to whom former U.S. Senator John Edwards had failed to return blue slips will receive a confirmation hearing. The lone U.S. Court of Appeals nominee in that group is Terrence W. Boyle, who thus far has had the bad fortune to have his nomination to the Fourth Circuit expire at the end of the first terms of Presidents Bush I and Bush II. Last Wednesday, the organization People For the American Way issued a press release entitled "New Report: Federal Judge Terrence Boyle Unfit for Promotion to Court of Appeals; Boyle as Federal Judge: High Reversal Rate, Troubling Record on Individual Rights." You can access that organization's report at this link.
Posted at 00:04 by Howard Bashman


Redesign of "How Appealing" is so subtle as to be imperceptible: Apparently the switch-over of this blog's publishing platform from Blogger to Movable Type isn't quite ready to be implemented yet. But stay tuned, as it could happen at any moment, or not at all.
Posted at 00:00 by Howard Bashman


Saturday, February 19, 2005
See you soon: Tomorrow morning, my family and I are embarking on a vacation to a warmer climate that will have us out of the country for part of the week. Fortunately, I finally have a passport. New posts will next appear here on Sunday, February 27, 2005.

While I'm away, the Legal Affairs web site will be launching a redesign scheduled to debut on Tuesday, February 22, 2005, when the site will be updated with the content of the magazine's March | April 2005 issue. My copy of that new issue arrived in the mail this past Thursday, and the magazine contains lots of great stuff, including a pair of articles in which two law professors who clerked at the U.S. Supreme Court debate Chief Justice William H. Rehnquist's impact on the Court.

When I return, if not sooner, "How Appealing" will also experience a minor redesign in connection with its transformation into a Movable Type blog. Among the features that this new publishing platform will offer will be the ability to search this blog's archives. Readers who spot court rulings or news reports that may be worth a mention on my return are encouraged to forward suggestions (including links) via email. Thanks, and have a great week!
Posted at 23:40 by Howard Bashman


In news from Washington State: The Seattle Post-Intelligencer today reports that "Democrats dealt blow in election challenge; Governor case likely to drag on."

And The Seattle Times reports that "Judge sides with GOP over election lawsuit."
Posted at 23:34 by Howard Bashman


"HLS Veterans Association Statement on Military Recruiting": The Harvard Law School Veterans Association issued this statement yesterday.
Posted at 22:35 by Howard Bashman


"Fort Trumbull Neighborhood Evokes Sadness And Resignation; Ex-residents Reminisce About Days Before Eminent Domain": This article appears today in The Day of New London, Connecticut.

The February 28, 2005 issue of U.S. News & World Report will contain an article headlined "A Homeowner's battle: The Supreme Court will hear a case on the scope of eminent domain."

Voice of America News reports that "Connecticut Residents Fight to Keep City From Taking Their Homes."

The AP reports that "Conn. Residents Want Court to Block Domain."

And The Salt Lake Tribune contains an article headlined "Supreme Court to consider legality of land grabs; 'Watershed case': Citizens' rights vs. economic development the main issue."
Posted at 21:14 by Howard Bashman


The Associated Press is reporting: Now available online are articles headlined "Court: Lesbian Must Support Adopted Kids"; "Neb. Woman Settles Muslim Garb Lawsuit"; "Pa. Judge May Face Fine Over Pocketknife"; and "Judge Who Pushed Desegregation Dies at 86."
Posted at 21:10 by Howard Bashman


"Specter is upbeat after treatment": The Philadelphia Inquirer contains this article today. And The Philadelphia Daily News reports that "Upbeat Arlen says he'll whip cancer; Senator will be undergoing chemo twice weekly for six months."
Posted at 21:04 by Howard Bashman


"Licenses rejected for those in Iowa illegally; Court decision affects immigrants' lives and possibly insurance rates for all drivers": This article appears today in The Des Moines Register, which also contains an editorial entitled "Reverse license ruling: Supreme Court said it's up to Legislature to change the law."

In other coverage, The Quad-City Times contains an article headlined "Court: No drivers' licenses for illegal immigrants."

The Omaha World-Herald reports that "Iowa court says illegal immigrants not entitled to driver's licenses."

And The Washington Times reports that "Iowa court rejects illegal aliens' suit."
Posted at 21:00 by Howard Bashman


In news from Nebraska: The Lincoln Journal Star reports today that "Doggy death sentence reversed." And The Omaha World-Herald reports that "Judge lets death-row dog walk."

Meanwhile, in other news, The World-Herald reports that "Widespread publicity no problem for the only resident of Nebraska town."
Posted at 20:45 by Howard Bashman


"Pick judges, not fights: Bush wrong to renominate judicial candidates already rejected." Newsday contains this editorial today.

Today in The Pasadena Star-News, Loretta Keller has an essay entitled "Potential Supreme Court makeup raises question of life terms."

And in The Tallahassee Democrat, Bill Press today has an op-ed entitled "Bill Frist wants to kick Mr. Smith out of Washington."
Posted at 20:12 by Howard Bashman


Gorilla + breast fetish = litigation: The San Francisco Chronicle reported yesterday that "Gorilla Foundation rocked by breast display lawsuit; Former employees say they were told to expose chests."

The San Jose Mercury News reports today that "Gorilla's handlers sue over being fired, alleging they were told to indulge fetish."

And The San Mateo County Times reports today that "Women sue over demand to bare their breasts to gorilla; Gorilla Foundation denies allegations surrounding Koko's so-called nipple fetish."

Koko's web site can be accessed here, while Koko's photo blog can be accessed at this link.
Posted at 17:00 by Howard Bashman


"Law students show inmate is innocent; Lodi man free after 10 years for rape he didn't commit": Bob Egelko has this article today in The San Francisco Chronicle.

Claire Cooper, legal affairs writer for The Sacramento Bee, reports that "Ruling goes beyond 'not guilty'; Peter Rose is officially innocent of raping a girl after serving time and being cleared by a DNA test."

And The Lodi News-Sentinel reports that "Rose's rape conviction thrown out for good."
Posted at 16:44 by Howard Bashman


"Supreme Court mulls decalogue displays": The Associated Press provides this report.

And from Michigan, The Daily Oakland Press reports that "Gosselin proposes Ten Commandments display."
Posted at 16:42 by Howard Bashman


George W. Bush once considered John Ashcroft for the U.S. Supreme Court: Tomorrow's issue of The New York Times will contain an article headlined "In Secretly Taped Conversations, Glimpses of the Future President."
Posted at 15:54 by Howard Bashman


Don't hate the playa: In news from Canada, CTV News reports that "Famous Players cuts same-sex ads after threats."
Posted at 14:14 by Howard Bashman


"Chief justice pulls plug on his Web site": The Providence (R.I.) Journal today contains an article that begins, "Frank J. Williams, the chief justice of the state Supreme Court, yesterday took down a personal Web site through which he had been soliciting paid speaking engagements." The web site can be accessed here.
Posted at 14:04 by Howard Bashman


"Bill Pryor's record shows judicial quality": This editorial appears today in The Mobile Register.

And The Birmingham News today contains an editorial entitled "Bill Pryor's second chance."

Tomorrow will mark the one-year anniversary of the date on which President Bush used a recess appointment to place William H. Pryor, Jr. on the U.S. Court of Appeals for the Eleventh Circuit. My extensive coverage of that news from one year ago tomorrow can be accessed by clicking here and scrolling up the page or by clicking here and scrolling down the page.
Posted at 14:00 by Howard Bashman


"Tired of TiVo? Beyond Blogs? Podcasts Are Here." The New York Times contains this article today, along with a related item headlined "Are You Ready to Listen to a Podcast?"
Posted at 13:15 by Howard Bashman


"Herald vows 1st Amendment fight: Jury awards judge $2.1M in libel case." This article appears today in The Boston Herald, along with an article headlined "Only a few companies will insure newspapers."

The Boston Globe reports that "Jury orders Herald to pay $2.1m in libel case."

The New York Times reports that "Boston Herald Is Ordered to Pay Judge $2 Million for Libel."

The Washington Post reports that "Boston Herald Is Fined $2 Million in Libel Case."

And yesterday evening's broadcast of NPR's "All Things Considered" contained a segment entitled "Boston Jury Awards $2.1 Million to Judge in Libel Case."
Posted at 10:30 by Howard Bashman


"Rehnquist to Keep Working at Home; The chief justice, being treated for cancer, will not be present when the high court reconvenes": The Los Angeles Times contains this article today.

And Michael McGough of The Pittsburgh Post-Gazette reports today that "U.S. chief justice still not on bench; Rehnquist to be absent at least 2 more weeks."
Posted at 10:14 by Howard Bashman


Friday, February 18, 2005
"Rehnquist to Miss 2 Weeks on Bench": This article will appear Saturday in The Washington Post.
Posted at 23:12 by Howard Bashman


Available online from law.com: Tony Mauro has articles headlined "D.C. Circuit Judge Gets on Supreme Court Short List" and "Rehnquist to Miss Court Arguments This Week."

In other news, "Pre-'Crawford' Precedent on Hearsay Ruled Invalid; 'Thomas' no longer controls in New York, panel says."

And Mark K. Moller has an essay entitled "Class Action Act Doesn't Go Far Enough."
Posted at 22:14 by Howard Bashman


"Specter starts chemotherapy regimen; Activists wish him well, remind him of judicial promise": CNN.com provides this report.
Posted at 21:34 by Howard Bashman


"Update on the Chief Justice": Lyle Denniston has this post online at "SCOTUSblog."

In addition, today's U.S. Supreme Court Order List can be accessed here.
Posted at 20:25 by Howard Bashman


"Bush Signs Law to Curb Class-Action Suits": The Los Angeles Times provides this news update.
Posted at 20:04 by Howard Bashman


"Neb. Supreme Court Spares Life of Dog": The AP provides this report on a decision that the Supreme Court of Nebraska issued today.
Posted at 19:55 by Howard Bashman


"Jury finds Boston Herald libeled judge": The Associated Press provides a report that begins, "The Boston Herald was ordered Friday to pay $2.1 million for libeling a Superior Court judge in articles that portrayed him as lenient toward defendants and quoted him making insensitive comments about a 14-year-old rape victim."
Posted at 19:44 by Howard Bashman


A report on last night's panel discussion at Fordham University School of Law regarding citation of unpublished federal appellate opinions: Ira B. Matetsky was there and kindly sends along this report:
The panelists were Chief Judge Boudin of the First Circuit, Judge Leval of the Second Circuit, Judge Becker of the Third Circuit. Professor Patrick Schiltz of the University of St. Thomas Law School, who is Reporter for the Federal Appellate Rules Committee, gave an opening presentation defining the issue and served as moderator, and Professor Daniel Capra of Fordham Law School introduced the participants.

Professor Schiltz's opening remarks noted the extent of the controversy regarding citation of unpublished opinions, including the tabling of proposed Appellate Rule 32.1 for a year of further study. He stated that this issue has been on his Committee's agenda since 1991 and that proposed Rule 32.1 had received the second-most comments of any proposal in the history of federal rulemaking. (That leaves me curious what topic received the most comments -- perhaps either class action changes or initial disclosures, but those are guesses.) A common theme among the remarks of all three judicial panelists was similarly that non-citation rules had become more controversial and the rhetoric surrounding this issue had become much more heated, on both sides, than the subject perhaps deserved.

Judge Becker noted that the Third Circuit's Rules allow litigants to cite that Circuit's "non-precedential opinions." In his experience, such citations, while authorized, are infrequent, and the rule has never created any problem. He stated that during the years he served as Chief Judge, he steered his court away from its former practice of issuing "one-line" decisions (i.e., "Affirmed", with no opinion) in favor of issuing brief but reasoned opinions giving the reason for the result in cases that a panel did not feel called for a full, precedential opinion (although the court, to his regret, adhered to the practice that opinions do not cite earlier, non-precedential opinions).

With regard to the proposed rules change, Judge Becker stated that "I do not understand all the sturm and drang regarding this issue -- it's a matter of plain simple logic" that a court's opinions should be citable. In answer to the question "where do we go from here?", Judge Becker indicated that the path ahead was unclear because the issue had become terribly politicized, particularly in the Ninth Circuit, but that the debate has gone on long enough and ought to be resolved.

Judge Leval defended the Second Circuit's rule that the court's "summary orders" must not be cited (except in related litigation) and said that he, like most judges of his court, believed that changing the Second Circuit's rule would have a negative effect on the overall quality of justice and that each Circuit should have the right to adopt its own rule on this matter. In the Second Circuit, as in other courts, the judges are overworked as a result of caseload pressures and have to allocate their time. They have chosen to allocate the most time to producing published opinions, because while every case is important to the litigants, not every case is important for its precedential value. Writing a precedential judicial opinion is a difficult and time-consuming task, and summary orders are prepared more quickly and do not always attain the level of clarity and exposition that a published opinion would contain.

Judge Leval emphasized that this does NOT mean that the court is deciding cases incorrectly or inconsistently, just that "this is the real world and there is no time to do everything perfectly." He added that while he knows that lawyers resent being unable to cite decisions on their client's side, it often is the case that if an opinion had been polished for publication, an overbroad statement of the law would not have been present in it. Judge Leval concluded that if caseload pressures were less, he would be on the other side of this issue, but based on the situation today, he believed the Second Circuit's non-citation rule was still needed.

Chief Judge Boudin stated that having heard strong arguments in favor of permitting and of prohibiting citation of unpublished appellate opinions, the audience might be surprised to hear his intermediate position: that it doesn't matter much. Judge Boudin stated that two years ago, the First Circuit had changed its Local Rule to permit (but disfavor) citation of the court's unpublished opinions, and that the change had made little difference to the court's operations. Surrounding the citation issue, however, are what he considered more interesting questions, such as whether all appellate opinions are entitled to precedential weight (the late Judge Richard Arnold's position in Anastasoff); whether public pressure on the judiciary, whether or not misguided, would ultimately force a change in the current rule; and whether it would be worth spending the substantial additional money that would reduce each federal judge's workload so as to allow every opinion to be fully polished and perfected.

During the panel discussion, the judges discussed the procedures by which unpublished opinions are prepared in their respective circuits, stating that judges (as opposed to staff attorneys) play a role in their preparation. In response to an audience question, Judge Leval noted that in the Second Circuit (and he believed in others as well), if an unpublished opinion actually would establish needed precedent in the circuit, a motion can be filed to change the opinion's status and publish it, and that the court had granted such motions in appropriate cases.

In response to my question pointing out that several District Judges in the Second Circuit have cited unpublished Second Circuit opinions, the judges observed that considerations concerning citation of these opinions to, or by, District Judges might be viewed differently from citation of the same opinions to the appeals courts. Finally, Judge William Bassler of the District of New Jersey, who was present in the audience, observed that District Judges do appreciate guidance as to their Circuit's views on an issue, even where they are available in a non-precedential form.
Ira advises that an upcoming issue of the Fordham Law Review will contain a transcript of the panel discussion.
Posted at 15:45 by Howard Bashman


Animal, mineral, or vegetable? Appellate lawyers and appellate courts often must wrestle over whether an issue raised on appeal presents a question of fact, a question of law, or a mixed question of law and fact.

Generally speaking, appellate courts review a fact-finder's factual determinations under a quite deferential standard. By contrast, appellate courts exercise what is alternately referred to as plenary or de novo review of legal determinations, showing no deference to the trial court's resolution. And as to mixed questions, appellate courts usually engage in plenary review of a trial court's application of the law to the facts of a case.

Today, Third Circuit Judge