How Appealing

Thursday, January 28, 2016

"Constitution Check: Does the 'Clean Power Plan' violate the Tenth Amendment?" Lyle Denniston has this post today at the "Constitution Daily" blog of the National Constitution Center.

And on Tuesday at that blog, Denniston had a post titled "Constitution Check: Is there a basic flaw in campaign finance law?"
Posted at 09:35 PM by Howard Bashman

"Ruth Bader Ginsburg, at Brandeis, lauds school's namesake": Travis Andersen of The Boston Globe has this report.
Posted at 09:24 PM by Howard Bashman

"Louis D. Brandeis, The Supreme Court and American Democracy": Brandeis University has posted online at this link the video from this evening's event featuring Justice Ruth Bader Ginsburg.

This evening's program was the first of a series of events at the university to commemorate the 100th anniversary of the nomination and confirmation of Louis D. Brandeis to the U.S. Supreme Court. Today is the 100th anniversary to the day of Justice Brandeis's nomination to the Supreme Court.

The January 29, 1916 issue of The New York Times contained this article reporting on the nomination.
Posted at 08:54 PM by Howard Bashman

"Missouri Paid Executioners $250,000 In Cash, Possibly Violating Tax Law; The state pays its small team of executioners in cash to limit the paper trail; The state isn't sending proper paperwork to the IRS -- experts told BuzzFeed News that it could be contributing to tax evasion": Chris McDaniel of BuzzFeed News has this report.
Posted at 04:48 PM by Howard Bashman

"Arizona governor wants to split 9th Circuit Court of Appeals": The Associated Press has this report. My earlier coverage can be accessed here.
Posted at 04:20 PM by Howard Bashman

"White House: Obama doesn't want to serve on Supreme Court." The Associated Press has this report.
Posted at 04:15 PM by Howard Bashman

In reader mail regarding the new "SCOTUSblog" policy of "Just the facts, ma'am": In response to this post of mine from last night, another law-related blogger who has for quite some time been following the "SCOTUSblog" conflict policy saga with interest has emailed these thoughts:
I frankly don't understand SCOTUSBlog's new policy. How is it possible to cover a case, without suggesting that Petitioner or Respondent is closer to the correct rule of law? What happens if, during arguments, the Justices really beat up on one side, and give the other side an easy time? Would that be forbidden to discuss? What happens if the Circuit Court messed up, and the case is an obvious 9-0 reversal? Would that not be worth mentioning. Also, failing to discuss the "case's broader impact" makes for an awfully boring discussion. Wouldn't it be more effective to not cover such cases, at all, rather than to give them such cursory treatment? But therein lies the solution. The quickest way for SCOTUSblog to become an "impartial, journalistic entity" would be to sever all editorial and financial ties with the law firm. Better than any firewall, this obvious step would eliminate any doubts. This least-restrictive means is apparently something SCOTUSBlog has not been willing to entertain.
Of course, realistically, without any outside financial backing, "SCOTUSblog" cannot afford to sever financial ties with its sponsoring law firm. And because "SCOTUSblog" is such an invaluable resource, I and hopefully everyone else would rather see it continue to exist with those conflicts that currently present themselves than see it disappear altogether.

That being said, the blog's "Petitions to Watch" feature strikes me as particularly problematic insofar as it treats every case in which that blog's sponsoring law firm is publicly involved as worthy of inclusion, while every other law firm only gets its cases mentioned on that list if the head of the sponsoring law firm of "SCOTUSblog" deems the case worthy of mention. Deciding what cases to list as "Petitions to Watch" seems like an inquiry that is rife with potential conflicts. The most obvious solution is to omit mention of any case in which the blog's sponsoring law firm is publicly involved. The fact that hasn't happened yet shows that even automatic inclusion on the list has value, thereby demonstrating the existence of the very conflict at issue.

Another unavoidable issue arises from the fact that Amy Howe -- a wonderful person who I admire tremendously -- is the wife of "SCOTUSblog" publisher Tom Goldstein, who heads the blog's sponsoring law firm. Here at "How Appealing," I do not purport to cover my wife's work objectively. Yet at "SCOTUSblog," whenever Amy Howe has a post that reports on the work of that blog's sponsoring law firm, the following sort of "Disclosure" appears:

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to [the parties in a particular U.S. Supreme Court case], but I am not affiliated with the firm.]
Now I don't dispute the disclosure insofar as what it actually says, but it leaves plenty unsaid. Because "SCOTUSblog" is not self-sustaining, its sponsoring law firm makes the financial contributions that allow the blog to continue to exist. Moreover, the revenues of that sponsoring law firm allow Ms. Howe's husband to earn a living, which contributes to having a home, putting food on the table, someday sending the kids to college, etc. Regardless of whether she can be objective or not, repeatedly claiming to be objective concerning the coverage of her husband's work simply because she is "not affiliated with" that law firm seems a bit much.

The bottom line is that "SCOTUSblog" has quite a way to go before it will be independent of its sponsoring law firm. It has to achieve financial independence, but it also need to obtain editorial independence, by which I mean it would be written by people who are not close family members of the owner(s) of the sponsoring law firm or part-time employees of that law firm.

Of course, perhaps the most insightful observation appears in the final sentence of the third paragraph of the "Just the facts, ma'am" post that "SCOTUSblog" published yesterday. That sentence states that "coverage suggesting that the [sponsoring law] firm is likely to lose may raise the hackles of the firm's clients in the case." If the clients of the law firm that sponsors "SCOTUSblog" -- surely a sophisticated group -- don't regard "SCOTUSblog" as a journalistic entity independent from the influence of its sponsoring law firm, notwithstanding all efforts to the contrary, then why should any of the rest of us?
Posted at 03:30 PM by Howard Bashman

"Gov. Doug Ducey wants Arizona out of the 9th Circuit; Ducey mainly is focusing on the logistical problems related to the court's massive caseload": Dan Nowicki of The Arizona Republic has this report.

Today, the Office of the Arizona Governor Doug Ducey posted online a news release titled "Governor Doug Ducey, Arizona Congressional Leaders Call For Removal Of Arizona From The Ninth Circuit; Governor Teaming With Senator Jeff Flake, Congressman Matt Salmon On Solution To Long Postponed Issue."

Whether the Ninth Circuit should be split-up was a recurring question that I asked of federal appellate judges in this blog's now-discontinued "20 questions for the appellate judge" feature.
Posted at 01:44 PM by Howard Bashman

"House panel certifies Roush and Alston, setting up votes on Supreme Court seat": Graham Moomaw has this front page article in today's edition of The Richmond Times-Dispatch.

And Jenna Portnoy of The Washington Post reports that "Lawmakers quiz McAuliffe's pick for the high court, but questions remain."
Posted at 01:33 PM by Howard Bashman

"A Menendez Muddle?" Ross Guberman of Legal Writing Pro has this blog post.
Posted at 01:28 PM by Howard Bashman

"In a Supreme Court brief, lawyers bravely tell their own abortion stories": Columnist Ruth Marcus has this essay online at The Washington Post.
Posted at 01:12 PM by Howard Bashman

What every oral argument panel needs -- the "You're not answering [my judicial colleague's] question" judge: As reported in this post from yesterday, the Fourth Circuit yesterday heard oral argument in a legislative prayer case involving a North Carolina county.

Yesterday's post links to the oral argument audio (35.6 MB mp3 audio file) and identifies the three judges on the panel. The oral argument audio reveals that Circuit Judge Dennis W. Shedd has a propensity to scold arguing counsel for not answering (or, perhaps more accurately, not directly answering) the questions of his judicial colleagues.
Posted at 09:48 AM by Howard Bashman

"The Constitutional Convention 2016? Some liberals and conservatives are teaming up in an effort to rewrite the Constitution." Ashley Balcerzak has this essay online at Slate.

And online at The Huffington Post, Evan Bernick has a blog entry titled "Don't Amend the Constitution, Enforce It."
Posted at 09:24 AM by Howard Bashman

"Birth and Switch: Could Canada have a Ted Cruz problem?" Law professor Adam Dodek has this essay online at The Walrus.

Therein, Dodek writes, "I went to law school with Cruz. In a class of 560 Type-A overachievers, Cruz stood out as especially driven, incredibly ambitious, and rather arrogant."

And online at Politico Magazine, Shane Goldmacher and Daniel Lippman have an article headlined "When Ted Cruz Wanted to Be Part of the Establishment: He climbed over colleagues in search of W's favor, only to be rejected -- setting him on his outsider's course."
Posted at 09:21 AM by Howard Bashman

Aha, so that's why: Online at The New Yorker, law professor Lawrence Lessig yesterday had a post titled "Why I Ran For President."

And today, he has a post titled "Why I Dropped Out."
Posted at 09:14 AM by Howard Bashman

"Breyer Still Point Man for Death Penalty Abolition": Lance J. Rogers of Bloomberg BNA has this report.
Posted at 09:12 AM by Howard Bashman

"Guess which circuit holds the fewest oral arguments. (Hint: it's the same one that issues the fewest published opinions.)" Matthew Stiegler has this post today at -- spoiler alert! -- "CA3blog."
Posted at 09:10 AM by Howard Bashman

"Long-delayed issues face state Supreme Court": Peter Vaira has this op-ed in today's edition of The Philadelphia Inquirer.
Posted at 09:05 AM by Howard Bashman

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