How Appealing

Sunday, May 28, 2017

"Clarence Thomas Is Colorblind: The most conservative justice casts a decisive vote to strike down race-based voting lines." Slate has posted online this new installment of its "Amicus" podcast featuring Dahlia Lithwick.
Posted at 10:18 PM by Howard Bashman

"Watchdog's Future Is More Fraught Under Trump: Courts will be unable to avoid today's politics in deciding whether the president can fire the head of an independent agency." Law professor Noah Feldman has this essay online at Bloomberg View.
Posted at 10:16 PM by Howard Bashman

15 years of "How Appealing" -- reader mail: Today's email is from a reader who asked to be identified as Prasad D.:
Congrats on the completion of 15 years of your blog!

I got hooked on to your blog (along with SCOTUSBlog) sometime in March 2012 just when the Supreme Court was hearing challenges to the ACA.

I am from India and moved to the United States in the fall of 2010 to pursue my graduate education. I was attending graduate school at the University of Cincinnati back in 2012. My major is Electrical and Computer Engineering with absolutely zero relation to the legal profession.

On a cold spring morning in 2012, I glanced across a news article that stated President Obama's signature legislative achievement is in jeopardy, with its fate resting in the hands of nine people in black robes. I was quite shocked by the media spotlight on the case and this led me to explore and read about U.S. Constitution and history.

Thanks to all blogs, including yours, for sparking my interest in exploring the "arcane and byzantine hallways of the American judicial branch." I am now comfortable navigating legal jargon and regularly listen to argument audio and read judgments/opinions of SCOTUS and the U.S. Circuit Courts of Appeals. I have also given a speech on the U.S. Supreme Court in the local toastmasters club at my workplace.

I actively followed the same-sex marriage battle that started in June 2013 with the Justice Kennedy's opinion in U.S. vs. Windsor and finally culminating in Obergefell vs. Hodges in June 2015. It was exciting and thrilling when cases on the the same subject matter where heard in the 4th, 10th, 7th, 9th and 6th Circuits. I was disappointed when Judge Jeff Sutton, perceived as a swing vote, ruled against the plaintiffs. However, that circuit-split eventually paved the way for the Supreme Court to step in and settle the issue once and for all.

I would also commend you specifically for bringing the spotlight on the U.S. Circuit Courts of Appeals, as they tend to get overshadowed by SCOTUS. This reminds me of an alleged (but noteworthy) quote by Judge Stephen Reinhardt from the (much maligned these days) 9th Circuit, that demonstrates the importance of the appeals courts -- "They (SCOTUS) can reverse some of our decisions, they can't reverse all of them."

Your blog has been pivotal in introducing readers to excellent judges on the federal appellate courts. To name a few of my favorites, I would specifically call out Judge Alex Kozinski, Judge Marsha Berzon, Judge Stephen Reinhardt (9th Circuit), Judge Sri Srinivasan (D.C .Circuit), Judge Richard Posner and Judge Frank Easterbrook (7th Circuit).

Thanks again for your contributions. I wish you many more years of growth and success running this blog. I wish good luck to you and your blog readers for years to come.

Prasad, thanks so much for taking the time to write this detailed, thoughtful, and very kind email. I will post another reader email tomorrow.
Posted at 10:06 PM by Howard Bashman

"Bangladesh Orders Statue of Woman at Supreme Court Put Back Up": Julfikar Ali Manik of The New York Times has this report.
Posted at 09:40 PM by Howard Bashman

"The Town That Trolls Built: The Supreme Court ruled that patent holders can no longer choose where to file infringement suits; That's bad news for Marshall, Texas." Joe Nocera has this essay online at Bloomberg View.
Posted at 09:32 PM by Howard Bashman

"Court says essentially that Trump is not to be believed. Will Supreme Court conclude the same?" Robert Barnes of The Washington Post has this report.
Posted at 09:02 PM by Howard Bashman

"Russia scandal ices government lawyer hiring; Trump has top DOJ positions as well as U.S. attorney posts and judicial vacancies to fill, but as scandals have spread, the candidate pool has shrunk": Josh Gerstein of has this report.
Posted at 08:20 PM by Howard Bashman

Saturday, May 27, 2017

"Trump's Travel Ban 'Drips with Intolerance' on Its Way to the Supreme Court": Amy Davidson has this post online at The New Yorker.
Posted at 10:15 PM by Howard Bashman

"Ex-Massey Energy CEO asks Supreme Court to his overturn his conviction": The Associated Press has this report.
Posted at 10:10 PM by Howard Bashman

15 years of "How Appealing" -- reader mail: Today's email is from attorney Jerry Schrotenboer:
For over a decade now, I read you blog every work morning. It is so helpful that my having read one of the articles that you wrote on an issue (thus giving me a head start in my analysis) may have meant the difference between my winning a case at the Michigan Supreme Court 4-3 rather than losing it 4-3. I really appreciate your blog.
Jerry, thanks so much for your very kind email, which confirms that this blog is equally capable of helping prosecutors and criminal defense attorneys on appeal. I will post another reader email tomorrow.
Posted at 10:04 PM by Howard Bashman

"Statue of Woman Removed From Bangladesh's Supreme Court": Julfikar Ali Manik and Ellen Barry of The New York Times have this report.

And in more recent coverage, Dhaka Tribune reports that "Lady Justice statue re-erected on Supreme Court premises."
Posted at 09:52 PM by Howard Bashman

"Rebuked Twice by Supreme Court, North Carolina Republicans Are Unabashed": Michael Wines will have this article in Sunday's edition of The New York Times.
Posted at 09:42 PM by Howard Bashman

"U.S. Supreme Court ruling could be economic boon for Delaware": Jeff Mordock of The News Journal of Wilmington, Delaware has an article that begins, "Hundreds of patent lawsuits intended for other jurisdictions will now be filed in Delaware because of a recent U.S. Supreme Court decision."
Posted at 09:38 PM by Howard Bashman

Friday, May 26, 2017

"Trump nominee called Kennedy 'judicial prostitute'": Seung Min Kim of has an article that begins, "One of President Donald Trump's judicial nominees wrote nearly a decade ago that Justice Anthony Kennedy was akin to a 'judicial prostitute' -- a comment that one liberal advocacy group says should disqualify him for the courts."
Posted at 10:30 PM by Howard Bashman

"Will He or Won't He? How Justice Anthony Kennedy's retirement decision became a battle over the judiciary and the Trump presidency." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 10:24 PM by Howard Bashman

15 years of "How Appealing" -- reader mail: Today's email is from Peg Durkin, a former Philadelphia attorney who is the head of public services at the UC Davis Mabie Law Library:
Congratulations on 15 years!

I moved to California 25 years ago and I was pleasantly surprised when I discovered your blog. In it, I found a good source of legal information, a link to all things Philly (Phillies and Eagles), and good reporting on the travails of Pennsylvania politics and the judiciary. I also enjoy the "bash" references. Keep up the good work.

Ms. Durkin, thanks so very much for your wonderful email. The 15 years of this blog's history evidence a great deal of mutual admiration between me and law librarians, as reflected (among other places) in post you can access here, here, here, here, and here. I will post another reader email tomorrow.
Posted at 08:50 PM by Howard Bashman

"Federal judge tosses life sentences for convicted sniper Lee Boyd Malvo": Tom Jackman of The Washington Post has this report.
Posted at 05:48 PM by Howard Bashman

"Supreme Court Justice Stephen Breyer speaks at the Cambridge Public Library": Cambridge Community Television has posted this video on vimeo.
Posted at 03:16 PM by Howard Bashman

"Trump travel ban fight heads toward Supreme Court showdown": Lawrence Hurley of Reuters has this report.
Posted at 03:09 PM by Howard Bashman

"2nd Circ. Grants En Banc Rehearing On Gay Bias Precedent": Braden Campbell of has an article (subscription required for full access) that begins, "The Second Circuit will reconsider as a full body its precedent that Title VII does not cover sexual orientation discrimination, granting en banc review Thursday to the estate of a gay skydiving instructor whose bias suit the court declined to revive in April."
Posted at 01:25 PM by Howard Bashman

Thursday, May 25, 2017

"Alabama prisoner faces eighth execution date amid death penalty debate": Richard Wolf of USA Today has this report.
Posted at 11:17 PM by Howard Bashman

"Supreme Court forced to confront the 'unsavory' politics of district lines": Richard Wolf of USA Today has this report.
Posted at 11:04 PM by Howard Bashman

"The Year of the Patent": Adam Feldman has this post at his "Empirical SCOTUS" blog.
Posted at 11:02 PM by Howard Bashman

"Alternative Evidence: A dialogue on how the law will handle a world of alternative facts." Slate has this jurisprudence essay, consisting of a conversation between Seventh Circuit Judge Richard A. Posner and Senior U.S. District Judge Jed S. Rakoff (S.D.N.Y.), moderated by Joel Cohen.
Posted at 09:03 PM by Howard Bashman

15 years of "How Appealing" -- reader mail: Today's email is from an attorney who asked me to omit his name:
Congratulations on the 15-year milestone!

I have been reading this blog since its inception when I was an undergraduate at NYU. I had been reading cases since high school as I just loved (and love) the law. Your blog is the greatest resource for keeping current on the state of the law, which I believe is absolutely necessary to have a successful practice. I have been litigating appeals for 10 years now and I find your insights always interesting and refreshing. Most notably, I think, your blog provides a great resource for CTA cases that eventually become SCOTUS cases. Following the percolation of issues in the circuits is something that is invaluable, and without your blog it would be impossible to track things like that.

So thank you for being a wonderful resource and eminently readable.

And thanks to you for that very kind email! I will post another reader email tomorrow.
Posted at 08:57 PM by Howard Bashman

"Trump lawyers ask Supreme Court to reject 2nd Amendment claim by men who lost gun rights over nonviolent crimes": David G. Savage of The Los Angeles Times has this report.
Posted at 08:45 PM by Howard Bashman

"Appeals Court Will Not Reinstate Trump's Revised Travel Ban": Adam Liptak of The New York Times has this report.

Ann E. Marimow and Robert Barnes of The Washington Post report that "Federal appeals court maintains freeze of Trump's travel ban. Attorney general vows Supreme Court appeal."

David G. Savage of The Los Angeles Times reports that "Trump is dealt another defeat on travel ban as U.S. appeals court in Virginia blocks enforcement."

Brent Kendall of The Wall Street Journal reports that "Appeals Court Rules Against Trump's Revised Travel Ban; Administration says it will appeal to Supreme Court."

Alan Gomez and Richard Wolf of USA Today report that "Appeals court rules against President Trump's revised travel ban."

Andrea Noble and Stephen Dinan of The Washington Times report that "Appeals court upholds block on Trump's extreme vetting policy; Jeff Sessions vows appeal to Supreme Court."

Frank Green of The Richmond Times-Dispatch reports that "Divided appeals court rules against Trump's revised travel ban."

Erik Larson, Andrew M Harris, and Greg Stohr of Bloomberg News report that "Sessions Says DOJ Will Seek Supreme Court Review of Travel Ban."

Mica Rosenberg and Dan Levine of Reuters report that "In blow to Trump, U.S. appeals court refuses to reinstate travel ban."

Ariane de Vogue of has a report headlined "Travel ban case: Here's what the Supreme Court might look at."

Josh Gerstein of reports that "Appeals court keeps block on revised Trump travel ban; administration vows SCOTUS appeal; Attorney general vows to take legality of executive order to Supreme Court."

Cristian Farias of HuffPost reports that "Appeals Court Slaps Down Donald Trump's Travel Ban Yet Again; The court said that the president's executive order 'drips with religious intolerance, animus, and discrimination.'"

Zoe Tillman of BuzzFeed News reports that "Federal Appeals Court Upholds The Nationwide Injunction Blocking Trump's Travel Ban."

And in commentary, online at Bloomberg View, law professor Noah Feldman has an essay titled "Court Essentially Says Trump Lied About Travel Ban; The decision by the Fourth Circuit is extraordinary in its rebuke of the president."

You can access today's en banc ruling of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 08:30 PM by Howard Bashman

"Kevin Newsom's Insightful Take on The Slaughter-House Cases": Michael Stokes Paulsen has this post online at National Review's "Bench Memos" blog.
Posted at 07:45 PM by Howard Bashman

"Gov. Kay Ivey appoints Will Sellers, former campaign chair, to Alabama Supreme Court": Brian Lyman of The Montgomery Advertiser has this report.
Posted at 07:40 PM by Howard Bashman

"Senate Republicans likely to change custom that allows Democrats to block judicial choices": Robert Barnes and Ed O'Keefe of The Washington Post have an article that begins, "Senate Republicans are threatening to change a custom that allows Democratic senators to block some judicial choices from their states, in an effort to speed along a conservative transformation of the federal judiciary."
Posted at 07:34 PM by Howard Bashman

"U.S. District Judge Amul Thapar confirmed to federal appeals court seat": Bill Estep of The Lexington (Ky.) Herald-Leader has this report.

Alex Swoyer of The Washington Times reports that "Senate confirms Judge Thapar to 6th U.S. Circuit Court of Appeals."

Seung Min Kim of reports that "Senate confirms Trump's conservative pick for 6th Circuit Appeals court."

And Zoe Tillman of BuzzFeed News reports that "The Senate Confirmed Trump's First Lower Court Nominee."
Posted at 07:28 PM by Howard Bashman

"Election Wars at the Supreme Court": Linda Greenhouse has this essay online at The New York Times.
Posted at 07:20 PM by Howard Bashman

Programming note: This morning, I will be attending a meeting out-of-the-office concerning one of the appeals on which I am working. Additional posts will appear here this afternoon. As always while I am traveling, additional appellate-related retweets are likely to appear on this blog's Twitter feed.
Posted at 07:28 AM by Howard Bashman

Wednesday, May 24, 2017

"Trial ordered to determine if Strip performer's rights violated": Cy Ryan of The Las Vegas Sun has this report on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued today.
Posted at 11:46 PM by Howard Bashman

"Libertarian Legal Scholars Reject Trump Judicial Nominee's Views on 14th Amendment": Damon Root has this post at's "Hit & Run" blog (via "Above the Law").
Posted at 10:08 PM by Howard Bashman

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