How Appealing

Monday, May 23, 2005


Available online from law.com: Tony Mauro has articles headlined "High Court Turns Aside Mexican's Appeal of Death Sentence" and "Supreme Court Says Beef Producers Can Be Forced to Fork Over for Ads."

In other news, "High Court to Jump Back Into Abortion Debate."

And Jeff Chorney reports that "9th Circuit Split on Grand Jury Nullification."
Posted at 11:50 PM by Howard Bashman




In Tuesday's edition of The Washington Post: Tomorrow's newspaper will contain front page articles headlined "Senators Reach Deal on Judicial Nominees; A Showdown On Filibusters Is Averted" and "Breakthrough Pact Unlikely To End Battle."

And Charles Lane will have articles headlined "Justices to Hear N.H. Abortion Notification Challenge" and "High Court Rejects Case of Mexican Death Row Inmate."
Posted at 11:45 PM by Howard Bashman




In Tuesday's edition of The New York Times: Linda Greenhouse will have articles headlined "Supreme Court to Tackle Abortion Again After 5 Years"; "Supreme Court Drops Case Ruled on by World Court"; and "In Free-Speech Ruling, Justices Say All Ranchers Must Help Pay for Federal Ads."

In judicial filibuster-related news, "Bipartisan Group in Senate Averts Judge Showdown"; "Efforts of 2 Respected Elders Bring Senate Back From Brink"; and "A Modest Victory for Bush, but More Tests Lie Ahead."

And in other news, "Trial Begins in Washington Over Election for Governor."
Posted at 11:40 PM by Howard Bashman




"Judges Deal Landowners a Setback; High Court Makes It Harder To Obtain Payment if Laws Diminish Property's Value": Jess Bravin will have this article (pass-through link) in Tuesday's edition of The Wall Street Journal.
Posted at 11:00 PM by Howard Bashman



"Supreme Court ventures back into abortion debate": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 10:28 PM by Howard Bashman



Available online from C-SPAN: "Senators Press Conference on Judicial Nominees Compromise" and "Sen. Harry Reid, (D-NV) Press Conference on Judicial Nominees Compromise."

RealPlayer is required to launch these video segments.
Posted at 10:25 PM by Howard Bashman




"Senators Reach Deal to Avert Showdown on Judicial Nominees": The New York Times provides this news update.

The Los Angeles Times provides a news update headlined "Compromise on Judicial Nominees Is Reached."

James Kuhnhenn of Knight Ridder Newspapers reports that "Senators strike deal to end showdown over judicial nominees."

The Hill reports that "Deal heads off nuclear option." Tomorrow's edition of The Hill was also going to contain articles headlined "It's apocalypse now -- deal 'very, very remote'"; "Specter signals 'yes' vote"; and "The filibuster saga in the news."

And you can access online press releases entitled "Dobson Blasts Filibuster 'Betrayal'"; "Gary Bauer Calls Senate Judicial Deal a 'Sell Out'"; "Statement of People For the American Way President Ralph G. Neas on Senate Compromise Rejecting Nuclear Option"; "Statement of Alliance for Justice President Nan Aron Regarding Deal on Filibusters"; and "Earthjustice: Senate Compromise Preserves Independent Courts, Protects Environment; Anti-environmentalist Myers Remains Blocked."
Posted at 10:12 PM by Howard Bashman




David G. Savage of The Los Angeles Times is reporting: Available online are news updates headlined "High Court Returns to Abortion Debate" and "Justices Say Beef Producers Must Pay for Ads."
Posted at 09:08 PM by Howard Bashman



The filibuster-"nuclear option" deal: what does it mean? The deal expressly guarantees up-or-down votes, and thus confirmation, for D.C. Circuit nominee Janice Rogers Brown, Fifth Circuit nominee Priscilla R. Owen, and Eleventh Circuit nominee William H. Pryor, Jr. The deal permits filibusters to continue against Sixth Circuit nominee Henry W. Saad and Ninth Circuit nominee William Gerry Myers III.

Implicit in the deal is that the three other current Sixth Circuit nominees from Michigan -- Richard Allen Griffin; David W. McKeague; and Susan Bieke Neilson -- will be confirmed. And the deal would even appear to be good news for D.C. Circuit nominee Brett M. Kavanaugh and Fourth Circuit nominee William James Haynes II.

Apparently Judge Saad's nomination was unlikely to be confirmed in a straight up-or-down vote, making the continued filibuster of his nomination of less consequence. And if liberal Democrats were given their choice of one other nominee to block, I doubt they would have chosen Myers as opposed to Brown, Pryor, or Owen.

On the other hand, the deal is bad news for the White House with respect to U.S. Supreme Court vacancies. Had invocation of the "nuclear option" succeeded, Republicans would have been able to confirm Edith H. Jones or someone like her. Now it appears much more likely that the next Supreme Court nominee will be a nominee with broad, consensus support, such as Michael W. McConnell or John G. Roberts, Jr. Whether this makes any difference in the long run remains to be seen.
Posted at 08:55 PM by Howard Bashman




"Senators Reach Deal on Filibuster; Small Group Reports Compromise To Avoid Showdown Over Judicial Nominees": The Washington Post provides this news update.
Posted at 08:40 PM by Howard Bashman



"Senators compromise on filibusters": CNN.com provides this report.

Thomas Ferraro and Joanne Kenen of Reuters report that "Deal reached to avert U.S. showdown on judges."

And Bloomberg News reports that "U.S. Senate Group Reaches Agreement to Avert Showdown."
Posted at 08:28 PM by Howard Bashman




Access online the "Memorandum of Understanding on Judicial Nominations" that avoided the so-called "nuclear option" in the U.S. Senate: I have posted a copy online at this link.
Posted at 08:24 PM by Howard Bashman



BREAKING NEWS -- "Senators Said to Reach Filibuster Deal": The Associated Press reports here that "Centrists from both parties reached a compromise Monday night to avoid a showdown on President Bush's stalled judicial nominees and the Senate's own filibuster rules, officials from both parties said."
Posted at 07:41 PM by Howard Bashman



Senate Majority Leader Bill Frist, M.D. (R-TN) has just stated that the cloture vote on Priscilla R. Owen's nomination to the U.S. Court of Appeals for the Fifth Circuit will occur around noon tomorrow: The U.S. Senate is now taking a brief recess, but the debate is expected to go through the night into tomorrow morning.
Posted at 06:05 PM by Howard Bashman



"Court nominee scorned demise of sodomy laws; Says a judge must set personal beliefs aside": This article appears today in The Lexington Herald-Leader.
Posted at 05:28 PM by Howard Bashman



In Tuesday's edition of The Christian Science Monitor: Warren Richey will have an article headlined "Court upholds 'Beef: It's What's for Dinner'; The justices rule that First Amendment protections don't apply to the beef campaign, alienating some ranchers."

And in other news, "Limits on filibusters are already pervasive; Amid 'nuclear option,' Congress has already restricted rights to debate and amendment on other matters."
Posted at 05:25 PM by Howard Bashman




Available online from National Public Radio: Today's broadcast of "All Things Considered" contained segments entitled "Supreme Court Addresses Capital Cases" (featuring Nina Totenberg) and "Filibuster Showdown Looms."

And today's broadcast of "Talk of the Nation" contained a segment entitled "After Shutting Down the Senate, What's Next?"

RealPlayer is required to launch these audio semgents.
Posted at 05:20 PM by Howard Bashman




"Supreme Court Says Beef Producers Can Be Forced to Fork Over for Ads": law.com's Tony Mauro provides this report.

At "SCOTUSblog," Lyle Denniston has posts titled "Analysis: state power to enforce abortion laws" and "Analysis: Major test of presidential power."

And Rick Hasen, at his "Election Law" blog, has a post titled "Initial Reaction to Clingman: Potential Aid to Minor Parties."
Posted at 04:32 PM by Howard Bashman




"UK court bans buying porn videos online": Reuters reports here that "Britain's pornographers are breaking the law if they sell adult videos over the Internet or through the mail, the High Court ruled on Monday."
Posted at 04:24 PM by Howard Bashman



"High Court Re-enters Abortion Debate With Emotional Case": Linda Greenhouse of The New York Times provides this news update.
Posted at 04:15 PM by Howard Bashman



"Senate Set for Showdown on Filibuster Rule": This segment (RealPlayer required) appeared on today's broadcast of NPR's "Day to Day."
Posted at 03:30 PM by Howard Bashman



"Frist schedules Senate 'all-nighter' on judges; At stake: Bush's ability to steer the courts in conservative direction." Tom Curry, national affairs writer for MSNBC, provides this report, along with an article headlined "How veto, filibuster allow the minority to prevail; Gay rights veto, filibusters and judicial rulings illustrate the power of the outnumbered."

And Thomas Ferraro of Reuters reports that "Senate readies for filibuster showdown."
Posted at 03:15 PM by Howard Bashman




Ninth Circuit holds that the federal government was "substantially justified" in defending the Child Pornography Prevention Act against constitutional attack: As a result, the appellate court today overturned a federal district court's award of attorneys' fees to the Free Speech Coalition under the Equal Access to Justice Act for having prevailed in its challenge to the constitutionality of that federal law. You can access the Ninth Circuit's ruling at this link.

Although the plaintiffs as a result of today's ruling cannot recover real attorneys' fees, they remain able to pursue virtual attorneys' fees.
Posted at 03:10 PM by Howard Bashman




Available online from The Associated Press: An article reports that "Rehnquist Visits Capitol Medical Dept."

Hope Yen reports that "Court Rules for Hawaii in Rent Caps Case."

And in other news, "Marathon Debate Over Judges Set in Senate" and "Guide to Possible Filibuster Showdown."
Posted at 02:50 PM by Howard Bashman




Sharply divided en banc U.S. Court of Appeals for the Ninth Circuit rejects challenge to model grand jury instructions insofar as those instructions preclude grand jury nullification of criminal laws: You can access today's 6-5 ruling at this link.

I previously reported on the divided three-judge panel's ruling in the case in a post you can access here.
Posted at 01:20 PM by Howard Bashman




"Blogging, Spam, and the Taxation of Internet Transactions": That's the wide-ranging subject for discussion this week at "The Becker-Posner Blog." You can access Seventh Circuit Judge Richard A. Posner's post on the matter here, and Professor Gary S. Becker offers this response.
Posted at 12:25 PM by Howard Bashman



"Medellin: So Who Won?" Law Professor Julian Ku has this post at the "Opinio Juris" blog.
Posted at 12:20 PM by Howard Bashman



"Senate agenda vulnerable as judges battle rages": Reuters provides this report.
Posted at 11:50 AM by Howard Bashman



"Who Could Win Every Senator's Vote?" This week's "Debate Club" feature online at legalaffairs.org focuses on the concept of finding a U.S. Supreme Court nominee whom the U.S. Senate would confirm by a vote of 100-0. The participants in this week's discussion are Law Professor Carl W. Tobias and Arkadi Gerney, the director of StartChange, an advocacy group that is launching draftblank.org.
Posted at 11:40 AM by Howard Bashman



The U.S. Senate is now back in session debating the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit: You can view the proceedings live online via C-SPAN2 by clicking here.

Senate Majority Leader Bill Frist, M.D. (R-TN) just stated that the cloture vote on Owen's nomination will occur mid-morning tomorrow. In the absence of cloture, Senator Frist could then proceed to invoke the so-called "nuclear option" preventing the use of filibusters to block up-or-down votes on judicial nominees.
Posted at 11:33 AM by Howard Bashman




"Senate moderates forming power center; Deal on nominees could spur change": Rick Klein has this article today in The Boston Globe.

Today at National Review Online, Law Professor Jonathan H. Adler has an essay entitled "Not Activist Enough: The Left's real problem with Priscilla Owen."

And online at The American Prospect, Law Professor Bruce Ackerman has an essay entitled "Cheney's Betrayal -- Forgotten in the filibuster debate: the vice president's unconstitutional decision not to follow Senate rules."
Posted at 11:23 AM by Howard Bashman




In news from Massachusetts: The Boston Globe today reports that "SJC chief decries 'attacks' on judges; Marshall defends bench independence."

The Daily News Tribune of Waltham reports that "Judge fires back at critics in Brandeis speech."

And The Associated Press reports that "Mass. Justice Defends Gay Marriage Ruling."
Posted at 10:30 AM by Howard Bashman




Today's U.S. Supreme Court opinions and Order List: The Court today disposed of five argued cases.

1. In MedellĂ­n v. Dretke, No. 04-5928, the Court dismissed the writ of certiorari as improvidently granted. You can access the per curiam opinion here and the oral argument transcript here.

2. Justice Stephen G. Breyer delivered the opinion of the Court in Deck v. Missouri, No. 04-5293, a case involving whether a it violated the rights of a criminal defendant to appear in shackles before a jury that was deciding whether to impose the sentence of death on the defendant. You can access the opinion here and the oral argument transcript here.

3. Justice Clarence Thomas delivered the opinion of the Court in Clingman v. Beaver, No. 04-37, a case presenting the question whether Oklahoma's semiclosed primary system violates the right to freedom of association. You can access the opinion here and the oral argument transcript here.

4. Justice Antonin Scalia delivered the opinion of the Court in Johanns v. Livestock Marketing Assn., No. 03-1164, known in these parts as the beef check-off case. You can access the opinion here and the oral argument transcript here.

5. And Justice Sandra Day O'Connor delivered the opinion for a unanimous Court reversing the Ninth Circuit in Lingle v. Chevron U.S.A. Inc., No. 04-163, a case involving the Fifth Amendment's takings clause. You can access the opinion here and the oral argument transcript here.

Today's Order List can be accessed at this link. The Court today granted review in only one case, but it is a noteworthy one, as the news reports linked below demonstrate.

At "SCOTUSblog," Lyle Denniston reports that "Court to hear abortion case, decides 5 cases."

Hope Yen of The Associated Press reports that "Court Taking Up Abortion Notification"; "Court Dismisses Death Row Rights Appeal"; and "Beef Makers Can Be Forced to Pay for Ads." And The AP's Gina Holland reports that "Court Rules Against Shackling Defendants."

James Vicini of Reuters, meanwhile, reports that "Justices dismiss case of Mexican on death row." Reuters also reports that "Top court allows beef promotion program" and "State can limit party primary election, court rules."
Posted at 10:00 AM by Howard Bashman




On the agenda: The Supreme Court of the United States is scheduled to issue an Order List and one or more opinions in argued cases at 10 a.m. today.

And at 11:30 a.m. today, the U.S. Senate will resume debate over the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit.
Posted at 09:55 AM by Howard Bashman




"High court to consider gays' rights as parents; State Justices to hear custody, support cases": Howard Mintz has this article today in The San Jose Mercury News. The Supreme Court of California plans to provide live audio access over the internet to tomorrow's oral arguments.
Posted at 09:54 AM by Howard Bashman



"Report of burglary may cost lawyer $300,000; He called it a break-in; She co-owned the house; They're in a federal case": L. Stuart Ditzen has this article today in The Philadelphia Inquirer.
Posted at 09:50 AM by Howard Bashman



"Election trial that opens today echoes beyond state": The Seattle Times contains this article today.

And The Olympian of Olympia, Washington reports today that "Governor says she prefers not to focus on case."
Posted at 09:48 AM by Howard Bashman




"Surgeon senator faces a delicate operation; Frist's key role in the filibuster fight could make him presidential material": This article appears today in The Sacramento Bee.

And The Seattle Post-Intelligencer today contains articles headlined "State bills put at risk by Senate standoff" and "A single senator can slow proceedings to a crawl."
Posted at 09:44 AM by Howard Bashman




On today's broadcast of NPR's "Morning Edition": The broadcast contained segments entitled "Political Wrap: Judicial Nominees, Stem Cell Research" and "Republicans Challenge Washington Governor in Court."
Posted at 09:40 AM by Howard Bashman



"Revitalization Projects Hinge On Eminent-Domain Lawsuit": This article appeared Saturday in The Washington Post.

And Newsday today contains an article headlined "Backyard battle over land rights; Church group fights North Hempstead's bid to take site for public center."
Posted at 08:50 AM by Howard Bashman




"Tribe to reopen smoke shop; state questions legality; 'What are they afraid of?' the Narragansetts' chief sachem asks" Saturday's issue of The Providence (R.I.) Journal contained this article.
Posted at 08:45 AM by Howard Bashman



"Bush Nominees Could Tip Court Balances; Battle Centers on Judicial Picks Whom Democrats See Advancing A Conservative Trend": This article (free access provided) appears today in The Wall Street Journal.

The Los Angeles Times reports today that "Clock Ticks on Effort to Defuse Senate Battle; GOP leaders say they don't plan to stall Tuesday's judicial vote; The move may lead to the 'nuclear option' if a deal isn't reached today."

The Washington Times contains articles headlined "Sen. Allen predicts showdown will end in 'nuclear option'" and "Democrats flip-flop on filibusters."

The Fort Worth Star-Telegram contains an article headlined "From small-town start to the center of attention."

FOXNews.com reports that "'Activist Judges' Under Siege."

The Detroit Free Press reports that "Tug-of-war may derail court pick; Michigan judge could be left behind if Senate makes deal."

The Associated Press provides reports headlined "Senators Aim to Avert Filibuster Showdown" and "Senators Reading Article by Lobbyist."

Bloomberg News contains a report headlined "Senators in Middle of Judges' Debate Try to Overcome Suspicions."

And The Des Moines Register reports that "ISU Democrats do talking tribute to the filibuster; The student group started taking Thursday and will hit its 100th hour at 4:30 p.m. today."

In commentary, The Tucson Citizen contains an editorial entitled "McCain tries to solve rift on filibuster."

The Palm Beach Post contains an editorial entitled "It's not about filibusters; it's about total control."

The Patriot-News of Harrisburg, Pennsylvania contains an editorial entitled "Make a deal; Judicial nominees deserve a vote."

The Roanoke Times contains an editorial entitled "The Senate's nuclear countdown: The GOP shouldn't scrap judicial filibusters just because they don't serve party purposes today."

The Berkshire Eagle contains an editorial entitled "Cool the nuclear option."

In The Washington Times, Donald Lambro has an op-ed entitled "Misleading filibuster myths."

In The Free Press of Kinston, North Carolina, columnist Mike Parker has an essay entitled "Judicial debate shows major shift in government."

And yesterday in The Lincoln (Neb.) Journal Star, Don Walton had an op-ed entitled "Norris, Wherry part of filibuster lore."
Posted at 07:10 AM by Howard Bashman




"Devolution: Why intelligent design isn't." H. Allen Orr has this lengthy article in the May 30, 2005 issue of The New Yorker.
Posted at 06:50 AM by Howard Bashman



"Top state court to hear lesbian custody cases; Justices to decide parental status of former partners": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 06:44 AM by Howard Bashman






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