How Appealing

Friday, February 28, 2003
Available online at law.com: Tony Mauro has an article entitled "Law and Politics in a High Court Selection." You can access insightful and informative profiles of six leading contenders for a U.S. Supreme Court vacancy via this link. Jason Hoppin reports here that "9th Circuit Won't Reconsider Pledge Ruling." In news from New York, "Judicial Speech Decision Leaves Confusion in Its Wake." And finally for now, Jonathan Ringel reports here that "11th Circuit May Stop Suspicious Spouses' Secret Phone Recordings."
Posted at 22:54 by Howard Bashman



I'm quoted in tomorrow's edition of The New York Times: You can access Adam Liptak's article, "Full Appeals Court Lets Stand the Ban On 'God' in Pledge," at this link.
Posted at 22:46 by Howard Bashman



20 questions and 20 answers: Responses have just arrived, so I'm pleased to announce that on the morning of Monday, March 3, 2003, the newest installment of "20 questions for the appellate judge" will appear online at this Web log. I hope and trust that you'll find it to be very interesting and informative. And I thank the Ninth Circuit judge whose answers just arrived for all the time, effort, and thoughtfulness that obviously went into these answers.
Posted at 19:34 by Howard Bashman



Charts and graphs: A reader has kindly emailed to alert me to a very useful resource available via the Web site of the U.S. Senate Republican Policy Committee. You can access here a chart listing State by State, and newspaper by newspaper, the position the editorial boards of this Nation's newspapers have taken on the Miguel A. Estrada filibuster and associated matters. While I'm intrigued by those newspapers whose position on the matter is listed on the chart as "ambiguous," let me hasten to note that not one newspaper has yet been classified as "Anti-Filibuster/Anti-Estrada" or "Pro-Filibuster/Pro-Estrada." So, to those readers of "How Appealing" who help shape a newspaper's editorial policy, your newspaper could be the first to take either one (or both!) of these rather absurd yet so-far unclaimed positions. And be sure to let me know if that happens.
Posted at 19:01 by Howard Bashman



"Appeals Court Reinstates Ban on 'Under God' in Pledge": Adam Liptak of The New York Times has this report. I had the pleasure of answering some of Liptak's questions in two telephone conversations this afternoon about today's Ninth Circuit action. You can access my take on today's developments in this blog post from earlier this afternoon. I would have to imagine that the Ninth Circuit will agree to stay its mandate pending the filing of petitions for certiorari in the U.S. Supreme Court. If not, next week might be the last time children who attend public schools within the Ninth Circuit will be able to say the Pledge of Allegiance until the U.S. Supreme Court decides what to do with this case.

Liptak's article references a U.S. Department of Justice press release. The press release says:
STATEMENT OF ATTORNEY GENERAL JOHN ASHCROFT
REGARDING THE PLEDGE OF ALLEGIANCE CASE:


"For centuries our nation has referenced God as we have expressed our patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address. The Supreme Court of the United States opens each session by saying, 'God save this honorable Court.'

"The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the Pledge."
You can access the press release at this link. At least both the U.S. House and the U.S. Senate were not in session today, so we didn't have to endure countless legislative denunciations of today's Ninth Circuit action. Perhaps we can look forward to seeing that occur next week.
Posted at 18:23 by Howard Bashman



"Turn the tables"? The City Journal today posted an article online entitled "Let Estrada Turn the Tables on Schumer; If this talented Republican doesn't win confirmation, let him run against his tormentor for the Senate." Thanks to Eugene Volokh for the pointer.
Posted at 17:51 by Howard Bashman



U.S. Department of Defense issues "Draft Military Commission Instruction": Today The Pentagon issued a press release that begins:
The General Counsel of the Department of Defense (DoD) today released a draft military commission instruction entitled "Crimes and Elements for Trials by Military Commission." This instruction lists and defines certain violations of the laws of war and other offenses triable by military commission.

DoD will be prepared to conduct full and fair legal proceedings should a military commission be convened. Although no charges have been referred against any individual potentially subject to the jurisdiction of a military commission, this instruction will help to ensure that DoD will be ready to fulfill its responsibilities if called upon.
You can access the complete press release here and the "Military Commission Instruction" at this link. Additionally, The Associated Press reports here that "U.S. Finishing Crimes List for Tribunals."
Posted at 17:32 by Howard Bashman



From today's White House press briefing: Today's White House press briefing by Press Secretary Ari Fleischer contained a couple of questions about the U.S. Senate filibuster of Miguel A. Estrada's nomination to serve on the D.C. Circuit:
Q Ari, there is a new 30-second radio spot which was reported in its entirety by the Washington Times, which notes -- to summarize it -- in 1998, Pat Leahy said he opposed any filibuster against any judge, even somebody he opposed, and he said the Senate has a duty to give every judicial nominee a vote, and allowing a minority of senators to block a vote on a judicial nominee shamed all senators.

Now that was 1998. Today, Pat Leahy is blocking a Senate vote on Miguel Estrada. Shame on you Pat Leahy, shame. The question, does the President -- the President doesn't disagree with this shame on Leahy spot by American Renewal, does he, Ari? He agrees with it, doesn't he?

MR. FLEISCHER: I think there is no question that you have accurately quoted Patrick Leahy. Patrick Leahy, in 1998, did say, emphatically, that it was wrong to engage in filibuster of judges and that it should not be done and that he would not do it. And, frankly, I do --

Q And that's shameful, isn't it, Ari? Isn't that shameful?

MR. FLEISCHER: I do think it's also accurate to say he has gotten away with changing his position scott-free.
And later in the question and answer session:
Q Ari, some experts in the Senate are now saying the Miguel Estrada nomination is dead, that there is no way there will be sufficient votes for cloture. How long does the President intend to leave the nomination on the floor? And would he consider a recess appointment?

MR. FLEISCHER: The President has said that he will do this for as long as it takes. The President believes very deeply in the importance of the Senate taking action to confirm Miguel Estrada, and not to engage in these obstructionist tactics that Chairman Leahy said he would never engage in, in the first place, which he is now the leader of the engagement.

And just yesterday, another letter was sent from Judge Gonzales to Democrat leaders on the Hill, suggesting ways to break the impasse if only they would avail themselves of it.
You can access the complete transcript of today's press briefing at this link.
Posted at 17:02 by Howard Bashman



The "short list": Monday's edition of The Legal Times takes a look at who may be on the White House's "short list" if a U.S. Supreme Court vacancy arises. More specifically, the publication looks at six possible nominees: Samuel A. Alito, Jr., Janice Rogers Brown, Emilio M. Garza, White House Counsel Alberto R. Gonzales, J. Michael Luttig, and J. Harvie Wilkinson III. In other news, William W. Wilkins Jr. is the Fourth Circuit's new chief judge.
Posted at 16:31 by Howard Bashman



"Ky. Bible College Gets 666 Prefix Removed": The Associated Press has this report. And should architect Frank Gehry stick to designing buildings located in warmer climes? The AP examines that question here, in an article about this structure.
Posted at 16:15 by Howard Bashman



The Associated Press is only two hours behind me: Not bad, I guess. You can access here a newsbrief entitled "Court Won't Reconsider Pledge Decision." You can access The UPI's prior coverage of the case at this link. Update: And Reuters now has this report.
Posted at 14:34 by Howard Bashman



D.C. Circuit rules that Congress hasn't denied equal protection of the laws to grocery baggers at military commissaries: The U.S. Court of Appeals for the D.C. Circuit today issued this ruling. Further proof that the D.C. Circuit truly is the second most important court in the land.
Posted at 14:19 by Howard Bashman



"Simpson pushes for new federal court of appeals": While I regret that this post appears in immediate proximity to the post below, today's edition of The Idaho Statesman contains this report. Thanks to a reader for sending along a link to this article.
Posted at 12:56 by Howard Bashman



BREAKING NEWS -- Ninth Circuit denies rehearing en banc in Pledge of Allegiance case: You can access the Ninth Circuit's order at this link. Nine circuit judges dissented from the denial of rehearing en banc. The votes of thirteen judges were needed to grant rehearing. And so it's on to the U.S. Supreme Court, given the existence of a square conflict in the circuits between the Ninth Circuit's ruling in this case and the Seventh Circuit's earlier, contrary ruling in a case raising the same issue. The Seventh Circuit's contrary ruling, by the way, was written by Circuit Judge Frank H. Easterbrook. You can access my report on the Ninth Circuit's original Pledge of Allegiance ruling at this link.

Circuit Judge Diarmuid F. O'Scannlain wrote the lead dissent from today's order denying rehearing en banc, and his dissenting opinion (which begins on page 8 of this PDF file) explains:
Newdow I, the subject of our en banc vote, no longer exists; it was withdrawn after the en banc call failed. The panel majority has evolved to this extent: in Newdow I the Pledge was unconstitutional for everybody; in Newdow II the Pledge is only unconstitutional for public school children and teachers. The remainder of this dissent is directed entirely to Newdow II, which, as shall be demonstrated, differs little from Newdow I in its central holding. With grim insistence, the majority in Newdow II continues to stand by its original error--that voluntary recitation of the Pledge of Allegiance in public school violates the Establishment Clause because, according to the two-judge panel majority, it is "a religious act." Newdow II, ___ F.3d at ___. Common sense would seem to dictate otherwise, as the public and political reaction should by now have made clear. If reciting the Pledge is truly "a religious act" in violation of the Establishment Clause, then so is the recitation of the Constitution itself, the Declaration of Independence, the Gettysburg Address, the National Motto, or the singing of the National Anthem. Such an assertion would make hypocrites out of the Founders, and would have the effect of driving any and all references to our religious heritage out of our schools, and eventually out of our public life.
(footnotes omitted).

Update: Although this case certainly satisfies the criteria for rehearing en banc -- it involves an exceptionally important issue, and it creates a circuit split that could have been avoided if the en banc court reached the opposite result from the original three-judge panel -- a reasonable Ninth Circuit judge could have refrained from voting in favor of rehearing en banc even if he or she had serious questions about the correctness of the panel's ruling. Why do I say that? Because the overall body of First Amendment establishment clause law cries out for clarification from, and perhaps reconsideration by, the U.S. Supreme Court, whose existing precedent could support pretty much any outcome in this case. Denial of rehearing en banc gives the U.S. Supreme Court the opportunity to review this case all that much sooner.
Posted at 12:22 by Howard Bashman



View the full text of yesterday's letter from Counsel to the President Alberto R. Gonzales to the U.S. Senate on the Miguel A. Estrada nomination: It's available online here, via "How Appealing Extra."
Posted at 12:10 by Howard Bashman



"A New Move on Estrada: The White House challenges Democrats to put up or shut up." Byron York offers this report, just posted to National Review Online.
Posted at 11:22 by Howard Bashman



Crazier than ever: The Supreme Court of the United States has just entered the following order:
02-5664 Sell v. USA

Counsel should be prepared to discuss the jurisdiction of this Court and of the Court of Appeals in this case, see Cohen v. Beneficial Industrial Loan Corp., 337 US 541 (1949), and are directed to file with the Clerk, and serve upon opposing counsel, supplemental briefs on the issue on or before 3 pm, Friday, March 7, 2003. Twenty copies of the briefs prepared under this Court's Rule 33.2 may be filed initially in order to meet the March 7 filing date. Rule 29.2 does not apply. Forty copies of the briefs prepared under Rule 33.1 are to be filed as soon as possible thereafter.
This case, which will be argued on Monday, March 3, 2003, presents the question "Whether the court of appeals erred in rejecting petitioner's argument that allowing the government to administer antipsychotic medication against his will solely to render him competent to stand trial for non-violent offenses would violate his rights under the First, Fifth, and Sixth Amendments." The federal government's brief on the merits flags the jurisdictional issue in a footnote on page 10 (which is page 19 of this PDF document).
Posted at 10:53 by Howard Bashman



Today's first item of breaking news: A highly informed source advises: "The Fox story is false in re: the cloture vote scheduled. None is or will be scheduled for next Tuesday or anytime next week, and perhaps never. We're working to get it corrected with FoxNews." My earlier report on this matter is accessible here. FOXNews -- it reports, you decide.
Posted at 10:19 by Howard Bashman



"An Ivy League E-Mail Error": Ooops! Today's edition of The New York Times provides this report.
Posted at 08:57 by Howard Bashman



"Atheist discusses challenge to Pledge of Allegiance": Yesterday's edition of The Duke University Chronicle contained this report.
Posted at 08:53 by Howard Bashman



On today's agenda: The U.S. Senate is not in session today. But while I'm sitting here on the edge of my seat awaiting other very interesting developments that could occur today, let me make an announcement.

Because I'm due to publish here in the imminent future the second installment of this Web log's newest monthly feature, "20 questions for the appellate judge," I have gone ahead and set up a separate page that will only contain the text of these monthly interviews. The page -- entitled "How Appealing's 20 questions site" -- is accessible here. (The questions and answers are set forth there in the quite lovely Book Antiqua font, for those who may be curious.)

As before, each new installment of the "20 questions" feature will originally appear here at the "How Appealing" main page. But, given the volume of posts that appear here, readers who are interested in accessing the 20 questions feature directly should find the new page to be useful. And the new page already contains the first installment of the 20 questions feature, which originally appeared here late last month.
Posted at 08:35 by Howard Bashman



Elsewhere in Friday's newspapers: In The Boston Globe, columnist Derrick Z. Jackson has an op-ed entitled "Thomas's cruel view of prisoners."

The New York Times reports here that "California Ending Searches During Minor Traffic Stops." And you can access here an article entitled "Young Brides Stir New Outcry on Utah Polygamy."

The Los Angeles Times reports here that "CHP Settles Lawsuit Over Claims of Racial Profiling; The agency promises reforms. Officers will no longer pull over drivers based only on hunches." An article you can access here is entitled "Race-Based Policies Challenged; About 20 universities are said to discriminate against whites or Asian Americans." Here the newspaper reports on "The Day DNA Met Its Match: The revolutionary discovery 50 years ago was the final act of a soap opera loaded with intrigue, subterfuge, rivalry and disbelief." In news from California, "Jerry Brown Calls Sentence Law a Failure; The former governor, who signed the measure creating fixed terms in 1977, now regrets it, saying it has saddled the state with recidivism." A column for sailors reports that "Court ruling could muddy motor standards." And a book review is entitled "'Brown vs. Board's' grim history."

The Washington Times contains an op-ed entitled "Taking the D.C. gun ban to court." And in USA Today, Al Neuharth has an op-ed addressing "Why your news is sometimes slanted."
Posted at 06:45 by Howard Bashman



This morning's federal judicial nomination and confirmation news and commentary from here and there: The Denver Post reports here that "Panel delays Tymkovich vote; Senate Judiciary Committee postponement draws complaint from Allard's office." Newsday contains an article entitled "Bush Administration: Ask Estrada in Writing." The Ithaca Journal reports here that "Path clear for N.Y. judge to U.S. Court of Appeals." And The New York Post runs letters to the editor under the heading, "Estrada's Obviously Qualified, So What's The Problem?"
Posted at 06:17 by Howard Bashman



True or false? We'll know by the end of today whether this prediction turns out to be true.
Posted at 06:12 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "DNA Test Still Urged for Executed Inmate; Charity Hopes to Win Converts to Cause of Opposing Death Penalty." And you can access here an article entitled "Anti-Death Penalty Group Gives Condemned a Voice."
Posted at 00:11 by Howard Bashman



Thursday, February 27, 2003
Available online at law.com: You can access here a law professor's commentary that asks whether Marbury v. Madison is "Celebrated Maybe a Bit Too Much?" A Pennsylvania state appellate court has ruled that "Attorney Must Testify About Talks With Experts," according to this article. A sharply divided Supreme Court of California today ruled that "Whistleblowers Entitled to Basic Arbitration Protection," this article reports. Finally for now, in news from New York, "Defense Team Shifts Strategy on Death Law."
Posted at 23:51 by Howard Bashman



I figured this might happen: A blog that I admire greatly wants me to answer 20 questions that it will pose. Too funny. In response, I've said "yes," so stay tuned for more details. Among the questions I'm expecting -- "How can you be a fan of both 50 Cent and SYSTEm Of A DOWn?"
Posted at 23:39 by Howard Bashman



U.S. Senate schedules Miguel A. Estrada cloture vote for Tuesday, March 4, 2003: FOXNews has this report on today's historic development. The Republican Senators quoted in the article don't sound very optimistic at all. Moreover, the article states that "The Justice Department also turned over internal memos Estrada wrote as a deputy solicitor general in the Clinton Justice Department." Is this now true, or has the author of this article committed a whopper of an error? Update: A reader who requests anonymity points out that the quoted sentence contains a whopper of an error in any event, as Estrada never served as "deputy solicitor general."
Posted at 23:08 by Howard Bashman



I have been accepted at Harvard: News aggregators are cool. See for yourself at this link.
Posted at 22:49 by Howard Bashman



News reports from throughout the Nation concerning yesterday's U.S. Supreme Court abortion protestor ruling: The Chicago Tribune reports here that "Top court protects abortion protesters; Justices: Racketeer law was misapplied." The Chicago Sun-Times contans an article entitled "Top court backs abortion foes."

The Pensacola News Journal reports here that "Local clinic part of original lawsuit." Bob Egelko of The San Francisco Chronicle reports here that "Abortion-protest ruling reversed; Racketeering law wrongly applied, top court says." The Kansas City Star contains an article entitled "Justices say abortion protesters aren't subject to racketeering laws." The Milwaukee Journal Sentinel reports here that "Racketeering laws can't be used against abortion foes, Supreme Court says." Finally for now, The Pittsburgh Post-Gazette reports here that "Court says abortion protests not extortion; Anti-racketeering law can't be used on demonstrators."
Posted at 22:40 by Howard Bashman



"Free rein" versus "free reign": One is correct, and the other is featured in this article entitled "Texas Amendment May Open Door for Caps in Civil Actions" from law.com's Texas affiliate.
Posted at 22:33 by Howard Bashman



"Graham makes his presidential race official": The Miami Herald contains this report, which notes:
Graham began returning to his Senate duties this week and faces a difficult decision over President Bush's nomination of Miguel Estrada to a federal judgeship.

Senate Democrats are holding up a vote on Estrada, saying he has not been forthcoming about his legal opinions. Republicans have launched a pro-Estrada campaign complete with TV spots, complaining that Democrats are blocking a qualified Hispanic.

Florida Republicans from Gov. Jeb Bush to Rep. Mark Foley, who is eyeing Graham's Senate seat, are urging Graham to support Estrada or at least oppose a Democratic filibuster. Sen. Bill Nelson, Graham's Democratic colleague, is backing Estrada.

Liberal groups such as the Sierra Club, NAACP and AFL-CIO are also lobbying Graham to oppose Estrada. They include many Democrats whose support Graham will seek in a presidential race.
You can access the Web site of Senator Bob Graham (D-FL) at this link.
Posted at 22:06 by Howard Bashman



"Bush to nominate three judges to federal bench in New York": The Associated Press has this report. Among the three is a nominee to the U.S. Court of Appeals for the Second Circuit. These judicial nominations, and reportedly some others too, are expected to become official tomorrow.
Posted at 21:00 by Howard Bashman



"Miguel, Ma Belle: The racial ugliness under the Miguel Estrada nomination." Dahlia Lithwick has this essay online at Slate.
Posted at 20:03 by Howard Bashman



Supreme Court of California says "no thank you" in response to Ninth Circuit's sex.com certified questions: Bob Egelko offers this report in today's edition of The San Francisco Chronicle. You can access the Ninth Circuit's decision certifying questions to the Supreme Court of California at this link. The Supreme Court of California's order refusing the certified questions is contained on page one of this order list. Circuit Judge Alex Kozinski wrote an especially feisty dissent from the Ninth Circuit's certification order, and you can access my coverage of that dissent here, here, and here.
Posted at 16:10 by Howard Bashman



"Senate GOP Forces Approval of 3 Nominees": The Associated Press provides this must-read report on today's Senate Judiciary Committee business meeting. The article notes, among other things, that "The committee also sent the appellate court nomination of Justice Department lawyer Jay Bybee of Nevada to the Senate for confirmation by a 12-6, with Leahy again voting 'present.'"
Posted at 16:09 by Howard Bashman



Another six to ten inches of snow overnight? That's what the National Weather Service is predicting for where I live. Enough already! Update: Some good news -- the snow prediction has been decreased to two to four inches.
Posted at 15:08 by Howard Bashman



Three-quarters of a million: Is it worth mentioning that this Web log's Bravenet hit counter today recorded the 750,000th visit to "How Appealing" since May 7, 2002? Probably not.
Posted at 14:45 by Howard Bashman



COA FYI: An email that I posted last night from a recent Fourth Circuit law clerk regarding Certificate of Appealability procedure has elicited several emails in response.

Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit emails to say:
Your correspondent from the Fourth Circuit is in error.

Fifth Circuit Local Rule 27.2.3 provides that a single judge has the authority "[t]o act on applications for certificates of appealability under Fed. R. App. P. 22(b) and 28 U.S.C. sec. 2253 except for death penalty cases where a three judge panel must act." Rule 27.2 provides that the action of a single judge is "subject to review by a panel upon a motion for reconsideration made within the . . . period set forth in Fed. R. App. P. 40."

The Fifth Circuit acts on hundreds of COA's each year by single-judge orders. Where COA's are denied, many petitioners move for reconsideration by a three-judge panel.

All of this is pursuant to authority granted the circuits by Fed. R. App. P. 27(c), which says "a circuit judge may act alone on any motion" but that a circuit may adopt a rule requiring panel action and that a single-judge action is subject to review by a panel.
Someone who works behind the scenes at a federal appellate court based on the east coast writes:
I believe your Fourth Circuit correspondent gave you some bum information when s/he wrote that "NONE of the circuits" allow a single judge to decide certificates of appealability (CAPPs, not--hmph--COAs). I have not done any exhaustive research on the issue lately, but I believe that at least three circuits--the Fifth, Sixth, and Eleventh--routinely have a single judge review CAPP requests. See, e.g., Case Management Procedures in the Federal Courts of Appeals (a 2000 FJC publication); In re Certificates of Appealability, 106 F.3d 1306 (6th Cir. 1997). In fact, as the FJC publication reveals, the different appellate courts handle CAPP requests in a number of ways. (For instance, I think it would be a mistake to assume that detailed briefing has preceded a CAPP determination.)

I think your correspondent has been misled, understandably, by opinions dealing with CAPP requests in capital cases. Even courts that usually utilize a single judge for CAPP requests utilize three-judge panels for CAPP requests in those cases.
A law clerk on a midwestern federal appellate court writes:
As a current appellate law clerk and former federal appellate court staff attorney, I think I disagree with the former 4th Circuit clerk's comments about the irrelevance of the Miller-El v. Cockrell decision and the certificate of appealability process generally.

In my circuit, the process typically goes like this. The prisoner files a pro se habeas petition in the district court. The district court directs the State to respond, and it files its opposition supported by the record of the state court litigation. In the vast majority of cases, the district court denies the petition without a hearing and denies the prisoner's subsequent request for a COA.

The prisoner, still proceeding pro se, requests a COA from the circuit court. His request may be as terse as a one-sentence notice of appeal. The State is not obligated to respond, and typically does not.

The case is referred to a staff attorney, who reviews the district court decision and the district court file. The staff attorney drafts a memo which summarizes the prisoner's claims, the record, and the applicable law, and sends it to a three-judge panel with copies of the district court decision, the prisoner's request for a COA, and any important documents from the record. In the vast majority of cases, the staff attorney recommends that the prisoner has not made a substantial showing of the denial of a constitutional right (or sometimes he has, but he cannot overcome procedural default), and the panel agrees.

If the panel decides to deny a COA, the clerk of court enters a boilerplate one-paragraph order indicating that the court has carefully reviewed the case and has denied a COA. If the panel decides to grant a COA, then typically counsel is appointed for the prisoner, the prisoner and the State file briefs, and oral argument is scheduled if either party requests it.

Unlike the former 4th Circuit clerk, in my circuit, I have never seen the court hear oral argument on the issue whether a COA should be granted, nor have I seen the COA issue deferred until the decision on the merits of the case. Based on the differences in how the various circuits handle the COA procedure, I disagree with his conclusion that a prisoner does not get a "fuller hearing" if a COA is granted, and I disagree with his conclusion that the COA process does not streamline the disposition of frivolous cases. I think that the Supreme Court's understanding of the COA procedure expressed in Miller-El is more consistent with my experience with the procedure--the COA stage and the merits stage differ in important ways--and I think that the significance of Miller-El is that the Supreme Court wants the circuits to grant more COAs and the "fuller hearings" they entail in cases that raise fairly debatable claims even when the prisoners are unlikely to prevail at the merits stage.
Thanks to all who have written to address this interesting issue.
Posted at 14:16 by Howard Bashman



Fascinating Roll Call article on the Estrada nomination: Unfortunately, Roll Call no longer makes freely available online the complete text of its articles. The article in question begins:
Senate Republicans remain divided over the timing of calling a cloture vote on the stalled judicial nomination of Miguel Estrada, as they seek a course that will create the maximum political pressure on Democrats.

Two distinct camps have emerged in the Republican Conference's internal debates, with an outspoken group of Senate veterans pushing for a cloture vote as soon as possible to try to break the Democratic filibuster of Estrada, according to numerous Senators and GOP aides.

But another core group, led by Majority Whip Mitch McConnell (R-Ky.) and GOP Conference Chairman Rick Santorum (Pa.), is pushing just as hard to avoid calling for the initial vote, which Republicans are certain to lose, as they have only 55 certain votes out of 60 needed to end the filibuster, which has now absorbed almost three full weeks of floor time.

In the middle sits Senate Majority Leader Bill Frist (R-Tenn.), not even two months into the job. He said Wednesday he is not ready to pull the plug on the debate and file for cloture but clearly left it on the table as an option.

"Every day I keep assessing," Frist said, noting that Sen. Bill Nelson (Fla.) this week became the fourth Democrat to announce support for Estrada's bid for a seat on the U.S. Court of Appeals for the D.C. Circuit. "As long as we're making progress, there's no need [for cloture votes]. There's a range of opinions in the Conference, but we're making progress."

Democrats, however, bluntly rejected Frist's assessment of Republican progress on gathering the 60 votes, contending that Nelson made them aware of his plans to support Estrada before the Presidents Day recess.

"We knew that two weeks ago," Minority Whip Harry Reid (D-Nev.) said. He dared Republicans to call as many cloture votes as they liked in the days and weeks ahead, contending none of the remaining 45 Democrats would budge in their support of the filibuster.

"It doesn't matter," Reid said. "Everybody else has signed on for the duration."

Republicans emerged from a Wednesday meeting of their Conference still unified in the urgent need to get Estrada onto the bench, knowing that losing Estrada to a filibuster would set a major precedent and likely pave the way for more filibusters of President Bush's nominees.
The article concludes:
If no more Democrats defect, Frist will be faced with a decision within the next week so that the floor can be cleared of the matter by mid-March, one GOP Senator said, guessing that an Iraq conflict could erupt by March 15.

He will either have to file the cloture vote knowing he is set for defeat on ending the filibuster or simply pull the nomination from the floor. Either way, Frist can leave the Estrada nomination on the executive calendar for future consideration, and some Republicans are privately talking about the possibility of bringing it back up in a few months if Bush has dramatically increased his domestic popularity - something that could happen with a swift victory in Iraq.
Thanks to Law Professor Rick Hasen of the "Election Law" blog for forwarding the text of this article to me.
Posted at 13:32 by Howard Bashman



News from today's Senate Judiciary Committee business meeting: The Senate Judiciary Committee, at its business meeting today, voted 14-3 to recommend the nomination of John G. Roberts, Jr. to serve on the D.C. Circuit and voted 12-2 to recommend the nomination of Deborah L. Cook to serve on the U.S. Court of Appeals for the Sixth Circuit. Roberts received "yes" votes from the following Democratic Senators -- Biden, Edwards, Feinstein, and Kohl. More details to follow as they become available.
Posted at 12:58 by Howard Bashman



"Case Management Procedures in the Federal Courts of Appeals": This Federal Judicial Center document, which someone brought to my attention via email this morning, looks to be quite interesting.

In related news, I have received several emails this morning noting that the manner in which federal appellate courts handle Certificates of Appealability differs by circuit. I hope to post those emails online soon.
Posted at 12:54 by Howard Bashman



The Miguel A. Estrada debate in the U.S. Senate resumes: The U.S. Senate's debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the District of Columbia Circuit is resuming at this hour. You can watch the debate online at this link, courtesy of C-SPAN2.

Yesterday's debate wrapped-up at 2 a.m. this morning. You can access a transcript of most of yesterday's debate via the Congressional Record Web site. To access yesterday's partial transcript, simply follow these instructions. Click here to bring up a page listing yesterday's available Senate transcripts. Select item number 6, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 6, on the resulting page click on the link that reads "Printer Friendly Display."
Posted at 12:00 by Howard Bashman



This morning's federal judicial nomination and confirmation news and commentary from here and there: The New York Times reports here that "Strategists See Victory in Stalemate Over Nominee." Republicans see themselves as being in a "win-win" situation, the article suggests.

Elsewhere, The Associated Press reports here that "Senators Fight Over Judicial Nominees." The San Antonio Express-News reports here that "Bush presses for vote on judge pick." The American News of Aberdeen, South Dakota reports here that "Senators seek answers on nominee; Johnson not willing to back judge yet."

In commentary, George F. Will argues here that "Blocking vote on Estrada is akin to amending the Constitution." And Robert Novak has an essay entitled "Ted Kennedy's grand design."
Posted at 09:54 by Howard Bashman



Today's FindLaw commentators: Law Professor Anthony J. Sebok has an essay entitled "Can an HMO Be Sued For Medical Malpractice Based on Its Coverage Decisions? A Recent Federal Appeals Case Says Yes." And Law Professor Kevin R. Johnson has a guest commentary entitled "A Defense of the Estrada Filibuster: A Judicial Nominee That the Senate Cannot Judge."
Posted at 09:43 by Howard Bashman



This morning's Senate Judiciary Committee business meeting: The Senate Judiciary Committee is scheduled to hold a business meeting this morning at 9:30 a.m. You can access the agenda at this link. The agenda shows that committee votes on four federal appellate court nominees are scheduled to occur.
Posted at 07:51 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Justices Side With Antiabortion Groups; Supreme Court voids use of anti-racketeering law in quelling militant protests at clinics." Savage also reports here that "Lockyer Seeks to Avoid High Court Battle; He urges the state medical board to back out of a discrimination case that could affect the Americans With Disabilities Act." You can access here an article entitled "New Law Hurts Chicago Case in Gun Industry Suit." An article reports that "Estrada Fight Shifts to Latino Groups; Democrats, Republicans vie for the community's support as the Senate battle over the Bush appellate court nominee intensifies."

Frank J. Murray of The Washington Times reports here that "High court rules pro-life protests a lawful right." An article reports that "Bush assails delay of vote on Estrada." And Terry Eastland has an op-ed entitled "Filibuster benchmarks."

In The Boston Globe, Lyle Denniston reports here that "Court ends a curb on abortion protesters." And an article is entitled "Senate battle over judicial nomination a test for Bush; Democrats pressing for Latino nominee's opinions on issues."

Finally for now, in USA Today Joan Biskupic reports that "Extortion law ruled invalid in protest case."
Posted at 07:05 by Howard Bashman



The U.S. Senate will adjourn shortly and resume debate on the Estrada nomination at noon Thursday: An all-night filibuster won't be happening right now, Majority Leader Bill Frist (R-TN) just announced.
Posted at 00:31 by Howard Bashman



In Thursday's newspapers: In The New York Times, Linda Greenhouse reports here that "Supreme Court Voids Racketeering Conviction of Anti-Abortion Groups."

In The Washington Post, Charles Lane reports here that "High Court Decision Supports Protesters; Groups Can't Be Sued Under U.S. Racketeering Law" and here that "Justices Return Gun Records Suit To Lower Court."

Finally for now, in The Christian Science Monitor, Warren Richey and Linda Feldmann report here that "Abortion protesters grab a victory in court; The Supreme Court says a racketeering law can't be used to punish protesters. It may spur more rallies."
Posted at 00:15 by Howard Bashman



Wednesday, February 26, 2003
Available online at law.com: Tony Mauro reports here that "Supreme Court Hands Victory to Abortion Protesters." And he has gotten to the bottom of today's High Court footnote foul-up.
Posted at 23:57 by Howard Bashman



Some reader feedback on my U.S. Supreme Court round-up from Tuesday night: I'm no expert on the Antiterrorism and Effective Death Penalty Act of 1996 or Certificates of Appealability, so I was pleased to receive the following positive reader feed-back concerning my write-up last night of the U.S. Supreme Court's ruling yesterday in Miller-El v. Cockrell.

A reader who handles federal court habeas corpus litigation on behalf of the Attorney General's Office of a large western State wrote:
Your synopsis and commentary on this case were concise, expert, and very welcome. The revelations of the peremptory-challenge practices of the Dallas DA were an embarrassment to prosecutors throughout the country, and many of us are relieved at the outcome. Your comments are always discreet and apt. We can certainly live with the COA ruling, as well.

I continue to be astounded at your ability to get to the nub of legal issues of all kinds, and to explain important but abstruse cases to your well-informed but probably mostly specialist audience so quickly and well. Thank you once again.
A reader who recently clerked for a judge on the U.S. Court of Appeals for the Fourth Circuit emailed to say:
You ask the right question, which I have not heard asked anywhere else in the media, of what difference it will make that prisoners will get more COAs -- or what difference it will make for Miller-El that he got a COA. You suggest that the answer is that it should not make a difference "in the vast majority of cases."

I think you are right, except that I might go further and say that it will not make a difference in ANY cases, except sometimes (as here) to delay the habeas process even further.

The real puzzle is what the 5th Circuit will do on remand. In one respect, it seems that the 5th Circuit would obviously deny Miller-El's appeal on the merits -- after all, if they didn't even think it was close, they certainly don't think that he has a meritorious claim. On the other hand, Nina Totenberg characterized the case as a "clear signal" from the Supremes that the 5th Circuit should take a hard look at his claim. I suppose that's true, but a clearer signal would have been for the Supremes to simply hold on the merits that Miller-El's constitutional rights were violated. At first I thought that maybe it was "impossible" for the Supreme Court to reach the merits if the appeals court had not granted the COA -- but then I looked and saw that they went ahead and reached the merits in Penry v. Johnson, 532 U.S. 782 (2001), even though the appeals court had denied the COA. I wouldn't appreciate being in the 5th Circuit's position -- hmmm, we thought this wasn't even close, now the Supreme Court has told us that it is close, but they didn't tell us whether they think he has a claim or not . . . .

The only way anybody in the media has been able to make sense of this case is to say that Miller-El will now get a "full hearing" on his case, or something to that effect. This concept -- that a petitioner gets a "fuller hearing" on his claims if the COA is granted than if it is not -- is totally incorrect, and is based on a complete misunderstanding of how things actually happen in the appellate system. In fact, the NYTimes went even further and said that the COA will allow Miller-El to "present his evidence" to the 5th Circuit, as if he will now be able to present something -- a fuller record, more argument -- that he wasn't able to present the first time around. This is of course completely incorrect -- Miller-El's briefs before the 5th Circuit laid out all of the evidence, all of the legal arguments, everything -- and the 5th Circuit found that it wasn't close, let alone meritorious.

The idea of the COA, I suppose, is to weed out "frivolous" appeals. But of course the appeals court has to look at every appeal to determine whether it is frivolous or not. If it is frivolous, then no COA is granted -- but this doesn't speed things up. Without the COA procedure, the appeals court does the exact same thing -- read the briefs, research the law, and decide whether the claims are meritorious. If the case is obviously without merit, then it can be denied without much time and effort, and probably without oral argument -- but this is true whether you are denying it on the merits or whether you are denying a COA.

The only conceivable value of the COA process, as far as I can tell, comes from the fact that the statute permits a SINGLE judge or justice to grant or deny a COA. Thus, in theory, instead of immediately getting a three-judge panel to look at your case, you first have to get past a single judge, who will say whether your claim is even plausible. I say "in theory," because even though the statute authorizes this procedure, it seems that NONE of the circuits use it. From my review of a dozen or so cases in courts ranging from the 4th to the 9th to the D.C. to the 5th Circuits, denials of COAs are issued by three-judge panels, and often in rather lengthy, detailed, and published opinions. (As was the 5th Circuit's opinion in Miller-El). Apparently, none of the circuits, no matter how conservative, are comfortable giving single circuit judges the routine power to dismiss criminal habeas appeals. I think this is a good policy -- one of the great strengths of the circuit court process is that three judges review everything, even the most seemingly "frivolous" appeals, making it very unlikely that some significant issue will inadvertently be overlooked. As a clerk on the 4th Circuit, I saw a number of occasions where one panel member would bring up a relevant issue that other judges had not seriously considered, perhaps b/c the parties had done a poor job of presenting it. The judges, from what I could tell, felt much more confident in their decisions -- even the 1-page per curiam affirmances -- given the fact that 2 of their colleagues had looked at the same case and all agreed. In short, any "efficiency" that the COA process might have been intended to produce is not being produced. I also doubt that the process would be streamlined even if the circuit courts began permitting single judges to deny COAs rather than panels. It does not take a panel a long time to consider and dismiss a frivolous appeal, and I don't think the process would be appreciably faster with only one judge. If anything, single judges would err heavily on the side of granting COAs, knowing that meritless appeals will be denied eventually by the panel and not wanting to accidentally miss some possibly meritorious issue.

The irony is that the ONLY practical effect of the COA process is to interpose additional delay in federal habeas appeals. In Miller-El's case, without the COA process the 5th Circuit would have just denied his claim on the merits. He then would have petitioned for cert., and the Supreme Court would have either (1) denied cert. or affirmed, in which case Miller-El would be on his way to the death chamber, or (2) reversed, in which case his retrial would be soon underway. Instead, the 5th Circuit will now have to rule on the merits on remand, Miller-El will petition for cert. again (assuming the 5th Circuit denies his appeal), and then he'll either be executed or retried. All we've accomplished is postponing justice -- whether that be his execution or his retrial.

In one Fourth Circuit case, the panel denied the capital inmate's petition on the merits but granted a COA because the panel thought he had raised a debatable question. I always thought that this was a most pointless, and almost cruel, exercise. The grant of the COA did not mean that the case had been heard or treated any differently -- the court read the briefs and heard oral argument before granting the COA, and the grant came in the same opinion denying the claim on the merits. I'm sure the inmate took great comfort, while eating his final meal before his execution, that the circuit court thought he was close, but not quite.

Anyway, your comment on Miller-El was the only I've seen in the media that commented on the odd and rather pointless nature of the decision and, by implication, the COA process itself.
Thanks for these very kind and informative emails.
Posted at 23:39 by Howard Bashman



U.S. Supreme Court round-up for Wednesday, February 26, 2003: Today the Supreme Court of the United States issued a single ruling, but the case decided was one of the most interesting and newsworthy cases pending this Term.

The Hobbs Act, 18 U.S.C. sec. 1951, defines "extortion" to mean "the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right." At issue in today's case was whether protestors at abortion clinics, whose conduct prohibited the clinics from operating, thereby "obtained" the "property" of the clinics so as to make the protestors criminally liable for having committed extortion. If the protestors thereby did commit extortion, then the jury verdicts against them for having violated the Racketeer Influenced and Corrupt Organizations Act (RICO) could have been upheld, but if the protestors did not thereby commit extortion, then the RICO judgment would have to be overturned.

Today the Supreme Court ruled in Scheidler v. National Organization for Women, Inc., No. 01-1118 (U.S. Feb. 26, 2003), by a margin of 8-1, that because the abortion protestors' actions did not cause the protestors to "obtain" anything resembling "property," no extortion occurred. While the protestors' conduct may have caused the clinics' owners to have lost the property right to operate the clinics free from protestor interference, the owners' loss did not equate to the protestors' gain of that "property." Rather, that lost property essentially evaporated into the atmosphere. Consider this analogy. Many readers of "How Appealing" visit this Web log during the day while at work. These readers' employers would no doubt prefer that the employees were doing actual, productive work instead of reading this blog. Thus, my provision of this blog and all of its barely interesting content deprives numerous employers of valuable employee time that should be spent working instead of blog reading. Nevertheless, I haven't in any conceivable sense "obtained" the property that these lost productive hours would otherwise have produced, because your reading of this blog doesn't confer any benefit on me whatsoever.

Today's ruling was a huge victory for my friend Roy T. Englert, Jr., who argued the case on behalf of the winning parties. As I have previously explained, Roy is one of the best oral advocates I have ever seen deliver an appellate argument. In this case, Roy not only had to argue against the lead attorney for the National Organization for Women, but he also was opposed on the meaning of "obtained" by the Solicitor General of the United States, and Theodore B. Olson argued the case himself. You can access the oral argument transcript here. Today's victory firmly cements Roy Englert's place among the small number of premier U.S. Supreme Court advocates in private practice today. You can read more about Roy's experience in this very case here, via a profile by Tony Mauro.

Justice John Paul Stevens was the lone dissenter from today's ruling, and while he calls the majority's opinion -- written by Chief Justice William H. Rehnquist -- "murky," I must beg to differ. Unless, that is, "murky" is simply meant to note that the majority opinion is sixteen pages long but isn't broken down into any sections or subsections. (I personally prefer when opinions aren't festooned with roman numerals or letters and numbers separating section from section and subsection from subsection, so that the author has to use language to indicate when the decision moves from one subject to another.)

The embarrassing printing error contained in the earliest released version of Justice Ruth Bader Ginsburg's concurring opinion (which I previously described in detail here) raises the question whether any sentient beings look at bench opinions before they issue. I'd hazard a guess that none of Justice Ginsburg's law clerks saw it. Unless, that is, she's on the market looking for a new law clerk next week.
Posted at 22:57 by Howard Bashman



First Circuit grapples with First Amendment: Today the U.S. Court of Appeals for the First Circuit posted to its Web site two interesting First Amendment free press rulings.

The first opinion, dated yesterday, begins:
John J. Connolly, Jr., the defendant in a highly publicized criminal trial, applied under the Criminal Justice Act (CJA), 18 U.S.C. sec. 3006A (2000), for government funding for a portion of his attorneys' fees and legal expenses. Connolly had informed the court that he was already in debt to the counsel he had previously retained, and could no longer afford to pay his legal bills. He submitted financial affidavits and an additional document summarizing his total legal debt. The court granted him CJA assistance and, in response to his motions, placed the documents he had submitted under seal. After Connolly's conviction, the Boston Herald, one of Boston's two major daily newspapers, sought to intervene in the case and to unseal these financial documents, arguing that it had a right of access to them under both the First Amendment and the common law. Connolly opposed. A magistrate judge allowed the intervention but denied the motion to unseal, and the district court affirmed. The Herald then filed both an interlocutory appeal and a petition for a writ of mandamus with this court.

No federal court of appeals, to our knowledge, has considered whether there is a right of access to the narrow category of documents at issue here: those submitted by a criminal defendant to show financial eligibility for CJA funds. We conclude that there is no right of access to this category of documents under either the First Amendment or the common law. Even if there were a common law presumption of access, there was no abuse of discretion in denying access here. We affirm the district court and deny mandamus.
You can access the complete ruling at this link.

The second opinion, issued today, was a more traditional free press case. The opinion concludes:
In short, while Chief May's statements regarding Yohe's arrest may have contained inaccuracies, and while the subsequent republication of those statements in local newspapers may have perpetuated those inaccuracies and caused Yohe some distress, we cannot see how the challenged statements and articles constitute anything other than the legitimate and nondefamatory flow of information from a government official to an interested public.
You can access the second opinion at this link.
Posted at 22:47 by Howard Bashman



Onan he arbarian: Today the U.S. Court of Appeals for the Seventh Circuit issued an opinion that contained the following passage:
In Baskerville, we held that the plaintiff could not establish an objectively severe environment even though, over a seven-month period, the plaintiff's supervisor had: called her a "pretty girl"; grunted "um um um" when the plaintiff wore a leather skirt to the office; told the plaintiff that her presence made the office "hot"; suggested that all "pretty girls," a category that presumably included the plaintiff, "run around naked"; told the plaintiff that he left the company Christmas party early because he "didn't want to lose control" at the sight of "so many pretty girls"; and suggested to the plaintiff that the solitary vice was his chief consolation in his wife's absence.
The court's use of the phrase "the solitary vice" to refer to masturbation is amusing, to say the least. Of course, while some religions condemn that practice (see here, for example), not all do (see this page from the Web site of the Summum religion).
Posted at 22:32 by Howard Bashman



Taking the Miguel A. Estrada debate to PBS's NewsHour: It's nearly 10:30 p.m. eastern time, and the U.S. Senate even at this moment continues to debate the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. You can watch live online now at this link, via C-SPAN2.

Earlier this evening, Senators Orrin G. Hatch (R-UT) and Charles E. Schumer (D-NY) debated the Estrada nomination on the PBS NewsHour program. You can access a transcript of that NewsHour debate at this link.
Posted at 22:27 by Howard Bashman



Today's FindLaw columnist: Sherry F. Colb today has an essay entitled "Medicating Prisoners So They Can Be Killed: A Federal Court Approves Forcible Antipsychotic Treatment for Mentally Incompetent Convicts."
Posted at 22:21 by Howard Bashman



"Black judges talk politics at panel": Today's edition of The Stanford Daily contains this report. Third Circuit Judge Theodore A. McKee was among the participants in the discussion.
Posted at 22:19 by Howard Bashman



Supreme Court of Arizona rules that Ring v. Arizona doesn't apply retroactively to cases that became final on direct appeal before Ring issued: Today the Supreme Court of Arizona issued a ruling of great consequence to inmates on death row in that State. Arizona's highest court ruled, in a unanimous opinion that you can access here, that the U.S. Supreme Court's ruling last term in Ring v. Arizona -- which held that the decision whether to impose the death penalty must be made by a jury based on proof beyond a reasonable doubt where the defendant has invoked his or her right to a jury trial -- does not apply to cases that became final on direct appeal before the U.S. Supreme Court announced its ruling in Ring on June 24, 2002. You can access my summary of the Ring decision, written on the day that ruling issued, at this link.

The U.S. Court of Appeals for the Ninth Circuit currently has this very same issue pending for decision before an eleven-judge en banc panel consisting of Chief Judge Mary M. Schroeder and Circuit Judges Harry Pregerson, Stephen R. Reinhardt, Diarmuid F. O'Scannlain, Michael D. Hawkins, Sidney R. Thomas, M.M. McKeown, Kim M. Wardlaw, Raymond C. Fisher, Richard C. Tallman, and Johnnie B. Rawlinson. The name of the pending Ninth Circuit en banc case is Summerlin v. Stewart (panel opinion available here), and the Ninth Circuit heard en banc oral argument in that case on December 10, 2002. You can access my lengthy and detailed report on the unusually interesting Summerlin case, written on the day that case went en banc, at this link.

Thanks to an Arizona-based loyal reader of "How Appealing" for bringing the Arizona Supreme Court's ruling promptly to my attention.
Posted at 19:39 by Howard Bashman



"Judge Rejects Challenge to FBI Spy Power": The Associated Press offers this report.
Posted at 18:09 by Howard Bashman



"Supreme Court Throws Out Gun Records Case": The Associated Press has this report on a case that was to be argued next week. The order in question, which is not yet available over the U.S. Supreme Court's Web site, states:
02-322 DEPT OF JUSTICE, ETC. V. CHICAGO, ILLINOIS

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Seventh Circuit to consider what effect, if any, Div. J., Tit. 6, section 644, of the Consolidated Appropriations Resolution, H.J. Consol. Res. 2, 108th Cong., 1st Sess. (2003), has on this case.
Thanks to the reader who forwarded along the text of this order.

Update: The order is now available online here.
Posted at 16:38 by Howard Bashman



U.S. Court of Appeals for the Third Circuit adopts temporary local rule allowing for electronic filing of petitions for rehearing: This is an impressive development! The new rule goes into effect on Monday, March 3, 2003.

As someone who regularly handles appeals in the Third Circuit, I was interested to learn when the court would consider an electronically-submitted petition for rehearing to be filed. The only answer to that question is the following regrettably ambiguous (and ungrammatical) sentence contained in the order adopting the local rule: "Petitions for rehearing submitted electronically which are in compliance with the applicable rules will be filed as of the date of the electronic transmission is received by the Clerk."

What I was wondering was if my deadline for filing a petition for rehearing is March 3, 2003, and I email a petition in compliance with the rules to the Third Circuit's designated email address at 7 p.m. that evening, two hours after the Clerk's Office closes for business, will the petition be deemed to be timely or untimely? These are the types of questions that lawyers get paid the big bucks to obsess over.
Posted at 14:18 by Howard Bashman



"The Democrats' judicial stall": Today's edition of The Chicago Tribune contains this editorial. Elsewhere, Reuters reports here that "Bush Presses Democrats on Confirmation of Judge," and UPI reports here that "Bush makes plea for Estrada."
Posted at 14:06 by Howard Bashman



The corrected version of Scheidler v. National Organization for Women, Inc. is now available online: You can access the opinion here. At page 21 of the PDF file, you will find the corrected version of fn.* of Justice Ruth Bader Ginsburg's concurring opinion. (More details available here about the error in the original version.)
Posted at 13:49 by Howard Bashman



"Lincoln on Judicial Despotism": Robert P. George has this essay in the February 2003 edition of First Things.
Posted at 13:42 by Howard Bashman



"Supreme Court Debates Agent Orange Case": Gina Holland of The Associated Press has this report. And here she has a more detailed article, entitled "Court Rules for Abortion Protesters," concerning today's ruling.
Posted at 13:23 by Howard Bashman



"Democrats for Estrada": Today's edition of The Wall Street Journal contains an editorial that begins, "Is Miguel Estrada a right-wing nut?"
Posted at 12:32 by Howard Bashman



"Bush Pleads for Estrada Confirmation": The Associated Press has this report. You can access a transcript of President Bush's remarks at this link.
Posted at 12:17 by Howard Bashman



The awesome power of concurring fn.*: Justice Antonin Scalia's concurring opinion yesterday in Miller-El v. Cockrell (see page 30 of this PDF file) contained fn.*.

Today, Justice Ruth Bader Ginsburg issued a concurring opinion in the Court's ruling in Scheidler v. National Organization for Women, Inc. Not only does Justice Ginsburg's concurring opinion also contain fn.*, but her fn.* consists of precisely the same text as Justice Scalia's fn.* from yesterday. Oops! (Thanks to my colleague from down the hall for bringing this to my attention.)
Posted at 11:26 by Howard Bashman



The White House responds to request from Democrats on Senate Judiciary Committee for additional hearing for John G. Roberts and Deborah L. Cook: Roberts is a nominee to serve on the D.C. Circuit, and Cook is a nominee to serve on the Sixth Circuit.

You can access The White House's response letter, signed by Counsel to the President Alberto R. Gonzales, at this link via "How Appealing Extra."
Posted at 10:55 by Howard Bashman



This morning's U.S. Supreme Court opinion is now available online: You can access today's ruling in Scheidler v. National Organization for Women, Inc. via this link.
Posted at 10:27 by Howard Bashman



"Court Rules for Abortion Protesters": Gina Holland of The Associated Press has this early report on today's U.S. Supreme Court ruling.
Posted at 10:19 by Howard Bashman



Today's U.S. Supreme Court opinion: Today the Supreme Court of the United States issued its decision in Scheidler v. National Organization for Women, Inc. Chief Justice William H. Rehnquist wrote the Court's decision, and the judgment is reversed. You can access the oral argument transcript at this link.
Posted at 10:07 by Howard Bashman



Picture this: I previously advised that the ABA Journal's article on law bloggers didn't contain photos but that the print version of the article would. Well, since then, some photos have been added to the online version. More photos are expected with the print version of the article. (Thanks to the cutest one of the group for bringing the online addition of photos to my attention.)
Posted at 09:36 by Howard Bashman



Haunted house indeed: Some "Halloween fun gone bad" gives rise to this opinion issued today by the U.S. Court of Appeals for the Sixth Circuit.
Posted at 09:33 by Howard Bashman



On the agenda: The U.S. Supreme Court will issue one or more opinions this morning at 10 a.m. eastern time. As always, I will provide a complete summary of the rulings tonight. The U.S. Senate resumes debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit at 9:30 a.m. today. You can watch the debate online at this link via C-SPAN2.

The transcripts of yesterday's debate in the U.S. Senate on the Estrada nomination is now available online via the Congressional Record Web site. To access yesterday's transcripts, simply follow these instructions. To access the first transcript, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 6, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 6, on the resulting page click on the link that reads "Printer Friendly Display." To access the second transcript, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 8, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 8, on the resulting page click on the link that reads "Printer Friendly Display."
Posted at 09:12 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times reports here that "Filibuster support ebbs on Estrada." Frank J. Murray reports here that "Court toughens jury selection." In news from Virginia, "Filing says Malvo is remorseless."

In The Los Angeles Times, David G. Savage reports here that "Justices Show Intolerance for Racial Bias in Jury Selection; High court criticizes federal, state judges in Texas for ignoring evidence in a capital case that blacks were willfully excluded." A letter to the editor from Bill Lockyer, California's Attorney General, states in full:
Re "On Jurist's Case Over His Ties to a Killer," Feb. 16: I believe it is extremely important for judges, prosecutors and other officials to visit our prisons. Since taking office in 1999, I have visited 31 of California's 33 prisons. Our concern over U.S. 9th Circuit Court of Appeals Judge Alex Kozinski's visit to San Quentin has nothing to do with whether judges should visit prisons. It has everything to do with judicial integrity.

What is glossed over in your story, and what gives my office concern, is that Judge Kozinski was reported to have discussed, during a visit with one prisoner, other death row inmates who have cases pending before him. Such conduct is improper and does a disservice to our legal system, irrespective of whether Judge Kozinski has a tendency to uphold death sentences or to reverse them.

As attorney general, part of my job is to safeguard both the existence and appearance of justice. The canons of judicial ethics require judges to avoid even the appearance of impropriety.

As our letter to Chief Judge Mary M. Schroeder stated, "Judge Kozinski's discussion with a former death row inmate [Michael W. Hunter] of the status of other death row inmates, some of whom have cases before Judge Kozinski, raises serious concerns."
You can access here an article entitled "Former local judge to U.S. bench; Burbank High grad tapped for federal post by President George W. Bush." An article reports that "Claims on Roger Rabbit Yield Split Court Decision." And an op-ed by Michael King, news editor of the Austin Chronicle, is entitled "Texas Justice Is Blind -- to Fairness; The Lone Star State's death penalty system is fatally flawed. But its politicians benefit from the status quo."

In USA Today, Joan Biskupic reports here that "Supreme Court revives inmate's racial bias claim; Prisoner on death row in Texas says prosecutors stacked jury against him."

In The Boston Globe, Lyle Denniston reports here that "Lawyers hope Tulsa case can lay foundation for more claims." A related article is entitled "Quest for vindication; Survivors of 1921 Tulsa race riots hail suit for reparations." And you can access here an article entitled "Archdiocese turns to Appeals Court; Seeks higher jurisdiction in abuse crisis."

Finally for now, The Seattle Times reports here that "Court rejects foster-care challenge," and The Seattle Post-Intelligencer reports here that "State wins right to manage foster kids' benefits; U.S. justices reject challenge on Social Security payments."
Posted at 08:13 by Howard Bashman



"Supreme Court Considers Agent Orange Case": Gina Holland of The Associated Press has this report.
Posted at 06:22 by Howard Bashman



"Mixing Apples and Oranges": Blogger Pejman Yousefzadeh has this essay online at Tech Central Station contrasting legacy admissions and racial preferences in university student admissions.
Posted at 00:29 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices Stress Inmate's Right to Press Appeal." And an editorial is entitled "Politicians in Judges' Robes."

In The Washington Post, Charles Lane reports here that "Inmate's Bid for Hearing on Bias Claim Is Upheld." And a front page article reports that "Malvo Called 'Boastful'; Prosecution Files Brief in Sniper Case."

In The Christian Science Monitor, Warren Richey has an article entitled "Agent Orange back in court; Is a 1984 settlement for vets final? The answer may impact other class-action suits." And you can access here an article entitled "New standard for race on death-row juries; A court ruling Tuesday will force judges to look more closely at bias in jury selection."
Posted at 00:13 by Howard Bashman



Tonight's Miguel A. Estrada news and commentary update: Reuters reports here that "Fourth Democratic Senator Backs Estrada." FOXNews reports here that "GOP Goes on Estrada Offensive." United Press International has a commentary by Horace Cooper entitled "Landrieu -- Sugar and spice." And The Associated Press reports here that "Democrats Ask GOP to Move Past Estrada."
Posted at 00:06 by Howard Bashman



Tuesday, February 25, 2003
Available online from law.com: Tony Mauro reports here that "High Court Supports Inmate on Jury Bias Issue." The New Jersey Law Journal reports here that "Scope of Students' Privacy Rights Examined in N.J. Drug-Testing Case." And from Texas comes word that "Appeals Court Says Trial Judge Had Discretion to Reduce Fees."
Posted at 23:45 by Howard Bashman



U.S. Supreme Court round-up for Tuesday, February 25, 2003: The Supreme Court of the United States issued two opinions today and is also expected to issue one or more opinions tomorrow. One of today's two rulings will likely be of great consequence in federal court habeas corpus appellate litigation, while the other ruling will serve to ensure that children in state-run foster care in Washington State won't leave the program with a huge chunk of change socked away in the bank. And now, on to the nitty-gritty details.

1. Miller-El v. Cockrell, No. 01-7662 (U.S. Feb. 25, 2003). Thomas Joe Miller-El murdered an employee of a Holiday Inn in Dallas, Texas during the course of a robbery. Miller-El, however, then had the perverse good fortune to be prosecuted in Dallas County, Texas, where the District Attorney's office, according to today's opinion, had the practice of racially discriminatory jury selection down to a science. Of course, in the aftermath of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), more than a merely unconstitutional state court conviction is required to obtain federal habeas corpus relief.

Today's ruling resolved a simple procedural issue, but it is a procedural issue of great consequence: What must a state court habeas corpus petitioner establish to receive a certificate of appealability (COA) necessary to allow a federal appellate court to review a federal district court's denial of the petitioner's habeas claim. Today's holding, in a nutshell, is:
In resolving this case we decide again that when a habeas applicant seeks permission to initiate appellate review of the dismissal of his petition, the court of appeals should limit its examination to a threshold inquiry into the underlying merit of his claims. Slack v. McDaniel, 529 U. S. 473, 481 (2000). Consistent with our prior precedent and the text of the habeas corpus statute, we reiterate that a prisoner seeking a COA need only demonstrate "a substantial showing of the denial of a constitutional right." 28 U. S. C. sec. 2253(c)(2). A petitioner satisfies this standard by demonstrating that jurists of reason could disagree with the district court's resolution of his constitutional claims or that jurists could conclude the issues presented are adequate to deserve encouragement to proceed further.
The Court's ruling today reversed a decision of the U.S. Court of Appeals for the Fifth Circuit that essentially determined that Miller-El's appeal would fail to succeed on the merits before deciding to deny the issuance of a COA.

In the aftermath of today's ruling, COAs will be much easier to obtain in cases where the prospect of reversal on appeal is not all that strong. For the record, seven Justices seem to believe that Miller-El has a pretty good claim that the jury that sentenced him to death was selected in an unconstitutional, racially discriminatory manner. Justice Anthony M. Kennedy wrote the majority opinion, in which the Chief Justice and Justices Stevens, O'Connor, Souter, Ginsburg, and Breyer joined. Justice Antonin ("my sore, surgically-repaired shoulder didn't stop me from issuing a concurring opinion") Scalia wrote that he found the case to present a close question as to whether a constitutional violation occurred. Justice Clarence Thomas dissented, and he would have ruled that the Fifth Circuit acted properly in looking to the merits of Miller-El's claim in deciding whether to issue a COA. Thomas examined the record in great detail and concluded that Miller-El had failed to establish any prosecutorial misconduct that would merit granting federal habeas corpus relief. The extremely fact-bound nature of all three of today's opinions in this case explains why this turned out to be the final opinion issued from the Court's October argument session.

And now it's time to ask the truly difficult question -- what difference will today's ruling make in the future? True, more COAs will be granted. But will federal appellate courts reach different outcomes on the merits of these habeas cases if the granting of a COA precedes a thorough examination of the merits? I truly doubt it in the vast majority of cases. Whether Miller-El's case will fall outside that vast majority remains to be seen, but the Fifth Circuit (notwithstanding a death penalty stay issued on a 2-1 vote earlier today) probably isn't the preferred forum in which to be litigating for habeas corpus petitioners facing a death penalty.

2. Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler, No. 01-1420 (U.S. Feb. 25, 2003). Today's other case appears to have been initiated on the principle that a State that takes for itself the social security benefits of foster children under the State's care, without the children's permission, isn't behaving very nicely. Be that as it may, today a unanimous Court, in an opinion by Justice David H. Souter, ruled that the State of Washington does not violate applicable federal social security law and regulations when it uses the social security benefits of children in State foster care to cover some of the costs of providing that care. Not behaving nicely, you see, does not always equate with behaving unlawfully.

For all of the talk of Justice Souter's being a throwback to another century, today's opinion failed to conjure up images of Dickens's Oliver Twist except in the minds of the most imaginative Court-watchers. I'd love to speak at length about this ruling, but the hour is late and no one is interested.

What opinion or opinions will the Court issue tomorrow? News of tomorrow's ruling(s) should appear on "How Appealing" a little after 10 a.m. eastern time tomorrow.
Posted at 22:18 by Howard Bashman



The price of public service: During today's U.S. Senate debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit, U.S. Senator and Assistant Democratic Leader Harry Reid (D-NV), who has been leading the floor effort on the Democrats' behalf, repeatedly mentioned the amount of money that Estrada earned last year while serving as a partner at the law firm of Gibson, Dunn and Crutcher.

I think that Senator Reid's point was, in essence, that the Senate should move off the Estrada nomination and instead begin debating measures to help the economy and those who are out of work due to the economy's recent poor performance. In that context, Senator Reid seemed to be saying, we shouldn't feel sorry for Estrada because he not only already has a job but a very high paying one at that.

I, however, was taken aback by the Democrats' decision to use Estrada's financial success as a lawyer in private practice as a reason to oppose his nomination. If my ears heard correctly, Estrada would be taking a substantial pay cut to become a U.S. Circuit Judge. At his current rate of pay, if I heard correctly, every three years as a federal appellate judge he would be forgoing more than $1 million in additional wages that he would earn if he remained in the private practice of law. And while being a federal appellate judge certainly has own its own very valuable rewards -- life tenure, more control over one's own work schedule, and a guaranteed pension upon retirement -- it also requires the judge to work into his sixties to be able to earn that pension, whereas Estrada if he remained in private practice conceivably could afford to retire earlier if he so desired.

To me, the fact that a brilliant and successful lawyer in private practice entering his peak earning years is willing to serve his country by becoming a federal judge is a testament to that individual's dedication to public service. It is not a reason to ridicule or belittle his candidacy. As Chief Justice William H. Rehnquist explained in his 2002 Year-End Report on the Federal Judiciary:
Diminishing judicial salaries affects not only those who have become judges, but also the pool of those willing to be considered for a position on the federal bench. I am not suggesting that there is a shortage of lawyers lined up to apply for vacant judgeships. But many of the very best lawyers, those with a great deal of experience, are not willing to accept a position knowing that their salary will not even keep pace with inflation. Our judges will not continue to represent the diverse face of America if only the well-to-do or the mediocre are willing to become judges.

I recognize that the salaries of federal judges are higher than those in many occupations, and that some may be skeptical of the need to raise the salaries of judges who already earn at least $150,000 per year. But it is not fair to compare judges' salaries to salaries in other occupations. Those lawyers who are most qualified to serve as federal judges have opportunities to earn far more in private law practice or business than as judges. I am not suggesting that we match the pay of the private sector -- but the large and growing disparity must be decreased if we hope to continue to provide our nation a capable and effective federal judicial system. Providing adequate compensation for judges is basic to attracting and retaining experienced, well-qualified and diverse men and women to perform a demanding position in the public service. We need judges from different backgrounds and we want them to stay for life.

The federal Judiciary in the past has been able to attract experienced and able lawyers who have had extended and successful experience in the private sector. Their experience in that sector brings a perspective and an independence that is vital to the Judiciary. But it is these potential candidates who are deterred by the current level of compensation. Although we cannot hope to come close to the amount they earn in private practice, the appeal of public service makes up a good deal of the difference. That appeal is not enough at the present level of compensation.
If extremely well qualified candidates for federal judgeships now working as successful attorneys in the private sector are going to be forced to endure not only the delay of the confirmation process but also risk having their otherwise private financial details shared with the public as though that information somehow were relevant to the question of confirmation, the number of such candidates who are interested in pursuing federal judgeships will regrettably decline. I, for one, didn't care to learn the details of Estrada's earnings. But now that I have been forced to learn that information, I have more respect, not less, for his desire to reenter the public service.

Update: A reader kindly emailed on March 7, 2003 to draw to my attention that the official Congressional Record states that Senator Patrick J. Leahy (D-VT) mentioned Estrada's precise salary, not Senator Reid. I based my comments above on an audio feed of the debate, and if I erred by identifying the wrong Senator, I regret the mistake. The reader also noted that Senator Leahy's precise comment was "While in private practice, his clients included major investment banks and health care providers. Mr. Estrada's financial statement, which Senator Hatch had printed in the Congressional Record, says he earned more than $ 1/2 million a year 2 years ago." Thus, it appears that a Republican Senator was responsible for making Estrada's financial statement a part of the public record, but that it was a Democratic Senator who was the first to mention out loud the particulars of Estrada's earnings on the floor of the Senate.
Posted at 19:59 by Howard Bashman



"'Natural-Born' Killer": Jefferson Morley, in an essay just posted online at Slate, says "Abolish the idiotic constitutional clause barring immigrants from the presidency."
Posted at 16:20 by Howard Bashman



"The Filibuster Formula": The online version of Time magazine offers this report.
Posted at 15:49 by Howard Bashman



Law Professor Larry Solum responds to today's Editorial Observer column by Adam Cohen: You can access Solum's response here to Cohen's column published in today's edition of The New York Times. Could a response to Cohen's Editorial Observer column published November 24, 2002 be next on Solum's agenda?

Update: Law Professor Rick Hasen disagrees, in part, with Solum's post.
Posted at 14:59 by Howard Bashman



D.C. Circuit decides appeal concerning whether former employee of the Los Alamos National Laboratory may publish book about China's nuclear weapons program: You can access today's ruling of the U.S. Court of Appeals for the D.C. Circuit at this link. You can access earlier press coverage of this dispute here and here.
Posted at 14:25 by Howard Bashman



Who's filibustering whom? In yesterday's debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit, some Democratic Senators finally admitted that they were filibustering the nomination. Today, by contrast, various Democratic leaders in the U.S. Senate took the floor late this morning and requested unanimous consent that the Senate move on to other business. The Republicans objected, forcing the Estrada matter to remain the item under consideration. At that point, the Democrats began accusing the Republicans of filibustering -- refusing to move on to more important matters, such as the economy, the impending war with Iraq, etc. The Democrats also noted, accurately, that the Republicans during the extended Estrada debate have allowed various other items to come before the Senate for action.

Elsewhere, "Philippe de Croy" has a post at "The Volokh Conspiracy" entitled "The Estrada Debate: What's Really Going On?" And "Juan Non-Volokh" responds here.
Posted at 14:13 by Howard Bashman



Ninth Circuit upholds California prison housing policy that uses race as a factor in assigning a new inmate's initial cell mate: Today's ruling by a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit begins:
We must decide whether a prison reception center housing policy, which uses race as one factor in assigning a new inmate's initial cell mate for 60 days, violates the Equal Protection Clause.
And the decision concludes:
Although there may be many ways in which to achieve the state's objective in reducing racial violence in the CDC, the path chosen by the State of California is reasonably related to the administrators' concern for racial violence and thus must be upheld. If this policy were implemented beyond the prison walls, undoubtedly, we would strike it down as unconstitutional. The prison system, however, is inherently different and we must defer our judgment to that of the prison administrators until presented evidence demonstrating the unreasonableness of the administrators' policy. The Supreme Court has instructed us that inmates bear a "heavy burden" to show that prison officials acted unconstitutionally, and in this case, Johnson failed to carry his burden. He presented little to no evidence and could not rebut the presumption of constitutionality that the administrators are afforded.

Because Johnson failed to prove that a constitutional violation could be made out, we need not reach the ultimate question of whether the CDC administrators are entitled to qualified immunity. Saucier, 533 U.S. at 201.
You can access the complete ruling at this link.
Posted at 13:50 by Howard Bashman



Ninth Circuit strikes down Arizona election reform provision that governed timing of political ads: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a decision that the court summarized as follows:
We consider here the extent to which a state may regulate political speech in the final days before an election. To limit negative advertising and to afford candidates an opportunity to respond to "negative hit pieces," the Arizona legislature passed a statute requiring advance notice before distribution of certain political literature and advertising. Specifically, within ten days before an election, a political action committee advocating the election or defeat of any candidate must mail a copy of the communication to the candidate at least twenty-four hours in advance. We conclude that this regulatory scheme, which imposes a severe burden on political speech, violates the First Amendment because it is not "narrowly tailored to serve a compelling state interest." Buckley v. Am. Constitutional Law Found., Inc., 525 U.S. 182, 192 n.12 (1999) (internal quotation marks and citations omitted). Consequently, we reverse the district court's denial of Arizona Right to Life Political Action Committee's claims for injunctive and declaratory relief.
You can access the complete ruling, which also happens to contain a very interesting opening paragraph, at this link.
Posted at 13:26 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "High Court Backs Texas Death Row Inmate." And an unsigned article is entitled "Court Rules for States on Orphan Benefits."
Posted at 12:01 by Howard Bashman



"Scary-looking" reindeer give rise to a federal case: And to an Eighth Circuit appeal, decided today.
Posted at 11:40 by Howard Bashman



"White House to Schumer: You’re Wrong." Byron York at National Review Online has just posted this report.
Posted at 11:33 by Howard Bashman



Does law matter, or just outcomes? Robert Alt of the "No Left Turns" blog comments here.
Posted at 11:18 by Howard Bashman



Some big news from Florida: Today's edition of The Miami Herald reports here that "Sen. Nelson won't back filibuster." The Senator Nelson in question is U.S. Senator Bill Nelson (D-FL), who -- according to the article -- has yet to decide how he will vote on the nomination but is willing to vote in favor of cloture to end the filibuster.
Posted at 10:34 by Howard Bashman



Two U.S. Supreme Court opinions issued today: Opinions issued today in Washington State Dept. of Social and Health Servs. v. Guardianship Estate of Keffeler (oral argument transcript available here) and Miller-El v. Cockrell, which had been the last case that remained undecided from the October argument session (oral argument transcript available here).
Posted at 10:09 by Howard Bashman



Legal realism: From this morning's edition of Mark T. Stancil's consistently fine "Supreme Court Reports":
In Barnhart v. Thomas (02-763), the Third Circuit held that the Social Security Act's definition of "disability" does not disqualify respondent where she remains able to perform previous work (elevator operator) but such work no longer exists in the national economy. Terrified by the prospect of thousands of former dot com millionaires going on the dole, the SG sought cert. Coincidentally, and of great interest to hard-core legal realists and aspiring assistant law professors, the Court's staff still includes a handful of elevator operators, not to mention the billow pumpers, coopers, and stable hands necessary to keep the Souter chambers up and running.
Although this morning's edition isn't yet available online, you can access prior editions here.

The originator of "Supreme Court Reports" -- John P. Elwood (here's a classic Elwood effort) -- now serves as an Assistant to the Solicitor General and has a U.S. Supreme Court oral argument scheduled for next Tuesday, March 4, 2003. Chances are that John won't be able to display the full extent of his cleverness at the podium, but we can always hope.
Posted at 09:41 by Howard Bashman



Other featured "blawgers": As I first noted here last night, The ABA Journal's March 2003 article about law blogs is now available online at this link. (Those in search of photos will have to await the print edition, it seems.) The other three law bloggers featured in the article are Denise Howell of "Bag and Baggage"; Tom Goldstsein and the crew at "SCOTUSblog"; and Martin Schwimmer of "The Trademark Blog."
Posted at 09:00 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Boston Globe, Lyle Denniston reports here that "Appeal in wiretap case denied; Pilot says executives monitored his website" and here that "Reparations claim filed in Okla. riots case; Compensation sought over 'Black Holocaust.'" You can access here an article entitled "Judge rejects lawsuit to block war against Iraq." And here's an article entitled "English-only lawsuit provision debated; Romney pledge focus of debate."

David G. Savage of The Los Angeles Times reports here that "Justices to Test Refusal to Hire Over Drug Use; High court must decide whether those who did narcotics in the past are in category of 'disabled.'" And in news from Orange County, this article reports that "Court Orders Removal of Baby's Life Support; But the father -- who could end up with a murder charge -- has time to appeal."

The Washington Times reports here that "Court to study forced-entry time." And Terry Eastland has an op-ed entitled "Religious rights in school."

Finally for now, Joan Biskupic of USA Today reports here that "Court takes case on disabilities act, drug rehab; Companies' 'no-rehire' policies could be affected."
Posted at 08:31 by Howard Bashman



Democracy in action: A transcript of yesterday's debate in the U.S. Senate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit is now available online via the Congressional Record Web site. To access yesterday's transcript, simply follow these instructions. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 7, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 7, on the resulting page click on the link that reads "Printer Friendly Display."

Here are two transcript excerpts from yesterday's Senate session:
UNANIMOUS-CONSENT REQUEST--EXECUTIVE CALENDAR -- (Senate - February 24, 2003)

[Page: S2620]

---
Mr. FRIST. Mr. President, as in executive session, I ask unanimous consent that there be an additional 6 hours for debate on the Estrada nomination; provided further that the time be equally divided between the chairman and ranking member or their designees; and that following the conclusion of that time the Senate proceed to a vote on the confirmation of the nomination, with no intervening action or debate.

The PRESIDING OFFICER. Is there objection?

Mr. REID. Objection.

The PRESIDING OFFICER. Objection is heard.

Mr. FRIST. Mr. President, I modify my request to 8 additional hours.

The PRESIDING OFFICER. Is there objection?

Mr. REID. I object.

Mr. FRIST. Mr. President, I was hoping that the recent Presidents Day recess would have convinced my colleagues that everything has been said and, thus, it is time now to vote. But we will continue to work with the other side with the hope that at some point they will allow an up-or-down vote on this qualified nominee.
And thereafter, Majority Leader Bill Frist (R-TN) said:
Mr. FRIST. Mr. President, for the information of all Senators, tomorrow the Senate will begin its 9th day of consideration of the Estrada nomination. I believe that both sides of the debate have had adequate time and the Senate should now be able to work its will.
Welcome to day nine, everyone.
Posted at 08:24 by Howard Bashman



On the agenda: The U.S. Supreme Court will issue one or more opinions this morning at 10 a.m. eastern time. As always, I will provide a complete summary of the rulings tonight. The U.S. Senate resumes debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit at 9:30 a.m. today. You can watch the debate online at this link via C-SPAN2.
Posted at 08:12 by Howard Bashman



"Filibustering Miguel: Democrats, who once abhorred the idea of a judicial appointment filibuster, are out to get Miguel Estrada." Terry Eastland has this essay online at The Weekly Standard.

And Beth Henary has an essay online there entitled "Cognitive Dissonance at DoJ: The Department of Justice makes a fetish of 'diversity' while criticizing the University of Michigan for the same thing."
Posted at 06:20 by Howard Bashman



"Terror Case Tests 'Patriot Act' Limits": The Associated Press has this report.
Posted at 06:11 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports here that "High Court Fills In Docket for Next Term; Clean Air, Drug, ADA Cases Added." An article reports that "Malvo Prosecutor Lays Out Strategy." You can access here an article entitled "A Chilling Triumph Of 'Science' Over Sanity." Walter Dellinger has an op-ed entitled "Broaden the Slate." And Benjamin Wittes has an op-ed entitled "Silence Is Honorable."

In The New York Times, Linda Greenhouse reports here that "Supreme Court Is to Review Rehiring of Drug Abusers." And Adam Cohen has an editorial observer column entitled "Deborah Cook Is the Typical Bush Judicial Nominee -- So Watch Out."

Finally for now, The Christian Science Monitor offers an article entitled "'It's medicinal' vies against 'It's illegal'; California has become the epicenter of a states vs. feds battle over marijuana use."
Posted at 00:41 by Howard Bashman



Monday, February 24, 2003
Available online at law.com: Jonathan Ringel has a must-read article entitled "Ginsburg Lifts High Court Curtain." Jonathan also reports here that "Augusta Law Could Be Headed for the Rough; Masters protesters would be required to indemnify city." You can access here an article that begins, "After months of research and preparation, Texas Deputy Solicitor General Lisa Eskow will stand before the U.S. Supreme Court on Wednesday * * * ." And in very sad news from California, this article reports that "Court Clears Way for Death of Comatose Baby; Accused tried to keep son on life support."
Posted at 23:15 by Howard Bashman



"Senate still stalling Estrada nomination": United Press International provides this report.
Posted at 23:11 by Howard Bashman



"Lawyers Who 'Blawg': Attorneys Are Finding Fans (and Some Fame) Posting Legal Commentary on the Net": Jason Krause has this most excellent article in the March 2003 issue of The ABA Journal. (Plus, the magazine is expected to contain photographs of the featured bloggers.) Did I really say "World domination is not the goal"? Read the article and find out.

The article says that "Bashman estimates he gets 3,000-5,000 hits a day from all over the globe. Those are strong numbers considering the site is narrowly focused on appellate law."

Those numbers were correct at the time I spoke with Krause, but lately "How Appealing" has been receiving between 7,000 and 10,000 hits per day. Still not world domination, but oh so much closer.
Posted at 23:00 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Justices Clear Way for Abortion Rules"; here an article entitled "Senate Dems Hold Back Estrada Nomination"; here an article entitled "Senate OKs Tougher Child Pornography Law"; and here an article entitled "Panel Upholds Baby Life Support Order."
Posted at 22:43 by Howard Bashman



Michael Newdow attends Harvard Law School: In a manner of speaking. "Ex Parte" provides the details here. Only time will tell whether Newdow will find Harvard Law to be sufficiently God-less.
Posted at 22:31 by Howard Bashman



Good news!: A sixth appellate judge has volunteered to participate in this Web log's monthly feature, "20 questions for the appellate judge." Today's volunteer is a Senior Circuit Judge who formerly served as Chief Judge of a U.S. Court of Appeals located on the east coast of the United States. My 20 questions interview with today's volunteer will appear at "How Appealing" in early July 2003. Only five more interview slots remain for calendar year 2003. The next federal or state appellate judge to volunteer will have his or her interview appear here in August 2003.

If you're a federal or state court appellate judge and would like to participate in the "20 questions for the appellate judge" feature, simply send me an email expressing your interest. You will be assigned the next available month, and I will right away let you know exactly when I will be sending your questions to you. More details are available here.

Even more good news -- the second installment of the "20 questions" feature is due to appear here at "How Appealing" on or before Monday, March 3, 2003. This next interviewee serves on the U.S. Court of Appeals for the Ninth Circuit. And the first installment remains available at this link.
Posted at 22:27 by Howard Bashman



Tenth Circuit issues lengthy opinion affirming denial of preliminary injunction in fight over ownership and control of The Salt Lake Tribune: Today a three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued a lengthy opinion affirming the denial of a preliminary injunction sought by the Salt Lake Tribune Publishing Co. in the continuing battle over ownership and control of The Salt Lake Tribune newspaper.

Today's ruling is odd in one respect. While the panel affirms the denial of a preliminary injunction based on the absence of irreparable injury, two of the three judges proceeded to state that the district court incorrectly ruled that Salt Lake Tribune Publishing Company is unlikely to prevail on the merits. Instead, those two appellate judges expressed the view that the Salt Lake Tribune Publishing Company is likely to prevail on the merits.

Circuit Judge Terrence L. O'Brien refused to join in that part of the decision, explaining:
In Part IIIB we conclude the district court did not abuse its discretion in denying preliminary injunctive relief because irreparable injury was not shown. It is therefore unnecessary to address, let alone reverse, the trial court’s tentative conclusion that Salt Lake Tribune Publishing Company is unlikely to prevail on the merits. Accordingly, I do not join in part IIIA1 of the opinion or in the result announced.
You can access the Tenth Circuit's opinion at this link. Former Solicitor General Seth P. Waxman is representing the Salt Lake Tribune Publishing Company on appeal.

In press coverage relating to today's ruling, The Associated Press reports here that "Court Rejects McCartheys' Effort To Buy Back Tribune." And you can access a report on the Tenth Circuit's oral argument here, via The Deseret News.
Posted at 21:34 by Howard Bashman



Attention John Doe I! Today's ruling of the U.S. District Court for the District of Massachusetts in John Doe I v. Bush is now available online. The opinion begins:
The plaintiffs seek to enjoin the President from launching a military invasion of Iraq, asserting that Congress has neither declared war nor taken any action that would give the President the power to wage such a war. The defendants oppose such an injunction for several reasons, including that plaintiffs' complaint does not set forth a justiciable issue and, therefore, this court has no jurisdiction to act. The threshold issue before the court, therefore, is whether the plaintiffs' complaint presents a nonjusticiable political question and, therefore, must be dismissed. For the reasons set forth below, this court concludes that the issues raised by the plaintiffs involve political questions, in the legal sense of that term, which are beyond the authority of a federal court to resolve.
You can access the entire opinion at this link.
Posted at 21:30 by Howard Bashman



Filling the Antonin Scalia void at oral argument in the U.S. Supreme Court: If Dahlia Lithwick were to report on today's oral arguments at the U.S. Supreme Court, chances are that the headline wouldn't be "Scalia Hogs the Ball." That's because Justice Antonin Scalia is absent from this week's oral arguments while he recovers from rotator cuff surgery that he had last Thursday. Did Justice Scalia's absence create a huge void in the questioning? "No" is the answer I received from a friend in attendance at today's oral arguments. Justice Stephen G. Breyer was apparently more than happy today to assume the mantle of the Court's most active questioner. Update: Another observer writes, "Breyer and Ginsburg were pretty active for the first argument, but there clearly were lulls."
Posted at 21:11 by Howard Bashman



Now there's an anti-Miguel A. Estrada television commercial: Proving once again that candidates to fill federal judicial vacancies are not as easily marketed as a box of laundry detergent, The Alliance for Justice's Coalition for a Fair and Independent Judiciary has today launched a television commercial opposing the nomination of Miguel A. Estrada to serve on the D.C. Circuit. I can't get the video to play in its entirety on my computer, but I'll find a way to muddle through nevertheless. If it's a pro-Estrada television commercial that you desire, you can access one here via the Web site of The Committee for Justice.
Posted at 20:53 by Howard Bashman



"Federal judge dismisses missile-defense lawsuit after government intervention": Phil Carter has this report on today's development at his blog, "INTEL DUMP."
Posted at 17:21 by Howard Bashman



D.C. federal district court enjoins U.S. Attorney General from enforcing policy that "imprisonment" no longer includes time spent at "halfway house": As a result of the policy, the plaintiff who had been serving a criminal sentence in a federal halfway house was ordered to serve the remainder of his sentence at a federal prison camp. Today District Judge Gladys Kessler of the U.S. District Court for the District of Columbia granted a preliminary injunction allowing the plaintiff to remain at a halfway house. Judge Kessler's opinion concludes that, "In sum, there is a substantial likelihood that the retroactive application of the new BOP policy violates the Ex Post Facto Clause of the Constitution."
Posted at 16:14 by Howard Bashman



"High Court to Review Disabilities Cases": Gina Holland of The Associated Press has this report.
Posted at 15:54 by Howard Bashman



Coming to the defense of the Ninth Circuit: My friends at SCOTUSblog list all four cert. grants today as coming from the U.S. Court of Appeals for the Ninth Circuit. But, as I've already noted below, one of those four cases in fact originates from the U.S. Court of Appeals for the Third Circuit.
Posted at 14:16 by Howard Bashman



"Bingaman Should Lead Dems' Filibuster Retreat": Today's edition of The Santa Fe New Mexican contains this editorial.
Posted at 13:47 by Howard Bashman



Boston federal district court dismisses lawsuit to block war on Iraq: The Associated Press reports here, and Reuters reports here.
Posted at 13:34 by Howard Bashman



The U.S. Senate's debate on Miguel A. Estrada's nomination to serve on the D.C. Circuit is underway again: You can watch the debate live online at this link, courtesy of C-SPAN2.
Posted at 13:05 by Howard Bashman



"Colo. High Court Spares Two on Death Row": The Associated Press provides this report.
Posted at 13:01 by Howard Bashman



A recent former U.S. Supreme Court law clerk speaks out on today's Anthony Lewis column, "Marbury v. Madison v. Ashcroft": The following email arrived this morning from someone who not too long ago served as law clerk to a U.S. Supreme Court Justice:
Please point out that Anthony Lewis' Op-Ed in Today's NY Times ("Marbury v. Madison v. Ashcroft") is blatantly misleading.

Discussing Yasser Hamdi, it says:

"Two American citizens are now held in solitary confinement under this asserted presidential power. One, Yasser Hamdi, was found under unexplained circumstances on a battlefield in Afghanistan. . . .

The United States Court of Appeals for the Fourth Circuit, in Richmond, Va., made the first appellate ruling against Mr. Hamdi. It held that the constitutional guarantee of the right to counsel 'in all criminal prosecutions' did not apply because Mr. Hamdi was not being prosecuted. That reasoning reduced constitutional law to sleight of hand: The government can impose solitary confinement, perhaps for life, if it simply avoids giving the prisoner a trial."

But that is not at all what the Fourth Circuit held. The facts dismissed by Lewis as "unexplained circumstances" are that Hamdi was captured on a battlefield, traveling with a Taliban platoon, and carrying an AK-47. The Fourth Circuit's opinion is carefully limited to these facts, saying:

"One who takes up arms against the United States in a foreign theater of war, regardless of his citizenship, may properly be designated an enemy combatant and treated as such. . . . At least where it is undisputed that he was present in a zone of active combat operations, we are satisfied that the Constitution does not entitle him to a searching review of the factual determinations underlying his seizure there."

The opinion concludes by emphasizing this important qualifier, saying:

"It is important to emphasize that we are not placing our imprimatur upon a new day of executive detentions. . . . But, Hamdi is not 'any American citizen alleged to be an enemy combatant' by the government; he is an American citizen captured and detained by American allied forces in a foreign theater of war during active hostilities and determined by the United States military to have been indeed allied with enemy forces."

For a columnist with a worldwide audience to pretend that such an eminently reasonable opinion permits the government to secretly detain any American citizen in lieu of prosecution (and threatens Marbury v. Madison to boot!) does a disservice to what is at bottom one of the most important constitutional debates of our time.

Mr. Lewis should read the careful opinions that this debate is generating, not rely on press releases from the ACLU or People for the American Way. His column today is embarrassing.
Thanks for writing! The Fourth Circuit's opinion quoted in the email above can be accessed here.
Posted at 12:34 by Howard Bashman



"Supreme Court Rejects Ex-La. Gov. Appeal": Gina Holland offers this news.
Posted at 12:27 by Howard Bashman



"How Civil-Libertarian Hysteria May Endanger Us All": Stuart Taylor Jr. offers these thoughts in this week's edition of National Journal.
Posted at 11:32 by Howard Bashman



More news of certs. denied: Gina Holland of The Associated Press reports here that "Supreme Court Denies Jury Gag Order Case" and here that "Supreme Court Passes Up Kosher Food Fight." A Kosher food fight sounds like fun, although the combatants must be sure not to mix dairy with meat, and of course pork products and shellfish are prohibited.
Posted at 11:04 by Howard Bashman



Today at National Review Online: Eugene Volokh (pictured on the right) defends his former boss. And Byron York explains "How Estrada Can Win."
Posted at 10:57 by Howard Bashman



"Supreme Court Denies Abortion Law Appeal": Anne Gearan of The AP has this report.
Posted at 10:44 by Howard Bashman



"High Court to Review Limits on Searches": Gina Holland of The Associated Press provides this report.
Posted at 10:30 by Howard Bashman



This morning's official U.S. Supreme Court order list is now available online: The Court has granted review in four cases, all of which will be heard in the October 2003 Term. You can access the order list here.

One of the cases in which the Court granted certiorari is Barnhart v. Thomas, No. 02-763, a very interesting social security disability case that was decided on rehearing en banc by the U.S. Court of Appeals for the Third Circuit. You can access my coverage of the en banc oral argument in that case at this link. You can access the Solicitor General's cert. petition in the case here and his reply in support of the petition here.
Posted at 10:14 by Howard Bashman



"Marbury v. Madison v. Ashcroft": Anthony Lewis has an op-ed by this title in today's edition of The New York Times.
Posted at 10:07 by Howard Bashman



This morning's federal judicial nomination and confirmation news from here and there: Today's edition of The Columbia Spectator contains an article entitled "Sen. Hatch Talks About Ideology, U.S. Courts; Students come despite rain to hear Hatch discuss Estrada nomination." Newsday reports here this morning that "Estrada Endorser Had Partisan Role; Apparent conflict with ABA rules." The Atlanta Journal-Constitution today contains an article entitled "Hispanics deeply split over Estrada." The Baltimore Sun this morning reports here that "Stalemate over Bush nominee previews 'coming attractions'; Debate over conservative escalating into battle over future of federal courts." The New York Post reports here that "Dems Face Backlash."

An op-ed by Dolores C. Huerta in today's edition of The Oregonian is entitled "Estrada would destroy hard-fought victories." Jay Bookman has an op-ed entitled "Estrada fight's true victor? Democracy" in today's Atlanta Journal-Constitution. Maria Elena Salinas writes of "Ethnicity vs. ideology" in The Record of Stockton, California. Finally for now, The Intelligencer of Wheeling, West Virginia contains an editorial entitled "Require Senators To Talk the Talk."
Posted at 08:45 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Debate continues on judicial nominee." The Estrada matter is also mentioned in today's "Inside the Beltway" column. And Donald Lambro has a related op-ed entitled "A price to pay for tactics." You can access here an article entitled "Court, states consider same-sex unions." Frank J. Murray reports here that "Posthumous Medal of Honor 'unclaimed.'" An op-ed by Nat Hentoff is entitled "Deliver us from Ashcroft." And Jacob Sullum has an op-ed entitled "Perils of legislating in the dark."

Today's edition of The Los Angeles Times contains an op-ed by Law Professor Jonathan Turley entitled "Raze the Church/State Wall? Heaven Help Us!"

The Boston Globe today contains a book review entitled "Whitewater defendant has her way."

And in USA Today, Tony Mauro has an op-ed entitled "FCC muffles artist's message."
Posted at 08:23 by Howard Bashman



On the agenda: The Supreme Court of the United States is back in session today. Orders will issue at 10:00 a.m. today, and opinions will issue tomorrow and Wednesday at 10:00 a.m. The U.S. Senate is also back in session today. At noon, U.S. Senator Saxby Chambliss (R-GA) will perform the annual reading of President George Washington's 1796 Farewell Address. Thereafter, the Senate's debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit resumes.
Posted at 08:10 by Howard Bashman



In Monday's newspapers: The Washington Post commemorates here "The Birth of Judicial Review." A front page article is entitled "Md. Man's Exoneration Didn't End Nightmare; First Death Row Inmate Cleared by DNA Pours Emotions Into Activism." Counsel to the President Alberto R. Gonzales has a letter to the editor in response to Michael Kinsley's recent essay about President Bush's judicial nominees. And you can access here an article entitled "Looking to Precedent Ahead of Potential Space Shuttle Disaster Lawsuits."

In The New York Times, Adam Liptak has an article entitled "Prosecutors See Limits to Doubt in Capital Cases." He also has a related article entitled "Experts Question Verdict, but the State Is Unmoved." You can access here an article entitled "Sales of Cigarettes Online Hit." Rick Bragg reports on beads at Mardi Gras. And columnist Bob Herbert has an op-ed entitled "Looking Back at an Ugly Time."

The Christian Science Monitor reports here that "US death penalty creates international snarl; In battle over whose law prevails, Texas bucks World Court order staying executions." And you can access here an article entitled "Visa draws a hard line on child porn."
Posted at 00:11 by Howard Bashman



Happy 200th birthday, Marbury v. Madison: You can access the landmark ruling at this link, and some background about the case is available here.
Posted at 00:00 by Howard Bashman



Sunday, February 23, 2003
"There are things worse than being an associate at a law firm" -- you could be suspended from the practice of law or deceased: Law Professor Tung Yin of the University of Iowa College of Law shares his thoughts here at his new blog.
Posted at 23:17 by Howard Bashman



Is funny: Greg Beato is funny. Christopher Scheer is funny. And Lonewacko is funny too.
Posted at 22:47 by Howard Bashman



"U.S. Supreme Court Judge Ginsburg speaks about women pioneers at Rialto": The GSU Signal last week offered this report.
Posted at 22:12 by Howard Bashman



"Gay groups oppose Bush judicial picks; White House nominees cited for anti-gay past": The February 21, 2003 issue of Southern Voice contained this article.
Posted at 22:10 by Howard Bashman



"Review of Pickering's record blunts some charges against him": The Knight Ridder News Service today offers this report. And you can access here an essay published last week entitled "The Charles Pickering I know," by Joe McKeever.
Posted at 22:01 by Howard Bashman



Get your American Bar Association judicial ratings here: For this year, and for the past two years too.
Posted at 22:00 by Howard Bashman



"LawMuse" wraps-up The Federalist Society's student symposium: My favorite line of Christine's summary -- "To our great fear and delight, Judge Kozinski capped it all off with a booming rendition of 'Strangers in the Night.'" Those of us who weren't there will simply have to leave that to the imagination.
Posted at 15:41 by Howard Bashman



"Senate Battle Over Estrada Hitting Airwaves": Reuters offers this report.
Posted at 15:24 by Howard Bashman



"Transcript: Alberto Gonzales on Fox News Sunday": Available here, via the FOXNews.com Web site.
Posted at 12:34 by Howard Bashman



"Bush Aide: Estrada Treated Differently": The Associated Press has this report about what was said during this morning's newsmaker interview programs.
Posted at 12:18 by Howard Bashman



"One Judge's Conservatism": Commentator George F. Will has an essay entitled "One Judge's Conservatism: J. Harvie Wilkinson says conservative jurisprudence, properly understood, serves compassion, properly understood" in the March 3, 2003 issue of Newsweek. Also, Eleanor Clift in a Newsweek Web exclusive dated February 21, 2003 had an essay entitled "Standoff: Senate Republicans and Democrats are ready to go to the mat over an obscure judicial nominee. Here's why."

Elsewhere, today's edition of The New York Post contains an article entitled "Peeved Prez on Judge Vote: Get on with it!" The Sacramento Bee reports here that "GOP senators to press fight for Estrada court post." The Berkshire Eagle contains an editorial entitled "Signs of life from the Democrats." And the ranking Democrat on the Senate Judiciary Committee, Senator Patrick J. Leahy (D-VT), responds here to President Bush's radio address from yesterday on the issue of judicial confirmations.
Posted at 09:14 by Howard Bashman



Elsewhere in Sunday's newspapers: Today's edition of The Washington Times contains an article entitled "Vote on court choice, Bush says." A related op-ed by Paul Greenberg is entitled "The mob forms here." An article reports that "Texas schools find new way to diversity." And Walter Williams has an op-ed entitled "Affirmative mystique."

Finally for now, The Los Angeles Times contains an op-ed by Louis Fisher that asks "Who's Minding the Courts on Rights?"
Posted at 09:00 by Howard Bashman



In Sunday's newspapers: The Washington Post reports here that "Bush Urges Confirmation of Estrada; Democrats Cite Latino Nominees Blocked by GOP in Past." Relatedly, letters to the editor run under the heading "The Democrats and Mr. Estrada." And an article entitled "Democratic Hopefuls Score Bush; Trio of Candidates Assails Economy, Foreign Affairs" contains the following:
One of two African Americans now in the Democratic race, Sharpton attacked Bush as hypocritical on racial issues, calling him the ultimate example of someone who has benefited from affirmative action.

"He went to undergraduate school under preferences," Sharpton said to laughter and then applause from the audience. "He went to graduate school under preferences. He's the ultimate recipient of a set-aside program. The Supreme Court set aside a whole election to make him president of the United States."
In The New York Times, the Week in Review section contains a report entitled "Word for Word: Doctors, Soldiers and Others Weigh In on Campus Diversity." And you can access here an article entitled "Congress and the President: One Party, but Divided."

Finally for now, OpinionJournal offers an essay by Ruth Wedgwood entitled "Lawyers at War: Will the American Bar Association make al Qaeda's task easier?"
Posted at 00:20 by Howard Bashman



"Partisan holdups shouldn't bar Estrada nomination": U.S. Senator John Cornyn (R-TX) had this op-ed in Saturday's edition of the San Antonio Express-News.
Posted at 00:08 by Howard Bashman



Saturday, February 22, 2003
An early report from The Federalist Society's student symposium at the Notre Dame Law School: "LawMuse" offers a first-hand account.
Posted at 23:53 by Howard Bashman



Yesterday's edition of The Baltimore Sun contained an editorial calling for the resignation of Attorney General John Ashcroft: You can access the editorial at this link (via "TalkLeft"). The editorial refers to a news article that The Sun ran last week entitled "Ashcroft's agenda: Critics of the attorney general wonder if the taking away of civil liberties goes beyond countering terrorism."
Posted at 23:48 by Howard Bashman



"A Dream Denied Leads Woman to Center of Suit; Gratz's Rejection by U-Mich. Led Her to Fight Against Race-Conscious Admissions": The front page of Sunday's edition of The Washington Post contains this article.
Posted at 23:10 by Howard Bashman



Taking the fight over Miguel A. Estrada to the Sunday morning news and public affairs interview shows: White House Counsel Alberto Gonzales is scheduled to appear tomorrow morning on both Fox News Sunday and This Week With George Stephanopoulos to discuss the Estrada filibuster.
Posted at 18:55 by Howard Bashman



Law Professor Cass R. Sunstein writes of "The Right-Wing Assault" on the federal judiciary: You can access his views here, in the March 1, 2003 edition of The American Prospect. (Via Sam Heldman.)
Posted at 18:52 by Howard Bashman



Orin Kerr says The American Constitution Society and The Federalist Society have more in common than you might think: You can access Orin's post here, at "The Volokh Conspiracy."
Posted at 16:45 by Howard Bashman



Democratic presidential candidate Rev. Al Sharpton discusses the Miguel A. Estrada filibuster: See the very end of this report from The Associated Press.
Posted at 16:43 by Howard Bashman



In Sunday's edition of The New York Times: Jacques Steinberg reports here that "3 See College Suit as a Way to Show They Belonged." And you can access here an article entitled "On Environmental Rules, Bush Sees a Balance, Critics a Threat."
Posted at 16:32 by Howard Bashman



Tonight on C-SPAN's "America and the Courts": Tonight on C-SPAN's fine program "America and the Courts," attorney Sarah Weddington gives a speech concerning the thirtieth anniversary of the U.S. Supreme Court's decision in Roe v. Wade, a case that Weddington argued and won at the age of twenty-six.
Posted at 15:55 by Howard Bashman



The Associated Press is reporting: This article reports that "Agent Orange Case Headed to Supreme Court," and here's an article entitled "Court: Juvenile Offenders Must Register."
Posted at 15:49 by Howard Bashman



"Dead Men Walking": Tomorrow's edition of The Washington Post Magazine contains an article entitled "Dead Men Walking: When a scandal-plagued governor cleared out Illinois' death row, he wasn't worried about his political future. He already knew he didn't have one."
Posted at 15:34 by Howard Bashman



"US factory boss guilty of 'slavery'": BBC News offers this coverage from American Samoa, the only United States possession in the southern hemisphere.
Posted at 11:07 by Howard Bashman



"Bush pleas end to Estrada filibuster; President blasts Democrats for delaying judicial confirmations": The Associated Press (via MSNBC) offers this report.
Posted at 11:04 by Howard Bashman



Today's radio address by the President to the Nation: Here's the text of today's presidential radio address:
Good morning. This week, members of the House and Senate will return to Washington with a full agenda to address; from strengthening our economy to reforming health care to protecting national security.

On the Senate side, there is a crucial item of business that has been delayed for too long. We face a vacancy crisis in the federal courts, made worse by senators who block votes on qualified nominees. These delays endanger American justice. Vacant federal benches lead to crowded court dockets, overworked judges and longer waits for Americans who want their cases heard.

Regional appeals courts have a 15 percent vacancy rate, and filings in those courts reached an all-time high again last year. Since taking office, I have sent to the Senate 34 qualified, mainstream nominees for the federal courts of appeals. To date, only half of them have received a vote in the Senate, and 12 of the remaining 17 nominees have been waiting more than a year for a floor vote.

It is my responsibility to submit judicial nominations. It is the Senate's responsibility to conduct prompt hearings and an up or down floor vote on all judicial nominees.

Yet a handful of Democratic senators, for partisan reasons, are attempting to prevent any vote at all on highly qualified nominees. One of these nominees is Miguel Estrada, my selection for the D.C. Court of Appeals. I submitted his nomination in May of 2001, and Miguel Estrada has been waiting ever since. That's almost two years, and that's a disgrace.

Miguel Estrada's credentials are impeccable. He has served in the Justice Department under Presidents of both political parties. He has argued 15 cases before the U.S. Supreme Court, and he has earned the American Bar Association's highest mark, a unanimous rating of well qualified.

Miguel Estrada is an exceptional nominee for the federal bench. He also has a remarkable personal story. He came to America from Honduras as a teenager, speaking little English. Within a few years, he had graduated from high honors from Columbia College and Harvard Law School. Miguel Estrada then served as a law clerk to Supreme Court Justice Anthony Kennedy, as a federal prosecutor in New York, and as assistant to the solicitor general of the United States.

If confirmed, Miguel Estrada would be the first Hispanic American ever to serve on this court, which is often considered the second highest in the land. He would break through a barrier that has stood for too long. His nomination has strong support from citizens and leaders in both parties, and endorsements from the Hispanic National Bar Association, the League of United Latin American Citizens, and more than a dozen other distinguished groups. He is a role model for young people all across this nation; living proof that in America anything is possible.

I nominated Miguel Estrada for the Court of Appeals because he's a man of talent and character who will be an excellent judge. Yet after 21 months, he still cannot get an up or down vote from the Senate. Democrats are stalling Miguel Estrada's nomination, while they search in vain for a reason to reject him.

Some senators who once insisted that every appeals court nominee deserves a vote have abandoned that principle for partisan politics. Their tactics are unfair to the good man I have nominated, and unfaithful to the Senate's own obligations. I call on the Senate Democratic leadership to stop playing politics, and permit a vote on Miguel Estrada's nomination.

Let each senator vote as he or she thinks best, but give the man a vote. Thank you for listening.

[various typos corrected]
You can listen to an audiotape of the address via this link.
Posted at 10:56 by Howard Bashman



"McIntosh speaks at Notre Dame": Here's a tiny bit of news from yesterday's Federalist Society gathering in South Bend, Indiana.
Posted at 09:58 by Howard Bashman



In Saturday's newspapers: In The New York Times, Adam Liptak has a very interesting news analysis entitled "Judges and Politics Mix: U.S. Ruling Breaks Down a Wall." A related article runs under the headline "Partisan Pit Bull, but Not on the Bench." A short item reports that "Scalia to miss sessions." In news from Texas, "Judge Criticizes Letter From Bayer." And tomorrow's edition of the The New York Times Magazine contains the cover story "Fortress America."

In The Washington Post, Charles Lane reports that "Scalia Is Out for a Few Days After Surgery on Right Shoulder."

Today's edition of The Boston Globe reports here that "Professor in terror indictments was a Bush supporter; Key figure among Muslims in Tampa." You can access here an article entitled "From raft to halls of justice: Journey to freedom from Vietnam shaped new prosecutor's life." An article reports that "Suffolk Superior Court safe at home; Its Post Office Square lease extended 1 year." And an op-ed by the president of the Boston Bar Association is entitled "Fixing our Balkanized state courts."

The Los Angeles Times reports here that "Ban on Porn Is Proposed at University; Professor's bid to limit use of computers spurs debate on academic, 1st Amendment freedoms." Students who decide where to attend college based on the easy availability of pornography may therefore wish to look at schools other than Cal Poly San Luis Obispo. An article you can access here reports that "New D.A. Breaks Down Old Stereotypes; San Diego County's Bonnie Dumanis, reportedly the nation's first openly gay district attorney, narrowly beat incumbent on issues." And a news item from California -- where else? -- reports that "Beach May Ban Vehicles on Pot Smokers' Day."
Posted at 09:26 by Howard Bashman



"Judge shifts her focus on conflicts; Marjorie O. Rendell, the governor's wife, said she would not rule in cases involving the state": Today's edition of The Philadelphia Inquirer contains this report. Judge Rendell serves on the U.S. Court of Appeals for the Third Circuit and is the wife of Pennsylvania's newly elected governor, Ed Rendell.
Posted at 09:22 by Howard Bashman



Friday, February 21, 2003
Available online at law.com: Jonathan Ringel reports here that "Thomas Speaking Engagement Sparks Protest at UGA." The letter of protest in question is reprinted here at "How Appealing Extra," as is a recent graduate's riposte thereto. Tony Mauro addresses "Where Does the Sidewalk End and the ADA Begin?" The National Law Journal reports here that "Colorado Jurors May Get Right to Quiz Witnesses; Attorneys on both sides say the move would help the prosecution." In news from New York, "New Trial Is Granted Based on Challenges to Black Jurors; 'Batson' issue raised by prosecutor's decision to strike black jurors." And in other news from New York, "Judge Composes Operas, Others Face Music." Finally for now, Marcia Coyle has an article entitled "A Death Penalty Duel; U.N. court orders U.S. to stay executions."
Posted at 23:05 by Howard Bashman



Justice Bedsworth's most recent column is now available online: Associate Justice William W. Bedsworth is one of the most intentionally funny members of California's appellate judiciary, and his latest column is now available online at this link. His subjects this month -- "Technology run amok" and the LobsterGram that turned out to be a FrozenLegGram. Plus, you can access here a whole bunch of his previous columns, most of which remain as funny as ever.
Posted at 22:38 by Howard Bashman



President Bush's radio address tomorrow: The topic -- "the importance of the Senate['s] holding an up or down vote to confirm the nomination of Miguel Estrada to the D.C. Circuit." See the closing lines of Ari Fleischer's press gaggle today.
Posted at 19:06 by Howard Bashman



Can't keep a news story like this to myself forever: The news story that "How Appealing" apparently broke (see post immediately below) at 2:24 p.m. eastern time today is now news worldwide. The Associated Press reports here that "Justice Scalia Resting After Surgery." United Press International reports here that "Scalia has shoulder surgery." And Reuters reports here that "Supreme Court's Scalia Has Shoulder Surgery."
Posted at 19:00 by Howard Bashman



Email from a news reporter who covers the U.S. Supreme Court: The following email just arrived:
FYI, Your tantalizing tidbit sent me to the SC PIO, which confirmed it was Antonin Scalia, who had surgery Thursday on his right rotator cuff, and is expected to miss next week's oral arguments but participate in the cases by reading transcripts. You had it first.
As I've always insisted, this blog is bound to prove informative on rare occasion.
Posted at 17:18 by Howard Bashman



"Divided high court returns to work": Michael Kirkland, UPI legal affairs correspondent, offers this report.
Posted at 17:00 by Howard Bashman



This afternoon's Miguel A. Estrada news and commentary round-up: For those who simply can't wait until noon on Monday when U.S. Senators again begin talking about D.C. Circuit nominee Miguel A. Estrada, you've come to the right place.

The Times Record of Fort Smith, Arkansas reports here that "Latino Group Plans Issue Ads." The ads in question are pro-confirmation, by the way. The Associated Press reports here that "Abortion opponents rally against Daschle over nominee." I'm sure not everyone will view that as a positive development.

The Winston-Salem Journal yesterday ran an editorial entitled "Choosing Judges." It concludes, "Another truth is that the Constitution gives presidents the right to nominate judges, and that presidents usually choose nominees who they believe share their political views. If Democrats have a substantive reason for opposing Estrada's nomination, it's past time to produce it. If not, they should let the Senate vote." Finally for now, The Press-Enterprise of Riverside, California earlier this week ran an anti-filibuster editorial entitled "Advice and filibuster."
Posted at 16:28 by Howard Bashman



"Court may look at case that pits Fat Cats against Fatter Cats": Yesterday's edition of The Repository of Canton, Ohio contained this report about a case pending at the cert. petition stage before the U.S. Supreme Court.
Posted at 15:21 by Howard Bashman



"Force Democrats to Stage Real Filibusters": Paul M. Weyrich shares his thoughts here at Human Events Online.
Posted at 14:29 by Howard Bashman



Best wishes for a speedy recovery: Word on the street is that very recently one of the nine U.S. Supreme Court Justices has successfully undergone minor surgery but may miss some or all of next week's oral arguments as a result. We wish the Justice in question a speedy and pain-free recovery.
Posted at 14:24 by Howard Bashman



"U. of Michigan Draws a New Type of Recruit": Today's edition of The New York Times offers this report.
Posted at 14:06 by Howard Bashman



Recent University of Georgia School of Law graduate responds to law professor's open letter criticizing invitation to Justice Clarence Thomas: The other day I reprinted at this link the law professor's open letter criticizing the law school's invitation to Justice Thomas to serve as this year's graduation speaker. Today I'm pleased to reprint a response from recent UGA Law graduate Holly A. Pierson, which you can access here at "How Appealing Extra."
Posted at 12:40 by Howard Bashman



"Ginsburg Lifts High Court Curtain on Clerk Roles, Working With Scalia": Jonathan Ringel has an article by this title in today's edition of The Fulton County Daily Report. Ringel's article -- which reports on Justice Ruth Bader Ginsburg's recent visit to Atlanta -- isn't yet freely available online, but if it ever is I certainly will link to it. Thanks to the reader who emailed the article's text to me.

In the meantime, you can access Ringel's most current article that is freely available online -- entitled "Ver-r-r-ry Close Doesn't Count, Court Tells Bar Applicant; Justices' decision leaves bar exam score .05 of a point short" -- at this link.
Posted at 12:34 by Howard Bashman



Eighth Circuit orders $2.5 million reduction in judgment awarded to survivor of American Airlines' crash in Little Rock and to his wife: The remittitur orders a reduction in the jury's award to the crash survivor from $4,242,000 to $3,242,000 and in the award to the survivor's wife from $2 million to $500,000. You can access the today's opinion -- which describes in vivid detail what the survivor endured during and immediately following the crash landing -- at this link. If the plaintiffs refuse the remittitur, they will receive a new trial.
Posted at 11:56 by Howard Bashman



Available at National Review Online: Ramesh Ponnuru has an essay entitled "Sexual Rights: Traditionalists v. libertarians at the Supreme Court."
Posted at 11:32 by Howard Bashman



"GAO: Justice Dept. Inflated Terror Cases": The Associated Press offers this report.
Posted at 11:30 by Howard Bashman



"Approve Estrada nomination or don't -- just get on with it": Today's edition of The Austin American-Statesman contains this editorial. Speaking of which, the U.S. Senate returns to business on Monday, February 24, 2003, and continuation of the Estrada debate is the first substantive item of business on the calendar. I guess we'll hear plenty of "Here's what my constituents told me while I was back home last week."
Posted at 10:58 by Howard Bashman



Keep an eye on this case: Today's edition of The New York Times reports here that "U.S. Ruling Allows New York Judges to Take Part in Politics." The article begins, "A federal judge ruled today that judges in New York State have the same constitutional right to participate in political activities as ordinary citizens, striking down several provisions of the state's code of judicial conduct." You can access yesterday's ruling by District Judge David N. Hurd of the U.S. District Court for the Northern District of New York at this link.
Posted at 09:29 by Howard Bashman



"Flag Flap Causes Flag Flap": Huh? The Associated Press provides this report.
Posted at 08:49 by Howard Bashman



Adam White responds: To a letter to editor (third item) of the Harvard Law Record critical of Adam's recent column supporting the Estrada nomination. You can access Adam's response here.

Adam demonstrates one reason why it's nice to have a blog -- so that you can respond to critics of your published work. Sometimes you can even note praise (see here and here) of your published work.
Posted at 08:45 by Howard Bashman



Today's FindLaw commentator: Vikram David Amar has an essay entitled "A Crucial Contract Issue May Go All the Way to the Supreme Court: Are Agreements to Arbitrate Enforceable, Or Do Parties Still Retain the Right to Sue?" Earlier this month, I wrote about the case at issue in Amar's essay -- a decision I have described as "so very Ninth Circuit" -- in a post you can access here.
Posted at 08:12 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "Medium Security Captives Moving to New Guantanamo Site." In news from California, "Disney Suffers Blow in Pooh Case; State high court rejects bid to lift sanctions imposed because the firm destroyed evidence." And this article reports that "Ruling Is a Boon for State's Disabled Workers; The Supreme Court reaffirms a standard that is less restrictive than federal law." You can access here an article entitled "Police Continue Homeless Sweeps on Skid Row Despite ACLU Suit." An article reports that "Judge unseals juvenile records in Malvo case; Officials did not know his name, age or origin." And two letters to the editor run under the heading "Wrangling Over Judge's Meeting With Inmate."

The Washington Times contains an op-ed by R. Emmett Tyrrell Jr. entitled "Identity gridlock." The first item of today's "Inside Politics" may be of interest. And an editorial is entitled "Ambulance chasers on the run."

The Boston Globe reports here that "Romney details plan to manage judiciary." A related editorial is entitled "Reordering the courts." And you can access here an article entitled "Protesters rally against INS rules; Effort decried as racial profiling."
Posted at 07:56 by Howard Bashman



In Friday's newspapers: In The Washington Post, columnist E.J. Dionne Jr. argues "They Started It." "They" refers to Republicans, and "it" refers to unfairly delaying the approval of qualified judicial nominees. You can access here an article entitled "Anguish, Anger on Both Sides Of Md. Death Penalty Debate." And here's an article entitled "Evidence of Illegal Malvo Interview Cited; Court Order Bolsters Case, Defense Says."
Posted at 00:13 by Howard Bashman



Thursday, February 20, 2003
Tonight's judicial nomination and confirmation news and commentary from here and there: This article reports on "Estrada's Sioux Falls Supporters." Rick Martinez has an op-ed in The Raleigh News and Observer entitled "Nominee has earned his vote." The Hannibal Courier-Post contains an op-ed by Michael Reagan entitled "No Conservatives need apply." An editorial in The Reno Gazette-Journal is entitled "Estrada fray begs forgiveness." Gordon Sawyer has an essay entitled "The Estrada Case Is Not About Latinos. It Is Liberal vs. Conservative." The Kalamazoo Gazette contains an editorial entitled "Senate filibuster is a two-edged sword." The Minnesota Daily contains an editorial entitled "Partisanship is a democratic duty." And UPI offers a commentary entitled "Congressman Billybob sez." As someone on the verge of being famous once said, "At this rate, the Penny Saver will weigh in soon."

Finally for now, in commentary from that other Philadelphia, Bill Minor has an essay entitled "In defense of Charles Pickering" that ran in The Neshoba Democrat.
Posted at 23:32 by Howard Bashman



Available online at law.com: This article reports that "California Justices Give State Independent Disability Laws." You can access here an article entitled "New York State Judicial Conduct Rules Struck." In news from New Jersey, "Spying Spouse May Be Guilty of Stalking." And an article entitled "Method of Resolution in Domain Name Case Not True Arbitration" reports on a ruling that the U.S. Court of Appeals for the Third Circuit issued today.
Posted at 23:24 by Howard Bashman



Yay! Dahlia Lithwick's American Lawyer essay, entitled "Statutory Date," is now available online here. I hope Slate doesn't get jealous that she's writing such good stuff for another publication. (Thanks for taking my advice, AmLaw.)
Posted at 23:14 by Howard Bashman



A clash of two American icons: Today the U.S. Court of Appeals for the Tenth Circuit ruled that bald eagles are more important than golf. The blog "How Green Is My Country" has the details here.
Posted at 23:03 by Howard Bashman



"We would if we could": And now they can. Today the U.S. Court of Appeals for the Eleventh Circuit granted rehearing en banc in Glanzner v. Glanzner, a case in which the three-judge panel's original opinion concluded by stating: "That the Simpson decision has managed to survive as the law of this circuit for nearly three decades shows that inertia is more than just a law of physics. The time has come to overturn that decision, and rehearing en banc should be granted in this case for that purpose. Until then, we are required to affirm the district court's grant of summary judgment against Elisabeth Glazner."

The Simpson case had held that the wiretapping provisions of Title III of the Omnibus Crime Control and Safe Streets Act of 1968, which outlaw non-consensual recordings of private conversations, did not apply to a spouse who covertly records the telephone conversations of the other spouse in the marital home, and the recording is accomplished without the connivance of any outside party. It now appears that the Simpson case is on the verge of being overruled, and it will be very interesting to see whether the overruling will be prospective only. See footnote two of the original panel decision, which states "We express no opinion on whether, if en banc rehearing is granted and the Simpson decision is overturned, the new rule ought to be applied in this case or prospectively only."
Posted at 22:53 by Howard Bashman



"2 officers cleared in Schieber lawsuit": The Philadelphia Inquirer has this report on today's Third Circuit ruling.
Posted at 22:48 by Howard Bashman



Tonight's music selection: "When I'm Gone" by 3 Doors Down. You can access the music video at this link (Real Player required).
Posted at 22:46 by Howard Bashman



"Estrada Backers Say Ad Campaign to Go On": The Associated Press offers this report. I'll be posting links to other press coverage and commentary, plus some emails from readers, later tonight.
Posted at 19:50 by Howard Bashman



From tomorrow's edition of The Christian Science Monitor: An article entitled "Hispanic judicial nominee: Low profile, high stakes; Democrats filibuster the conservative's confirmation, hinting at possible row over next Supreme Court vacancy." I'm not going to wade into a discussion of that headline.
Posted at 19:39 by Howard Bashman



"Bookseller Purges Files to Avoid Searches": The Associated Press offers this report.
Posted at 17:30 by Howard Bashman



Memo to Al Hunt: The following email has just arrived from Law Professor, and National Review Online contributing editor, Jonathan H. Adler:
There are more than one or two errors in Hunt's WSJ piece.

First, Hunt repeats the erroneous claim that "Mr. Bush has nominated one Hispanic judge to the circuit courts; President Clinton nominated 11." President Bush has nominated three Hispanics to the Circuit Courts thus far. Overall, Hispanics have constituted a slightly higher percentage of Bush's judicial picks than any other President in the last few decades.

Second, Hunt claims that Jeffrey Sutton was nominated to the Fourth Circuit Court of Appeals. Sutton was nominated to the Sixth Circuit.

Third, Hunt's claim that judicial selection was a non-issue politically ignores the traction of the issue in several states in 2002. Judicial nominations were made an issue in the Senate races in Minnesota, Georgia, and Texas, among others. It was a standard part of President Bush's stump speech on behalf of Senate candidates and was pushed by some of the candidates themselves. If nothing else, the issue of judicial nominations was a big issue in Texas, where John Cornyn made an issue of the Senate Judiciary Committee's rejection of Priscilla Owen and his opponent's opposition to her confirmation.

Fourth, Hunt conflates opposition to Roe v. Wade with being "pro-Life." In fact, the two positions are distinguishable. One may be anti-Roe but pro-choice (as Jeff Rosen demonstrates in his recent New Republic article). At the same time, one may be pro-life yet believe that stare decisis counsels against overturning Roe (see, e.g., Justices Kennedy and O'Connor). Hunt also assumes that all of Bush's nominees are reliably pro-life (or anti-Roe), when experience with prior GOP nominees would suggest otherwise.

Fifth, Hunt selectively quotes Orrin Hatch's remarks, omitting that Hatch made clear that the Senate should ask questions about judicial philosophy, not about specific cases.

Sixth, Hunt accuses the Federalist Society of having a specific agenda with regard to specific judicial doctrines. The Federalist Society, however, takes no official positions such matters, and its membership is anything but uniform on the extent to which federal judges should curtail federal power under the Commerce Clause and 14th Amendment.

Seventh, Hunt claims Jeffrey Sutton "clearly would turn back the clock on protecting people with disabilities." This is a terrible distortion of Sutton's views and his legal record. Sutton represented state governments asserting that their sovereign immunity prevented suits under the Americans with Disabilities Act. This was a federalism case, not a disability rights case. It is no more reasonable to claim this litigation shows Sutton would "turn back the clock on protecting people with disabilities" than it would be to characterize Sutton as a disability rights activist because he sued Case Western Reserve University (my current employer) for denying a blind woman's admission to medical school.
Thanks for writing!
Posted at 17:23 by Howard Bashman



Virginia prisoner grooming policy challenged under the Religious Land Use and Institutionalized Persons Act: The Associated Press provides this report. You can access the text of the law in question at this link.
Posted at 16:19 by Howard Bashman



Divided Third Circuit panel holds Philadelphia police officers are entitled to qualified immunity in Shannon Schieber case: The lead opinion in this very high profile case begins, "In the early morning hours of May 7, 1998, Shannon Schieber was raped and murdered in her second floor apartment at 251 S. 23rd Street, Philadelphia, Pennsylvania. Ms. Schieber's parents, Sylvester and Vicki, brought this civil rights suit on their own behalf and as representatives of her estate against the City of Philadelphia and Steven Woods and Raymond Scherff, the police officers who responded to a 911 call from one of Schieber's neighbors on the night of her murder."

Today's decision, which produced a separate opinion from each judge on the panel, holds that the two police officers are entitled to qualified immunity and will therefore be dismissed from the case. District Judge Gregory M. Sleet, sitting by designation from the U.S. District Court for the District of Delaware, dissented from today's ruling.

You can access a news report on the perpetrator's guilty plea in May 2002 at this link.
Posted at 15:51 by Howard Bashman



I may not agree with Nan Aron's views on judicial selection: But I nevertheless found her to be a very effective debater. Yet I found the quality of today's Federalist Society debate, overall, to be disappointing. While the debate was occurring, the following email arrived:
I think it is worth remembering that judicial activism is not measured by how many statutes a court strikes down -- contrary to the views of Al Hunt and some of your e-mailers. Whether a judge is a judicial activist depends upon whether he ignores or bends the plain language of the Constitution, statutes, and/or precedent to achieve the result he desires.

Let's be honest: under that definition, these days, the typical conservative jurist is far less activist than the typical liberal jurist -- largely because the "principles" which liberal jurists regularly employ are so ill-defined: living Constitutions, evolving standards, and my personal favorite: "the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life."

When we trust 5 of 9 lawyers to assign a necessarily subjective meaning to that vacuous phrase, and allow that subjective meaning to trump legislation passed by duly elected legislators, "judicial activism" is too tepid a phrase to describe the result. Try judicial tyranny.

If it is "conservative" to insist on confirming only those judges who are wary of employing such high-flown phrases to "find" new constitutional rights -- look! I found another right over there, under that oak tree! -- then call me conservative. I will respect Justice Scalia's opinions when he votes to protect flag-burners or overturn criminal convictions, because I trust that he is voting that way for the right reasons. I can't say the same for the Stephen Reinhardts of the world.
Thanks for sharing those interesting views. Now why didn't anyone say something like that during today's debate?
Posted at 15:24 by Howard Bashman



"Law and Human Dignity": Tomorrow and Saturday, the Student Division of The Federalist Society will host its annual National Student Symposium, held this year at the Notre Dame Law School. At least four federal appellate judges, along with a whole bunch of law professors, are scheduled to take part in the event. You can access general information here, and there's a program describing the scheduled panel sessions at this link.
Posted at 15:06 by Howard Bashman



In about one half hour from now, you can watch the Federalist Society's debate on the Estrada nomination live on C-SPAN: The Federalist Society today hosts a debate on the nomination of Miguel A. Estrada to the U.S. Court of Appeals D.C. Circuit, and the debate -- between former White House Counsel C. Boyden Gray, who now heads The Committee for Justice, and Alliance for Justice President Nan Aron -- will be shown live on C-SPAN starting at 1:30 p.m. eastern time. You can watch live via this link.
Posted at 13:01 by Howard Bashman



U.S. District Judge, and former Clinton Third Circuit nominee, Stephen M. Orlofsky to return to private practice: Today's edition of The Newark Star-Ledger reports here that District Judge Stephen M. Orlofsky of the U.S. District Court for the District of New Jersey has decided to leave the judiciary and return to the private practice of law. President Clinton had nominated Orlofsky to fill a vacancy on the U.S. Court of Appeals for the Third Circuit in May 2000, but the U.S. Senate never acted on the nomination. For what it's worth, President Bush has not yet nominated someone to fill that Third Circuit vacancy. (Thanks to Adam Bonin for bringing the Star-Ledger article to my attention.)
Posted at 10:53 by Howard Bashman



Seventh Circuit reverses injunction intended to give witnesses to a crime who are undergoing interrogation prompt access to counsel: Yesterday's opinion, written by Circuit Judge Frank H. Easterbrook on behalf of a unanimous three-judge panel, holds that a criminal defense attorney "has neither a personal right, nor one derived from its clients, to have the police notify witnesses that a lawyer is at the front desk, let alone a right to be escorted inside immediately and to engage in confidential consultations within the police station."
Posted at 10:15 by Howard Bashman



Seventh Circuit falls two votes shy of granting rehearing en banc in United Center merchandise peddling case: Back on November 20, 2002, I wrote:
Seventh Circuit strikes down Chicago ordinance that prohibited the peddling of merchandise near the United Center: You can access today's unanimous ruling by a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit at this link. The plaintiff who won today's appeal, and thereby obtained the reversal of a trial court's ruling to the contrary, was seeking to sell a book that was highly critical of the owner of the Chicago Blackhawks. The Seventh Circuit concluded both that the ordinance was not a valid time, place, and manner restriction and that the ordinance constituted an unlawful prior restraint.
Yesterday the Seventh Circuit entered an order noting that only four of the court's eleven active judges had voted in favor of a petition for rehearing en banc in this case. Attached to the order is an opinion dissenting from the denial of rehearing en banc written by Circuit Judge Frank H. Easterbrook, in which two other circuit judges joined.
Posted at 10:10 by Howard Bashman



This morning's judicial nomination and confirmation news and commentary from here and there: FindLaw commentator Edward Lazarus today has an essay entitled "How the Miguel Estrada Nomination Illustrates Our Out-of-Control Confirmation Process, And What We Can Do to Improve the System." Al Hunt has an op-ed entitled "Symmetry in Judicial Nominations" that contains at least an error or two in today's edition of The Wall Street Journal. The Star Press of Muncie, Indiana reports here that "Nominee Estrada being 'targeted.'" Jane Chastain has an essay entitled "Wimps, wimps, double wimps!" And The New York Post prints letters to the editor under the heading "Dems 'Judging' Estrada on Party Affiliation Alone."
Posted at 09:38 by Howard Bashman



Protests against Jeffrey S. Sutton's nomination to the U.S. Court of Appeals for the Sixth Circuit scheduled for today in California: "TalkLeft" supplies the details here.
Posted at 06:58 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Estrada backers cite ABA guidelines."

Bob Dole has an op-ed in USA Today that asks, "Will eroding judges' salaries also undercut justice itself?"

The Boston Globe reports here that "12 Democratic senators defend affirmative action in Mich. cases." Here's an article entitled "Judge rules church suits can proceed; Archdiocese's 1st Amendment motion rejected." In news relating to charges of judicial misconduct, this article reports that "Lopez lawyers castigate prosecutor; Say counsel treating case like 'vendetta.'" An editorial is entitled "Diversity defense." And columnist Ellen Goodman has an essay entitled "Demons in a death penalty case."

In news from Florida, The Los Angeles Times reports here that "Court to Hear Challenge to Florida's 'Scarlet Letter Law'; The state won't defend a public disclosure statute for some women giving children up to adoption." John Walker Lindh's inmate identification number awaits you in an article entitled "Lindh Begins Sentence at Prison in Victorville; The man from Marin County is serving 20 years for fighting on the side of the Taliban." In news from Los Angeles, this article reports that "ACLU Sues to Block Enforcement of L.A. Ordinance Against Homeless." And, finally for now, you can access here an article entitled "Ruling Favors L.A. Bank Created to Aid Development After Riots."
Posted at 06:31 by Howard Bashman



It's officially the dead of winter: How can you tell? Sports Illustrated's swimsuit issue arrives at newsstands today (cover image here).
Posted at 01:00 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "For Hispanic Groups, A Divide on Estrada; Political, Geographic Fault Lines Exposed." In news from Virginia, this article reports that "Vote Gives Felons 90 Days for Evidence; Va. Assembly Backs Extending Deadline," and you can access here an article entitled "Malvo Telecast Proposed."

Warren Richey of The Christian Science Monitor reports here that "Florida fights over death-row lawyers; Gov. Jeb Bush wants to cut capital-appeals agency. Critics say it undermines justice." Warren picked the perfect time to be in Miami.

The New York Times reports here that "Ruling Recognizes Patients' Right to Sue." A different NYTimes reporter had a story about the very same decision just two days ago. And here the Times runs an Associated Press article under the headline "Civil Liberties Lawyers Raise Questions About Web Filters."
Posted at 00:14 by Howard Bashman



Wednesday, February 19, 2003
700,000: Wow, according to this Web log's Bravenet hit counter, "How Appealing" has just experienced its 700,000th page visit since this Web log came into existence on May 6, 2002.
Posted at 23:46 by Howard Bashman



This is your brain on drugs: Perhaps you've seen that television commercial where the driver of a car is smoking marijuana while parked at a fast-food drive-through window and then speeds off, colliding the car at high speed into a young girl riding a bicycle. This opinion that the U.S. Court of Appeals for the Fifth Circuit issued today provides further, non-fictional proof (as if any were needed) that smoking marijuana and driving don't mix.
Posted at 23:00 by Howard Bashman



Bean there, done that: The U.S. Court of Appeals for the Fifth Circuit today issued this short per curiam opinion on remand from the U.S. Supreme Court's recent ruling in United States v. Bean, No. 01-704 (U.S. Dec. 10, 2002). You can access my summary of the Supreme Court's ruling in Bean at this link.
Posted at 22:53 by Howard Bashman



Available online at law.com: Tony Mauro has an article entitled "A Matter of Trusts; Using a takings argument to attack a major source of legal aid funding, IOLTA opponents may have picked the wrong amendment." And let me extend my personal thanks to the kind folks at law.com for making my February 2003 appellate column originally published in The Legal Intelligencer available online free of charge here to law.com's national audience. The title of the column is "Do's and Don'ts for Appellate Court Web Sites." You can access direct links to the best and worst appellate court Web sites mentioned in my column via this earlier post.
Posted at 22:46 by Howard Bashman



The Eleventh Circuit denies F. Lee Bailey's claim to $2 million attorney's fee that had been forfeited to the federal government: You can access the Eleventh Circuit's ruling, issued yesterday, at this link via FindLaw.
Posted at 22:32 by Howard Bashman



The U.S. Supreme Court's final oral argument calendar for the October 2002 Term: You can access it here, listing oral arguments for the two-week period beginning April 21, 2003. This could present your last chance to see an oral argument involving all of the Court's current Justices.
Posted at 22:17 by Howard Bashman



Love is a battlefield: The AP is reporting here that "Hustler Magazine Denied Access to Troops." You can access today's ruling by District Judge Paul L. Friedman of the U.S. District Court for the District of Columbia at this link. (This post's title courtesy of Pat Benatar.)
Posted at 22:12 by Howard Bashman



What about fire and famine? The Associated Press reports here that "Flooding Feared in Wake of the Blizzard." Relatedly(?), Gina Holland reports here that "U. of Mich. Filings Flood Supreme Court."
Posted at 22:10 by Howard Bashman



Tonight's music selection: "In Da Club" by 50 Cent. You can access the music video via this link.
Posted at 22:05 by Howard Bashman



Even more Federalist Society news: At the risk of becoming the place on the Web to turn for Federalist Society news, I have two quick things to report. First, tomorrow's debate on the judicial confirmation process at the National Press Club will indeed be televised, on C-SPAN's main television network (C-SPAN1, for those of you who like numbers with your letters). The original announcement of this rescheduled event can be accessed here.

Second, Senate Judiciary Committee Chairman Orrin G. Hatch will be appearing this Saturday afternoon at the Columbia Law School to address the topic "Becoming a Federal Judge: Nomination to Confirmation." If this is a speech that he has given on past occasions, Senator Hatch may need to revise his outline to focus on the filibuster process.
Posted at 17:23 by Howard Bashman



This evening's round-up of Miguel A. Estrada-related commentary: The Spartanburg Herald-Journal this past Friday contained an editorial entitled "Filibuster over Estrada is unreasonable, partisan obstructionism." The Providence Journal the same day ran an editorial that began, "The decision of Senate Democrats to filibuster the nomination of Miguel Estrada to the U.S. Court of Appeals for the District of Columbia is unfortunate, to say the least."

On Sunday, The Atlanta Journal-Constitution ran an editorial entitled "Critics fail to make case vs. Estrada." The Augusta Chronicle contained an editorial that same day entitled "Support Estrada." And The Grand Forks Herald ran an editorial entitled "Stop the filibuster."

On Monday of this week, Governor George E. Pataki had an op-ed in The New York Daily News entitled "The Senate should confirm Estrada." Also on Monday, Philip Terzian had an op-ed entitled "Latino pick for bench too Republican." Finally for now, in yesterday's edition of The Newark Star-Ledger, columnist Paul Mulshine had an essay entitled "The joke's on Bob Menendez."
Posted at 17:01 by Howard Bashman



Weather should be permitting: Time for another email from The Federalist Society:
Judicial Confirmations Debate -- Rescheduled for Tomorrow, February 20


Tomorrow, former White House Counsel C. Boyden Gray and Alliance for Justice President Nan Aron will debate the role of the United States Senate, the Senate Judiciary Committee, and individual Senators in the role of judicial confirmations, with the pending nomination of Miguel Estrada as a backdrop.

The Hon. C. Boyden Gray, former White House Counsel, Wilmer, Cutler & Pickering vs. Nan Aron, President, Alliance for Justice.

DATE: Thursday, February 20, 2003
TIME: 1:30 p.m. - 3:00 p.m.
LOCATION: The National Press Club
Holeman Lounge
529 14th Street, N.W.
Washington, D.C.
There is no cost for this event
C-SPAN2 was originally going to provide live coverage of the debate -- before inclement weather required its cancellation earlier in the week. No word yet on whether the debate will appear on TV (and over the Web) tomorrow.
Posted at 15:25 by Howard Bashman



Substitute panel of New Hampshire Supreme Court denies Justices' claims for attorneys' fees in defending against impeachment proceedings: You can access the opinion, issued yesterday, at this link. The concurring opinion contains the passage: "Though judicial restraint is less ubiquitous than desirable, it is no more recondite than in the case before us." Huh?
Posted at 15:18 by Howard Bashman



18th Annual Fifth Circuit Appellate Practice and Advocacy Seminar: Received the program and an invite in today's mail to the 18th Annual Fifth Circuit Appellate Practice and Advocacy Seminar, which is taking place in New Orleans on April 10 and 11, 2003. The seminar is sponsored by the Bar Association of the Fifth Federal Circuit, Loyola University School of Law Institute for Continuing Legal Education, and the American Academy of Appellate Lawyers. I'm not sure I will be able to find a way to attend, but it definitely does look to be worth the effort (details here and here).
Posted at 15:06 by Howard Bashman



Jeffrey Rosen contends "We'd be better off without Roe": Jeffrey Rosen, who serves as legal affairs editor at The New Republic, has an essay entitled "Worst Choice: Why we'd be better off without Roe" in the February 24, 2003 edition of that publication. Thanks to the reader who emailed to draw this to my attention.
Posted at 14:46 by Howard Bashman



The defendant didn't plan to kill them with kindness--a weapon of some sort would have been necessary: This post's title paraphrases a passage from an opinion that Circuit Judge Terence T. Evans issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit. Earlier in the opinion, Judge Evans notes that "It is, of course, certainly not surprising that someone who claims to hear bizarre commands from God and then embarks on a massive crime spree has more than a few mental problems."
Posted at 13:52 by Howard Bashman



Today's Ninth Circuit church vs. state ruling: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit unanimously ruled that officials at a California high school did not violate the First Amendment rights of the plaintiff-salutatorian "by censoring sectarian, proselytizing portions of a speech that Plaintiff gave at his high school graduation ceremony." You can access the court's opinion, by Circuit Judge Susan P. Graber, at this link.
Posted at 13:27 by Howard Bashman



"College Graduate Takes Helm at Harvard Law Review": You see, not just anyone qualifies this year. You had to graduate from college first. The Harvard Crimson has this report.
Posted at 13:11 by Howard Bashman



Another blogging law professor? Tung Yin of the University of Iowa College of Law has a new blog, and you can access it here. Some good news -- he likes TV!
Posted at 12:19 by Howard Bashman



Today's FindLaw commentator: Law Professor Michael C. Dorf has an essay entitled "The Misguided Quest for Geographic Uniformity in Capital Punishment."
Posted at 11:58 by Howard Bashman



Coverage from The Michigan Daily: Today's edition of the University of Michigan's student newspaper reports here that "'U' submits briefs to Supreme Court" and here that "Granholm brief argues colleges have discretion to shape policies." The Granholm in question is, of course, newly-elected Governor of Michigan Jennifer M. Granholm.
Posted at 11:45 by Howard Bashman



Available at National Review Online: Roger Clegg has an essay entitled "Corporate Correctness; Corporations line up with the University of Michigan."
Posted at 11:01 by Howard Bashman



The Second Amendment and the Ninth Circuit: In case you missed yesterday's ruling from the Ninth Circuit that involved the Second Amendment, you can access my summary here. The ruling, dare I say, triggered a bunch of press coverage in addition to the LATimes article I mentioned below.

The Sacramento Bee reports here that "Court's rift sets up key gun ruling; Judges' disavowal of colleagues' opinion could send a Second Amendment case to the Supreme Court." Bob Egelko of The San Francisco Chronicle has an article entitled "Alameda fairgrounds' gun ban upheld; Panel's decision may be prelude to top court ruling." The Oakland Tribune reports here that "Prohibition of guns on county land to remain; Show promoters, citing Constitution, vow to keep fighting 1999 ordinance." The Bay City News reports here that "Federal appeals court upholds county gun show bans." David Kravets, who covers the Ninth Circuit for The Associated Press, has an article entitled "Appeals court reluctantly rejects challenge to gun show ban." And The Arizona Daily Sun contains an article with a notable anti-Ninth Circuit flavor to it entitled "Court: No absolute right to carry weapons in public buildings."
Posted at 10:46 by Howard Bashman



He can't resist: Stuart Buck "can't resist commenting on the shockingly dishonest, small-minded, and intolerant letter written by a University of Georgia law professor in opposition to the selection of Justice Thomas as a graduation speaker this year." You can access Stuart's post here and the letter here at "How Appealing Extra."
Posted at 10:43 by Howard Bashman



"Philippe de Croy" debates the role of race in the Estrada nomination: Debates with himself, that is. You can access his thoughts here, at "The Volokh Conspiracy."
Posted at 10:39 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times reports here that "White House rips Estrada holdup." Frank J. Murray reports here that "The Supreme Court is considering an unusual church vs. state appeal this week that could govern whether shoppers can place their faith in kosher labels on food." In news from Virginia, "Senate OKs pro-life plates for vehicles." And the final item contained in "Inside the Beltway" discusses the Miguel A. Estrada confirmation battle.

David G. Savage of The Los Angeles Times has an article entitled "A 'Powerful Message' on Diversity; More than 60 groups file briefs in support of the University of Michigan's admissions policy." Henry Weinstein reports here that "Federal Court Backs County Ban on Guns; Alameda ordinance can bar firearms from public property, panel says in the latest decision in a long-running debate on the 2nd Amendment." Weinstein's article quotes both Eugene Volokh and Erwin Chemerinsky. (I'll provide more news coverage of yesterday's Ninth Circuit gun ruling soon in an upcoming post.) Yale Law Professor Bruce Ackerman has an op-ed entitled "Judicial Extremism: a German Antidote."

The Boston Globe reports here that "Harvard files brief on race use; Justices urged to uphold policies on admissions." And an article that the Globe has borrowed from The Baltimore Sun is entitled "ACLU grows in debate over antiterrorism steps."
Posted at 10:22 by Howard Bashman



The February 24, 2003 edition of The New Republic offers both Posner and Easterbrook: True, the Easterbrook in question is Gregg, but the Posner in question is Seventh Circuit Judge Richard A. Posner, and he is reviewing a biography of U.S. Supreme Court Justice William O. Douglas. You won't want to miss this review. (Link to review via "Sugar, Mr. Poon?")
Posted at 10:19 by Howard Bashman



The University of Michigan's U.S. Supreme Court merits briefs are now available online: You can access the Brief for Respondents in the Grutter case, which challenges the use of racial preferences in law school admissions, at this link. You can access the Brief for Respondents in the Gratz case, which challenges the use of racial preferences in undergraduate admissions, at this link.
Posted at 10:12 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports here that "Parties Gamble on Estrada Nomination; Fight Over Appeals Court Hopeful May Set Tone for '04 Presidential Campaign." You can access here an article entitled "Much Rides on Terror Case; Appeal Could Alter U.S. Strategy in Similar Prosecutions." And might the Post's editorial page sometimes look to "How Appealing" in search of topics on which to opine? I'm not telling. But you can access here an editorial that begins, "'Whether Congress may ban electric guitars from federal prisons might seem an unimportant -- even trivial -- question,' writes Judge David S. Tatel of the U.S. Court of Appeals for the D.C. Circuit. Well, yes. But sometimes a case's triviality masks the importance of the principle it considers."

The New York Times contains an article entitled "A Challenge in California Over Decisions for the Coast." And you can access here an editorial entitled "Bill Frist's Prescription."
Posted at 00:15 by Howard Bashman



Tuesday, February 18, 2003
"This is how the filibuster will fall to pieces": Byron York has this report in tomorrow's edition of The Hill.
Posted at 23:44 by Howard Bashman



Tonight's round-up of reader email on the Miguel A. Estrada confirmation battle: Here's one debate that inclement weather hasn't canceled. The reader whose email I posted and responded to here this afternoon replies:
Thank you for maintaining such an engaging site ... it's a true service to the legal profession.

Your response to my e-mail suggested a question to me that I had not really contemplated seriously before: would the quality of the judiciary be better or worse off, on average, if, in effect, 60 votes were generally required for confirmation? While I have not thought about it at length, I don't think the answer is an easy "worse off." My preliminary impression is that it would lead to more doctrinal or pragmatic judges (say, more Judge Boudin's or Judge Diane Wood's) and fewer judges that appear, at least at first blush, to have more of an ideological axe to grind (say, fewer Judge Luttig's or Judge Reinhardt's). I know that this raises a distinction that you are skeptical of. But as a moderate-to-liberal minded lawyer, I would feel completely comfortable if every single judicial vacancy in the nation were filled with clones of Judge Boudin, although I may disagree with him on the margin, while the prospect of a hundred Judge Luttig's or Judge Sentelle's fails to comfort me at all, and I at least understand why the prospect of a hundred Judge Reinhardt's may not enthuse others.
A reader affiliated with the Republican party responds as follows to the same earlier post:
The correspondent's argument is a theory, but it's not the one that Senator Leahy himself adopted when he took the floor last week and addressed his earlier statements. He simply denied that they applied here, claiming that he was talking about "holds" only and that his views were taken "out of context." Obviously if you read the quotes in full you can judge for yourself that response. Suffice it to say that he said he was opposed to "filibusters" as well as "holds," and that he was opposed to a filibuster with Thomas, too. So given the opportunity to say that he'd changed his mind, he passed. He just spun.

Regarding Hatch, this argument is a bit exasperating. Of course Hatch wanted greater scrutiny, but he *never* advocated filibusters, and he beat down the small group of Republicans who wanted to filibuster Paez and Berzon. (Cloture votes after a few hours of debate carried 85-14 and 86-14, with basically all Republican leaders and almost all Judiciary Comm. members on the pro-cloture side.)

Have we crossed the Rubicon, so to speak? Can we still preserve the 50%+1 traditional interpretation of "consent" that ruled for 200-plus years? Perhaps. Certainly that is weighing heavily on many Senators' minds as they look for a way through this. Could Hatch (or, rather, future Chairman Specter) plausibly resist a Republican-backed filibuster effort against President Kerry's nominees in 2005? It's hard to imagine. Are we looking at a return to a pure patronage system where Senators literally pick circuit court nominees as they once did, and as some still do? (Senator Durbin has said repeatedly on the floor that he has "appointed" or "nominated" district court judges, which seems to show how some have blurred the lines of responsibility....)

The key challenge right now is, yes, of course -- to get Estrada through -- but also to preserve the constitutional standard for judicial confirmations that both parties have always followed. That's an equally important goal at present. To some, it's most important.
Another reader emails:
You make some very good points. Re the third, I think this is pretty clearly a Supreme Court battle being fought at a time when it can be fought -- i.e., when naming the nation's first Hispanic justice is not on the line. I believe the Democrats are miscalculating here, that this is a battle not worth fighting, and any victory destined to be Pyrrhic.

Although anything can happen, the most likely scenario has Chief Justice Rehnquist stepping down at the end of this term, and perhaps O'Connor, too. The Rehnquist retirement is, logically, a lock -- there doesn't seem to be a reason for Rehnquist to stick around and risk a Democratic president naming his replacement.

From a Democratic perspective, Rehnquist for Estrada is, at worst, an even trade, and the balance of the Court remains unaffected. And, if O'Connor were to retire, the Democrats would have a very strong argument for requiring a "moderate" replacement, again, to maintain the balance of the Court. A filibuster at the Supreme Court level is also not unprecedented, and would be a much easier to sell to the public. The Estrada filibuster risks creating a dangerous precedent, cited by you in point one. The Democrats also run a not insignificant risk of a public backlash.

That being said, Republican laments ring hollow. Please, after the way many of Clinton's quite-moderate (it was his -- some would say feckless -- policy to name judicial moderates to avoid the battles that Bush invites with his choices) nominees were treated by the Republican-controlled senate, the GOP has unclean hands and should not be heard to complain. And this judicial activism mantra is a complete farce, when "originalists" and "strict constructionists" are bringing us Alden v. Maine and its progeny, a line of cases that does not seem to offend the conscience of senators like Orrin Hatch.
And yet another reader comments:
Sen. Kennedy said that if they confirmed Estrada for the D.C. Circuit, they would have a difficult time explaining their opposition to Estrada as a Supreme Court justice. On the D.C. Circuit, it is difficult, in my opinion, to accumulate a record that average Americans will find offensive. The average joe who supports or opposes abortion or school vouchers of the death penalty doesn't understand or care about Chevron doctrine or antitrust law. It is highly unlikely that Estrada will leave a smoking gun on that circuit, a circuit where the each member of the three-judge panels often agree with one another.

Personally, I suspect that while the Senate Republicans would love to confirm Estrada in the next five minutes, they may have another agenda at work. They could make a lot of hay with the gentleman's filibuster. It's not like there aren't a bunch of other conservatives available in triple-A. And while this filibuster may not embarrass the Democrats, there is certainly no risk to the Republicans to make it an embarrassing situation, whether or not they break the filibuster. A Democratic friend once remarked that the Democrats almost always overplay their hand. (He obviously didn't remember Newt Gingrich when he was speaking. I think Congress always overplays its hand.) They certainly did with the homeland security bill on the eve of the most recent election. Arguably, they were about to do so when Trent Lott made his infamous comments about Strom Thurmond. And then, just to bait the Democrats a little more, Bush renominates Owen and Pickering. Sure, Bush had to renominate them, but it baited the Democrats nevertheless. Defenders of Leahy may respond that, sure, this is overreaching, but our base of Ralph Neas and Nan Aron won't let us do otherwise. In a sense, the GOP and the Dems are partners because both will cite the Estrada filibuster in their fundraising memoranda.
Another reader emails:
Democrats now complaining about Senator Hatch, and his treatment of Democratic nominees, should focus their blame on the President Clinton, not Senator Hatch. A President has a duty to expend political capital on judicial nominees. President Clinton was notorious for not backing his nominees (see Lani Guanier) and his failure to challenge Senator Hatch or anyone else is the prime reason many of his nominations never moved. I expect both sides to use underhanded tactics outside the public eye to thwart the other party's potential nominees. Only when the President uses his or her political capital will those shenanigans be exposed. Orrin Hatch would not have gotten up on the Senate floor and defended the Republican's right to not hold votes on President Clinton's nominations. But President Clinton never forced such a debate because he was too enmeshed in, uh, other matters.

One other note. One of your posters suggests that Democrats are merely engaged in payback, and that such tactics are appropriate to prevent another party from unfairly tilting the judicial balance by not voting on nominees. That argument ignores stalling tactics that occurred under the first President Bush. Remember, this is the SECOND time John Roberts has been nominated.
Finally, an associate at a large, prestigious Wall Street-based law firm emails:
First, let me say how much I enjoy your site. However, I think you are letting your pro-Estrada fervor get the better of you. I think, with all due respect, your attempt to distinguish Senator Orrin Hatch's 1997 comments before the Federalist Society is completely disingenuous. The fact of the matter is that what Hatch did to Clinton's nominees was much worse (or at least equal) to what is being done to Bush's nominees now. Many of Clinton's nominees did not even get a hearing, much less a vote. Isn't that much worse than a filibuster? You can't filibuster something that never moves to the floor.

The truth, although few will admit it, is that both sides, when they had the opportunity, have done the same thing to other side when it comes to nominations. (The true politicizing of judicial nominees didn't begin with Bork in 1987, as is commonly stated, but rather in the successful filibuster by Republicans in 1968 to President Johnson's nomination of Justice Fortas to be Chief Justice.) To pretend otherwise (or to misrepresent one's prior record and statements, as Hatch has done in an unbelievably hypocritical fashion) isn't going to advance the process. OF COURSE what Hatch meant in 1997 was that you need to more closely question people about their views on judicial issues. And that's precisely what the Democrats have tried to do, but Estrada has refused to let them. To claim that Estrada "has testified extensively concerning the approach he would take on deciding cases" is a gross misreading of the hearing transcript -- all Estrada has essentially said is that he would read the briefs, listen to oral argument and read the cases. That is not a description of your jurisprudential philosophy or views. The Democrats are doing now (and sticking to their guns about it) exactly what Hatch said he needed to do in 1997 with nominees like Estrada -- the only difference is that a Democrat was appointing the nominees then. When he didn't like an answer, or a nominee, Hatch's solution was to not schedule a vote or a hearing. Isn't what the Democrats are doing (and did with Pickering, when they had the majority) more honest and open?

Is Leahy also being hypocritical -- perhaps. He was making a statement then, however, about anonymous holds, not about a public filibuster, but he does say he would oppose a filibuster, I admit. (Although the Democrats aren't saying now in their filibuster they will kill the nomination, as was the context of Leahy's statement -- the Democratic filibuster is premised on the fact that they will drop the filibuster if Estrada answers the types of questions that Hatch said needed to be answered by nominees without paper trails and gives them the type of information in Estrada's SG memos that has previously been released by nominees.) But to put blinders on and say that Hatch isn't being hypocritical shows a lack of impartiality in this whole, overheated debate.

Finally, is it such a bad thing that we strive to appoint judges that will garner the respect and support of 60 senators? If you look at most Supreme Court nominees, for example, most of them achieved well over 60 votes -- some nominees by both Republican and Democratic Presidents were confirmed with 90+ votes. Don't we have a better judiciary if things aren't tilted to the extreme left or the extreme right? I think rather than bemoaning the result of the Estrada filibuster, we should look as one step to the ultimate goal of getting a better federal judiciary.
Thanks again, everyone, for writing.
Posted at 23:07 by Howard Bashman



Available online at law.com: Jason Hoppin reports here that "2nd Amendment Fight Steals Show in Gun Ban Case; Conservative panel enters fray over individual rights." Here's an article entitled "Judges in 2nd Circuit Still Conflicted Over Federal Death Penalty." In news from New York, "Conviction Holds Even Though Defender Had Prosecuted Case." Finally for now, this article reports that "Texas Court Reverses $43M Judgment Against Automaker."
Posted at 22:55 by Howard Bashman



Doesn't Suck anymore: Another blog by someone who used to write for Suck. (Via "Soundbitten.")
Posted at 22:29 by Howard Bashman



University of Georgia School of Law Professor today sends "open letter" opposing choice of Justice Clarence Thomas as graduation speaker: The law professor in question is Donald E. Wilkes, Jr. His open letter begins:
Dear Colleagues, Law Students, and Other Members of the Law School Community:

On Monday, November 25, 2002, the law faculty of the University of Georgia School of Law received a memorandum from Dean David Shipley which begins as follows: "I am pleased to announce that Justice Clarence Thomas has accepted the invitation extended by me, Class of 2003 President Josh Belinfante, Class of 2003 Vice President Megan Jones, and Class of 2004 Vice President Rebecca Franklin to be our graduation speaker on May 17, 2003."

The decision to invite Justice Thomas is appalling, unwise, and perverse–the embodiment of bad judgment. Anyone who has carefully examined his opinions in the fields of criminal procedure, civil rights, civil liberties, the rights of prisoners, and the writ of habeas corpus knows that Justice Thomas has one of the most anti-human rights voting records in modern Supreme Court history. This man does not deserve the honor of being invited to speak at the law school graduation ceremony. He is inimicus libertatis, the enemy of liberty. A worse choice of a judge as graduation speaker could hardly have made. Inviting a judge with his lamentable record on individual rights issues is a terrible mistake and sets a bad precedent. He is not the type of judge who should be held up as an example for students on the verge of entering the legal profession. He is unworthy of the high honor being bestowed on him by this law school. His appearance here will, in the eyes of future generations, be a blot on the reputation of and an embarrassment to this law school.
You can access the complete text of the letter at "How Appealing Extra" via this link. Thanks to a reader for forwarding the letter to me.
Posted at 22:07 by Howard Bashman



The cover story of The Advocate asks "Is there a gay man on the U.S. Supreme Court?" You can access the cover story at this link (via "Eschaton"). Also in that issue, "David J. Garrow counts the potential votes."
Posted at 21:57 by Howard Bashman



"Estrada battle symbolises US judicial values": British spelling alert! Must be an article from The Financial Times. And this past Sunday, Myriam Marquez had an op-ed entitled "Democrats' desperate stretch" in The Orlando Sentinel.
Posted at 21:05 by Howard Bashman



Abolish the Texas Court of Criminal Appeals? Today's edition of The Austin American-Statesman contains an editorial that calls for the abolition of Texas' court of last resort in criminal cases. The editorial notes that "All other states except Oklahoma have one high court to handle both criminal and civil appeals, and the United States has gotten by with one Supreme Court for more than two centuries." (Link to editorial via "TalkLeft.")
Posted at 20:56 by Howard Bashman



From the February 17, 2003 issue of The National Law Journal: Marcia Coyle has an article entitled "A Death Penalty Duel; U.N. court orders U.S. to stay executions." Gary Young has an article entitled "Grounded by the IRS; The 9th Circuit ruled that two IRS lawyers committed fraud in tax case." And an op-ed by Vivian Berger is entitled "Consenting Adults."
Posted at 18:02 by Howard Bashman



"White House Says 'Liberal Wing' Stalling Judge": Reuters offers this report. You can access a transcript of today's White House press briefing -- from which the "liberal wing" comment is taken -- at this link.
Posted at 17:24 by Howard Bashman



"Groups Urge Limit on Govt. Spying Powers": Gina Holland of The Associated Press offers this report, which begins: "Civil liberties groups are using a long shot approach in an effort to get the Supreme Court to limit the government's power to spy, filing an appeal Tuesday on behalf of people who don't even know they're being monitored." You can access the cert. petition in question at this link.
Posted at 17:20 by Howard Bashman



Point, counterpoint: The following email arrived this afternoon:
I understand why someone of your view on the Estrada nomination would find Senator Leahy's former comments, shall we say, entertaining. Nonetheless, I personally do not find them compelling when viewed acontextually. Leahy's view on holding up-or-down votes on judges may well have changed after experiencing the refusal of the Hatch Judiciary Committee to move on any number of qualified nominees, including those for whom no blue slip blocked movement, such as Elena Kagan or Alex Snyder, and even nominees reported favorably out of the committee, such as Bonnie Campbell, were denied an up-or-down vote. (Hatch's commitment to the priority of up-or-down votes seems to me to be rather newfound.) After such antics have been employed to shift the ideological balance of the judiciary, one becomes more open to meeting force with force, so to speak. That is, one who is opposed in general principle to denying nominees an up-or-down vote may nonetheless reasonably conclude that in a context where numerous federal appellate court nominees have been denied such a vote, that benefits of those denials should not inure to the very people who have adopted such radical means in the first place. I suspect that Leahy would be willing to trade a vote on all of these formerly denied Clinton nominees in exchange for a vote on the Bush nominees for the seats that remained open.

That said, it is also the case that Senator Leahy is not alone in conforming his views to the current circumstances. Although I have not seen it quoted on your site, Senator Hatch himself, just a few years ago, expounded on the importance of the Senate probing the jurisprudential views of judicial nominees, the very questioning that Estrada has refused to engage in:
"I believe the Senate can and should do what it can to ascertain the jurisprudential views a nominee will bring to the bench in order to prevent the confirmation of those who are likely to be judicial activists. Determining who will become activists is not easy since many of President Clinton's nominees tend to have limited paper trails. Nor is there a chemical eye-dropper test we can run which will turn likely activists blue. Determining which of President Clinton's nominees will become activists is complicated and it will require the Senate to be more diligent and extensive in its questioning of nominees' jurisprudential views."
-- Address of Senator Orrin G. Hatch before University of Utah Federalist Society chapter Feb. 18, 1997 (emphasis added).
I have three comments in response to this email.

First, should it be easier for a President to get his judicial nominees confirmed when the same political party controls the White House and has a majority in the U.S. Senate? In the past, I think that the answer was understood to be "yes." Now the answer, at a minimum, is "not always." Thus, in the future, so long as there are forty-one Republican Senators willing to oppose a Democratic nominee, a Democratic President and a Democratic-controlled U.S. Senate won't be able to put that nominee on the bench.

Second, while it's impossible to read Senator Hatch's mind to know for sure what he meant by a "nominee's jurisprudential views," Miguel A. Estrada has testified extensively concerning the approach he would take to deciding cases. What he has avoided is providing his personal opinions about issues that have in the past or could in the future come before courts. But he has also explained that his personal views will be irrelevant to how he decides legal issues that come before him as a judge. Many people of good will question whether it is possible for judges to put aside their personal and political views in deciding legal issues. I believe that it is indeed possible, as I have explained in more detail in my essay from December 2002 entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?"

Third and finally, it cannot be denied that the Democratically-controlled U.S. Senate last year allowed the confirmation of several federal appellate court nominees who could turn out to be very conservative judges -- much more conservative than Estrada is likely to be -- which raises the question why has Estrada's nomination resulted in the confirmation battle to end all confirmation battles? I can think of several possible explanations, but I find none of them to be satisfactory.
Posted at 16:30 by Howard Bashman



Battle between Attorney General of Texas and County's District Attorney over propriety of death sentence reaches Fifth Circuit: The Attorney General of Texas wishes to confess error, while the District Attorney from the County that prosecuted the convicted killer argues that the error was waived. When the convict's habeas petition reached a federal district court and the District Attorney sought to intervene in the matter, the district court ruled that the application for intervention presented a non-justiciable political question. Today the U.S. Court of Appeals for the Fifth Circuit reversed the trial court's political question ruling and sent the petition to intervene back to the trial court to be considered on the merits. You can access the Fifth Circuit's opinion here.
Posted at 16:07 by Howard Bashman



Loyola Law School Professor Rick Hasen joins the ranks of blogging law professors: You can access his brand new blog -- "Election Law" -- at this link. One of Rick's first posts pertains to Miguel A. Estrada's nomination to serve on the D.C. Circuit.
Posted at 16:02 by Howard Bashman



Civil liberties and Arab-American groups ask U.S. Supreme Court to review ruling of Foreign Ingelligence Surveillance Court of Review: You can access the cert. petition here and a press release from the ACLU at this link. The Court of Review's ruling is available here, and a transcript of the first ever oral argument before that court can be accessed here. Of course, because the organizations challenging the Court of Review's ruling were not parties in the Court of Review, they are also asking the Supreme Court for permission to intervene.
Posted at 15:49 by Howard Bashman



"Gulf War Vet on Death Row Seeks Clemency": The Associated Press offers this report.
Posted at 14:12 by Howard Bashman



En banc Ninth Circuit may yet examine meaning of the Second Amendment's right "to keep and bear arms," a decision issued today suggests: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today issued a very interesting opinion resolving "whether a local ordinance prohibiting the possession of firearms on county property infringes upon constitutional rights protected by the First and Second Amendments." The Ninth Circuit affirmed the district court's denial of a preliminary injunction sought by plaintiffs, individuals who promoted gun shows on county fairgrounds in Alameda County, California.

The opinion for the panel was written by Circuit Judge Diarmuid F. O'Scannlain. The opinion's discussion of the plaintiffs' Second Amendment challenge is worth reproducing in full:
Finally, we turn to Nordyke's challenge to the Ordinance on Second Amendment grounds. The Second Amendment provides: "A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed." U.S. Const. amend. II. The meaning of this amendment and the extent of the constitutional right it confers have been the subject of much scholarly and legal debate.

The "individual rights" view advocated by Nordyke has enjoyed recent widespread academic endorsement. See, e.g., Sanford Levinson, The Embarrassing Second Amendment, 99 Yale L.J. 637 (1989); Eugene Volokh, The Commonplace Second Amendment, 73 N.Y.U. L. Rev. 793 (1998). In addition, Nordyke finds support for the individual rights interpretation from our sister circuit's recent holding in United States v. Emerson, 270 F.3d 203 (5th Cir. 2001), that the Second Amendment "protects the right of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms." Id. at 260.

We recognize that our sister circuit engaged in a very thoughtful and extensive review of both the text and historical record surrounding the enactment of the Second Amendment. And if we were writing on a blank slate, we may be inclined to follow the approach of the Fifth Circuit in Emerson. However, we have squarely held that the Second Amendment guarantees a collective right for the states to maintain an armed militia and offers no protection for the individual’s right to bear arms. In Hickman v. Block, 81 F.3d 98, 102 (9th Cir. 1996), we held that "it is clear that the Second Amendment guarantees a collective rather than an individual right. Because the Second Amendment guarantees the right of the states to maintain armed militia, the states alone stand in the position to show legal injury when this right is infringed." (citations and internal quotation marks omitted).

As a result, our holding in Hickman forecloses Nordyke's Second Amendment argument. We specifically held there that individuals lack standing to raise a Second Amendment challenge to a law regulating firearms. Id. at 103. Because "Article III standing is a jurisdictional prerequisite," id. at 101, we have no jurisdiction to hear Nordyke's Second Amendment challenge to the Ordinance. See Ex parte McCardle, 74 U.S. (7 Wall.) 506, 514 (1868) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is the power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.").[fn.4]

---------------------------------------------------------
fn.4 We should note in passing that in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), another panel took it upon itself to review the constitutional protections afforded by the Second Amendment even though that panel was also bound by our court's holding in Hickman. The panel in Silveira concluded that analysis of the text and historical record led it to the conclusion that the collective view of the Second Amendment is correct and that individual plaintiffs lack standing to sue.

However, we feel that the Silveira panel's exposition of the conflicting interpretations of the Second Amendment was both unpersuasive and, even more importantly, unnecessary. We agree with the concurring opinion in Silveira: “[W]e are bound by the Hickman decision, and resolution of the Second Amendment issue before the court today is simple: plaintiffs lack standing to sue for Second Amendment violations because the Second Amendment guarantees a collective, not an individual, right." Silveira v. Lockyer, 312 F.3d 1094 (9th Cir. 2002) (Magill, J., concurring). This represents the essential holding of Hickman and is the binding law of this circuit.

There was simply no need for the Silveira panel's broad digression. In a recent case, an individual plaintiff cited to the Fifth Circuit's holding in Emerson and argued that the Second Amendment protects an individual right to bear arms. United States v. Hinostroza, 297 F.3d 924, 927 (9th Cir. 2002). However, we summarily, and properly as a matter of stare decisis, rejected the Second Amendment challenge on the grounds that it is foreclosed by this court's holding in Hickman.

Therefore, despite the burgeoning legal scholarship supporting the “individual rights” theory as well as the Fifth Circuit’s holding in Emerson, the Silveira panel’s decision to re-examine the scope and purpose of the Second Amendment was improper. Because "only the court sitting en banc may overrule a prior decision of the court," Morton v. De Oliveira, 984 F.2d 289, 292 (9th Cir. 1993), the Silveira panel was bound by Hickman, and its rather lengthy re-consideration of Hickman was neither warranted nor constitutes the binding law of this circuit. Accordingly, we ignore the Silveira panel's unnecessary historical disquisition as the dicta that it is and consider ourselves bound only by the framework set forth in Hickman.
Also not to be ignored is the specially concurring opinion of Circuit Judge Ronald M. Gould, which begins:
I join the court’s opinion, and write to elaborate that Hickman v. Block, 81 F.3d 98 (9th Cir. 1996), was wrongly decided, that the remarks in Silveira v. Lockyer, 312 F.3d 1052 (9th Cir. 2002), about the "collective rights" theory of the Second Amendment are not persuasive, and that we would be better advised to embrace an "individual rights" view of the Second Amendment, as was adopted by the Fifth Circuit in United States v. Emerson, 270 F.3d 203, 260 (5th Cir. 2001), consistent with United States v. Miller, 307 U.S. 174 (1939).
You can access both opinions at this link.
Posted at 13:25 by Howard Bashman



"Halting Estrada won't beat GOP": Gregory Tejeda, in today's installment of his "Hispanidad" column for UPI, offers these thoughts.
Posted at 12:27 by Howard Bashman



Juan Non-Volokh asks "whether Estrada's nomination would have provoked the same level of opposition were he not Hispanic": You can access Juan's answer here. Apparently Juan's partially-Hispanic pseudonym gives him special insight into this matter.
Posted at 12:17 by Howard Bashman



"Denying Mr. Estrada an Up-or-Down Vote Would Set a Dangerous Precedent": You can access this press release via the Web site of the U.S. Senate's Republican Policy Committee.
Posted at 12:06 by Howard Bashman



"U-M to file Supreme Court briefs Tuesday; will be joined by more than 300 organizations": This press release was posted yesterday to the University of Michigan's Web site.
Posted at 12:03 by Howard Bashman



The U.S. Supreme Court is closed for business today, as is the U.S. Court of Appeals for the Third Circuit: Tom Goldstein reports the U.S. Supreme Court news here. The University of Michigan and its "friends" thus get a one-day extension of time for their briefs -- which were due today -- in the racial preferences in student admissions cases. The Third Circuit's closure today is just something I've heard through the grapevine. The First Circuit is proudly open (seen the message scrolling across the bottom of its main Web page). As for the Second Circuit, who knows?

Update: The Fourth Circuit is closed today too.
Posted at 11:52 by Howard Bashman



Someone is "the Howard Bashman of theoretical jurisprudence"? So says Harvard Law student Nathan Oman over at his blog, "A Good Oman."
Posted at 11:44 by Howard Bashman



Thomas Sowell's "Random Thoughts": Sowell writes, "One of these days the 9th Circuit Court of Appeals may declare the Constitution unconstitutional." Hey, that's not very nice. And it reminds me of the USA Today hackers who posted the fake news that the Ninth Circuit had declared the Pentagon's shape unconstitutional because it too closely resembled the Star of David (see news reports here and here). (Link to Sowell's column via "Half Baked.")
Posted at 11:39 by Howard Bashman



"Four Remaining Questions About Copyright Law After Eldred": Peter K. Yu offers these thoughts at GigaLaw.com.
Posted at 11:18 by Howard Bashman



For those readers without access to the June 1998 Congressional Record: An email from a reader that I posted here on Sunday contained the following passage:
Just a little more than four years ago, Senator Leahy stated on the Senate floor that "I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998). Sadly, this principled position appears to have evaporated into the ether now that the President is a member of the opposite party. Shame indeed.
Readers who don't have access to the Congressional Record (or who don't want to take the time to track down Senator Patrick J. Leahy's statement in the online version of the Record) can find the very same statement here in this press release from June 18, 1998 available via Senator Leahy's Web site. (Link to press release via "Croooow Blog.")
Posted at 10:31 by Howard Bashman



"Now, Digging Our Way Out": Today's edition of The Philadelphia Inquirer contains this report. The photo accompanying the article captures well the scene where I live. Meanwhile, it's been snowing again all morning thus far.
Posted at 09:13 by Howard Bashman



Today's FindLaw commentators: Julie Hilden asks "If the Supreme Court Holds That Public Libraries Cannot Require Software Filters, Are There Other Ways to Protect Children on the Web?" And Alec Walen asks "If [Roe v. Wade] Is Overruled, What Arguments Should Abortion Rights Supporters Use?"
Posted at 09:08 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Bitter Colo. Water Fight Heads to Court" and here an article entitled "Nev. Moves to Repeal Sheep-Shearing Law."
Posted at 09:04 by Howard Bashman



An email from The Federalist Society: The following email just arrived from The Federalist Society:
Due to severe weather, the debate on Judicial Confirmations, originally scheduled for today at the National Press Club, is POSTPONED.

An email will be sent out in the near future with the new date and time for the debate.

Thank you for your understanding.
I previously mentioned this debate -- entitled "What Does the Estrada Battle Mean in the War to Confirm the President's Judges?" -- in a post you can access here.
Posted at 08:13 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Washington Times reports here that "GOP to use recess to press for Estrada." You can access here an article entitled "Ex-military brass support affirmative action." An article reports that "Secularists target prison charity." In an op-ed, Wesley Pruden asks "When can the judge watch the machine?" Bruce Fein has an op-ed entitled "Thwarting a useful jury experiment." Edward Blum and Roger Clegg have an op-ed entitled "Summer of discrimination." And Michelle Malkin has an op-ed that runs under the headline "Direct flight to the nearest courtroom."

In USA Today, Joan Biskupic reports that "Same-sex couples are redefining family law in USA; Courts expand definition of 'parent,' but rights still limited in some states." Here's a list of "recent cases" that accompanies Joan's article. An article reports that "Government tries to keep branches unbroken; Continuity of Supreme Court, Congress, presidency mulled." An editorial is entitled "States' new diversity plans fail graduate students," and a related op-ed by Roger Clegg runs under the heading "Diversity is overhyped."

The Los Angeles Times reports here that "ABA Adopts Guidelines for Capital Cases; Bar group proposes 'minimum standards' for lawyers whose clients face the death penalty." In news from California, an article reports that "Lesbian Sues Over Physician's Refusal to Do Insemination; Appeals court reviews case that pits civil rights claim against a doctor who declined for religious reasons to perform procedure." From Virginia comes news that "South Vietnam Flag Bill Dies in Subcommittee." And in the category of letters to the editor, you can access here letters that run under the heading "Cutting a Moral Path Through Bad Law" and here letters that run under the heading "A Better Way to Solve Death Row's Problems."

The Boston Globe reports here that "Mass. backs University of Michigan; AG weighs in for affirmative action." And an op-ed by Carl Takei is entitled "A lesson of injustice from 1942."
Posted at 07:54 by Howard Bashman



In Tuesday's newspapers: In an editorial, The Washington Post calls on the U.S. Senate to "Just Vote" on pending judicial nominees.

The New York Times reports here that "Groups Support University of Michigan Affirmative Action Case." And the final version of Robert Pear's article entitled "A Court Expands the Rights of Patients to Sue H.M.O.'s" has been revised to address the concern I noted below on reading an earlier version of that article.
Posted at 00:17 by Howard Bashman



Monday, February 17, 2003
Somewhere else that Ninth Circuit Judge Alex Kozinski has visited: The Angry Clam's law school class at UCLA. Mr. Clam provides this not to be missed report.
Posted at 19:28 by Howard Bashman



"U.S. Appeals Court Expands Patients' Rights Over H.M.O.'s": Robert Pear, who has covered the ERISA beat for The New York Times for years, late today has this report (which probably will run in tomorrow's newspaper) on a ruling that the U.S. Court of Appeals for the Second Circuit issued on February 11, 2003. I reported on that ruling here on the day it issued. Unfortunately, Pear's article fails to mention Circuit Judge Guido Calabresi's very interesting dissent from the ruling.
Posted at 18:59 by Howard Bashman



The University of Michigan's Web site pertaining to its admissions lawsuits: The University of Michigan has set up a Web site "as a resource for journalists and others who need background information" regarding the two racial preferences in student admissions lawsuits that are now pending before the Supreme Court of the United States. You can access the Web site at this link, and you can access specific court filings via this link.
Posted at 16:35 by Howard Bashman



University of Michigan President Mary Sue Coleman's Address to the American Council on Education this afternoon: Her speech began:
Tomorrow the University of Michigan will file its briefs in the two admissions lawsuits now before the Supreme Court. We will be joined by over 300 organizations filing more than 60 amicus briefs in support of the University. This might well turn out to be the largest number of briefs ever filed in the history of the Court on a single issue.

It is an unprecedented flood that speaks volumes about the importance and the far-reaching impact of this upcoming decision. I am encouraged to see such overwhelming support from every major segment of society, including the corporate community and the United States military.

We are at a critical crossroads in American life. Today I want to explore what is at stake not just for Michigan but for all of higher education, and what is at stake for the United States if we turn away from a fundamental principle that has worked well for 25 years.

The debate over the landmark 1978 Supreme Court decision called The University of California Board of Regents vs. Bakke is a debate about the future direction of this country. The Bakke decision has served as a fair and effective guidepost to help our nation’s campuses reflect the diversity of American society; yet its impact has reached far beyond the classroom into virtually every sector of the nation.
You can access the complete prepared text of Mary Sue Coleman's remarks this afternoon at this link.
Posted at 14:55 by Howard Bashman



"One For The Ages; Snowfall totals could rival region's worst storm in a century": Today's edition of The Philadelphia Inquirer provides this report. The snow appeared to have stopped a little while ago, and then a snow plow (thank Zeus!) performed its magic down the street in the out of the way place where I live. But moments ago it began snowing at a pretty good clip once again.
Posted at 14:45 by Howard Bashman



"Some Ex-Officers Back Affirmative Action": The Associated Press reports here that "Some of the nation's best known retired military officers and former top Pentagon officials will file a Supreme Court brief supporting affirmative action admissions at the University of Michigan." Tomorrow is the deadline for filing U.S. Supreme Court amicus briefs in support of the University of Michigan's position that the school's use of racial preferences in student admissions is lawful. The university's own briefs in the two cases are also due to be filed tomorrow.
Posted at 14:40 by Howard Bashman



"Google Deal Ties Company to Weblogs": Amy Harmon has this report in today's edition of The New York Times.
Posted at 10:45 by Howard Bashman



"White House Rallies Activists For Pressure on Estrada Nomination": The Cybercast News Service has this report.
Posted at 10:31 by Howard Bashman



"California Judges Clamp Down on Publicity": Concerning lawsuits pending in state court, that is. The Associated Press offers this report.
Posted at 10:29 by Howard Bashman



"24/7 sessions could pass Estrada": Robert Novak provides this commentary in today's edition of The Chicago Sun-Times.
Posted at 08:01 by Howard Bashman



Elsewhere in Monday's newspapers: This morning's edition of The Washington Times contains an editorial entitled "Filibuster schmilibuster."

The San Francisco Chronicle reports here that "Heavy hitters back Michigan in race case; Stanford, Intel among those filing briefs."

This morning's edition of The Los Angeles Times contains an article entitled "Broad Issues Put Bush and Democratic Contenders on a Collision Course."

The Boston Globe reports here that "Study shows US blacks trailing; Immigrants from Africa, Caribbean found to fare better." Finally for now, the newspapers ombudswoman addresses the question "Fetus or baby?"
Posted at 07:52 by Howard Bashman



"Judge defends seeing inmate from death row; Attorney General alleges bias": Today's edition of The Mercury News contains this report concerning the conduct of Ninth Circuit Judge Alex Kozinski. The Los Angeles Times broke the story yesterday in an article you can access here.
Posted at 06:42 by Howard Bashman



Today is the federal holiday of Presidents' Day: As a result, most every federal and state appellate court will be closed today, with the exception of the U.S. Court of Appeals for the Fifth Circuit (details here). In honor of the holiday, I'm pleased to make reference to one of the greatest songs and music videos of all time, "Lump" by The Presidents of the United States of America.
Posted at 06:23 by Howard Bashman



In Monday's newspapers: In an article pertaining to the accused teenage DC-area sniper, The Washington Post reports here that "Fairfax Uses Voter Lists, Not DMV, for Jury Pools." Both Third Circuit Chief Judge Edward R. Becker and another acquaintance of mine are quoted in an article entitled "Independence Behind Bars in Philly." An editorial is entitled "Medicate to Kill." And columnist William Raspberry takes a look at the nomination of Charles W. Pickering, Sr. to serve on the U.S. Court of Appeals for the Fifth Circuit.

Finally for now, The New York Times reports here that "Blackberry Battle Could Reverberate."
Posted at 00:09 by Howard Bashman



Sunday, February 16, 2003
Tonight's Miguel A. Estrada confirmation update: The February 24, 2003 edition of Time magazine contains a short item entitled "Going to War Over a Judge."

To access the transcript of the U.S. Senate's debate from Friday, February 14, 2003 via the Congressional Record Web site, simply follow these instructions. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 7, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 7, on the resulting page click on the link that reads "Printer Friendly Display." The Senate returns to the Capitol on February 24, 2003. Here's what to expect that day, as taken from Friday's Senate session:
Mr. FRIST. Mr. President, I ask unanimous consent that when the Senate completes its business today, it stand in adjournment until 12 noon, Monday, February 24. I further ask unanimous consent that on Monday, following the prayer and pledge, the morning hour be deemed expired, the Journal of proceedings be approved to date, the time for the two leaders be reserved for their use later in the day, and as previously ordered, Senator Chambliss be recognized to deliver President Washington's Farewell address.

I further ask unanimous consent that upon the conclusion of the reading of the Farewell Address, the Senate return to executive session and resume consideration of the nomination of Miguel Estrada to be a Circuit Judge for the DC Circuit.
So, more of the same is expected to begin just a little over one week from now.
Posted at 22:47 by Howard Bashman



Ninth Circuit Judge Alex Kozinski in the news: No, I don't have in mind the article that appeared on the front page of today's issue of The Los Angeles Times. Instead, I have in mind an article from The Daily Bruin reporting on a debate at UCLA in which Judge Kozinski recently took part concerning the looming war with Iraq.
Posted at 22:40 by Howard Bashman



Atrios isn't persuaded: Philadelphia-based blogger Atrios isn't persuaded by the reader's email that appears in the post immediately below this one, nor are the folks who so far have posted comments at Atrios's site. Pennsylvania is also home to the author of the quite wonderful humor blog ScrappleFace. So much blogging talent for one admittedly not so little state.
Posted at 22:37 by Howard Bashman



A reader's musings: The following email arrived just moments ago:
I have enjoyed the running commentary by your readers about the Rush Limbaugh piece and the Estrada nomination, and I'm sure I speak for several that your site has become the venue of choice for those of us interested in such issues. I do wish to point out a couple of points which, to date, have gone unaddressed.

First, I agree with several of the comments that the Limbaugh piece is over the top. But the biggest whopper of all is his assertion that, in comparison to Mr. Estrada, "Thurgood Marshall didn't have any such experience when LBJ appointed him to the federal appeals court." Huh? At the time he was nominated to the Second Circuit, Thurgood Marshall was undoubtedly the most important Supreme Court advocate of his, and possibly any, age. As head of the NAACP Legal Defense & Educational Fund, Justice Marshall had brought thirty-two cases to the Supreme Court and had won twenty-nine, including the most momentous decision of the 20th century, Brown v. Board of Education. And, in contrast to today's Supreme Court bar, several of whom would never deign to engage in the nitty gritty of actually trying a case, and certainly not in state court, Justice Marshall courageously defended hundreds of African-Americans in the South both at trial and on appeal against all kinds of charges, often at significant risk to his life. To be sure, Justice Marshall did not serve as a law clerk on the Supreme Court, but that opportunity was unavailable to African-American attorneys in the 1930's (a reader has made a similar point with respect to Justice Ginsburg). Thus, while Mr. Estrada's credentials are indeed stellar, to say that Justice Marshall didn't have comparable experience when he was appointed to the Second Circuit is to betray a fundamental ignorance of history.

That being said, Justice Marshall's nomination to the Supreme Court does raise an interesting analogy to Mr. Estrada's current predicament. The opponents of Mr. Estrada's nomination have often offered the argument that there needs to be ideological "balance" in the federal courts. Yet, following that standard, Justice Marshall may very well have been defeated when he was nominated to the Supreme Court in 1967. At that time, the Court was comprised of Chief Justice Warren and Justices Black, Douglas, Harlan, Brennan, Stewart, White, and Fortas. Only Justices Harlan, Stewart, and White could be considered moderates or moderate-conservatives of this group, and remember, Justice Harlan's concurrence in Poe v. Ullman provided much of the foundation for Griswold and Roe, and Justice Stewart joined in the majority opinion in Roe. Certainly, no one on the Court in 1967 came close to sharing the jurisprudential philosophy of Justices Scalia and Thomas. Hence, if "balance" on the courts is to be a justification for holding up Mr. Estrada's nomination, or that of other nominees of President Bush, those advocating this position must recognize that, neutrally applied, this standard could very well have led to the defeat of Thurgood Marshall's nomination to the Supreme Court.

This example helps exemplify why the filibuster of Mr. Estrada's nomination, to my mind, is so destructive. If our experience with the Independent Counsel demonstrated anything, it was that that statute could be abused by both sides, and those who strongly supported the statute when the opposite party was in the White House came to loathe it when a member of their party was the President. I would have hoped that fair-minded individuals on both sides would recognize how the judicial confirmation process would similarly be degraded by the use of a filibuster to stop pending nominations. Does anyone doubt that, in the future, the Senate Republicans may attempt to filibuster the nominees of a Democratic President now that this precedent has been set? Is this really the way we want this process to proceed?

Just a little more than four years ago, Senator Leahy stated on the Senate floor that "I have stated over and over again on this floor that I would refuse to put an anonymous hold on any judge; that I would object and fight against any filibuster on a judge, whether it is somebody I opposed or supported; that I felt the Senate should do its duty. If we don't like somebody the President nominates, vote him or her down. But don't hold them in this anonymous unconscionable limbo, because in doing that, the minority of Senators really shame all Senators." 144 Cong. Rec. S6522 (June 18, 1998). Sadly, this principled position appears to have evaporated into the ether now that the President is a member of the opposite party. Shame indeed.
Very well said!
Posted at 17:50 by Howard Bashman



Snow and even more snow: Instead of the mere twelve to twenty inches of snow that had been forecasted this morning for where I live, now the forecast is calling for eighteen to twenty-five inches of snow. Right now it's quite the winter wonderland outside, and to celebrate I've already enjoyed hot chocolate, a blood orange, and a homemade soft pretzel.
Posted at 17:35 by Howard Bashman



Today's Miguel A. Estrada news and commentary: The Salt Lake Tribune this morning contains an article entitled "From 'Borin' Orrin' to Hot-Ticket Hatch." The Times-Picayune presents a round-up of news from the Louisiana delegation in the nation's capital. An editorial in The Advocate of Baton Rouge, Louisiana is entitled "Landrieu gives Bush payback." Finally for now, The Denver Post contains an op-ed entitled "Confusing politics with principle."
Posted at 12:08 by Howard Bashman



"Google Buys Pyra: Blogging Goes Big-Time": This article from today's edition of The Mercury News reports that Google has purchased the company that created Blogger software and Blog*Spot hosting. Perhaps Web logs will turn out to be more than just a passing fad?
Posted at 10:42 by Howard Bashman



In Sunday's newspapers: The actions of Ninth Circuit Judge Alex Kozinski are the subject of a front page article in today's edition of The Los Angeles Times. The article -- entitled "State Fears Tough Judge Going Soft on Death Row; State questions a federal judge's ability to be impartial on the death penalty after he visited San Quentin and corresponded with lifer" -- begins:
The scene was a packed auditorium at UC Santa Barbara; the time, late last month. Two prominent legal figures were debating the death penalty.

Defense attorney Gerry Spence turned to federal appeals court Judge Alex Kozinski, an outspoken supporter of capital punishment, and accused the judge of being detached from the reality of death row.

"I would urge his honor to go to a prison and see" how condemned inmates live, Spence said.

Kozinski did not respond to Spence's remark. The truth would have been far too complicated to reveal in a debate.

Four months earlier, Kozinski had done just what Spence was demanding. After an on-and-off correspondence stretching over five years, he had visited an inmate at San Quentin, a man named Michael W. Hunter, a murderer and a fellow writer.

In a meeting of 30 to 40 minutes, the two talked about life on death row, writing and the cases of at least three other inmates.

As a result, the 52-year-old judge -- a Reagan appointee and a leading conservative on the federal bench -- is now the subject of an investigation by the California attorney general's office.

Prosecutors have written to Mary M. Schroeder, the chief judge of the U.S. 9th Circuit Court of Appeals, on which Kozinski sits, questioning whether he "can continue to be a fair and impartial member of any 9th Circuit panel, now or in the future, deciding California capital cases."

Until a panel of judges can investigate further, state prosecutors say, Kozinski should be barred from hearing any California death penalty cases.

It is a demand without precedent, according to several legal scholars. In the history of the federal courts, they say, they know of no occasion when a federal appellate judge has been disqualified from hearing an entire category of cases even on a temporary basis.

Schroeder has asked Kozinski, whose chambers are in Pasadena, to respond to the state's letter. Thus far he has declined.

"I wrote to him and asked him to tell me what happened," Schroeder said Friday. "I can't comment further until I have heard from him, and I haven't heard from him."

In an interview, Kozinski, who gave The Times a copy of the prosecutors' letter, insisted that he has done nothing wrong.

If a case involving Hunter ever came before his court, he would not take part, he said. "I certainly don't think it will affect my judgment" on other capital cases, Kozinski said about his meeting with Hunter.

The attorney general's actions, said Kozinski, are "crazy."

In his 17 years as an appellate judge, 49 men have been executed in the seven states overseen by the 9th Circuit which have death rows; 10 executions were in California. Kozinski has not voted to block a single one.

"If anyone is going to go after me for the things I have said," he says, "I think it would be the other side."
You can access the complete article at this link.

Elsewhere in today's edition of The LATimes, David G. Savage reports that "Democrats Draw Battle Lines Over Bush Court Pick; Latino nominee is at the center of a Senate tussle for ideological control of the federal bench." And an op-ed by Brian L. Buckley is entitled "Political Pronouncements -- for Better or Verse."

Today's edition of The Boston Globe contains an editorial entitled "Executioner Ashcroft."

The New York Times reports here that "Florida Ponders Fate of Historic 2000 Ballots." The fate of lots of chads hangs in the balance. You can access here an article entitled "Wal-Mart Faces Lawsuit Over Sex Discrimination." As tax day approaches, this article reports that "Courts Speak Out, Sometimes for Filers." And here's an article from today's Business section entitled "So Long. Now Don't Compete."

Today's edition of The Washington Times contains an editorial entitled "ABA backs asbestos reform." And an op-ed by Steve Chapman asks, "A fast-track for fast-food lawsuits?"
Posted at 09:45 by Howard Bashman



Should we talk about the weather? The snow has already begun in earnest outside of Philadelphia, and a total of between twelve to twenty inches is expected before the storm wraps up sometime tomorrow evening. Good thing I followed my wife's advice Friday to bring home work to do on Monday just in case. (This post's title borrowed from R.E.M.'s "Pop Song 89.")
Posted at 09:27 by Howard Bashman



Saturday, February 15, 2003
Expect the unexpected: In a world without surprises, you would expect to find the final report of the Commission on Structural Alternatives for the Federal Courts of Appeals -- also known as "The White Commission" because of who served as its chair, retired U.S. Supreme Court Justice Byron R. White -- at the Commission's Web site. But, alas, all that one finds there is a draft version of the report. I'm very pleased to report, however, that the Web site of the library of the University of North Texas (of all places!) has available online The White Commission's final report, and you can access it here. Now who other than appellate law aficionados, after all, would ever want to access The White Commission's final report? My point exactly!
Posted at 23:29 by Howard Bashman



Judicial nomination and confirmation news and commentary from here and there: Michael Kirkland, UPI Legal Affairs Correspondent, has an essay entitled "Time for judicial compromise." The Associated Press reports here that "Hispanic lawmakers from California oppose Bush's court nominee." Rush Limbaugh notes that "GOP Backs Down On Estrada Fight -- For Now." And UPI commentator Horace Cooper has an essay entitled "Groundhog day redux."

The Mercury News reports here that "Bush nominates Palo Alto Latina for appeals court bench." And you can access here an article from the Metropolitan News-Enterprise entitled "C.A. Justice Consuelo Callahan Nominated to Ninth U.S. Circuit Court of Appeals."

Earlier this week, The Clarion-Ledger contained an article reporting that "Judge Charles Pickering, whose nomination to the 5th U.S. Circuit Court of Appeals has angered some black leaders, met privately Monday with Mississippi black caucus members to discuss his beliefs, life story and civil rights record." The AP ran a report entitled "Pickering seeks black support."

And in news pertaining to Sixth Circuit nominee Jeffrey S. Sutton, The Cincinnati Post reports here that "Attorney clears judge's hurdle."
Posted at 22:32 by Howard Bashman



Third Circuit Judge Marjorie O. Rendell in the news: The Philadelphia Daily News on Wednesday contained an article entitled "Midge to hold office in state building; Expense of leaving free digs in governor's mansion questioned." Judge Rendell, of course, is also the wife of Pennsylvania's new Governor, Ed Rendell. The conclusion of the article states:
As a federal appellate judge, the first lady also has offices in the federal buildings in Philadelphia and Harrisburg.

Having a federal judge move into a state office building creates a unique situation and challenges for the first lady to avoid any conflict of interest, according to Steven Lubet, a Northwestern University law professor who co-authored the book "Judicial Conduct and Ethics."

"It's unusual to have a state expend funds for someone who is also a federal judge," Lubet said. "As a federal judge, she has to refrain from political activity. And that includes anything she does as first lady. She's always a federal judge."
In other news, on February 5, 2003, The Daily Pennsylvanian published an article entitled "Pa. First Lady gives leadership advice; Judge Marjorie Rendell spoke about various principles that leaders often keep in mind."
Posted at 22:25 by Howard Bashman



"States' Rights Take a Back Seat in Ashcroft's Justice Department": Adam Liptak has this report in The Week in Review section of tomorrow's edition of The New York Times.
Posted at 22:16 by Howard Bashman



Just in case: Anyone concerned about going through withdrawal next week while the U.S. Senate is out of town and the Miguel A. Estrada filibuster is temporarily adjourned should record tonight's episode of C-SPAN's fine program "America and the Courts." According to this description of tonight's program, "America and the Courts features continuing discussion in the United States Senate on the nomination of Miguel Estrada for the U.S. Court of Appeals for the DC Circuit. Senators Robert Bennett and Dick Durbin present the arguments of the two sides." Additionally, anyone with even more free time can watch online via this link Estrada's Senate Judiciary Committee confirmation hearing, which took place late last September.
Posted at 14:43 by Howard Bashman



U.S. District Judge Barbara Rothstein of Seattle will direct the Federal Judicial Center: Today's edition of The Seattle Times provides this report.
Posted at 14:35 by Howard Bashman



"Scalia defends originalist interpretation of Constitution; The conservative Supreme Court justice spoke on his views and being in a political spotlight": Yesterday's edition of The Daily Pennsylvanian contained this report. One of my readers who attended Justice Scalia's speech provided me with an even more detailed account of it, which you can access here via "How Appealing Extra."
Posted at 10:31 by Howard Bashman



President Bush is standing firm on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit: From yesterday's White House press briefing:
Q The second question -- again, going back to the fight between Democrats and Republicans over the Miguel Estrada nomination. It seems to be an absolute deadlock. Democrats seem to have the vote, but keep filibustering. Republicans don't have the votes for cloture. But they do have the votes in after it gets to the floor. Is this going to be an unending or is the President going to --

MR. FLEISCHER: Clearly, the President hopes not. I think it would be a very sad day for the Senate if this tactic of filibustering became the tactic of how circuit court nominees are considered, particularly given the fact that Senator Leahy, himself, more than three years ago said, it is wrong and should not be done to filibuster a circuit court nominee. And now he, himself, is one of the leaders of a filibuster, despite the very fact that he, himself, said this is not the way judicial candidates should be treated. That's what he said.

So the President hopes that reason will prevail, that after the initial flurry, people will recognize the great danger they may do to the judiciary by adopting this radical tactic. And it has never been successfully done. And there is a judicial emergency that continues to exist. There are not sufficient judges in place in the court systems. People are waiting too long for justice to be done. The filibuster only makes people wait longer.

Q But the President wouldn't budge on this issue, he will stand firm on it?

MR. FLEISCHER: Absolutely.
You can access the complete transcript at this link.
Posted at 10:22 by Howard Bashman



In Saturday's newspapers: The Boston Globe reports here that "Latinos bitterly debate Estrada nomination." A related editorial is entitled "Rush to judges." You can access here an article that begins, "Harvard, MIT, and dozens of other top colleges and universities - along with Fortune 500 companies - are vigorously defending affirmative action in college admissions, and plan to file an avalanche of briefs with the Supreme Court by Tuesday in support of the University of Michigan." And The Associated Press reports here that "House moves to bar release of gun data; Justices will hear case on identifying buyers and sellers."

The Washington Times contains an op-ed by Thomas Sowell entitled "Big business and quotas." The newspaper reports here that "Republicans plan partial-birth ban, creation of jobs." The U.S. State Department is preparing to distance itself from Virginia, according to an article that begins, "The State Department is assuring Vietnamese officials that it opposes a Virginia bill calling for the display of the flag of long-defeated South Vietnam, but the bill's sponsor says his state doesn't kowtow to that federal department."

The Los Angeles Times reports here that "Bush AIDS Relief Eases Abortion Rules." Los Angeles won't allow criminals to "super-size" their handguns, according to an article entitled "City Ban May Include .50-Caliber Handguns." Attention Ninth Circuit -- this article reports that "New U.S. Guidelines on Prayer in Schools Get Mixed Reaction; Policy says educators risk losing federal funds if they try to suppress such activities. The change comes in for praise and criticism." And an op-ed by Noriko Nakada is entitled "As in the 1940s, We Are Asleep to Loss of Rights."

The Washington Post reports here that "Muhammed Granted Access to Evidence; Hearings on Sniper Suspect's Defense Experts to Be Conducted in Open Court."

Finally for now, New York Times reporter Adam Liptak attends the theater to prepare his article entitled "The Death Penalty: Views of a Witness for the Prosecution."
Posted at 09:58 by Howard Bashman



The problem with "never": An article that I linked to below, published in Thursday's edition of The Los Angeles Times, contains the following text:
The case is the first in which 11 judges have publicly registered a dissent when the court failed to rehear a case, said Arthur D. Hellman, a University of Pittsburgh law professor who follows the 9th Circuit closely. "It is very unusual," said Hellman, noting that there had been rare instances where eight or nine judges had registered a dissent.

Stephen Reinhardt, who is considered the most liberal judge on the court, wrote the dissent.
An amazingly erudite reader who recently clerked for a Ninth Circuit judge emailed early on Thursday morning to say that Professor Hellman was incorrect when he advised the reporter that "The case is the first in which 11 judges have publicly registered a dissent when the court failed to rehear a case." In Spears v. Stewart, the Ninth Circuit denied rehearing en banc over the recorded dissent of eleven circuit judges in an order issued March 20, 2002. Judge Stephen Reinhardt's opinion dissenting from the denial of rehearing en banc explains:
Unfortunately, as I have noted on several occasions in the past, our rules preclude us from advising the bar and the public whether there were actually more yes votes than no votes cast (although less than an absolute majority); whether half of the non-recused active judges voted to hear the case en banc, or a lesser number; or describe in any way the margin by which a vote may have failed. In this case, as in all others, I believe the public has a right to know how close the vote was and how each of us exercised our judicial responsibilities; that information would surely be of interest to those concerned about the manner in which the courts and particularly our court functions.
You can access the complete opinion at this link. (Judge Alex Kozinski's opinion concurring in the denial of rehearing en banc, which follows directly behind Judge Reinhardt's dissent, is also quite interesting. A total of five circuit judges joined in Judge Kozinski's opinion.)
Posted at 08:30 by Howard Bashman



Seth Finkelstein to the rescue: Perhaps he will see to it that "How Appealing" won't be classified as "pornography" by Web-filtering services. See Seth's post here. Thanks to the blog "Math Class for Poets" for bringing this to Seth's attention. And here's an amicus brief in the American Library Association case that describes Seth as follows:
Seth Finkelstein is a computer programmer and civil liberties advocate. Since 1995, he has dedicated thousands of hours to studying commercially developed Internet blocking software. These efforts have revealed many of the mechanisms employed by blocking software, which Mr. Finkelstein has described in articles and reports. For his efforts "in the fight against government mandated use" of such software, Mr. Finkelstein received the Electronic Frontier Foundation's Pioneer Award. Mr. Finkelstein is interested in ensuring that the Court understands how commercially developed blocking software operates and the dangers that it poses to free speech.
Now Seth stands ready to win the still non-existent "How Appealing" award for freeing this site from the constraints of over-aggressive Web-filtering software.
Posted at 00:22 by Howard Bashman



Kaimi Wenger corrects Tapped: Tapped writes, "it is also unprecedented for a president to nominate a man who has zero experience as a judge to the second-highest court in the land." That's simply not so, Kaimi explains here.
Posted at 00:13 by Howard Bashman



Friday, February 14, 2003
"This case exemplifies compassionless conservatism." Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit decided an appeal that provoked a passionate dissent from Circuit Judge Stephen Reinhardt. Judge Reinhardt's dissenting opinion begins:
This case exemplifies compassionless conservatism. The majority reads the California Family Rights Act (sometimes referred to as the "Act"), a statute designed to afford a minimal amount of humane and decent treatment to working people with families, as if it were a rigid code intended to limit their rights. The majority ignores the plain language of the statute as well as its purpose and instead poses an imaginary chain of horrors, claiming that a plain reading of the statute would cause courts to have to (horrors!) make decisions "in each case." On that basis it grants summary judgment to the corporate defendant.

That a poor, hardworking, Hispanic man, struggling to support his family by performing manual labor, could be fired by his employer under the circumstances of this case is almost unimaginable. That a court could reach the decision the majority does here is even more incomprehensible.
You can access both the majority's opinion and Judge Reinhardt's dissent at this link.
Posted at 23:56 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Vince Foster Death Photos Bring Access Battle to High Court." You can access here an article entitled "Texas Court Keeps Out 'Frontline' Cameras." And this article reports that "Med-Mal Claim Not Automatically Pre-empted by ERISA."
Posted at 23:48 by Howard Bashman



Access online the transcript of the first ever oral argument before the U.S. Foreign Intelligence Surveillance Court of Review: It's available here. And the court's subsequent ruling, issued last November, is available here.
Posted at 23:45 by Howard Bashman



A star-filled send-off for Lawrence G. Wallace: Steph was there and has a full report at her blog.
Posted at 23:42 by Howard Bashman



Viewer mail: If it's Friday night, it must be time for viewer mail. An email bearing the title "Scalia and Estrada" arrived from Rick Hasen, Professor of Law and William M. Rains Fellow, Loyola Law School:
Thanks so much for your posting the details of Justice Scalia's speech on "How Appealing Extra." Scalia's position defending originalism is not laughable (though I believe it is wrong for reasons I won't go into here), but his view that Senators can avoid politicization of the judiciary by choosing judges supporting originalism surely is laughable. Although Scalia is right that some conservatives are non-originalists, originalism tends to lead to conservative decisions. Scalia in his speech strongly intimates, for example, that Minor v. Happersett (upholding the denial of the right to vote for women) was correctly decided in the absence of a constitutional amendment granting women the right to vote. That would surely ring hollow with most Americans these days who vote for their Senators.

To the extent---as I have argued---that ideology is a legitimate criterion for Senators to consider in confirmation decisions, a nominee who declares herself an originalist is a judge who likely will support certain conservative decisions such as striking down Roe v. Wade. Even if Scalia really believes originalism is not politically motivated and neutral (something difficult to believe given Scalia's attempt to distinguish why he ignores originalism in favor of stare decisis in the Eleventh Amendment context but not it the abortion context), it surely has political consequences which Senators concerned about ideology should not ignore.

I see it as no coincidence that Scalia chose to speak about this issue as the Estrada controversy swirls. His argument seeks to give the false aura of depoliticization to the confirmation process just as a president nominates the most conservative judges in a generation.
The next email comes from a reader affiliated with the Brennan Center for Justice:
I'd prefer to keep this anonymous should you choose to post yet another reaction. But the non-issue of whether Estrada is qualified, or whether Ginsburg or Breyer weren't, which your previous correspondents addressed (fairly enough, since it was the thrust of Limbaugh's piece) doesn't get to a more pernicious aspect of an otherwise laughable essay.

Limbaugh continues the big lie of the right: Republican presidents appoint restrained judges who respect the will of the people and don't interfere with the democratic branches of government, and the only reason those of us on the left oppose Estrada and others is because they are not judicial activists. In fact, historically judicial activism has been the province of the right much more often than of the left--think of Dred Scott, the Civil Rights Cases, and Lochner. The current Court has struck down more Congressional legislation than any Court since the conservative pre-1937 Court. As for the will of the people, I cannot see how Limbaugh can say this with a straight face after the conservative bloc intervened with an emergency stay to stop ballots from being counted on the ground that the conservative candidate would suffer irreparable harm if it turned out more folks voted for the other guy. Or how, a few days later, they came out with an opinion installing their favored candidate but cautioned that their reasoning would not apply to any future case--how's that for result-oriented judging?

(Here's what Limbaugh said, to remind you): "Of course, the Democrats aren't really opposing Estrada based on his record. They're opposing him because they don't want someone who'll just interpret the law - a judge's job - on the bench; they want someone who will write law from the bench - which is the job of the legislature. Remember: Democrats can't get (and have not gotten) their agenda into law by the votes of the people. It can only get there when judges rule their agenda into being in violation of the popular will."
An attorney from Rockford, Illinois sends an email entitled "Estradapalooza":
Thank you for posting my thoughts on the possible connection between the Democrats' filibuster of Estrada and the recent passage of the campaign finance "reform" legislation. Given that the Senate is now in recess (and the Estrada-Thon postponed for a week), I may be able to watch a movie or two this weekend. I did, however, want to pass along another thought before moving on to other endeavors.

Democrats have essentially made two demands they say must be met before they'll allow a vote on Estrada: (1) he must "answer their questions" (whatever those questions may be, in whatever undefined form they may take and regardless of the five hours he spent answering questions at his hearing); and (2) the Justice Department must "release" the work-product and attorney-client privileged legal memoranda Mr. Estrada wrote while working in the Solicitor General's office. Because the first demand is incredibly vague and silly, I can't really think of a strategy for responding.

With respect to the second demand, however, the Administration may have a clever and politically practical way to respond to the Democrats' patently outrageous demand for privileged information. How about this: Offer all Democratic Senators an "eyes only" opportunity (no staffers, no committee members -- just the Senator him- or herself) to physically go to a specific room at the DOJ and read as many of Mr. Estrada's memos as are available with the following two limitations: (a) no copies will be made of any memo under any circumstances; and (b) no specific information about the memos may be mentioned, discussed, debated or otherwise leaked (and because only individual Senators will be allowed to view the memos, there would be a limited number of potential leakers). The availability of the memos for review under those conditions would be expressly conditioned upon the Democrats' formal agreement (before any Senator sees any memo) to give Mr. Estrada an up or down vote on the Senate floor after the memos were made available for a specified and limited number of days. In other words, "you can see the memos to help you fulfill your duty to 'advise and consent' and so that you are not being asked to 'rubber stamp' Mr. Estrada, but if you do, you can't tell anyone anything about what you saw or read."

Of course, the Democrats would never agree to this because they would have to expressly give up their right to filibuster on ideological (rather than "lack of information") grounds (assuming, of course, that the as-yet-unseen memos showed Mr. Estrada to be a "right wing ideologue"). It would also deny them the opportunity to take words, phrases, comments, etc. from the memos out of context for the purpose of killing Mr. Estrada's nomination. This strategy would, however, completely remove one of the Democrats' two demands from the discussion, and would make it even more difficult for them to sustain a filibuster --

President Bush: "I don't know what the Democrats are complaining about ... We've offered all individual Senators an opportunity to review the memos privately and confidentially, but none of them took us up on the offer. We have always maintained that the privilege is important and would not be waived, but we tried to accommodate the other side nonetheless. They wouldn't agree, preferring instead to continue delaying the Senate's other important business."

This strategy would also allow Democrats some limited political "cover" by letting them claim that their vote against Mr. Estrada on the Senate floor was based on their review of the memos, without saying what, specifically, prompted their votes.

I'm sure I'm missing some political angle or another, but it seems to me that this would completely remove one issue from the table.
An email from a law clerk on the U.S. Court of Appeals for the Seventh Circuit is entitled "Estrada and Limbaugh":
Enough caterwauling of the elites. Yes, Limbaugh overstates his case: Nobody, including Miguel Estrada, "blows away" the credentials of Ruth Bader Ginsburg and Stephen Breyer. Whatever one thinks of their jurisprudence (personally, I think very little), each had reached the highest plateau of lawyering before earning a place on the Supreme Court. But the fundamental point of Limbaugh's analysis sticks: Estrada's credentials place him in the same league as both Ginsburg and Breyer, and it is silly for Estrada's critics to pretend that he is anything but their professional equal.
Thanks for writing, everyone!
Posted at 23:36 by Howard Bashman



Email from The Federalist Society: I received the following email this afternoon from The Federalist Society:
Debate on Judicial Confirmations
Live on C-SPAN2 - Tuesday, February 18


WHAT DOES THE ESTRADA BATTLE MEAN IN THE WAR TO CONFIRM THE PRESIDENT'S JUDGES?

As the Senate enters week two of a filibuster in opposition to D.C. Circuit Court of Appeals nominee Miguel Estrada, both parties show no sign of backing down in the most contentious debate yet regarding judicial confirmations. Senate Democrats and activists opposing a confirmation vote contend that Estrada has not been forthcoming concerning his personal and political views. They argue that his nomination must be blocked "by any means necessary" to prevent his "judiciously activist" views from being represented on what many regard as the nation's second most important court. Republicans, supported by an equally devoted group of Estrada supporters, cite bipartisan support for Estrada, his "well-qualified rating" from the ABA, and Estrada's repeated willingness to meet with Senators to address any concerns they may have as reasons to confirm. To force a vote, Judiciary Committee Chairman Orrin Hatch has vowed to keep Republicans talking on the floor of the Senate "until hell freezes over." All actors involved believe this filibuster could foreshadow a future battle to confirm a nominee to the U.S. Supreme Court, and neither side wants to be the first to surrender.

The Federalist Society presents two political titans to debate Miguel Estrada's nomination, the Senate's filibuster, and the recent unprecedented interest group lobbying efforts concerning judicial confirmations. Former White House Counsel and Committee for Justice Chairman C. Boyden Gray and Alliance for Justice President Nan Aron will meet at the National Press Club in a debate moderated by The New York Times Neil Lewis. Please join the Federalist Society in what is sure to be a passionate, animated discussion concerning the fate of the Estrada nomination, the Senate's role in the process, and the implications for future judicial confirmation battles.

Debate on Judicial Confirmations
DATE: Tuesday, February 18, 2003
TIME: 10:00 a.m. - 11:30 a.m.
LOCATION: National Press Club
Holeman Lounge
529 14th Street, N.W.
COST: There is no cost for this event.
You can register to attend the debate via this link. I'll be listening in online from Philadelphia.
Posted at 23:04 by Howard Bashman



Why didn't I think of that? My weekly Friday afternoon email from Rich Barbieri, entitled "An early look at next week's Legal Times," notes that an article entitled "Estrada Blockade a Bad Sign for Pickering, Owen; Senate Democrats' so-far successful move to block D.C. Circuit nominee Miguel Estrada is a bad sign for other circuit court picks" will appear in the February 17, 2003 edition of that publication. Why didn't I think of that? Or maybe I did.
Posted at 22:53 by Howard Bashman



Some additional judicial confirmation-related news and commentary: The Post and Courier of Charleston, South Carolina contains an editorial entitled "The savaging of Miguel Estrada." An op-ed in The Philadelphia Inquirer is entitled "L'affaire Estrada is a Dem disgrace." The News Tribune of Tacoma, Washington contains an op-ed entitled "Democrats asking Estrada to tie his own noose."

Finally for now, today's edition of The Cincinnati Enquirer reports here that "Panel approves Columbus lawyer to 6th Circuit."
Posted at 20:00 by Howard Bashman



Fray newbies on judicial silence: This is available online via Slate. When you have an article published at Slate, the first thing you learn is don't read the Fray.
Posted at 19:48 by Howard Bashman



"Judge: Muhammad Can Get Taped Confession": The Associated Press reports here on a development in the case against the older of the two accused DC-area snipers.
Posted at 19:45 by Howard Bashman



"Justice Scalia's affirmative action stance incites protest": The Daily Pennsylvanian -- the student newspaper of the University of Pennsylvania -- offers this report.
Posted at 17:39 by Howard Bashman



This evening's judicial nomination and confirmation update: The Harvard Crimson reports here that "HLS Alum Faces Senate Filibuster." U.S. Senator Jon Kyl tells "The Miguel Estrada story" at this link. Mel Martinez, Secretary of Housing and Urban Development, has an essay entitled "Giving minorities a chance." Humorist Mark Russell offers a few tidbits under the heading "Blocking Estrada." PBS's NewsHour ran a segment last night "on the continuing struggle in the Senate over the confirmation of judicial nominee Miguel Estrada." The Rocky Mountain News contains an editorial entitled "Democrats turn ugly on Estrada." Tom Jipping asks "What are Democrats afraid of?"

And, in news from Ohio, The Cleveland Plain Dealer reports here that "Columbus lawyer gets panel's nod for federal bench."
Posted at 17:19 by Howard Bashman



"The GOP should counter-filibuster": Deroy Murdock has this essay, which appeared late this morning at National Review Online. Hiding in the middle of Murdock's essay is the following not-to-be-missed statement: "As for the slander that he is an ersatz Hispanic, Estrada's critics would not be mollified even if he swapped his black robes for a serape and wore a sombrero on the bench."
Posted at 17:11 by Howard Bashman



What a difference a day makes: The U.S. Court of Appeals for the Fourth Circuit yesterday granted rehearing en banc to consider further a divided three-judge panel's ruling that reversed a federal district court's dismissal of a death row inmate's federal habeas corpus petition filed one day after the expiration of the applicable statute of limitations. You can access both the notation of rehearing en banc and the three-judge panel's opinion at this link. You can access my report on the three-judge panel's ruling, posted online the day that ruling issued, at this link.
Posted at 16:44 by Howard Bashman



Federal Circuit grants rehearing en banc on bank's claim for $299 million in damages against the federal government arising from FIRREA: As if further proof were needed of why I don't report regularly on the decisions of the U.S. Court of Appeals for the Federal Circuit -- they're so gosh darn complicated. Nevertheless, this order (MS Word document) issued today granting rehearing en banc of this earlier panel decision seems quite significant, so I figured I'd at least mention it.
Posted at 16:34 by Howard Bashman



"Philippe de Croy" shares his "Notes on the Estrada Nomination": You can access them here, via "The Volokh Conspiracy."
Posted at 16:28 by Howard Bashman



Today's the day that I transmit 20 questions to the next appellate judge who has volunteered to be interviewed: Sometime within the next two hours, I will be sending via email my questions to the second appellate judge to volunteer to participate in this Web log's newest feature, "20 questions for the appellate judge." This interviewee, drum roll please, serves on the U.S. Court of Appeals for the Ninth Circuit. The interview is scheduled to appear here in early March 2003, but will appear sooner if the answers arrive sooner.

Three other appellate judges have volunteered to be interviewed in the months ahead -- two federal appellate judges and one judge on a state court of last resort -- leaving six months (July through December) for which no volunteers have yet to come forward. This Web log's first ever installment of the feature appeared in late January 2003, and you can access my interview with Fifth Circuit Judge Jerry E. Smith at this link.

If you're a federal or state court appellate judge and would like to participate in the "20 questions for the appellate judge" feature, simply send me an email expressing your interest. You will be assigned the next available month, and I will immediately let you know exactly when I will send your questions to you. More details are available here.
Posted at 15:07 by Howard Bashman



Attention John Doe I! Today the U.S. Court of Appeals for the Ninth Circuit granted rehearing en banc in John Doe I v. Unocal Corp. You can access the order granting rehearing en banc at this link. I wrote about the original panel's opinion on the day of its issuance, in a post accessible at this link entitled "Another example of the long arm of the law."
Posted at 13:38 by Howard Bashman



The U.S. Senate now stands in adjournment for a week: Thus, the Miguel A. Estrada filibuster has ended, but it will likely begin again after next week's break in the proceedings.

Meanwhile, the Rush Limbaugh essay entitled "Estrada Qualifications Blow Away Breyer and Ginsburg" has, not unexpectedly, proved quite controversial. Samuel Bagenstos, Assistant Professor of Law, Harvard Law School, emails to say:
I'm a frequent reader of your weblog and get a lot from it. But I have to admit I'm very disappointed in you for linking to Rush Limbaugh's screed that asserts, ridiculously, that "Estrada Qualifications Blow Away Breyer and Ginsburg." I don't mean to cast aspersions on Miguel Estrada's qualifications at all, but any comparison between Ginsburg and Estrada is absurd -- and to say that Estrada "blows away" Ginsburg is laughable. (I could say the same thing about the comparison between Breyer and Estrada. I focus here on Ginsburg because she's my former boss.)

Before she was appointed to the court of appeals, Justice Ginsburg was one of the leading Supreme Court advocates of her time. The six cases she argued were landmarks, in which she almost single-handedly got the Supreme Court to turn around 180 degrees from a position of approving virtually all governmental sex discrimination to a position of subjecting such discrimination to exceedingly close scrutiny. Although Estrada argued 15 Supreme Court cases as a lawyer in the Solicitor General's office, many of them were routine matters; it would be impossible to make the case that Estrada as a litigator had anything close to the impact on the law that Ginsburg had. (Which is, again, not to criticize Estrada -- there were probably only a half-dozen other American litigators in the 20th Century who made an impact on the law comparable to that of Ginsburg.)

Most ridiculous is Limbaugh's reliance on the fact that Estrada clerked for a justice of the Supreme Court, while Ginsburg only clerked for a district judge. I never knew that judges were selected based on the place in the hierarchy of the judges for whom they clerked in their first year out of law school. (If they were, the composition of the Supreme Court would be different -- only three current Justices clerked for Supreme Court Justices in their youth, and that's an historically high number.) But in any event, it's well documented that the only reason Ginsburg did not clerk for the Supreme Court was blatant sex discrimination. One of her professors, who assisted Justice Frankfurter in clerkship selection, recommended her to him as a clerk, for she was clearly the standout student at both Harvard and Columbia Law Schools. But Justice Frankfurter refused even to interview her; he said he just wasn't ready to hire a woman as a clerk.

Your weblog can usually be counted on to give a balanced presentation of important information. But when you link to someone like Limbaugh making such an absurd argument, I wonder whether your personal views of the Estrada matter have gotten the better of you. Why didn't you at least include a similar disclaimer to the one you included with the link to Michael Kinsley's essay on the topic?
Another reader who will be heading for a clerkship at the U.S. Supreme Court soon from the second highest court in the land has emailed to say:
You have a great blog, but I think you'd have to agree that the Limbaugh article you link to, comparing Estrada to Ginsburg and Breyer is simply baloney. In fact, I'm curious why, given your sophistication on these issues generally, you bothered to link to it.

I'm not going to get into the business of arguing whether Ginsburg/Breyer were more distinguished than Estrada is when they were appointed. But it's ridiculous to say they were less distinguished.

1) Limbaugh says Ginsburg is less distinguished because she clerked for a district court judge "which is below an appeals court judge." As Gerald Gunther makes clear, Ginsburg *chose* to apply to district judges, despite an academic record that would have qualified her for an appellate clerkship. (And, for that matter, Ginsburg graduated from law school during a time when (male) judges were extremely reticent to hire female law clerks to begin with.) See Gerald Gunther, "Ruth Bader Ginsburg: A Personal and Very Fond Tribute," 20 U. Haw. L. Rev. 583 (1998). And, as a female (especially one with children), Ginsburg probably wouldn't have even been seriously considered for a Supreme Court clerkship, whatever her credentials. (One of John Ely's recent books tells about how, in the late 60s, he ended up yelling at C.J. Warren (!) over Warren's refusal to consider women for clerkships.)

2) Limbaugh appears to be comparing RBG's number of Sup Ct arguments (6) with Estrada's. What's missing here is that RBG's arguments opened up a new form of constitutional analysis of Equal Protection -- namely, heightened scrutiny of sex-based classifications. (It took her several steps to get the Sup Ct to agree with her on this -- but she eventually won.) And, of course, RBG wasn't working in the SG's office, so was naturally likely to have fewer arguments. Obviously, comparing bare numbers of arguments is silly as a measure of skill, exerience, or intelligence.

3) Saying merely that Breyer "taught at Harvard Law" is a pretty tremendous understatement. He was, after all, one of the leading administrative-regulatory law scholars of the time.

Of course, what makes this all an especially ridiculous argument is that Estrada -- like Ginsburg and Breyer in the late 70s -- clearly is qualified for the job. But then again, so were many Clinton nominees who were blocked for ideological reasons, or (think Ronnie White) for political posturing during an election year, or (think Elana Kagan) under the then-pretextual and now-abandoned Republican argument that the DC Circuit just isn't that busy, so didn't need more judges. As far as I'm concerned, I think Estrada probably should get the job. But I note that Limbaugh somehow didn't start getting concerned about the presidential appointment prerogative until Bush was in office.
Please, people, just because I link to an article doesn't mean I concur in its reasoning. If that were a prerequisite to mentioning articles and commentary here, there would be much, much less to choose from. In that spirit, I'd prefer if people would focus their criticisms on the materials that are linked, rather than any perceived editorial judgment in deciding what to link. I have linked to as much pro- and anti-Estrada commentary from widely respected sources as I have been able to find.

Finally for now, a reader with no apparent connection to the U.S. Supreme Court sends along these very interesting thoughts:
I wanted to throw in my two cents on why the nominations process is so politicized. While there are plainly many reasons, I think one has to do with the past 30-40 years of relying more and more heavily on the courts, and especially the Supreme Court, to decide essentially political issues. Roe is only one example, and not the earliest, and its progeny includes not just other abortion decisions. As judges got more willing to make policy decisions, I think the US Congress got more willing to give them policy decisions to make. One great example is the recent Campaign Finance law. This law was passed and signed despite general agreement by senators and the president that it was unconstitutional, but they happily abdicated their oaths of office and positions as coequal branches of government to the Article III courts. I think there are other examples as well, of laws that don't raise constitutional specters but where Congress lazily leaves huge holes to fill (I think the ADA is often cited as a law that was left for the courts to write; I don't know it well enough to opine, but you get the idea.)

People could argue endlessly about who started this - liberal activist judges, conservative legislatures, strict constructionists, etc. I think there's been a slowly accelerating cycle of Congress relying on the Courts to do significant work for it, and courts either willing to do it or unable to refuse when presented with a real case or controversy. As that continues, the Senate is willing - on both sides - to really raise the stakes on a nominee, because they know that they have made the judiciary a completely political animal, they like it, and they want to keep it political and on "their" side. Rather than limit the role of the judiciary by themselves considering the constitutionality of laws, or by passing laws that don't need extensive "gap-filling" rewrites by the courts, they simply make sure that they can pass whatever feel-good law they want and then attempt to ensure that the courts will be filled with folks who will make the law what the Senator or party wants. And while I may prefer a strict constructionist judge, I'd really prefer a Senate that took its Constitutional obligation seriously when legislating.
Thanks, everyone, for writing.
Posted at 13:21 by Howard Bashman



My February 2003 appellate column is now available online: It bears the title "Appellate Court Web Sites: Some Are Excellent, But Many Others Could Easily Be Improved," and you can access it here.
Posted at 10:47 by Howard Bashman



"Delay on Estrada: Democratic debacle": Today's edition of the Boston Herald contains this editorial.
Posted at 10:29 by Howard Bashman



My thoughts exactly: A former Pennsylvania state court appellate judge emails to observe, "The classification of your blog as 'pornography' by screening software is further evidence supporting the findings in Chief Judge Becker's opinion in American Library Ass'n v. United States, 201 F. Supp. 2d 401 (E.D. Pa. 2002) (3 Judge Court)." I must admit that that very same thought had crossed my mind this morning.
Posted at 10:26 by Howard Bashman



Now available at National Review Online: Robert Alt argues that "Mary Landrieu is caught in a bilingual lie." And Roger Clegg addresses "How is diversity like love?"
Posted at 10:21 by Howard Bashman



This morning's Miguel A. Estrada confirmation battle update: Jan Crawford Greenburg of The Chicago Tribune has an article this morning entitled "Stakes are high in Estrada filibuster; Racial politics, power at issue." The Hartford Courant this morning contains an editorial entitled "Give Mr. Estrada A Vote."

The U.S. Senate's debate over Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit is scheduled to resume at 10 a.m. this morning. You can watch the debate live online via C-SPAN2 at this link.

Via the Congressional Record Web site, you can now access online the transcripts of yesterday's debate. Here are the instructions you need to follow. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 7, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 7, on the resulting page click on the link that reads "Printer Friendly Display." Then, return to the main page listing yesterday's transcripts, select item number 9, which is also entitled "Executive Session," and on the resulting page click on the link that reads "Printer Friendly Display."

In reader mail pertaining to the Estrada filibuster, Judge Stuart Shiffman, of Springfield, Illinois, who serves on a state court in Sangamon County, emails in his personal capacity to say:
I am a great admirer of your site. In addition to my state court judicial duties I teach a class in Evidence at the University of Illinois in Springfield. Your site is one that I recommend to my students to keep current on the law. While I admire your efforts I must take issue with you on the Estrada affair.

I believe very strongly that this case should be looked at in the context of the sad manner in which the judiciary has been politicized over the past 40 years. You can go back to Lyndon Johnson and Richard Nixon who first attempted to manipulate the Supreme Court with the timed retirement of Earl Warren and the nomination of Abe Fortas, a nomination ironically filibustered to death. From that moment in history the federal judiciary became more politicized.

After the defeat of Robert Bork and during the Clarence Thomas nomination the wheels came off the entire process. People like Jesse Helms who do not give one whit for the quality of the judicial process began injecting themselves into the system with far greater impact. We have been left with a system that simply eliminates many quality people because they are unwilling to place their lives in an 18 month limbo while a bunch of U.S. Senators play silly political games. Both sides are equally to blame for the simple reason that neither seems willing to sit down and examine a process that is failing. The Estrada filibuster is another in a ratcheting series of events that may very well continue.

The end result is that the federal judiciary that you and I respect and admire is being damaged. Forty years ago when a federal court issued a ruling the Judge was identified by name. Now all federal judges have added to their names the additional appellation, a (name of president) appointee. It serves no purpose other than to make each decision seem to be political. All of us who love the law are damaged in this environment. I sincerely hope that some members of the U.S. Senate will take this opportunity to show courage and to stand up and say NO MORE! Someone needs to begin reform of a flawed process before it brings down the judicial branch.
And another reader sends an email entitled "Hit record raises suspicions":
Two days in a row with new hit records? Basically doubling your readership in two days? You sure your not behind this Estrada filibuster? Seriously though, keep up the good work.
I'd gladly suffer a diminution in my blog's popularity in exchange for an end to the filibuster. I explain my substantive views more fully in an essay you can access here entitled "Activist U.S. Court of Appeals Judges: Myth or Reality?"
Posted at 09:43 by Howard Bashman



They know it when they see it: Just received the following email from a reader:
Your blog is fascinating, as always, even to a non-lawyer like me. And your coverage of political issues, such as the ongoing Estrada saga is to be commended for its fairness and balance. Because thinkers like you and Eugene Volokh put your principles before your political labels, you are essential reading, even though I may often be at the opposite end of the political spectrum.

So, it's pretty upsetting that I can't access your site from work. Our company subsribes to a web-filtering service from a company called NetSpective (http://www.getnetspective.com) which is a division of Telemate (http://www.telemate.net). When I try to access your site, I get a big, full screen warning image which tells me that "Access is Denied. http://appellateblog.blogspot.com has been classified as pornography and is restricted as per you company's Internet Usage Policy."

My SysAdmin says there's nothing they can do about the filter list, so I figured I'd let you know so that you can choose whether to contact NetSpective and get yourself rated G. I'll be sending similar messages to other sites which are blocked, including Arts & Letters Daily (http://www.aldaily.com), Technorati (http://www.technorati.com/) and Blo.gs (http://www.blo.gs). I find it pretty ridiculous that, as a professional, I'm subjected to content filtering in the first place, but such inaccurate filtering is outrageous.

Thanks again for your terrific blog.
I'm flattered to be in the company of the other pornographic sites that your email identifies. Look on the bright side, though: If my Web log is classified as "pornography," perhaps some actual pornography has been classified as a Web log devoted to appellate litigation.
Posted at 07:28 by Howard Bashman



"Estrada Qualifications Blow Away Breyer and Ginsburg": Rush Limbaugh makes the argument here.
Posted at 07:23 by Howard Bashman



Valentine's Day is supposed to be about love, not sex, right? This report states that the Supreme Court of the United States "may take up a tricky question: What is 'sex'?"
Posted at 07:21 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "Filibuster on Judgeship Stalls Senate Before Recess." You can access here an article entitled "Ban on Internet Cigarette Sales Is Upheld." An editorial is entitled "The Antiwar Non-March." And letters to the editor run under the heading "Sanity and Execution: A Tale Worthy of Kafka."

The Washington Times reports here that "Hispanics call for 'cool down' on Estrada." This article reports that "Senate panel OKs Sutton judgeship." Jennifer Braceras, a commissioner on the U.S. Commission on Civil Rights, has an op-ed entitled "Misguided judicial politics." And you can access here an editorial entitled "Justice denied for Dawn Garvin."

In The Washington Post, Charles Lane reports here that "On Further Review, It's Hard to Bury Douglas's Arlington Claim." And in news from Texas, you can access here an article entitled "Tex. Court's Death Row Debate; Ruling on Competence of Inmate's Counsel Spurs Angry Dissent."

The Los Angeles Times reports here that "Conservative State Judge Nominated for Federal Bench; President Bush names Consuelo M. Callahan, who has served on the appellate court since 1996, to U.S. 9th Circuit." In other news from California, you can access here an article entitled "Continuing Debate Over Megan's Law: Some question whether sex offender list curbs crime. The state statute is set to expire next year." From Orange County, California comes word that "In a preliminary ruling, an appeals court says the D.A. lacks jurisdiction in the Mickey Thompson killing but allows one more chance." And a commentary explains "When an appeal might backfire."
Posted at 06:50 by Howard Bashman



"Scalia: Judicial Selection Too Political": The Associated Press offers this report. And you can access an even more detailed account of U.S. Supreme Court Justice Antonin Scalia's speech yesterday at the University of Pennsylvania Law School at this link, via "How Appealing Extra."
Posted at 06:30 by Howard Bashman



"How Appealing" site news: Yesterday this Web log's hit counter recorded 12,592 visits -- a new one-day record. And yesterday marked the second day in a row in which this blog has received the most visits in its history. Thanks for visiting, everyone!
Posted at 06:20 by Howard Bashman



Thursday, February 13, 2003
A first-hand report on U.S. Supreme Court Justice Antonin Scalia's speech this evening at the University of Pennsylvania Law School: Justice Antonin Scalia delivered the Owen J. Roberts Memorial Lecture this evening at the University of Pennsylvania Law School and then accepted questions from the audience. "How Appealing" reader Tobias James Stern was in attendance, and he has provided me with a wonderfully detailed report on what he observed. You can access the report online here at "How Appealing Extra."
Posted at 22:56 by Howard Bashman



Slightly mo' money: A press release at the White House Web site states:
On Thursday, February 13, 2003, the President signed into law:

H.R. 16, which authorizes a cost-of-living salary adjustment for the Federal Judiciary for Fiscal Year 2003.
You can access the press release here.
Posted at 22:47 by Howard Bashman



Listing the errors contained in Michael Kinsley's Slate essay today entitled "The judicial nominee's ridiculous code of silence": Reader Ryan D. Walters, a third-year student at the University of Michigan Law School wins the distinction of pointing out the most errors contained in Kinsley's essay published today. Ryan's email states:
First, Orrin Hatch is not now saying that the ABA ratings are "the gold standard"--he is merely throwing back the Democrats' own statements in their faces.

The ABA did not just give Estrada "a high grade"--it gave him their highest rating.

Bush has not chosen nominees to fill the 11th and 12th seats on the DC Circuit--two GOP-nominated judges have since assumed senior status since that time that the Republicans (and Judge Silberman) claimed that the court needed no more than ten judges--it is for those seats vacated by those judges recently for which Estrada and John Roberts have been nominated. The Clinton nominee that was held up was not for one of these spots, but for one of the previous two spots before these two openings (and for which Bush has nominated no one).

Bush has nominated two other Hispanics to appellate judgeships--Edward Prado to the Fifth Circuit and Consuela Callahan to the Ninth Circuit.

There is no way that Bush has 42 appellate spots to fill--that is far too high a number.
A reader clerking for a judge on the U.S. District Court for the District of Arizona points out another error in Kinsley's essay:
I think that the last two paragraphs are one big slop of inaccuracies:

"President Bush fired the American Bar Association as official auditor of judicial nominations because the ABA gave some Republican nominees a lousy grade."

Wrong. To my knowledge, the Bush administration never said that it was firing the ABA as "official auditor" because the ABA gave poor marks to Republican nominees. Judge Gonzales's letter to the ABA said nothing about lousy grades, but said that the White House discontinued the prior arrangement because:

"It would be particularly inappropriate, in our view, to grant a preferential, quasi-official role to a group, such as the ABA, that takes public positions on divisive political, legal, and social issues that come before the courts. This is not to suggest that the ABA should not adopt policy positions or express its views. But considerations of sound constitutional government suggest that the President not grant a preferential, quasi-official role in the judicial selection process to a politically active group.
Thanks to all who participated in this worthwhile exercise!
Posted at 22:40 by Howard Bashman



"Justice Ginsburg foresees clash of freedoms, security": The Atlanta Journal-Constitution has this report on Justice Ruth Bader Ginsburg's remarks at a question and answer session today at the Georgia State College of Law. For a report on what Justice Ginsburg was up to yesterday, The Courier-Journal of Louisville, Kentucky offers an article entitled "Ginsburg provides judicial insights; Supreme Court justice honored at U of L law school."

An Atlanta-based reader of "How Appealing" attended Justice Ginsburg's speech today -- entitled "A Few Little Known Pages of Supreme Court History" -- and provides this report:
In providing a Georgia State University audience with lessons in Supreme Court history, Justice Ruth Bader Ginsburg said she was taking her cue from Abigail Adams, who once told her husband John to "remember the ladies in framing new laws."

Justice Ginsburg focused her address on two notable women in the history of the court, Burnita Shelton Matthews and Malvina Shanklin Harlan.

Justice Ginsburg did not take questions after the lecture. There was, however, a question and answer session held for students, faculty and staff at the GSU College of Law earlier in the day.

The justice's chosen topic was interesting, if not newsworthy.

Burnita Shelton Matthews was the first woman to serve as a U.S. District Court Judge, having been appointed by President Truman in 1949. In double checking the spelling of her name, I found at this Web site an interesting interview with her regarding her appointment.

Justice Ginsburg spoke of Judge Matthews' desire to be a lawyer after becoming a court watcher when she was growing up in the early 1900s in Mississippi where her father was the clerk of chancery court. At first, her father opposed her desire to become a lawyer, instead sending her to a music conservatory.

But after her husband went away to the first world war, Burnita Matthews went to Washington D.C. where she worked at the Veterans Administration by day, went to law school at night, and on the weekends picketed the White House along with other suffragettes.

She graduated from law school in 1919 and the next year received a masters in patent law. Not only would no law firm hire Burnita Matthews, but also the Veterans Administration where she already worked refused to hire her in its law department.

Thus, she established her own practice and became counsel to the National Women's Party--which gets us to our point of Supreme Court history.

Burnita Matthews represented the Women's Party in the condemnation of its headquarters and won the largest condemnation award that the federal government had ever paid--$400,000.

The reason for the condemnation? To make way to build the U.S. Supreme Court building. Justice Ginsburg reported that the proceeds were used well--to buy the Belmont House as a new headquarters.

Justice Ginsburg found information in the Supreme Court archives in which government officials were complaining that the women were holding out for a higher price because they were seeking compensation for the historic value of the house that was razed.

That building was constructed in 1815, but the government tried to argue that it was a post Civil War building erected in 1869. At trial, Burnita Matthews proved that the building pre-dated the Civil War by introducing a photograph of a Confederate spy that was taken against the wall of the building when it was a Civil War jail.

As a judge, Burnita Matthews presided over notable trials, including that of Teamsters president Jimmy Hoffa. She took senior status in 1968, but continued to sit with appellate panels for another 10 years. Justice Ginsburg said she was privileged to meet Judge Matthews when she was appointed to the D.C. Circuit.

The other woman who was the focus of Ginsburg's address was Malvina Harlan, whom Ginsburg discovered when she was doing research in 1997 on the lives of wives of Supreme Court justices. In so doing, Justice Ginsburg came across a manuscript of Ms. Harlan's memoirs, beginning when she met Justice John Marshall Harlan in 1854 until he died in 1911.

When Justice Ginsburg first found these memoirs, she tried to interest publishers to no avail. The Supreme Court Historical Society rescued the project and devoted its 2001 issue to the manuscript.

Justice Ginsburg asked New York Times Supreme Court correspondent Linda Greenhouse if the Times would review the publication. Ms. Greenhouse responded that it was unlikely that the Times would review a periodical. However, the tip to the reporter paid off. The Times did two articles on the manuscript [you can access one here] and the result of the favorable publicity was an attractive offer from a publisher to the Harlan heirs and the Supreme Court historical society. Now the book, Some Memories of a Long Life, 1854-1911, can be found on Amazon here.

Among the anecdotes in the book related by Justice Ginsburg was Mrs. Harlan's tactic to break her husband's writer's block when he was penning the dissent, similar to his later dissent in Plessy v. Ferguson, from an 1883 judgment striking the 1875 Civil Rights Act.

Earlier, Justice Harlan had come across the ink stand that Justice Taney had used when he wrote the Dred Scott decision, with which Harlan strongly disagreed. At a social gathering, Justice Harlan promised to deliver this ink stand to a woman who claimed to be related to Justice Taney. Ms. Harlan thought this move was unwise, so she hid the inkstand from her husband. He was forced to report to the Taney relative that it had been mislaid.

The inkstand was "found" when Justice Harlan was at church during his period of writer's block. Ms. Harlan retrieved it from its hiding place and placed it at his writing pad. She told him he would find "a bit of inspiration" for his dissent.

Indeed, Justice Harlan's thoughts were clarified and his pen flew.

Justice Ginsburg suggested that she might take a page from Ms. Harlan's book and find the pen that Justice Bradley used when he wrote decisions opining that women were not meant for civil life.
I thank my correspondent so much for that wonderful report. Readers interested in learning more about Justice Ruth Bader Ginsburg's role in reviving the memoir of Malvina Harlan can access a wealth of additional information via National Public Radio at this link.
Posted at 22:34 by Howard Bashman



"Dems: We will not relent on filibuster": Joan Biskupic offers this report tonight online at USA Today's Web site.
Posted at 22:12 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "GOP Begins Push to Pass Abortion Bill." An here's an article entitled "Court: N.Y. Can Ban Net Cigarette Sales." I reported on this ruling earlier today in a post you can access here.
Posted at 21:00 by Howard Bashman



Cruel and unusual nudity: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit reversed a federal trial court's early stage dismissal of a prisoner's civil rights action which alleged that "prison employees at the Stateville Correctional Center conducted a deliberately harassing strip search in front of female guards that constituted cruel and unusual punishment under the Eighth Amendment."

The Seventh Circuit's opinion explains that "In screening and dismissing the amended complaint under 28 U.S.C. sec. 1915A, the district court reasoned that Calhoun's suit was precluded by 42 U.S.C. sec. 1997e(e) because he alleges only psychological, and not physical injury." The key federal statute in question -- 42 U.S.C. sec. 1997e(e) -- provides: "No Federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury." The prisoner's complaint alleged mental and emotional injury, but it was undisputed that the prisoner had sustained no resulting physical injury.

In today's ruling, the Seventh Circuit held that just because section 1997e(e) precludes an award of compensatory damages in the absence of physical injury, the statute does not prohibit the prisoner from seeking to recover both nominal damages (which means here's a dollar for your trouble) and punitive damages (which can, of course, involve the big bucks).

In a key passage of the opinion, the Seventh Circuit writes:
The Attorney General [of Illinois] argues that a plain reading of sec. 1997e(e) bars Calhoun's suit entirely, reasoning that the statute makes a showing of physical injury a filing prerequisite for every civil rights lawsuit involving mental or emotional injury. We cannot agree. This contention if taken to its logical extreme would give prison officials free reign to maliciously and sadistically inflict psychological torture on prisoners, so long as they take care not to inflict any physical injury in the process.
Later the court's opinion explains (with citations omitted by me):
Moreover, nothing prevents an award of punitive damages for constitutional violations when compensatory damages are not available. Because punitive damages are designed to punish and deter wrongdoers for deprivations of constitutional rights, they are not compensation "for" emotional and mental injury. We therefore conclude that Calhoun may pursue his claims for punitive damages as well.
The Seventh Circuit's opinion suggests that some other federal appellate courts have reached differing conclusions on these issues. It would be interesting to see whether the U.S. Supreme Court would agree with the results that the Seventh Circuit reached today in this case.
Posted at 20:37 by Howard Bashman



"Briefs Filed in Affirmative Action Case": The Associated Press offers this report. The deadline for briefs in support of the University of Michigan's use of racial preferences in student admissions is, by my calculation, Tuesday, February 18, 2003, as Monday, February 17, 2003 is a federal holiday.
Posted at 20:36 by Howard Bashman



Representative of alleged next of kin of World War II hero can't recover Medal of Honor from the Navy, Second Circuit rules: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit, which affirmed the trial court's dismissal for lack of subject matter jurisdiction, at this link. According to the opinion, the case involves one of only two Medals of Honor from World War II that have never been presented to the honoree or his next of kin. You can learn more about the Medal of Honor here and here.
Posted at 19:48 by Howard Bashman



Dahlia Lithwick's co-author explains "the filibuster": You can access Brandt Goldstein's essay here, via Slate.
Posted at 18:55 by Howard Bashman



Senator Blanche Lincoln (D-AR) announces that she cannot support Miguel A. Estrada on the current record: In a statement that just concluded on the floor of the U.S. Senate, Senator Blanche Lincoln (D-AR) has explained that she cannot support the nomination of Miguel A. Estrada to serve on the D.C. Circuit on the current record. Prognosticators had identified Senator Lincoln as someone whose vote Estrada's supports might have been able to obtain.
Posted at 17:21 by Howard Bashman



Second Circuit decides important dormant Commerce Clause case: Today a three-judge panel of the U.S. Court of Appeals for the Second Circuit ruled that a New York law which "prohibits cigarette sellers and common and contract carriers from shipping and transporting cigarettes directly to New York consumers" does not discriminate against interstate commerce in violation of the Commerce Clause. In so ruling, the Second Circuit reversed a federal district court ruling that had declared the state law unconstitutional.

You can access the majority's opinion, written by Senior Circuit Judge Roger J. Miner, at this link. You can access a partial dissent, written by Circuit Judge Jose A. Cabranes, at this link.
Posted at 17:17 by Howard Bashman



Georgetown American Constitution Society and a Grutter amicus brief: Brian Greer, a 2L at Georgetown and president of its American Constitution Society chapter, emails to say:
Congratulations on your fabulous website. I've been a loyal reader for the last few months, and I've encouraged all my friends to do the same. As a law student and a former law clerk on the Senate Judiciary Committee (majority staff; fall 2002), I enjoy reading the insightful legal coverage and commentary you provide.

I also wanted to thank you for giving attention to some of the recent events of the American Constitution Society. Despite your (newly-found) status as a card-carrying member of the Federalist Society, I appreciate your acknowledgement of the "interesting speakers" that ACS has attracted (January 23 post). As you noted, the DC Lawyers' Chapter recently hosted Judges John Noonan and David Tatel. And our Georgetown chapter was lucky enough to welcome Dahlia Lithwick for what was a fabulous brownbag lunch. Over the past two years, our Georgetown chapter has held events featuring a number of fantastic speakers: Judges Diana Gribbon Motz, William Bryant (senior), and Abner Mikva (retired) on judicial clerkships; Senator Hillary Clinton on the Rehnquist Court; Professor David Cole on civil liberties in the wake of 9-11; Senator Paul Wellstone on welfare reform; Judge Louis Oberdorfer on the Federal Sentencing Guidelines; Doug Jones on his recent prosecution of the 1963 Birmingham church bombing case; and Goodwin Liu on clerking for the Supreme Court. In the two short years since ACS's national launch, we have certainly tried to make our presence known.

One of the ways ACS members have recently been working to affect the future of American law is through the filing of an amicus brief on behalf of law students across the country in favor of affirmative action. Because the nation's law students have so much at stake in this decision, we felt that it was essential that we make our voices heard. To that end, for the past two weeks law students on campuses across the country have been circulating the brief, and as a result we have collected over 13,000 signatures from over 130 schools (the signatories will be listed in an appendix to the brief).

The brief supports the use of race as one of many factors in admissions decisions, arguing that diversity is a compelling governmental interest and that a diverse student body imparts invaluable educational benefits to law students. It doesn't address the "narrowly tailored" question because, unlike the importance of diversity, that issue is out of our expertise as law students. The brief will be signed by Georgetown law professors Julie O'Sullivan and Peter Rubin, who is also ACS's national president.

ACS members were instrumental in the drafting of the brief and the organization of the signature-gathering process, along with members of BLSA, APALSA, NLG, and other student groups. It's a testament to how far ACS has come in just two years that its national network is already mobilizing around such important issues (I should note, however, that the brief is not an "official" ACS-endorsed document).

At any rate, thanks again for your great website. Best of luck in the future.
The amicus brief mentioned in the email is available at this link.
Posted at 16:52 by Howard Bashman



Today's most noteworthy reader mail on the U.S. Senate's filibuster of Miguel A. Estrada's nomination to serve on the D.C. Circuit: An attorney who practices law in Illinois writes:
Thanks for keeping us all current on the state of Mr. Estrada's nomination and the Democrats' filibuster. For better or for worse, I've become a bit obsessed with this whole episode. Unlike you, I actually watched much of the CSPAN-2 coverage of last night's Senate floor debate (although I'm sure "My Big Fat Greek Wedding" was probably more entertaining).

In any event, one of your readers' e-mails gave me another thought on the Democrats' motives in this fight. Your law clerk correspondent from the Second Circuit Court of Appeals lists, among other things, "Democrats doing fundraising" as one of the motivations. My thought expands on that just a bit. If my recollection is correct, one of the (many) criticisms of the Bipartisan Free Speech Evisceration Act, er, I mean Bipartisan Campaign Finance Reform Act of 2002 was that its ban on "soft money" contributions to the national political parties would diminish their importance and effectiveness and would enhance the importance of "single issue groups." Moreover, it was widely conceded (and has been recently reported) that the increase in the "hard money" contribution limits would inure to the benefit of the Republican Party almost exclusively. Thus, the theory goes, Democrats will (much more than Republicans) need the assistance (and money) of "single issue groups" if they are to remain competitive in national elections for the foreseeable near future.

Which brings us back to Mr. Estrada. In years past, it seems to me that Senators would have been able to work this out amicably behind closed doors. Indeed, if Senator Hatch's floor testimony last night is to be believed, there were several "controversial" Clinton nominees (Paez, Berzon) who, with Republican support, had successful cloture votes and, eventually, an up/down vote in the Senate. Now, however, the Democrats' increased reliance on single issue groups for support may make such arrangements politically impossible. If Nan Aron (AFJ), Ralph Neas (PFAW) and Kate Michelman (NARAL) demand that a nominee be defeated on pain of withholding future support for a particular Senator, or for the Democrats generally, Senators may not have much choice in the matter from a fundraising, rather than ideological, standpoint. If my theory is correct, we can expect a lot more of this in the future unless/until the BCFRA gets invalidated by the Supremes.

Just my two cents. Keep up the good work.
A reader from Nijmegen, The Netherlands has questions:
I would like to start by complimenting you on this wonderful blog. As a dutch law student interested in the legal systems of other countries, reading your blog gives me a great insight in the constitutional system of the US.

The current debate on the Estrada filibuster and references by several senators to the intent of the framers made me very curious about two things:

1. Did the framers ever discuss the possibility of requiring a supermajority to cut off debate?

2. Is the senate rule which requires 60 votes to invoke cloture constitutional?

I tried to find the answers to these questions on the web but failed. Your blog is read by lots of constitutional scholars who may know the answers. Could you please post these questions on your blog?
As to question 2, the answer appears to be "yes." As to question one, readers are invited to share their knowledge.

A Professor at the Loyola Law School follows-up on his email from yesterday by adding:
A few reflections on some of the other comments about the Estrada nomination:

1. It is interesting that many supporters of Estrada accuse the Democrats of "going nuclear" by using the filibuster or of raising the bar for judges to 60 votes. This just shows the smart tactical move of the Republicans of making the Democrats actually go through with a real, live filibuster. In the past, Senators---Republican and Democrat---used the equivalent of the neutron bomb: it destroyed the judicial nominee but left the Senate standing. All that a senator had to do was to threaten a filibuster (the put a "hold" on a nominee) to stop action on that nominee in its tracks. In addition, the Judiciary Committee gave essentially a veto power to the two Senators from the state in which the judge would sit. Scores of Clinton-era nominees (certainly some very qualified candidates) were killed with this neutron bomb, and although some protested, it hardly got the news attention Estrada has gotten.

2. Some supporters of Estrada claim that the "real reason" the Democrats are filibustering is not because they lack information but because they know that Estrada is a conservative. Suppose this is true. I do not believe this proves the filibuster is improper. Remember that the Senate is inherently a non-majoritarian institution (just ask the Senators from California why they have no more power than Senators from sparsely populated states) and that the 60-vote cloture rule is supposed to make it even more difficult for legislation (or nominees) to get through without supermajority support. Democrats are playing by the rules. If the rules don't work, abolish the filibuster or change the Senate to look more like the House.

3. Other supporters of Estrada claim that the "real reason" the Democrats are filibustering is because they are blindly taking their marching orders from the heads of NARAL or People for the American Way. Now I doubt that these supporters literally believe the Democrats are doing so without thinking; rather, the idea is that the Democrats are responding to pressure from their liberal base. I don't see the problem with this either. If a conservative Republican senator decided to hold a liberal judicial nominee because that nominee was opposed by the head of the NRA or Christian Coalition, would that be improper? In either case, it does not mean that the senator lacks the ability to exercise independent judgment. It means that the senator is listening to the intense feelings of those in her party who feel strongly about the politics of the nomination.
An email that bears the subject line "Democrat reader on Estrada filibuster" observes:
Since you've been so gracious in running reader mail, I thought I'd put my two cents in .... I think the Dems are making a bad mistake by fighting a pitched battle over what is virtually a non-issue. As opposed to a Pickering or an Owen, who (whatever the truth of the matter) have useful sound-bites against them---favoritism to cross-burners! too radical for Alberto Gonzales!---Estrada is a media non-entity. The whole basis of the Dems' filibuster, after all, is not knowing enough about the guy. And for this, they're going to die in the last ditch? To stop a circuit court appointment?

This is going to be a huge waste of credibility that would otherwise come in handy, say, when Rehnquist steps down. The Dems can't afford to be The Party Who Cried "Wolf," but that's where they're headed.
This next email more or less speaks for itself:
I know you've probably been inundated with emails about the Estrada fight. But I had some thoughts I'd like to share, and I appreciate the time and effort you're putting in on this huge story. I'm sorry I get a bit long-winded. By the way, feel free to use any or all of this, but as I am clerking at the 4th Circuit, please don't use my name if you mention this on the blog.

Alberto Gonzales's letter is far too long for me to parse out all the problems I have with it, but one recurs. It's impossible, without doing some heavy-duty research, to refute Gonzales's quotes and stats, but there's a lot of stuff that would be very easy to be taken out of context. To wit: all those quotes by Dem senators, and lots of praise for Sen. Hatch for not asking Clinton nominees their personal views on specific issues, but no mention of Hatch's hold-up of so many nominees. I know it's not exactly the best rhetorical position from which to argue, but it's not like those Dem senators were just waxing philosophic about the nature of the confirmation process, like Publius did in Federalist No. 76 (which Gonzales also quotes). Those statements were made in direct response to heavy-handed stalling tactics from the GOP. I'm not expecting an apology from Gonzales on behalf of Hatch (and I'm darn sure not expecting one from Hatch), but Gonzales is only filling in half the picture.

Let me give a specific example of things taken out of context. Gonzales cites the many appeals court nominees who weren't asked about specific issues, and pays special attention to Supreme Court nominees.

(Aside: One reference is to Ted Kennedy at O'Connor's hearing, saying that she didn't have to answer questions about her personal views on abortion. One wonders what he knew...)

Anyway, Gonzales builds all this up to a quote from Justice Ginsburg in Republican Party of Minnesota v. White. The case involved Minnesota's "no-announce" statute, which prohibited candidates for judicial office from announcing their views on specific issues likely to come before the court. I'll include Gonzales's full quote:

>>>
Justice Ginsburg described the traditional practice in a case decided last year: "In the context of the federal system, how a prospective nominee for the bench would resolve particular contentious issues would certainly be 'of interest' to the President and the Senate . . . . But in accord with a longstanding norm, every Member of this Court declined to furnish such information to the Senate, and presumably to the President as well." Republican Party of Minnesota v. White, 122 S. Ct. 2528, 2552 n.1 (2002) (Ginsburg, J., dissenting) (emphasis added). Justice Ginsburg added that this adherence to this "longstanding norm" was "crucial to the health of the Federal Judiciary."
>>>

Gonzales does acknowledge that Ginsburg's opinion was a dissent, and goes on to cite Scalia'a majority opinion, which in responding to Ginsburg's argument said that "Nor do we assert that candidates for judicial office should be *compelled* to announce their views on disputed legal issues." Scalia's fn.11 (compelled was italicized in the opinion). Scalia goes on to call Ginsburg's argument "pointless," a fact which Gonzales did not point out.

Now, here is the rest of Ginsburg's footnote (see especially the second sentence!):

>>>
Surely the Court perceives no tension here; the line each of us drew in response to preconfirmation questioning, the Court would no doubt agree, is crucial to the health of the Federal Judiciary. But by the Court's reasoning, the reticence of prospective and current federal judicial nominees dishonors Article II, for it deprives the President and the Senate of information that might aid or advance the decision to nominate or confirm. The point is not, of course, that this "practice of voluntarily demurring" by itself "establish[es] the legitimacy of legal compulsion to demur," ante, at 18, n. 11 (emphasis omitted). The federal norm simply illustrates that, contrary to the Court's suggestion, there is nothing inherently incongruous in depriving those charged with choosing judges of certain information they might desire during the selection process.
>>>

So, Justice Ginsburg noted the traditional practice of Supreme Court nominees not to comment on hot issues, but pointed out -- in the same footnote Gonzales cites to the Dems -- that the reasoning of a majority of the Supreme Court is that's there's nothing wrong with nominees so speaking out. In fact, this is why Scalia calls her argument "pointless": Scalia says it's perfectly fine for judges to speak about any issue they choose (as he recently did in a speech in Fredericksburg, Va., criticizing, among other cases, the pledge case from the 9th Circuit); the Minnesota statute prevents that and is therefore unconstitutional; he sees Ginsburg's argument as focusing instead on compelled speech.

In any event, it's one thing to quote a dissenting opinion as authority. It's another to quote an argument that isn't really what that case was about -- so far off-topic that the majority calls it "pointless." It's quite another to quote that dissent way, way out of context, and imply that the majority was fine with the point.

It's even worse (to me) when it starts to look like Estrada is trying to have it both ways. Gonzales quotes Ginsburg for the notion that nominees shouldn't be compelled to speak on specific issues (and no one is arguing that they are being compelled, although the full text of Ginsburg's footnote implies that under the majority's rule, failing to reveal views would be perfectly reasonable grounds for the President or the Senate to decline to nominate or confirm a potential judge). Therefore, he says, Estrada shouldn't have to answer any questions from Dems on specific issues or cases. But, the majority clearly sees no problem with judicial candidates speaking out of their own volition. Gonzales isn't too forthcoming with this. Plus, Gonzales says elsewhere that Estrada would just love to release all his memos to the SG, if only he could. Well, under Scalia's opinion (and practice), why can't Estrada simply tell us what he wrote, even if the SG's office doesn't release the memos? For example, "In the Smith v. Jones case, I thought the U.S. should come in as amicus for Smith because I thought the state law at issue was unconstitutional in light of Supreme Court precedent ABC v. XYZ."

And I don't buy the response that the memos are "highly privileged." Scalia (if asked) wouldn't release the bench memos his clerks write, but sees no problem with publicly stating the kinds of things that would form the substance of those memos, like "the pledge case was crazy." And I know that there's a distinction between the "lawyer" and the "client" in the Scalia/Estrada examples: I guess it's the SG's privilege to waive. But I seem to remember Justice Rehnquist being asked about memos he wrote for Justice Jackson on the issue of racial discrimination. He never said, "That's between me and the Justice."

In the end, I concede that there is a good argument for not releasing the SG memos (even though they won't give the Dems any real ammo). But that's not my main point. I'm simply saying that if the best Gonzales can do is taking footnotes from dissents in Supreme Court cases out of context, the case for the defense is weaker than I thought. And I have to wonder what the Federal Circuit would have done with this submission, given its recent treatment of a DOJ lawyer who took quotes out of context.
Thanks for writing, everyone.
Posted at 16:25 by Howard Bashman



"Landrieu's Estrada 'Betrayal'": The Wall Street Journal today contains this editorial.
Posted at 16:14 by Howard Bashman



"The judicial nominee's ridiculous code of silence": Michael Kinsley at Slate today has an essay bearing this title. Let me just say that Kinsley's essay contains errors. The reader whose email to me points out the most of them will have his or her email reprinted here at "How Appealing."
Posted at 16:06 by Howard Bashman



"Senate Panel Approves One, Delays Three Judicial Nominees": The Associated Press is now offering this report.

Update: A later version of this article contains even more details.
Posted at 14:30 by Howard Bashman



Ninth Circuit Judge Alex Kozinski confirms he's the secret to Eugene Volokh's success: Details available here. Now we can all await publication of Eugene's long-lost law review note, "The Alienability and Devisability of Possibilities of Reverter and Rights of Entry."
Posted at 14:29 by Howard Bashman



Senator Patrick J. Leahy responds to yesterday's letter from White House Counsel Alberto R. Gonzales concerning the Estrada nomination: You can access Senator Leahy's response here.
Posted at 14:21 by Howard Bashman



Byron York's latest "Estrada Update": You can access it here, via National Review Online's "The Corner."
Posted at 14:15 by Howard Bashman



You can't begin an appellate opinion that way, can you? Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit, in a 10-1 ruling, issued an opinion written by Circuit Judge Sidney R. Thomas that begins:
In the book Bang the Drum Slowly, members of the fictional New York Mammoths amused themselves by drawing in dupes with a card scam known as "Tegwar," which was an acronym for "The Exciting Game Without Any Rules." Mark Harris, Bang the Drum Slowly 8 (Alfred A. Knoff, Inc. 1956). The mark, lured into the game by the players' enthusiasm, would be given a handful of cards and encouraged to make wild bids using a weird vocabulary of calls that changed from round to round. Id. at 48, 60-64. The poor cluck would always lose but would be reassured of the game's legitimacy by the veneer of rationality that appeared to overlie the seemingly sophisticated game.

For years, the Board of Immigration Appeals ("BIA") played a variant of Tegwar in its procedural treatment of appeals from suspension of deportation decisions issued by immigration judges ("IJs"). Until recently, aliens who could demonstrate extreme hardship were eligible for suspension of deportation. Under the unique directives applicable to this remedy, the BIA was required to decide eligibility for suspension based, not on the facts that existed as of the time of the hearing before the IJ, but on the facts as they existed when the BIA issued its decision.
Circuit Judge Stephen S. Trott was the lone dissenter, and the final paragraph of his dissenting opinion begins:
I regret the majority's inappropriate and unnecessary decision to liken the BIA to a fictional comedy. Our warrant to entertain petitions for review does not contemplate this kind of critical judgment.
Elsewhere, Seventh Circuit Judge Terence T. Evans today issued, on behalf of a unanimous three-judge panel, an opinion that begins:
Several things don't quite add up in this bizarre little case, which started at a flea market and ended with the brief arrest of a 50-year-old cake decorator at a Kroger's grocery store some 5 months later. The case is here for our review of a district court's grant of summary judgment on qualified immunity grounds to the defendants, two members of the Kane County (Illinois) sheriff's department.

We know little about the Kane County flea market where this saga started, but we do know that a "flea market" conjures up images of booths where sellers display items--used household goods, antiques, pieces of bric-a-brac, for example--on card tables, hoping to entice wandering buyers to part with their money. We can assume, for our purposes, such a scene in early December of 2000 when a seller, Diane Richardson, sold items to a purchaser named Chuck Berry. We won't assume, however, that "Chuck Berry" was The legendary "Chuck Berry" who rode classics like "Maybellene," "Sweet Little Sixteen," and "Johnny B. Goode" into the Rock 'n Roll Hall of Fame.

The items Richardson sold to Berry--two diamond rings--strike us as odd for a flea market. The price paid--over ten thousand dollars--seems even odder. And the method of payment--two separate personal checks from Berry, a stranger to Richardson, seems odder still. Yet, that is what everyone seems to agree happened.

Soon after the checks--surprise, surprise--bounced, Richardson complained to the Kane County sheriff's department, and two deputies, our defendants David Wagner and Keith Gardner, were put on the case. They interviewed Berry 2 weeks after the sale at a correctional facility where he was in custody on an unrelated matter.
You can access all of Judge Evans's opinion at this link.
Posted at 13:43 by Howard Bashman



Senate Judiciary Committee approves nomination of Jeffrey S. Sutton to serve on the U.S. Court of Appeals for the Sixth Circuit by vote of 11-8: Senator Dianne Feinstein (D-CA) broke ranks with her Democratic colleagues to vote in favor of Sutton, as she had pledged to do in a speech on the Senate floor this morning. In fact, in her remarks Senator Feinstein stated that she would also be voting in favor of Sixth Circuit nominee Deborah L. Cook and D.C. Circuit nominee John G. Roberts, Jr. The committee's votes on those two nominees did not occur today, because the Democrats invoked the "two-hour rule," which provides that, without unanimous consent, a committee hearing cannot last more than two hours after the Senate comes into session.
Posted at 13:22 by Howard Bashman



In other news from here and there: Today's edition of The Chicago Tribune reports here that "Two months after Texas' highest criminal court rejected a Death Row inmate's request for a reprieve even though his lawyer's errors had cost him all his federal appeals, three of the court's judges decried the decision Wednesday." You can access the two opinions that the Texas Court of Criminal Appeals issued yesterday here and here.

In the Harvard Law School Record, Adam White has an op-ed entitled "Politics by other means" about the Miguel A. Estrada filibuster.

Finally for now, today's edition of The Arizona Republic reports here that "O'Connor goes to school; U.S. Supreme Court justice dedicates N. Phoenix high school named for her." (Link via SCOTUSblog.)
Posted at 13:12 by Howard Bashman



Finally, I've found a Miguel A. Estrada editorial cartoon: With mention made during yesterday's U.S. Senate debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit that the filibuster had become the focus of editorial cartoonists, I spent a few moments on the Web yesterday trying to track down some examples. No such luck. But today a reader has emailed to draw my attention to the editorial cartoon found toward the bottom of the main page at Roll Call's Web site. And the cartoon is by none other than R.J. Matson, who drew editorial cartoons for The Columbia Spectator in the mid-1980s, while I was working as a reporter for that newspaper. By the way, none of the foregoing is meant to suggest that Matson's cartoon is funny or even makes sense.
Posted at 13:06 by Howard Bashman



"Suit questions Bush's war powers": The UPI offers this report.
Posted at 11:52 by Howard Bashman



Access signed copy of letter from White House Counsel Alberto R. Gonzales to Senators Tom Daschle (D-SD) and Patrick J. Leahy (D-VT) concerning the Estrada nomination: It is available here in a very slow-loading PDF format. Or, you can access the letter here in HTML format via "How Appealing Extra."
Posted at 11:41 by Howard Bashman



Judicial nomination and confirmation news and commentary from here and there: "Cancel the Recess," The Oklahoman urges in an editorial. "Republicans ready to play rough on Estrada nomination," The Associated Press reports here. The San Antonio Express-News reports here that "Hispanics split over judge pick."

The Scripps Howard News Service has a very interesting article entitled "Rangel: GOP charging bias in Estrada case hypocritical; Republicans blocked Corpus Christi lawyer's nomination by President Clinton to bench." It's not every day that a disgruntled former federal appellate court nominee speaks out so publicly. The AP reports here that "La. gets a taste of its first Hispanic political battle." You can access here an article entitled "Estrada Supporters Rally in Washington." The New York Post runs letters to the editor under the heading "Miguel Estrada - Punished for not Being a Liberal Lapdog." A columnist for the Cornell Daily Sun has an op-ed entitled "Playing Games and Playing Politics."

The Denver Post reports here that "Dems assail Tymkovich over high-court critique; Coloradan criticized overturning of state's gay-rights curb." Here's an article reporting that "Alabama judicial nominee has smooth day in front of Senate panel."

Finally for now, you can access here an article that begins, "Sen. Larry Craig has nominated four Idaho residents for one seat on the 9th U.S. Circuit Court of Appeals as the Bush administration presses to fill court vacancies across the country."
Posted at 10:51 by Howard Bashman



Justice Ruth Bader Ginsburg to speak today at Georgia State College of Law: Details available here. A reader promises to send along a summary of Justice Ginsburg's comments. With Justice Antonin Scalia speaking this afternoon at the University of Pennsylvania Law School and with Justice Ginsburg in Georgia, chances are they won't be riding an elephant together today.
Posted at 10:40 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Landrieu disavows Estrada ads." In news from Virginia, this article reports "Pro-life bills likely to pass this year." You can access here an article entitled "'Supersnoop' scheme blocked pending review." And an editorial asserts "End the D.C. handgun ban."

Ruben Navarrette Jr. has an op-ed in The Boston Globe entitled "Hispanic nominee terrifies Democrats."

The Los Angeles Times reports here that "Court Rejects Bid to Rehear Tenure Case; A split panel says a judge failed to weigh expert testimony in race discrimination trial." According to the article, "The case is the first in which 11 judges have publicly registered a dissent when the court failed to rehear a case, said Arthur D. Hellman, a University of Pittsburgh law professor who follows the 9th Circuit closely. 'It is very unusual,' said Hellman, noting that there had been rare instances where eight or nine judges had registered a dissent." You can access here an article entitled "A Flag Vote Is Run Up a Pole in Georgia; The governor, acting on a campaign vow, seeks a referendum to give voters a say on the Confederate battle emblem's prominence." In news from Maryland, "Malvo lawyers seek to avert death penalty." And columnist Norah Vincent has an op-ed entitled "Juries Should Leave Lawmaking to the Lawmakers; Ban on medical marijuana is wrong but must be observed until it is changed."

USA Today reports here that "Witness dispute postpones Moussaoui trial; Justice appeals ruling on al-Qaeda figure." In news from Texas, "Court rejects televising of deliberations." Via my earlier post here, you can access the Texas court's opinions in this matter.
Posted at 10:24 by Howard Bashman



Time change for today's Senate Judiciary Committee business meeting: The start time for this morning's Senate Judiciary Committee business meeting has been pushed back to 11 a.m. You can access more details about this potentially very interesting meeting in my earlier post here.
Posted at 10:03 by Howard Bashman



Miguel A. Estrada Senate filibuster update: Debate on the floor of the U.S. Senate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit will resume at 11 a.m. this morning. You can view the debate online via C-SPAN2 at this link.

Yesterday's debate didn't wrap-up until 12:45 a.m. this morning. You can access the official transcript of most of yesterday's debate at this link, via Jurist. The rest of last night's transcript should be available not later than tomorrow. Stuart Buck has been combing the Congressional Record for interesting tidbits, as his posts here, here, and here reveal.

Today's debate is likely to last late into the night as well. Competing this evening for the attention of TV viewers in the United States will be the debut episodes of "Survivor: The Amazon" and "Are You Hot? The Search for America's Sexiest People." The Atlanta Journal-Constitution offers this report on tonight's viewing choices. Too bad the competition is not to crown "THE HOTTEST blog out there" (I thank the members of The Academy). Or maybe I'll just watch "Atanarjuat, the fast runner" on DVD (A.O Scott review here; Ebert review here). So many choices.
Posted at 09:38 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "4 Judicial Nominees Poised for Approval." And this article reports that "GOP Plays Hardball in Estrada Debate."
Posted at 07:13 by Howard Bashman



Two filibusters for the price of none? The Senate Judiciary Committee at 9:30 a.m. this morning is scheduled to hold a business meeting. On the meeting's agenda are committee votes on D.C. Circuit nominee John G. Roberts, Jr., Sixth Circuit nominees Deborah L. Cook and Jeffrey S. Sutton, and Ninth Circuit nominee Jay S. Bybee. (Because this is the first business meeting at which Bybee's nomination is scheduled for a vote, the Democrats have the right to invoke a one-week postponement of the vote on him.) Late yesterday, however, Judiciary Committee Chairman Senator Orrin G. Hatch (R-UT) repeatedly mentioned in debate on the floor of the U.S. Senate that Democrats on the committee were threatening to filibuster today's business meeting. I didn't recognize that a committee's business meeting could be filibustered, so I will be tuning in with interest. You can listen live online to the business meeting via this link.
Posted at 06:53 by Howard Bashman



"How Appealing" site news: Yesterday this Web log's hit counter recorded 10,616 visits, a new one-day record. And while I would have greatly preferred the cause of yesterday's traffic to have been my insightful reporting on a ruling by D.C. Circuit Judge Miguel A. Estrada, instead most people obviously were visiting to access my coverage of the U.S. Senate's continuing filibuster of Estrada's nomination to serve on that court. I can now also report with certainty that Senate staffers on both sides of the debate are monitoring "How Appealing."
Posted at 06:42 by Howard Bashman



U.S. Supreme Court Justice Antonin Scalia to speak today at the University of Pennsylvania Law School: Will this usually reticent Justice have anything of interest to say today? Stay tuned, as a reader of "How Appealing" has promised to provide an account of this speech via email later today.
Posted at 06:38 by Howard Bashman



In Thursday's newspapers: The New York Times contains an article entitled "A Filibuster Resembling Those of Decades Past." A related editorial runs under the headline "Keep Talking About Miguel Estrada." And you can access here an article reporting that "College-Entrance Preferences for the Well Connected Draw Ire."

The Washington Post reports here that "Deadlock Over Estrada Deepens; White House Rejects Democrats' Request for Nominee's Memos." In other news, this article reports that "Moussaoui Trial Postponed For Third Time; No New Date Set Pending Outcome of Government’s Appeal." Finally for now, you can access here an article entitled "Suits Contest Iowa Prison Ministry Program."
Posted at 00:15 by Howard Bashman



Wednesday, February 12, 2003
Available online at law.com: The Texas Lawyer reports here that "Court Bars Videotaping of Capital Murder Jury Deliberations." In news from New York, "$25M Arbitration Award Is Upset." And you can access here an article entitled "A Step Toward Nationalizing Death Penalty?"
Posted at 23:45 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Democrats Prepare for Estrada Filibuster." This article reports that "Malvo Lawyers Challenge Va. Death Penalty." In news from the Third Circuit (see my earlier report at this link), here's an article entitled "Court: Smokers Don't Get Tobacco Money." Finally for now, you can access here an article entitled "Group Objects to Inmate Religious Program."
Posted at 23:30 by Howard Bashman



Microsoft Corp. today files opening brief in Fourth Circuit appeal from injunction requiring that Sun Microsystem's Java be added to Windows: You can access Microsoft's opening brief on appeal, filed today in the U.S. Court of Appeals for the Fourth Circuit, at this link.
Posted at 23:24 by Howard Bashman



A "How Appealing" Web exclusive (at least for now): Proving that it's nice to have the respect of readers in high places, it appears that "How Appealing" is the only place on the Web where one can now access the letter that White House Counsel Alberto R. Gonzales sent late today in response to yesterday's letter from Senators Tom Daschle (D-SD) and Patrick J. Leahy (D-VT) to President Bush setting forth the Democrats' demands to allow Miguel A. Estrada's nomination to serve on the D.C. Circuit to come to a vote. Judge Gonzales' letter is, by the way, a brilliant response.

In reader mail, a student from Pepperdine emails to say:
You wrote:

"But when nominee McConnell explained that he understood that his role as a federal court intermediate appellate judge was to follow the law rather than to impose his view of what the law should be, he was confirmed. D.C. Circuit nominee Miguel A. Estrada has said precisely the same thing, but for some reason it doesn't suffice."

True. But McConnell isn't 42, Hispanic, and going to the DC Circuit. Plus, he had the support of a massive liberal academic ensemble including Amar and Tribe.

Keep up the comments though. If the AP is reading, who knows, they may start quoting you, and that would be a nice point to see in print.
It's probably too much for me to hope that The Associated Press would quote me twice in one week.

An attorney who practices law in New York City writes:
Let's take a step back, here. Of course this isn't just about Estrada. Maybe in one small way if we "read their minds" and discern that they fear a Hispanic who doesn't need their handouts and preferences. And, I admit that there is no way to divine inside of the Democrats' minds, regardless of how I suspect the Democrats. Each has his/her own reason why he/she supports the filibuster (NARAL, conservative, conservative Hispanic, I hate W., etc.) This is because the nomination process has become increasingly politicized. Of course, the Constitutional process of confirmation makes it politicized and the Senate is a political body. In that sense, a filibuster is perfectly fair (even if it's a terrible idea) because the nomination process is political. Why has this process become so politicized? Hasn't it always been politicized? Of course, but only post-Roe v. Wade has it become so unbearably politicized - at the lower court level!?!?! So, this is really about how Roe has damaged the judiciary by rendering it so terribly difficult to get nominees to the federal judiciary confirmed. You may love Roe (you stealth FedSoc member, you!) or hate it, but as my former professor at Georgetown, Vicky Jackson (truly brilliant - you may have read her article in Yale Law Review some years ago on the 11th Amendment) told me: if you're going to alienate half the country, you might as well rely on sound constitutional law.
A law clerk serving on the U.S. Court of Appeals for the Second Circuit writes:
I wonder if any of this is really about Estrada or his views.

Perhaps it has more to do with:

1. Dems doing fundraising.
2. Dems trying to demonstrate to their constituents that they are still relevant.
3. Practice rallying the troops, in expectation of the supreme court nomination battles to come.
4. Building leverage to negotiate over future nominations.
Finally for now, one last email from a reader:
I am appalled and disgusted by the Democratic treatment of Miguel Estrada -- I hope and expect that they will come to regret this.

But setting aside for a moment my partisan lens, it seems to me a very instructive event -- why have Democrats chosen to pick this fight at this time? In truth, I think they have no choice but to fight, for two reasons: race and abortion. On race, the Democrats simply cannot abide yet another intelligent, successful, sympathetic and yes, conservative jurist (see Clarence Thomas). The very existence of such judges fundamentally undermines so many liberal Democratic orthodoxies that they cannot allow such figures to emerge from the process unscathed. In this respect, it is helpful to consider the disparity between the statements and rhetoric of the liberal Hispanic groups opposed to Estrada (he's not "genuinely Hispanic," does not reflect the experience of most Hispanic immigrants, etc.) and the arguments being used by the Democratic Senators against him. They dare not impugn Estrada's "Hispanic-ness," of course, but there can be no doubt that politically, the Democratic Party's racial apparatus is driving the Senators to the unprecedented lengths they have already gone.

But perhaps even more than race, I believe that abortion is -- as always -- motivating the Democrats to fight so bitterly over this judicial nomination. There is no greater, stronger orthodoxy within the Democratic coalition than unequivocal support for abortion on demand. And the Democrats know full well that their only hope of preserving abortion on demand is to keep the issue tied up in the courts and away from the democratic process. The mere suspicion that Mr. Estrada objects to the jurisprudential underpinnings of the "right to abortion" is enough to make Democratic Party activists demand that their Senators fight this fight. If Bush has his way -- on this nomination and on presumed future Supreme Court appointments -- they know full well that the whole edifice begun with Roe could well crumble. And to be thus exposed to the democratic processes that would then govern is, apparently, a prospect too horrible to allow.

Mr. Estrada obviously drives right at both of these two issues, either one of which alone might have caused this fight. The fact that he's one of the first nominees out of the chute under GOP control of the Senate is also a complicating factor, of course.

That, in any case, is my take -- thanks for your continued coverage, and here's one strong vote in favor of Judge Estrada.
Thanks again, everyone, for writing.
Posted at 22:57 by Howard Bashman



"It sets a terrible precedent": That's what Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) has just said on the floor of the U.S. Senate about the Democrats' filibuster of Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit. I, meanwhile, have just taken the past ninety-five minutes to watch "My Big Fat Greek Wedding" (Ebert review here) on DVD. It made for a nice diversion from the day's events in the Senate.
Posted at 22:42 by Howard Bashman



Today's brand new federal court nominees, including a Hispanic nominee to serve on the Ninth Circuit: From a news release just posted to the White House's Web site:
February 12, 2003

NOMINATIONS SENT TO THE SENATE:

Consuelo Maria Callahan, of California, to be United States Circuit Judge for the Ninth Circuit, vice Ferdinand F. Fernandez, retired.

Steven M. Colloton, of Iowa, to be United States Circuit Judge for the Eighth Circuit, vice David R. Hansen, retired.
You can learn more about Connie Callahan, Associate Justice, California Court of Appeal, Third District, at this link. And you can learn more about Steven M. Colloton, United States Attorney, Southern District of Iowa, at this link.
Posted at 20:09 by Howard Bashman



The White House responds to letter from Senators Daschle and Leahy concerning the confirmation of Miguel A. Estrada to serve on the D.C. Circuit: White House Counsel Alberto R. Gonzales has late today sent a fifteen-page letter responding to the letter that Senators Tom Daschle (D-SD) and Patrick J. Leahy (D-VT) sent yesterday to President Bush. Because the White House's letter does not appear to be available online anywhere else as of this moment, I have posted it here at "How Appealing Extra."
Posted at 19:00 by Howard Bashman



No cameras allowed during death penalty jury deliberations, Texas Criminal Court of Appeals rules today: Today the Court of Criminal Appeals of Texas ruled 6-3 that a state trial court judge acted improperly when he agreed to allow the PBS program Frontline to record death penalty jury deliberations in an upcoming criminal trial.

You can access the majority opinion here. Three judges filed concurring opinions, and you can access those opinions here, here, and here. Two other judges filed dissenting opinions, and you can access those dissents here and here.

For those desiring more coverage of this ruling, The Associated Press offers this report.
Posted at 17:10 by Howard Bashman



The Associated Press is reporting: In news from the U.S. Court of Appeals from the Second Circuit, this article reports that "A federal appeals court agreed Wednesday that the city did not violate the First Amendment when it banned anti-war demonstrators from marching near the United Nations next weekend." And you can access here an article entitled "Federal Judge Postpones Moussaoui Trial."
Posted at 17:04 by Howard Bashman



Even more reader mail regarding the Miguel A. Estrada confirmation battle: A law professor based in the midwest who formerly served as a law clerk to a U.S. Supreme Court Justice writes:
You're doing great work. On the Estrada front: I am inclined to agree with your reader who wonders if you are being objective to a fault here. The reason the Democrats have "gone nuclear" with Mr. Estrada, taking the unprecedented step of filibustering a Court of Appeals nominee, is *not* because they do *not* know what he thinks, but *because they think they do.* Put differently, Estrada is not being opposed because of a lack of SG memos, but because Kate Michelman has demanded that he be opposed. She put down the marker, and -- for many in the caucus -- no other reason is necessary.
Law blogger Sam Heldman emails to say:
Oh, Howard, don't let that darn old email correspondent tell you that you're being too objective by not slamming the Democratic Senators more overtly! You just tell him "Sam thinks I'm not being objective at all, in that I have linked to Stuart Buck's 'apologia pro Ann Coutler' and not to Sam's debunking of the pro-Estrada myths and his other Estrada-related posts of late." Of course, you're entitled to be non-objective, as are we all from time to time. Insert sideways smiley face here.
Sorry, Sam, but my motto is to "Keep 'How Appealing' emoticon-free in 2003."

Finally for now, a law clerk to a judge on the U.S. Court of Appeals for the Eleventh Circuit writes:
The argument that Estrada's presumed "conservative activism" is a legitimate ground for critique rings particularly hollow. First, he is a circuit court nominee, so his ability to overrule precedent is considerably restrained. Whatever merit that criticism might have at the Supreme Court level, it has little force at the circuit level.

Second, even if one assumes that he is a conservative activist and that he could have some influence at the margins as a circuit judge, how does that make him unfit to serve? Those judges who are commonly viewed as "moderates" are classic examples of judicial activists. When the Supreme Court recently used polling data to justify its decision to prohibit the use of the death penalty for the mentally retarded, it unquestionably acted in an "activist" mode. Yet, no one in the supposed "mainstream" think that the Justices who signed on to that opinion are somehow unfit to serve.

The problem, then, is not that Estrada might be an "activist" but that he is (or is suspected to be) a conservative.

To those who oppose Estrada's nomination, I ask this simple question: if the circumstances were reversed, and a (purported) liberal judge was about to be confirmed, would you think it fair for the minority party in the Senate to filibuster the nominee? If this filibuster holds up, a precedent will be set that requires 60 votes in order to confirm a circuit judge.

Whatever short-term bloodlust any particular groups may have for a particular judge, it is not worth destroying the judicial nominations process as it has existed for the last 200 years.
Interesting points, people.
Posted at 16:46 by Howard Bashman



A D.C. Circuit riven by ideological disagreement? Some have observed that the D.C. Circuit currently consists of four active judges nominated by Democratic Presidents and four nominated by Republican Presidents. Thus, in one sense, any addition will result in an "imbalance." But, as Robert Alt notes here, the D.C. Circuit these days is accurately described as "a love fest," and it is most rare for those judges -- regardless of their background -- to disagree with one another.
Posted at 16:43 by Howard Bashman



Reader mail on the Miguel A. Estrada nomination: The following emails have arrived today concerning the U.S. Senate's consideration of D.C. Circuit nominee Miguel A. Estrada.

From a reader who works at the U.S. District Court for the District of Arizona:
I was wondering if you knew whether the Democrats opposing Mr. Estrada have offered any justification for limiting their request to Estrada's memos etc. produced while at the Solicitor General's office. I can't really think of any reason why the same logic wouldn't apply to (1) memos produced while an appellate clerk and (2) memos and analysis produced in private practice (assuming that you could redact in such a way to preserve the attorney-client privilege).

Unless they have suggested a basis for limiting their request, it certainly seems that Estrada's case would provide precedent to request those writings.
Another reader who is coincidentally with the same court emails:
Clerk on D-AZ here. Great blog of course. I'm always happily absorbed by the 9th Cir postings.

As for McConnell v. Estrada - the answer seems pretty clear. The Senate Dems trusted McConnell's word that he would follow the law and not his personal beliefs. And why not? He received endorsements for both his qualifications and integrity from a bipartisan base of law professors. The Democrats are just not convinced that Estrada is being entirely forthright when he says he'll follow the law. Or rather, his judicial philosophy, one shared by Scalia, Thomas, Luttig, et al, embraces a sort of conservative activism that largely disregards established law, of either precedential or Congressional variety. Whether or not one believes "conservative activism" exists (and I very much do), you have to admit it's a legitimate critique (see Judge Noonan, for example). The complaint that he hasn't "supplied enough information" is a bit of a backward way to get at this objection - they simply don't believe his testimony about following the law.

A more crude / partisan way of making this point is that the Democrats think he's just a Federalist Society hack. This feeling comes through reading even sanitized national news accounts (and interviews with Ann Coulter), and there must be a pretty strong conventional wisdom on this in Washington to get 41 Senators to care.
A Professor at the Loyola Law School in Los Angeles writes:
Your most recent post comparing Estrada and McConnell makes some good arguments (especially about how useful the internal SG documents would be), but I disagree on some key points. In a great majority of the cases, I think you are right that an intermediate appellate judge will apply the law as it is, rather than apply what the judge thinks the law should be. But in a small but significant group of cases where the Supreme Court precedent does not exist or is muddled, the intermediate judges can play a very important role. In those cases, a judge's ideology is likely to be an important--if not dominant---determinant of how these cases get decided. (Witness differences in the intermediate federal appellate courts on affirmative action.) That is why I think Schumer is right that ideology should be explicitly on the table in determining whether to confirm life-tenured appellate judges.

Given the belief that ideology is an important criterion for choosing federal judges, what is the difference between McConnell and Estrada? One difference is that Democratic senators can assess their differences in ideology between themselves and McConnell on important issues. He has a paper record. Though the senators may disagree with McConnell on some issues, he may not be as far from their ideological preferences as, say, a Justice Thomas or Scalia. Estrada on the other hand has no paper record to evaluate his ideology. I did not hear Estrada's testimony (and perhaps you could point me to specifics), but from what I understand of it, Estrada refused to explain even his judicial philosophy in general terms---for example, does he believe in primarily textual interpretation of the Constitution? He refused to explain his views even of the Dred Scott decision. On this basis, I can see why Democrats would block Estrada and approve McConnell.
Finally for now, a lawyer practicing in New York City accuses me of being too objective when addressing the arguments of those opposed to Estrada's confirmation:
"For some reason, it didn't suffice."

I admire your ability to be objective. But this time, you know what "for some reason" means. It would be going too far to say that this is the Ralph Neas veto, or that the Dems are afraid of a Hispanic who doesn't need affirmative action or that this is a big [expletive deleted] you to President Bush. I feel, however, that you can do a little bit better than "for some reason."

I love your blog and I am not critical of you in any way except the above sentence. If there ever was a time for you to be less than objective in your blog, it is now. The Democrats are exercising the nuclear option with this filibuster. There is a lot of tit for tat to go around, but the GOP has never done anything like this, regardless of the Democrats' motivations.
Thanks to everyone for writing, including the many readers whose emails are not reprinted here.
Posted at 16:03 by Howard Bashman



"The second he gets in there, he'll overrule everything you love, Paul Begala": Law blogger Stuart Buck puts Ann Coulter's recent comment (click here and scroll down approximately four-fifths of the page) in context.
Posted at 15:55 by Howard Bashman



"[W]e have underscored the importance of effective representation for defendants in child sexual abuse prosecutions": The U.S. Court of Appeals for the Second Circuit, in a fifty-one-page opinion issued today, has ruled that a habeas corpus petitioner convicted of the sexual abuse of two children was entitled to "an evidentiary hearing at which [petitioner's] trial counsel be allowed to explain her trial strategy."
Posted at 15:37 by Howard Bashman



Third Circuit rules that Pa. Medicaid recipients with smoking-related illnesses have no claim to proceeds of the Comonwealth's tobacco settlement: You can access yesterday's ruling of the U.S. Court of Appeals for the Third Circuit (posted online today) at this link.
Posted at 15:32 by Howard Bashman



The Philadelphia Inquirer reports on Pennsylvania's newest interim State Supreme Court Justice: You can access today's article at this link.
Posted at 14:57 by Howard Bashman



What will the internal memos and recommendations of Assistant to the Solicitor General Miguel A. Estrada reveal? No, I haven't seen these documents, and chances are neither have you. But I can assure you that the highly intelligent attorneys who work on the staff of the Solicitor General of the United States do not view internal memos and recommendations as a forum to advance their own personal interests, beliefs, and philosophies. Rather, those documents would at most reveal the advice that Miguel A. Estrada offered to further the best interests of his client, the United States of America.

Unlike practicing attorneys, who in their client work have very little if any opportunity to reveal their own personal views about what the law should be, law professors have perhaps the greatest opportunity to reflect their personal views of the law in their writings. Tenth Circuit Judge Michael W. McConnell had views on controversial issues that in all likelihood were contrary to the views held by most every Democratic U.S. Senator. But when nominee McConnell explained that he understood that his role as a federal court intermediate appellate judge was to follow the law rather than to impose his view of what the law should be, he was confirmed.

D.C. Circuit nominee Miguel A. Estrada has said precisely the same thing, but for some reason it doesn't suffice.
Posted at 14:32 by Howard Bashman



Seventh Circuit affirms grant of class certification in environmental contamination case: Yesterday, a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in an opinion by Circuit Judge Richard A. Posner, affirmed the grant of class certification in an environmental contamination case. You can access the opinion here. The law blog "How Green Is My Country" reports on the ruling here.

Meanwhile, the anonymous author of "How Green Is My Country" writes in another post, which you can access here:
I should thank Howard Bashman at How Appealing who: (a) obviously inspired this blog, with his incredibly interesting and addicitive appellate law blog; and (b) has a link to this site as well.

(That for this anonymous environmental law blogger to acknowledge Bashman is like Rosencrantz and Guildenstern acknowledging Hamlet is not lost on me. I will now retreat behind the narrative once again...)
Elsewhere, "D" of the "Sub Judice" blog calls me a "polymath" and asks me to address whether some law bloggers "shamelessly flatter the people at the top of the tail, hoping that they will link to you." Of course, I would never link to another blog simply because it shamelessly flattered me.
Posted at 14:24 by Howard Bashman



"GOP plans show of force on Estrada": Byron York of National Review Online offers this post at "The Corner."
Posted at 14:07 by Howard Bashman



Eleven judges dissent from Ninth Circuit's denial of rehearing en banc in appeal that set aside $637,000 award to black professor who alleged unlawful tenure denial: Because twenty-four active Ninth Circuit judges were eligible to vote on whether to grant rehearing en banc, thirteen votes in favor were required for rehearing en banc to be granted. Circuit Judge Stephen Reinhardt wrote an opinion dissenting from the denial of rehearing en banc, and ten of his colleagues on the court joined in that dissent.

Circuit Judge Diarmuid F. O'Scannlain was the author of the original three-judge panel's opinion, in which Circuit Judge Richard C. Tallman and Senior District Judge Samuel P. King, sitting by designation from the U.S. District Court for the District of Hawaii, joined.

You can access here both Judge Reinhardt's dissent (toward the front of this document) and Judge O'Scannlain's opinion for the panel (which follows Judge Reinhardt's dissent).
Posted at 13:30 by Howard Bashman



"Without that information Miguel Estrada will never be a federal judge": Senator Harry Reid (D-NV), Assistant Democratic Leader, has just stated on the floor of the U.S. Senate that unless the internal memos and recommendations that D.C. Circuit nominee Miguel A. Estrada wrote while working as an Assistant to the Solicitor General are produced, and Estrada answers questions that enable the Democratic Senators to understand how he will rule on cases, "Miguel Estrada will never be a federal judge." And thus the Democrats have drawn a line in the sand.
Posted at 11:23 by Howard Bashman



"Filibuster" in Senate Judiciary Committee threatened for other pending federal appellate court nominees: The first time that Senator Orrin G. Hatch stated this morning on the floor of the U.S. Senate that Democrats were threatening to "filibuster" other federal appellate court nominees at tomorrow's Senate Judiciary Committee business hearing (agenda at this link), I couldn't believe my ears. But now that Senator Hatch has said it twice, I guess I heard it right the first time. Senator Hatch is now accusing the Democrats of using "weapons of mass obstruction."
Posted at 10:28 by Howard Bashman



The wire services are reporting: The Associated Press reports here that "Proposal Would Let Jurors Ask Questions"; here, "Government: Man Sought to Kill Prosecutor"; and here, "California's Death Row Briefly Opened Up."

Reuters reports here that "French Court Acquits Ex-Yahoo Chief Over Nazi Sites." And you can access here an article entitled "Court Sides with Consumers in AT&T Dispute." The court in question is the U.S. Court of Appeals for the Ninth Circuit, and its ruling yesterday can be accessed at this link.
Posted at 10:23 by Howard Bashman



This morning's Miguel A. Estrada confirmation update: Byron York of National Review Online this morning has an essay that begins, "The battle over the federal appeals-court nomination of Miguel Estrada has taken an ominous turn for Republicans, with Democrats beginning an unprecedented filibuster and demanding that President Bush make concessions before they will allow a vote on Estrada's confirmation."

At the start of this morning's U.S. Senate floor debate, Senate Majority Leader Bill Frist (R-TN) refused to tell the Democratic side just how late into the night the Senate would stay in session. Assistant Democratic Leader Harry Reid (D-NV) responded that the Democrats would stay there as long as it took, although the Democrats reserve the right to speak to matters other than the Estrada nomination.

You can access here and here the transcripts of yesterday's Senate debate, via Jurist.

And Senate Judiciary Committee Chairman Orrin G. Hatch has just stated on the Senate floor that "blue slips" will no longer be sufficient to block judicial nominees, even if neither home state Senator has returned a blue slip to approve a nominee.
Posted at 09:39 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times reports here that "Senate Democrats hold up vote on Estrada." A related editorial is entitled "Bring it on." You can access here an article entitled "Residents challenge District's gun ban." And Ernest W. Lefever has an op-ed entitled "Bowing before the altar of diversity."

The Los Angeles Times reports here that "Democrats Won't Budge on Bush's Judicial Nominee; Senators plan to wage a filibuster unless they see papers showing Miguel Estrada's legal views." This article reports that "Politicians Back Call for Gang Loitering Law." In other news from California, you can access here an article entitled "Death Row Welcomes Media for Sales Pitch; Reporters tour aging, crowded San Quentin facility. Prison officials want to replace it." And from Sacramento comes news that "Senate Approves Coastal Panel Bill; Measure would change aspect of commission that court said violates the state Constitution."

Finally for now, The Boston Globe today contains an editorial that begins, "When faced with challenges to the city's affirmative action programs, the Menino administration has blinked."
Posted at 07:31 by Howard Bashman



Looking for cloture: If the U.S. Senate were to vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit, he would be confirmed by a narrow margin. Yet while there are more than fifty votes to confirm Estrada, sixty Senators must join in a vote for cloture to cause an end to the debate. And sixty votes do not appear to exist for that purpose, at least not right now.

Readers who wish to learn more about the U.S. Senate's rules governing filibuster and cloture can do so here, here (a twenty-six-page PDF document entitled "Filibusters and Cloture in the Senate"), here, and here. All four links lead to Web pages or PDF documents available over the U.S. Senate's official Web site.

After my post entitled "Asking the tough, albeit rhetorical, questions" appeared here last night, I had the following email exchange with someone who is now clerking for a judge on the U.S. Court of Appeals for the Fifth Circuit:
The law clerk's initial email to me:

I know you said this was a "rhetorical" question, but I don't think it's "tough," as you also say. Most of the Democrats would vote against Pickering, but he would be confirmed. The reason why they are filibustering against Estrada is because they think he's on his way to the Supreme Court. Pickering would be joining an already-conservative Fifth Circuit, and then he'd be going, in short order, to senior status.

What's so tough about that?

My response:

We shall see. My prediction is that the Democrats won't take kindly to the "first attempt ever" to get a nominee confirmed whose nomination was supposedly killed by the Judiciary Committee, albeit last year's version.

As for Estrada, if the worry is that he'll end up on the U.S. Supreme Court, why not filibuster then if his record remains too slender?

The law clerk's reply:

Excellent points.

Perhaps the worry is that Estrada would be on the bench long enough to have some sort of paper trail, thus undermining the "stealth nominee" argument. But, he might not have time to do anything alarming enough to hold against him. As you know, most of the cases he'd see would be entirely innocuous, from a political standpoint. In other words, the strategy is to label him a "stealth" while he's the most stealthy.

You're right that they're tough questions after all.
The U.S. Senate is scheduled to resume debate over the Estrada nomination today at 9:30 a.m. You can watch it live online via C-SPAN2 at this link.

Also at 9:30 this morning, the Senate Judiciary Committee will hold a hearing to consider the nomination of Timothy M. Tymkovich to serve on the U.S. Court of Appeals for the Tenth Circuit. If confirmed, he would be the first federal appellate judge whose last name was Tymkovich. (See for yourself.) You can access an audio feed of this morning's Judiciary Committee hearing via this link.
Posted at 06:45 by Howard Bashman



"Why Johnnie Can't Lead": A Harvard Law student has an interesting, if lengthy, article about attorney Johnnie Cochran in the current issue of The New Republic magazine. Thanks to a different Harvard Law student for emailing to bring this to my attention.
Posted at 00:43 by Howard Bashman



In Wednesday's newspapers: The Washington Post reports here that "Democrats Demand More Information on Estrada; Senators Threaten Filibuster to Block Bush Nominee." You can access here an article entitled "MIT to End Programs' Racial Exclusiveness; Nonminority Students to Be Accepted." Although the U.S. Court of Appeals for the D.C. Circuit still awaits its first Hispanic judge, this article reports that "First Black Sworn In as Va. Court's Top Justice." Lloyd Grove reports here (second item) that Chief Justice William H. Rehnquist is especially fond of his homosexual neighbors, not that there's anything wrong with that. A front page article reports that "Maryland's highest court yesterday halted the impending execution of a Baltimore area killer and scheduled a May hearing on his challenge to the state's death penalty law, a decision that probably will prevent Maryland from executing anyone for at least three more months." And an editorial is entitled "Patriot Act: The Sequel."

In The New York Times, Neil A. Lewis reports here that "Filibuster on Judgeship Halts Business in the Senate." Adam Clymer has an article that begins, "House and Senate negotiators have agreed that a Pentagon project intended to detect terrorists by monitoring Internet e-mail and commercial databases for health, financial and travel information cannot be used against Americans."

The Christian Science Monitor reports here that "Affirmative action, Texas style, stirs criticism."

Finally for now, at OpinionJournal, Collin Levey has an essay that asks, "Will Big Eenie Meenie be the next tobacco?" On Monday, The Kansas City Star contained a related article that ran under the headline "Rhyme at center of lawsuit against Southwest Airlines."
Posted at 00:12 by Howard Bashman



Tuesday, February 11, 2003
Spare time, police, and the United States Reports: An opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today remarks:
It may be argued that judges should not expect police officers to read United States Reports in their spare time, to study arcane constitutional law treatises, or to analyze Fourth Amendment developments with a law professor's precision. We do not expect police officers to do those things. We do, however, expect officers to think twice before embarking on a course of conduct, such as the one here, that is unusual, unfair, and unduly coercive.
You can access the complete opinion at this link.
Posted at 23:37 by Howard Bashman



Transcript of Final Shuttle Transmissions: The Associated Press has just posted online this transcript.
Posted at 23:21 by Howard Bashman



Second Circuit examines in depth whether ERISA preempts a quality of medical care claim: Fans of ERISA preemption won't want to miss today's exhaustive ruling by the U.S. Court of Appeals for the Second Circuit. Circuit Judge Guido Calabresi issued a dissenting opinion in which he observes that "it is not too late for the Supreme Court to retrace its Trail of Error and start over from the beginning."
Posted at 23:17 by Howard Bashman



Available online at law.com: Shannon P. Duffy has an article that begins, "Cybersquatters take note: A federal appeals court has ruled that although the Anti-Cybersquatting Consumer Protection Act is not to be applied retroactively, the re-registration of an Internet domain name brings the site within the law's reach." The court in question is the U.S. Court of Appeals for the Third Circuit, and you can access its ruling issued today in Schmidheiny v. Weber at this link. And no, "Schmidheiny" isn't some sort of newfangled bad word. Instead, it's the last name of one of our Nation's most wealthy individuals.
Posted at 23:09 by Howard Bashman



Asking the tough, albeit rhetorical, questions: Given that Senate Democrats are willing to filibuster Miguel A. Estrada's nomination because they supposedly don't know enough about him, one can only imagine what the Democrats would do if President Bush's renomination of Charles W. Pickering, Sr. to serve on the U.S. Court of Appeals for the Fifth Circuit were to reach the floor of the U.S. Senate.
Posted at 22:57 by Howard Bashman



Only you can protect children from the Internet: Thanks to Deborah Caldwell-Stone, Deputy Director, Office for Intellectual Freedom, American Library Association, for emailing today to let me know that the ALA has posted online links to the briefs filed in the U.S. Supreme Court in the case known as American Library Association v. United States, which is the lawsuit seeking to overturn the Children's Internet Protection Act. You can access the briefs via this link.

Ms. Caldwell-Stone's email also kindly noted, "On a personal note, I want to say your blog rocks. I rely on it daily to keep me updated. As a former appellate lawyer myself, I really appreciate the work you put into it." Yay! My blog rocks.
Posted at 22:15 by Howard Bashman



Senator Jon Kyl for the U.S. Supreme Court? An interactive chart accompanying this article posted online today at MSNBC says it's a possibility.
Posted at 21:53 by Howard Bashman



"Time Running Out For High Court to Hear McCain-Feingold": Law Professor Richard L. Hasen had this interesting essay published in Roll Call last week.
Posted at 21:44 by Howard Bashman



Today's FindLaw commentary: Law Professor Joanna Grossman asks "Is the Tort of Wrongful Seduction Still Viable?"
Posted at 21:19 by Howard Bashman



Transcript of President Bush's remarks late this afternoon on the Miguel A. Estrada confirmation battle: You can access a transcript of the President's remarks here, along with links to audio and video feeds of the remarks.
Posted at 21:06 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Dems: They Will Filibuster Estrada Vote." And this article reports that "Mo. Death Row Inmate to Get New Trial."
Posted at 21:03 by Howard Bashman



The former IT director of the U.S. Court of Appeals for the Eleventh Circuit has some thoughts to share: Today I received the following email from Ward Mundy responding to my repeated observations that the Eleventh Circuit is the only federal appellate court that makes it next to impossible to access opinions via its own Web site:
Re: The Eleventh Circuit is the one federal appellate court that has yet to find a way to make its opinions easily accessible on the Web.

For what it's worth, I thought a different perspective on the concerns you raised with the Eleventh Circuit's current web site opinion collection might be of interest. I retired as the IT Director for that court several months ago, and I don't think I'm stepping out of bounds by giving you an insider's perspective at this juncture. I served as the IT Director at the court since it opened for business twenty-one years ago. Prior to that I was an appellate lawyer and later a court administrator. So I've been in the appellate business a very long time.

By way of background, the Eleventh Circuit was the first of the federal circuits to actually have a web site (about ten years ago). It was maintained at MindSpring while that company was still operating out of Charles Brewer's garage as I recall. At that time, there was some institutional resistance to building a government-funded site that competed directly with WestLaw and Lexis, commercial ventures that indexed opinions for a living. The Eleventh also was one of only two circuits distributing opinions at no cost. Most of the other circuits had BBS systems for which users paid a per minute charge for downloads. Had it not been for the Eleventh and the Seventh, everyone would still be paying for opinion downloads today.

I worked pretty hard in the early days to persuade the court to let us encourage some law schools to provide free, public access to appellate court opinions. At that time, Cornell provided an indexed collection of Supreme Court cases, and that was all that was available. Within a few months, we persuaded Emory Law School and several other law schools to build and maintain indexed collections of federal appellate cases. Today Emory Law School still provides this service for the First, Fourth, Sixth, and Eleventh Circuits while Villanova hosts a similar service for the Third Circuit, the Touro Law Center supports the Second Circuit, and FindLaw handles the Ninth Circuit. Suffice it to say, these have been labor-intensive (thankless) efforts by some really great institutions for many, many years with no thought of financial reimbursement. Their efforts saved taxpayers literally hundreds of thousands of dollars in labor and hardware costs which would have been required to provide similar functionality in house (as some of the circuits now have done).

So the initial purpose of many of the circuits' web-based and BBS opinion collections was to serve as "feeders" to these institutional web sites and to legal publishers. Instead of coming to the counter at every circuit court each day to pick up all of the opinions of the day, legal publishers could simply download them from the circuits' web sites. As I indicated previously, there also was a battle brewing nationally as to whether courts should charge for electronic copies of opinions. Fortunately, with some strong arm-twisting by Eleventh Circuit judges and support from several of the other circuits, that issue now is behind us. The Judicial Conference of the United States ultimately determined that opinions should be provided at no cost to the public.

During the decade that this political struggle was unfolding, WordPerfect still controlled about 90 percent of the legal word processing market so it was only natural that most of the opinions were provided in WordPerfect format. This was the preference of most of the legal publishers at the time because they already had tools in place to convert WordPerfect documents into their proprietary indexes. The important point here is that the circuit web sites and bulletin board systems were principally designed to support publishers while the law school sites provided indexed collections for use by the public at large. To now suggest that the Eleventh Circuit was somehow shortchanging the public because of the opinion format and lack of indexing ignores what really was going on ... which brings us to the 21st century.

Times have changed, and many individuals, law firms, and companies now track federal appellate case law directly. With that in mind, I think most of the federal circuits (including the Eleventh) now are working toward bringing indexed collections of opinions in house. I recall many an internal battle when I wanted to expand our internal public collection of opinions to more than 90 days worth. Bringing this service in house is not without some major pitfalls including financial and labor costs to maintain hardware and to catalog and index opinions each day forever as well as network security and Internet bandwidth.

At the top of my list was network security. This is the primary reason that we were content to let Emory provide the service in the past. Literally hundreds of people from around the world attempt to hack into the federal judiciary's web sites every week. Microsoft's index server has had the capability to index Word, Acrobat PDF, and WordPerfect documents for many years. Some other commercial products do it as well but at substantial cost for the software. With these indexing systems, the end-user is shown an HTML document with search words highlighted and cases arranged by number of hits. The Eleventh Circuit, in fact, has used this technology internally for much of the last decade.

Using such tools in house and putting Microsoft's Index Server on the public Internet are two very different undertakings. The number of successful hacks of Index Server on public web sites is staggering, and each time Microsoft swore that security patches "fixed" their product, another successful hack of either the Index Server or Microsoft's web server occurred within days or weeks. There now are some safer Linux-based tools, and I think the Eleventh is quickly moving in that direction. This, of course, leaves unanswered what will become of the institutional collections put together by Emory and some other organizations.

In conclusion, suggesting that the Eleventh and some of the other circuits lack opinion search tools is simply not correct. It ignores the very real contribution that Emory and some other institutions have made over the past 10 years and continue to make every day. Does the public really need (or want) two indexed collections of Eleventh Circuit cases?

--wm

p.s. Feel free to publish any or all of this if you are so inclined.
Thanks so much for writing to share those views. And now I say to Jonathan Ringel -- the reporter who covers the Eleventh Circuit for the Fulton County Daily Report -- the ball is in your court.
Posted at 20:56 by Howard Bashman



Tonight's Miguel A. Estrada confirmation battle update: Just about ten minutes ago, the U.S. Senate wrapped up its business for the day. Tomorrow the Senate is scheduled to take up the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit at 9:30 a.m., and a very late night is threatened. According to Senate Judiciary Committee Chairman Orrin G. Hatch, the Senate has had, as of tonight, twenty hours of debate on the nomination. Over at The Nation, a blog known as "The Online Beat" has a post entitled "Dems move to block Estrada."
Posted at 20:21 by Howard Bashman



"Ashcroft Orders Staff to Chain Him Tightly Before Next Full Moon": Tomorrow's issue of The Onion contains this report.
Posted at 20:21 by Howard Bashman



Law Professor Jeff Cooper has a new site for his blog: Welcome back! Jeff no longer needs to wrestle with the peculiarities of Blogger, which caused my site earlier today (a) to be unable to update; (b) to be in large type (which some people actually emailed to say they liked!); (c) to lose its working hit counter; (d) and to lose direct links to my posts. Three out of four of these problems have now been repaired, and I'm confident that the fourth will be fixed tonight.
Posted at 17:30 by Howard Bashman



It was worth a try: A bit earlier today, the White House issued the following statement from President Bush concerning the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit:
Last week, the Senate began floor consideration of the nomination of Miguel Estrada to the D.C. Circuit Court of Appeals. Mr. Estrada's nomination was first submitted to the Senate in May 2001 -- almost two years ago. Miguel Estrada is a well-qualified and well-respected nominee who enjoys the bipartisan support of a majority of Senators. Fairness demands that he receive an up-or-down vote on the Senate floor. I urge the Senate to act quickly and allow for an up-or-down vote on this worthy candidate.
You can access the statement here.
Posted at 16:51 by Howard Bashman



Senator Tom Daschle (D-SD) lists the Democrats' demands to confirm Miguel A. Estrada: Number one, the internal memos and recommendations that Estrada wrote while working as an Assistant to the Solicitor General must be produced. Number two, Estrada must answer questions that enable the Democratic Senators to understand how he will rule on cases. And so the filibuster begins.
Posted at 16:36 by Howard Bashman



First Circuit examines the naked truth of qualified immunity law: Today the U.S. Court of Appeals for the First Circuit, in a case from Rhode Island, issued a decision that concludes:
The law was clearly established on March 17, 2000, that people arrested for non-violent, non-drug related minor offenses could not be subjected to strip and visual body cavity searches absent reasonable suspicion that they were concealing contraband or weapons, even when those arrestees were commingled with general prison populations. The district court's decision granting qualified immunity to the defendants-appellees is therefore REVERSED and the case is REMANDED for further proceedings consistent with this opinion. Costs on appeal are awarded to plaintiffs-appellants.
You can access the complete ruling at this link.
Posted at 16:00 by Howard Bashman



"Dems Say They Can Block Vote on Judge": The Associated Press offers this report.
Posted at 15:55 by Howard Bashman



Like a never-ending episode of MTV Unplugged, but behind bars: One of the two appellants in today's D.C. Circuit case challenging a prohibition on electric guitars (opinion available here) is Brett C. Kimberlin. You can access the trial court's ruling in that case at this link.

And could this Brett C. Kimberlin be the same fellow who, according to Time magazine, "claims he sold marijuana to Dan Quayle a dozen or so times in the 1970s and even smoked some with the future Vice President in 1971 at a fraternity party in Indiana"? You can learn more about the latter Brett C. Kimberlin in an earlier D.C. Circuit ruling that you can access here.
Posted at 15:27 by Howard Bashman



Byron York is reporting: York offers this breaking news: "Just minutes ago, Senate Minority Leader Tom Daschle announced that Democrats will not allow a vote on the appeals court nomination of Miguel Estrada."
Posted at 15:17 by Howard Bashman



The real reason why the D.C. Circuit is important: Today a divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit resolved whether Congress lawfully may ban electric guitars from federal prisons. You can access the ruling at this link.

Those desiring more classic D.C. Circuit fare can bring in 'da FERC at this link.
Posted at 14:50 by Howard Bashman



"Bush Urges Senate to Vote on Judge Pick": The Associated Press offers this report. Meanwhile, we are moments away from learning whether the Democrats in the U.S. Senate plan to pursue a filibuster.
Posted at 14:34 by Howard Bashman



"ABA Recommends Curbs on Asbestos Lawsuits": Gina Holland of The Associated Press has this report.
Posted at 14:08 by Howard Bashman



"Man Tells Judge He Wants Jesus As Lawyer": The Associated Press offers this report.
Posted at 13:09 by Howard Bashman



Large type? Today would appear to be the day that Blogger randomly directs its wrath at "How Appealing." The good news is that new posts have begun to appear here again. The bad news is that the typeface is a bit larger than usual, and I have no ability to fix that right now. But stay tuned -- eventually everything will return to normal.
Posted at 11:05 by Howard Bashman



"Judging Gonzales: Conservatives worry about Bush's Supreme Court pick." Ramesh Ponnuru has an essay bearing this title at National Review Online.
Posted at 10:01 by Howard Bashman



En banc Sixth Circuit rules 6-3 that claim under equal benefit clause of 42 U.S.C. sec. 1981 does not require existence of state action: You can access today's en banc Sixth Circuit ruling at this link.

Back on January 21, 2003, in a post you can access here, I wrote:
Second Circuit splits the circuits concerning whether equal benefit clause of 42 U.S.C. sec. 1981 requires existence of state action: Of course, the Second Circuit (whose decision issued today you can access here) is probably right in its view, and, notably, the Sixth Circuit has granted rehearing en banc to reconsider this earlier ruling to the contrary.
The Sixth Circuit's en banc majority opinion issued today favorably cites to the Second Circuit's ruling mentioned in my post of January 21st.
Posted at 09:51 by Howard Bashman



Access online the transcripts of yesterday's U.S. Senate debate on Miguel A. Estrada's nomination to serve on the D.C. Circuit: Via the Congressional Record Web site, you can now access online the transcripts of yesterday's debate. Here are the instructions you need to follow. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 7, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 7, on the resulting page click on the link that reads "Printer Friendly Display." Then, return to the main page listing yesterday's transcripts, select item number 9, which is entitled "Nomination of Miguel A. Estrada, of Virginia, to be United States Circuit Judge for the District of Columbia Circuit--Continued ," and on the resulting page click on the link that reads "Printer Friendly Display."

And at 9:30 a.m. this morning, the Estrada debate continues. You can watch it live online at C-SPAN2 at this link.
Posted at 09:11 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Washington Times reports here that "Second Democratic senator backs Estrada for judgeship." Bruce Fein has an op-ed entitled "Ill-conceived opposition." This article reports that "Islamic charity leader pleads guilty." You can access here an article entitled "Virginia bill would fly South Vietnam flag." Here's an article entitled "Student sex survey deemed legal." And Clarence Page has an op-ed entitled "Marijuana jury hoodwinked."

In The Boston Globe, Lyle Denniston reports here that "State policies that guarantee college admission to a top layer of high school seniors, a practice the Bush administration favors as an alternative to affirmative action, actually have had little impact on minority enrollment at public universities, two new Harvard studies say." An article that you can access here reports that "Program halt stirs minority concerns; City defends end of race, gender rule." And this article reports, "Fighting to preserve a student-assignment policy in a school district with an infamous history of racial battles, lawyers for the city of Boston yesterday told a federal judge that race plays no role in determining where students attend school."

The Los Angeles Times reports here that "ABA Opposes Bush 'Enemy Combatants' Policy; U.S. citizen-detainees have a right to meet with lawyers, bar group says. They also should be allowed 'judicial review' of their status, it adds." You can access here an article entitled "Admissions Studies Find Flaws; 'Percent plans' were lauded as race-neutral, but reports say they don't boost diversity." This article reports that "The California Coastal Commission asked the state Supreme Court on Monday to throw out lower court rulings that found the commission in violation of the state's Constitution because of the way its members are appointed and the way they can be dismissed." You can access here an article entitled "Man Admits Sending Aid to Fighters; Charity leader illegally supported Muslims in Chechnya and Bosnia, but he denies a link to Al Qaeda. U.S. defends plea agreement." And this op-ed is entitled "Mexico Butts Into U.S. Justice; Criminals are finding a haven to the south."

Finally for now, USA Today contains an article reporting that "Charity director strikes deal before jury seated."
Posted at 09:00 by Howard Bashman



"It's time for intolerance to end": The Committee for Justice has a television commercial in support of Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit. You can access it via this link. (Thanks to "Southern Appeal" for the link.)

Meanwhile, Byron York reports here, in National Review Online's "The Corner," that things are "looking good for Estrada."
Posted at 08:50 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court OKs Denver Affirmative Action Law" and here an article entitled "Lawyers Group Faces Tough Asbestos Debate."
Posted at 06:13 by Howard Bashman



In Tuesday's newspapers: Charles Lane reports in a front page article in The Washington Post that "U-Michigan Gets Broad Support on Using Race." Relatedly, you can access here an article entitled "College 'Percent' Plans May Not Help Diversity; Minority Enrollment Tends to Be Lower at Selective Schools, Reports Find." This article reports that "Muslim Charity's Leader Accepts Plea Agreement; Terrorism Charges Dropped; Diversion of Funds Admitted." And an editorial is entitled "No Cheap Defense."

In The New York Times, Adam Liptak has an article entitled "State Can Make Inmate Sane Enough to Execute." The U.S. Supreme Court is scheduled to hear oral argument on March 3, 2003 in a case that raises similar issues, even though it doesn't involve the death penalty. You can access here an article entitled "Changes in Defining Wetland Angers Critics of Army Corps." This article reports that "Charity Leader Accepts a Deal in Terror Case." Jose Padilla's lawyer is profiled in an article entitled "Speaking for Terror Suspect, and for the Constitution." Finally for now, this article reports that "Credit Card Companies May Be Forced to Return Fees."
Posted at 00:15 by Howard Bashman



Monday, February 10, 2003
Available online at law.com: You can access here an article entitled "Panel Dismisses Privacy Claim Brought by Justice Satirized by Artist as Demon." Thanks to a reader who was involved in the appeal, I reported on and linked to that ruling here on the day of its issuance.

In news from Texas, this article reports that "Court Urged to Limit Intentional Infliction Tort." You can access here an article reporting that "Anti-War Protesters Lose Bid to Parade Past U.N.; City denial of permit based on content-neutral policy."

And I told you the other day that The Legal Intelligencer's Web site would no longer be making my monthly appellate column available online free of charge. But people who sign-up for email delivery of the column can still receive it for free. Indeed, due to an email anomaly, subscribers today received two copies of this month's column for the price of none.
Posted at 23:34 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Gov. To Back U of M Affirmative Action" and here an article entitled "Court Rules Insane Inmate Can be Executed."
Posted at 23:32 by Howard Bashman



The state of the law governing jurisdiction over appeals from denial of privilege is such a mess, and so very wrong, that the Seventh Circuit must accept it as is: The following passage from an opinion that Seventh Circuit Judge Frank H. Easterbrook issued today caught my eye:
Indeed, no matter what we (or the Tenth Circuit) do, a conflict will persist--for in recent years some circuits have allowed even parties to appeal immediately from orders rejecting assertions of privilege. Non-parties, which cannot appeal from the final decision following sanctions, other than contempt, under Fed. R. Civ. P. 37, logically have appellate rights at least as extensive as parties do. The most recent of these decisions is United States v. Philip Morris Inc., 2003 U.S. App. LEXIS 138 (D.C. Cir. Jan. 7, 2003), in which a divided panel held that a party's inability to appeal from an order of civil contempt justifies allowing it to appeal from the discovery order itself. The D.C. Circuit recognized that it was adopting a minority view, and like Dellwood Farms it cited neither Ryan nor any of the Supreme Court's other cases limiting appeals from discovery orders. Left to our own devices, we would be inclined to agree with Judge Randolph's dissent in Philip Morris. But the existence of this decision, and a few like it elsewhere, means that we cannot bring harmony by overruling Dellwood Farms. Appellate approaches to this topic are now so disparate that only Congress or the Supreme Court could clear the air. So instead of fussing over jurisdiction, we take circuit law as we found it and resolve the appeal.
You can access the entire opinion here.
Posted at 23:25 by Howard Bashman



Circuit Judge Frank H. Easterbrook examines the problem of eyewitness testimony: The U.S. Court of Appeals for the Seventh Circuit today affirmed a $15 million verdict against the City of Chicago, and in favor of an individual who was wrongfully convicted of the crime of murder. On the issue of eyewitness testimony, Circuit Judge Frank H. Easterbrook's opinion for the court explains:
Most persons have difficulty remembering or describing the features of strangers. A person who sees a criminal for only a brief time takes away a vague sense of appearance and behavior--and that sense may be focused by a sketch, photograph, showup, or lineup after the events. Sometimes the witness zeroes in on the correct person, sometimes not; there is an element of chance and an opportunity for manipulation. Once the witness decides that "X is it" the view may be unshakable. Psychological research has established that the witness's faith is equally strong whether or not the identification is correct. We described these findings in Krist v. Eli Lilly & Co., 897 F.2d 293 (7th Cir. 1990): "An important body of psychological research undermines the lay intuition that confident memories of salient experiences . . . are accurate and do not fade with time unless a person’s memory has some pathological impairment. . . . The basic problem about testimony from memory is that most of our recollections are not verifiable. The only warrant for them is our certitude, and certitude is not a reliable test of certainty. . . . [T]he mere fact that we remember something with great confidence is not a powerful warrant for thinking it true." 897 F.2d at 296-97 (citations to the scholarly literature omitted). See Elizabeth F. Loftus & James M. Doyle, Eyewitness Testimony: Civil and Criminal (3d ed. 1997); Elizabeth F. Loftus, Eyewitness Testimony (1979; rev. ed. 1996); Daniel L. Schacter, The Seven Sins of Memory: How the Mind Forgets and Remembers 112-37 (2001). See also United States v. Hall, 165 F.3d 1095, 1118-20 (7th Cir. 1999) (concurring opinion). Jurors, however, tend to think that witnesses' memories are reliable (because jurors are confident of their own), and this gap between the actual error rate and the jurors' heavy reliance on eyewitness testimony sets the stage for erroneous convictions when (as in Newsome's prosecution) everything depends on uncorroborated eyewitness testimony by people who do not know the accused.
You can access the complete opinion at this link.
Posted at 23:14 by Howard Bashman



Tonight's round-up of Miguel A. Estrada confirmation-related news and commentary: At 9:30 a.m. Tuesday morning the U.S. Senate resumes debate over the nomination of Miguel A. Estrada to join the U.S. Court of Appeals for the D.C. Circuit.

Reuters reports here that "Bush Nears Senate Showdown on Estrada Nomination." The article notes that Senator Zell Miller (D-GA) is the third Democrat expected to support the nomination. Newsday contains an article entitled "Republicans on the offensive against Sens. Schumer and Clinton." And this commentary from the Family News in Focus Web site identifies the following Democratic U.S. Senators as lawmakers who could possibly be persuaded to vote in favor of Estrada's confirmation:
Sens. Bill Nelson (Fla.); Mary Landrieu (La.); Blanche Lincoln (Ark.); Tom Carper (Del.); Mark Pryor (Ark.); Daniel Inouye (Hawaii); Robert Byrd (W.V.); Jeff Bingaman (N.M.); Evan Bayh (Ind.); Ernest Hollings (S.C.); Jim Jeffords (Vt.) and Joe Biden (Del.).
By my count, if just six of those individuals agree to support the nomination, the chance of a filibuster disappears.
Posted at 23:01 by Howard Bashman



Tenth Circuit reinstates Denver, Colorado ordinance that uses affirmative action in awarding construction and design projects: A unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit today has upheld the constitutionality of a Denver, Colorado ordinance that "established participation goals for racial minorities and women on certain City construction and professional design projects." In so ruling, the Tenth Circuit reversed a trial court decision that declared the ordinance unconstitutional. The concluding paragraph of today's ruling states:
The City has demonstrated a compelling interest in remediating racial discrimination in the Denver construction industry and an important governmental interest in remediating gender discrimination in that industry. Further the City's affirmative-action program is narrowly tailored. Consequently, the judgment of the district court enjoining Denver from enforcing the 1998 Ordinance and declaring the 1990 Ordinance and the 1998 Ordinance unconstitutional is reversed. The case is remanded with instruction to enter judgment for Denver.
You can access the entire ninety-nine page opinion at this link.

This ruling is likely to be viewed as big news. Because people are bound to be interested in which judges were on the three-judge panel, allow me to report that Circuit Judge Michael R. Murphy, a Clinton nominee, wrote the opinion, in which Circuit Judge Paul J. Kelly, Jr., a George H.W. Bush nominee, and Senior Circuit Judge Monroe G. McKay, a Carter nominee, joined.
Posted at 21:17 by Howard Bashman



"Explaining the D.C. Circuit": Juan Non-Volokh, sporting a lovely shade of green (note to Jacob T. Levy -- if you remain with The Volokh Conspiracy, be sure to demand a better color!) undertakes to explain the D.C. Circuit.

Meanwhile, I'm busy trying to learn all I can about what can only be described as the most interesting federal appellate court in the land, the U.S. Court of Appeals for the Ninth Circuit. My list of 20 questions to my next appellate judge interviewee will be dispatched this Friday, to an interviewee who serves as a Circuit Judge on the Ninth Circuit. Let me just say that there's lots of very interesting stuff tucked away inside of 100 pages of so-called "General Orders." Makes for excellent bedtime reading, too. And if that were not enough, I have a team of Ninth Circuit experts making sure I don't overlook any especially worthwhile interesting questions. The interview is scheduled to appear here in early March 2003, but, as occurred last time, if I receive the judge's responses sooner, the interview will appear here sooner.
Posted at 21:04 by Howard Bashman



The Associated Press is reporting: This article reports that "Senate Approves First Judges of Year." The judges in question were nominated to serve on the Nation's federal district courts. The article goes on to state that "Democrats likely will make a final decision whether to try to block [Miguel A.] Estrada's nomination at their weekly conference Tuesday. Senate Minority Leader Tom Daschle of South Dakota said last week he did not know whether he has the 41 votes to sustain a filibuster."

You can access here an article entitled "ABA Demands Rights for Enemy Combatants." And in news from New York City, this article reports that "Judge Blocks Anti-War March Past U.N."
Posted at 20:45 by Howard Bashman



"Texas Officer Accused of Shuttle Looting": The Associated Press provides this report.
Posted at 15:34 by Howard Bashman



Ninth Circuit reinstates suit alleging that city's sponsorship and operation of Waldorf schools constitute an establishment of religion: The plaintiff in this taxpayer challenge alleged that Sacramento, California's "sponsorship and operation of Waldorf schools constitutes an establishment of religion in violation of the First and Fourteenth Amendments of the United States Constitution, as well as Articles XVI, sec. 5 and IX, sec. 8 of the California Constitution." The federal district court had dismissed the action for lack of taxpayer standing, and today the Ninth Circuit ruled that the dismissal was improper. You can access today's ruling at this link. You can learn more about Waldorf schools here.
Posted at 13:40 by Howard Bashman



My sincere apologies: Those who have signed-up to receive a copy of my monthly appellate column via email have this morning received two separate emails forwarding the column. I sincerely apologize for that.

In one respect, having accidentally sent the column twice reminds me of the currently ongoing U.S. Senate floor debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. Just when you think all that could be said has in fact been said, someone stands up and says it all over again.
Posted at 12:10 by Howard Bashman



Sharply divided en banc Eighth Circuit today upholds two separate state court death sentences: The en banc U.S. Court of Appeals for the Eighth Circuit today has rejected, by a vote of 6-5, a death row prisoner's argument that the administration of antipsychotic medication to a prisoner becomes unconstitutional once an execution date is set because at that time the medication ceases to be in the prisoner's medical interest. You can access this decision here.

In a second en banc ruling issued today, the Eighth Circuit ruled 7-6 that the State of Nebraska properly reimposed a death sentence that the Eighth Circuit had previously set aside because the "exceptional depravity" aggravating circumstance was unconstitutionally vague. The lead dissenting opinion from today's en banc ruling begins:
Today the majority takes an unprecedented step: it permits trial courts to decide for themselves what criteria would support a death sentence after hearing all the evidence on the matter, and then conclude if the evidence presented fits within their newly-established criteria. I am bewildered that a majority of this court could hold that such a procedure passes constitutional muster. To me, it is a clear due process violation, for it deprives defendants of meaningful notice of what facts of their case might result in their execution. Remaining true to both panel decisions in this case, as well as to relevant Supreme Court precedent on the matter, I continue to believe that Nebraska has not narrowed its "exceptional depravity" aggravator in a constitutionally acceptable manner. The aggravator remains just as open-ended as it was at Moore's original sentencing. I would reverse the district court, and remand the matter for resentencing without reliance on the "exceptional depravity" aggravator. Because the majority's cursory factual recitation understates the history of this case and Nebraska's unsuccessful struggle to bring its death penalty aggravator into compliance with the Constitution, I begin with a more thorough examination of the case.
You can access today's second en banc ruling at this link.
Posted at 11:41 by Howard Bashman



Tenth Circuit nominee Timothy M. Tymkovich to be considered at this week's Senate Judiciary Committee meeting: The Senate Judiciary Committee is scheduled to hold a hearing at 9:30 a.m. on Wednesday, February 12, 2003. The committee is scheduled to hear from Tenth Circuit nominee Timothy M. Tymkovich, three U.S. District Court nominees, and two nominees to other trial-level federal courts. After this week's hearing, it appears that all of the remaining federal appellate court nominees who are ready for a hearing either are awaiting the return of one or more "blue slips" from the U.S. Senators from their home State or were rejected by the Judiciary Committee on a party-line vote last year.
Posted at 11:15 by Howard Bashman



Ambiguity allows Newsweek to avoid charge that it can't count to three: The blurb contained in the brand new edition of Newsweek about the possibility that California Supreme Court Justice Janice Rogers Brown may become the next Chief Justice of the United States contains the sentence, "Her nomination would let Bush add the court's third woman and second African-American in one swoop." Of course, if Justice Brown were to join the U.S. Supreme Court, she would be the third African-American to serve on the Court. But maybe Newsweek intends only to refer to the Justices currently serving on the Court. Doubtful, but possible.
Posted at 10:56 by Howard Bashman



Today's Miguel A. Estrada confirmation commentary from here and there: In today's edition of The New York Post, former New York City Mayor Rudolph Giuliani calls on the U.S. Senate to confirm D.C. Circuit nominee Miguel A. Estrada.

And at National Review Online this morning, Byron York has an essay entitled "The Estrada Trap: Democrats talk themselves into a corner over Miguel Estrada"; Kate O'Beirne has an essay entitled "Let ’Em Talk! The case for real, not fake, filibusters"; and guest commentator Raul Damas has an essay entitled "If They Really Want to… Let the Dems filibuster Estrada."

The Senate's debate over Estrada's nomination is scheduled to resume just a short while from now, at 11 a.m. eastern time. You can watch it live via C-SPAN2 at this link.
Posted at 10:40 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times this morning reports here that "Democrats on defense with Hispanics." And an op-ed by Suzanne Fields is entitled "A rising tide of conservative self-confidence."

The Los Angeles Times contains an article entitled "DNA Tests for Inmates Debated; A St. Louis prosecutor wants to keep the guilty from reopening old wounds. Others want to 'cut to the truth.'" This article reports that "FBI Hunts O.C. Man It Says Posed as Attorney, Fought Cases in Court; Harold Goldstein was on parole when he opened a Newport Beach 'law office,' authorities say." You can access here an article entitled "Judge's Ouster Sought in Davidian Case." Law Professor Jonathan Turley has an op-ed that runs under the headline "Sanity and Justice Slipping Away; Ashcroft rolls over legal rights to pursue a demented terror suspect." Another op-ed is entitled "Damage Cap Adds Insult to Injuries; State law cheats less-affluent victims of medical malpractice."

The Boston Globe reports here that "Romney to revamp judicial nominating." And you can access here an article entitled "Court again takes up race, city schools."
Posted at 09:19 by Howard Bashman



Attention law.com and The American Lawyer: I have managed to obtain an electronic copy of Dahlia Lithwick's column that appears in the February 2003 edition of The American Lawyer magazine (Thanks, D!). Dahlia's essay is most excellent. As The American Lawyer's Web site's description of her essay explains, "Take one of the world's most socially backward and argumentative populations (law professors and students) and impose on it ambiguous, ham-fisted policies governing dating and sex. Legal hijinks ensue!"

Here's a brief excerpt from the essay itself:
Take, just for an example, the brand new policy at Stanford Law School, wherein professors wishing to date their students may do so, so long as they promptly give up "any supervisory or evaluative function" over them. This may seem, at first blush, to correct for the allegedly crushing power imbalance between faculty and students, but just think about the lawsuits. Any evaluative function? Suddenly the benign: "was it good for you, darling?" becomes an evidentiary nightmare.
The reason for this "shout out" to law.com and The American Lawyer is that Dahlia's essay is so good that they really should put it online. Right now. Stay tuned for updates.
Posted at 09:09 by Howard Bashman



The best appellate court Web sites: Those who have signed-up to receive email delivery of my monthly appellate column will be receiving any moment now a copy of my February 2003 column, in PDF format. This month's column examines what distinguishes the best appellate court Web sites from the rest. If you haven't signed-up to receive email delivery, the text of the column will be accessible online at this link beginning on Wednesday of this week.

The two federal appellate court Web sites that, in my view, share the distinction of being the best are the sites of the U.S. Court of Appeals for the Seventh Circuit and the U.S. Court of Appeals for the Eighth Circuit. The winner for worst federal appellate court Web site, by a landslide, is the U.S. Court of Appeals for the Eleventh Circuit. The Eleventh Circuit is the one federal appellate court that has yet to find a way to make its opinions easily accessible on the Web.

My column also identifies three top-notch state appellate court Web sites. Those sites belong to the Supreme Court of Florida, the Supreme Court of North Dakota, and the Supreme Court of Appeals of West Virginia.
Posted at 08:57 by Howard Bashman



In Monday's newspapers: The New York Times reports here that "Peace, Sniper Victims Find, Remains an Elusive Goal." And an article entitled "Bush Rallies Republicans Around Tax Plan" also contains mention of a certain federal appellate court nominee whose confirmation the full U.S. Senate is now debating.

President Bush's latest faith-based initiative is the subject of a critical editorial in The Washington Post.

Finally for now, an op-ed in The Wall Street Journal praises the Bush Administration's stance in the University of Michigan racial preferences in student admissions cases.
Posted at 00:15 by Howard Bashman



Sunday, February 09, 2003
In news of interest from here and there: Today's edition of The New York Times reports here on a leisure activity that Chief Justice William H. Rehnquist and Associate Justice Antonin Scalia share in common with Larry Flynt.

The New York Post today contains letters to the editor that appear under the headline "Chuck's Out of Luck on Estrada." President Bush today gave a speech at the 2003 "Congress of Tomorrow" Republican Retreat Reception, and the President had this to say about the subject of judicial confirmations:
I look forward to working with the Senate to get my judges confirmed. (Applause.) I have named some really honorable people to the bench. I want to thank Senator Hatch and other members of the Senate Judiciary Committee for kind of putting aside all that political -- the politics that so dominated the discourse.

The first test, of course, is Miguel Estrada. Fabulous story. He's a great, great jurist -- a lawyer, will be a great jurist. And I expect that he be given a fair hearing on the floor of the Senate. I expect the people of the Senate not to hold him up, not to try to talk his nomination into the ground, because Miguel Estrada not only represents the American Dream, but will do us proud on the bench. And I want to thank the Senators for standing strong for this good nominee. And when the vote comes up, this guy is going to be confirmed, and America -- the bench and America will be better for it. (Applause.)
This article reports that Senator Blanche Lincoln (D-AR) remains undecided on how she will vote on the question of Estrada's confirmation. Finally for now, the U.S. Senate is scheduled to resume the debate on the Estrada nomination at 11 a.m. tomorrow (Monday) morning.
Posted at 23:38 by Howard Bashman



The Associated Press is reporting: In news from northeastern Pennsylvania, "Suspicious Package had Note to Ashcroft." And in news from the American Bar Association's meeting in Seattle, "ABA May Oppose U.S. on Enemy Combatants."
Posted at 23:29 by Howard Bashman



Site stats from last week: On Monday, February 3, 2003, this blog received 6,592 visits; on Tuesday, February 4, 2003 -- 6,178 visits; Wednesday, February 5, 2003 -- 7,950 visits; Thursday, February 6, 2003 -- 7,898 visits; and Friday, February 7, 2003 -- 6,906 visits. Thanks, everyone, for visiting.
Posted at 23:19 by Howard Bashman



Pejman Yousefzadeh celebrates one year of blogging: Today, in a post you can access here, PejmanPundit celebrates his one year anniversary of blogging. His first day's effort, one year ago, is accessible here. It's hard to find a more dedicated blogger -- this guy apologizes when he travels half-way across the country to visit his parents because they don't believe in this thing we call "the Internet." So, Pej, happy blogiversary. The one year anniversary of "How Appealing" won't occur until May 6, 2003.
Posted at 21:34 by Howard Bashman



Judicial confirmation commentary from here and there: The Weekly Standard reprints Terry Eastland's recent op-ed entitled "A Fair and Balanced Judiciary." And Friday's edition of The Beacon Journal of Akron, Ohio contained an editorial entitled "Cook in context: The Ohio Supreme Court justice has moved closer to the federal bench. The loose criticism continues."
Posted at 15:22 by Howard Bashman



Today's "appellate balloon" -- California Supreme Court Justice Janice Rogers Brown to become the next Chief Justice of the United States: The February 17, 2003 edition of Newsweek contains this speculation. (Thanks to all those many readers who have emailed to make sure I didn't miss this.)
Posted at 13:36 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports here that "Virginians Rally to an Old Flag: South Vietnam's; House votes to replace the communist banner of the reunified nation at state functions." An op-ed accessible here is entitled "Gun Lobby's Perfect Aim; Legislatures pass firearms laws, but do they accomplish anything?"

Finally for now, today's edition of The Boston Globe reports here that "SJC case challenges antiquated inheritance law; Suit focuses on rights of surviving spouses."
Posted at 11:26 by Howard Bashman



Law Professor Jack Balkin recaps the discussions at the recent conference about Roe v. Wade that he organized at Yale Law School: You can access Jack's very interesting summary here, via his blog "Balkinization." Jack's post also seems to answer, at least in part, the question of what did Akhil Reed Amar do on his recent "vacation"?
Posted at 00:58 by Howard Bashman



In Sunday's newspapers: The Washington Post reports here that "Senate Democrats Face Tough '04 Election; Retirements, Fundraising Changes Loom as Obstacles to Gaining a Majority." An article that you can access here reports that "U.S. Tries To Link Activist to Al Qaeda; Evidence May Not Be Usable in Trial." In reports from The Associated Press, you can access here an article entitled "Guidelines on School Prayer Issued; Resistance Could Jeopardize Federal Funds, Education Dept. Says," and here an article entitled "U.S. Orders Jordanian Grad Student Deported." And, as I first noted below an hour ago, Sunday's edition of The Post also contains an article on the continuing battle to confirm Miguel A. Estrada to fill one of four vacancies that now exists on the U.S. Court of Appeals for the D.C. Circuit.

In Sunday's edition of The New York Times, Jennifer 8. Lee reports here that "High Tech Helps Child Pornographers and Their Pursuers." I previously tried to explain the origin of Jennifer's rather unusual middle initial in a post you can access here. This article reports that "Lawyers Say Ashcroft's Death Penalty Edict Could Backfire." Finally for now, you can access here an article entitled "Coming Soon to a Crowded Courtroom, Steven Seagal."
Posted at 00:02 by Howard Bashman



Saturday, February 08, 2003
A law clerk for a Ninth Circuit judge tries to answer some unanswered questions: My repost Friday of my earlier report about a Ninth Circuit ruling from which five Ninth Circuit judges on Friday dissented from the denial of rehearing en banc, and an article that USA Today ran on Friday about the Ninth Circuit, appear to have precipitated the following email that arrived today from a current law clerk to a Ninth Circuit judge:
The deal between Clinton and Hatch/Ashcroft to get Judge Willy on the bench was this: 1. Judge Betty go senior. 2. Her spot be filled by a conservative judge of the Republicans' choosing. 3. Betty and Willy never sit on the same panel.

So Tallman, I guess, is one of the "four excellent conservative judges" (in Kozinski's words) appointed by Clinton. The others are Gould and Silverman ... and Rawlinson?
Other readers may find it interesting to note that Circuit Judge Alex Kozinski is next in line to serve as Chief Judge of the Ninth Circuit when the tenure of that court's current chief judge comes to an end.
Posted at 23:37 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Lawyers Push for Death Penalty Changes." And here's an article reporting that "An airline passenger who was told he couldn't take his ferret on an airplane is accused of beating the animal to death in an airport restroom."
Posted at 23:23 by Howard Bashman



"Democrats Split on Plan to Block Bush Nominee; Senators Weigh Risks of Filibuster": Sunday's edition of The Washington Post contains this report on Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 23:15 by Howard Bashman



"Senate doctors hours": Conservative columnist Robert Novak, in a column dated today, writes that "Newly installed Senate Majority Leader Bill Frist, accustomed to working odd hours as a physician, may force Democrats to actually filibuster if they intend to prevent a confirmation on judicial nominee Miguel Estrada." Novak's column goes on to note that "Republicans see only five (out of 49) Democratic senators backing Estrada, so the 60 senators needed for cloture seem unattainable."
Posted at 11:41 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Justice Department Will Appeal Ruling in Trial Linked to 9/11." Adam Clymer reports here that "Agency Ends Pursuit of Cheney Energy Panel Data." And a news analysis is entitled "Ashcroft Sets a Tone on the Death Penalty."

Today's edition of The Washington Post reports here that "U.S. Appeals Ruling on Access to al Qaeda Figure; Moussaoui Trial Could Move to Military Court Over Judge's Decision." An article that you can access here bears the headline "GAO Ends Fight With Cheney Over Files; Weakening of Hill's Oversight Decried." And Charles Lane has a front page article entitled "U.S. May Seek Wider Anti-Terror Powers."

The Los Angeles Times reports here that "U.S., in Challenge to Moussaoui Case Ruling, Seeks Halt to Proceedings." Another article reports that "Push for Cheney Energy Data Ends; Congressional watchdog agency can 'live to fight another day' as it accepts a District Court defeat." A wire service report notes that "Jewish 'Enclosure' Case Goes to Supreme Court." An article you can access here reports that "Conflicting Pot Laws Entangle User; A tenant with a prescription for marijuana confronts federal disapproval." You can access here the second of a two-part article, which bears the headline "Patent Holders Asserting Rights to Net; Some firms battle claims of infringement. But many see it as cheaper to pay license fees." Part one, from yesterday, remains available at this link. In news from Hollywood, "Botox hits a major wrinkle with lawsuit filed by Hollywood wife." And, in news from Maryland, here's an article entitled "Curran elaborates on letter seeking end to death penalty."

And finally for now, The Washington Times contains an op-ed by Thomas Sowell that discusses the continuing battle over the use of affirmative action in university student admissions.
Posted at 11:07 by Howard Bashman



"Court Refuses to Revive Umpire's Suit": Umpire Eric Gregg isn't livin' large as far as the U.S. Court of Appeals for the Third Circuit is concerned. The Associated Press has this report on a non-precedential opinion that the Third Circuit issued yesterday refusing to reinstate Gregg's lawsuit, in which he had alleged wrongful dismissal by Major League Baseball. Circuit Judge Richard L. Nygaard was the author of the non-precedential ruling, which uses Judge Nygaard's usual not-for-publication opinion form -- a form that takes two whole pages to say that the Court of Appeals won't be explaining anything about the facts and the law that provide the basis for its decision on appeal.

The true beauty of it, however, is that for statistical purposes this opinion counts as a "reasoned" disposition, whereas if Judge Nygaard had issued a single-page order stating merely "Affirmed for the reasons provided by the district court," the ruling on appeal would be classified for statistical purposes as "unreasoned." And "unreasoned" doesn't sound nearly quite as good, does it?
Posted at 00:14 by Howard Bashman



A profile of Zacarias Moussaoui's mother: This upcoming Sunday's edition of The New York Times Magazine contains a cover story that profiles the mother of accused twentieth hijacker Zacarias Moussaoui.
Posted at 00:08 by Howard Bashman



Friday, February 07, 2003
Judge Posner, in dissent, acknowledges he is "not a literal interpreter of statutes": Today the U.S. Court of Appeals for the Seventh Circuit issued a decision that could have -- but alas did not -- prove the truthfulness of my recent observation that statutes having no logical purpose whatsoever must be ruthlessly enforced without exception. The one glimmer of good news is that Circuit Judge Richard A. Posner appears to agree with my observation in his quite interesting dissenting opinion. You can access the complete opinion and dissent at this link.
Posted at 23:36 by Howard Bashman



Available online at law.com: Tony Mauro's Courtside column reports that "'Lodgings' Find Cold Home at High Court." The last thing that busy Justices need is more "stuff." (George Carlin routine omitted).

You can access here an article from the Texas Lawyer entitled "Bush Nominates Federal Judge From San Antonio for 5th Circuit Seat."

The February 2003 issue of The American Lawyer contains an article entitled "Growing Boies." The same issue also contains an essay by Dahlia Lithwick, but in an amazing oversight it's not available online!!! You can see a short blurb about the essay here, toward the bottom of the page. Perhaps Dahlia will email to me a copy of her essay so that I can report to the rest of you, with some basis in fact, just how very wonderful it is. But, in the very unlikely event that it's not so wonderful, I'd completely understand if Dahlia chose not to email it to me.
Posted at 23:26 by Howard Bashman



"What's So Important About the Washington, D.C., Circuit Court of Appeals?" Slate's explainer asked that question this evening and supplied the answer "nothing much." A contributor to "The Academy" blog reached the same conclusion yesterday, but in a typically much more entertaining fashion.
Posted at 23:10 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Bush Asks to Put Moussaoui Trial on Hold," and this article reports that "Expansion of Patriot Act Criticized."
Posted at 22:48 by Howard Bashman



Time to go to Arizona for a reunion of Justice Sandra Day O'Connor's former law clerks? Yes, if your name is Eugene Volokh.
Posted at 18:07 by Howard Bashman



Liberal commentator Nat Hentoff asserts that Fifth Circuit nominee Charles W. Pickering, Sr. has been wronged by lazy members of the press: I'm serious. You can access Hentoff's column, posted online today at The Village Voice, at this link.
Posted at 18:04 by Howard Bashman



Speaking of the Ninth Circuit and possible en banc reconsideration of a very controversial Church vs. State case: A long time ago some apparently knowledgeable commentator remarked that the Ninth Circuit was likely to announce in February 2003 whether it would rehear en banc the case in which it declared unconstitutional the words "under God" in the Pledge of Allegiance. At the time I heard that prediction I had thought it absurd, because February 2003 was so very far off in the future. Well, not anymore. It's February 2003 right now, so stay tuned to "How Appealing" over the days and weeks to come for what's likely to be the Web's most comprehensive coverage of new developments concerning this still very controversial ruling.
Posted at 16:51 by Howard Bashman



Congress's General Accounting Office decides not to appeal from ruling that denies access to Vice President Cheney's energy task force papers: The Associated Press offers this report.
Posted at 16:45 by Howard Bashman



Ninth Circuit finds lost dissent from denial of rehearing en banc: Back on July 12, 2002, in a post you can access here, I wrote:
TODAY'S NINTH CIRCUIT RULING ON CHURCH v. STATE: How many Church against State cases can come before the U.S. Court of Appeals for the Ninth Circuit? Plenty, it seems. In today's installment, the court decided an appeal brought by a member of the Jehovah's Witnesses who claimed that the Washington State Patrol had constructively discharged him from employment because of his religious beliefs. More specifically, the plaintiff claimed that his religious beliefs prevented him from saluting the flag or taking an oath of allegiance to any government. (Sounds vaguely familiar, doesn't it?)

But, in today's decision, a divided Ninth Circuit panel ruled 2-1 that the plaintiff's claims were without merit because he had failed to establish that a reasonable person in his position would have felt compelled to resign when he did, without further pursuing the possibility of accommodations from the State Patrol. Ninth Circuit Judge Richard C. Tallman wrote the majority opinion, in which Senior Fifth Circuit Judge Thomas M. Reavley joined. Senior Ninth Circuit Judge Betty B. Fletcher dissented. (Ironically, Judge Tallman filled the vacancy created on the Ninth Circuit when Judge Fletcher took senior status; and, my recollection is that Judge Fletcher took senior status when some Senators demanded that action before they would agree to confirm her son, Circuit Judge William A. Fletcher, to the Ninth Circuit.)
On January 3, 2003, the Ninth Circuit entered an unpublished order denying rehearing en banc in the case. Today, however, the Ninth Circuit issued a revised order denying rehearing en banc that had appended to it a dissent from the denial of rehearing en banc in which a total of five Ninth Circuit judges joined. The dissent, written by Circuit Judge Marsha S. Berzon, begins:
The panel majority in this case proceeds on the premise that an employee never has a cause of action for religious discrimination under Title VII, 42 U.S.C. sec. 2000e et seq., for failure to accommodate religious observance, unless the employee first refuses because of his or her religious beliefs to comply with an applicable rule and is thereafter fired or disciplined or specifically threatened with firing or discipline. This holding is squarely contrary to Supreme Court precedent, to the EEOC’s consistent interpretation of the statute, and to good sense. By failing to take the case en banc, this court has undermined the protections against religious discrimination provided in Title VII of the Civil Rights Act of 1964.
You can access all of Judge Berzon's dissent at this link.
Posted at 16:24 by Howard Bashman



Ranking the Web sites of the Nation's 250 largest law firms: No, I haven't done that. But someone has, as this press release and this list of large law firm Web sites reveal.
Posted at 16:04 by Howard Bashman



"Senate Judiciary Committee unanimously approves Junell": Today's edition of The Midland Reporter-Telegram of Texas offers this news.
Posted at 16:01 by Howard Bashman



The Associated Press discovers "How Appealing" and a couple of other top notch law blogs: Anne Gearan, who covers the U.S. Supreme Court for The Associated Press, has an article this afternoon entitled "Internet Sites Eye on High Court Updates." The article kindly mentions "How Appealing" along with SCOTUSblog and The Volokh Conspiracy. Anne's article also discusses several other interesting items -- including U.S. Supreme Court Justice Stephen G. Breyer's now famous remark that a "no pets" sign in a park might not "necessarily apply to a pet oyster" -- so be sure to take a look.

If you wish to see all the gazillion Web sites where the article is appearing, simply click here to run a Google News search for the article. What's nice to see is that certain sites, including both MSNBC and Newsday, are running the article (see here and here) with live links to the blogs mentioned.
Posted at 15:17 by Howard Bashman



"Nelson supports judicial nominee": More good news for D.C. Circuit nominee Miguel A. Estrada. The Lincoln Journal Star, a Nebraska-based newspaper, reports here that "Sen. Ben Nelson will part company with the vast majority of his Democratic colleagues to support the nomination of lawyer Miguel Estrada as an appellate court judge." (Thanks to the reader who forwarded this news via email.)
Posted at 14:04 by Howard Bashman



"Lawsuit by Vote-Swap Web Sites Allowed": The Associated Press offers this report on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued yesterday.
Posted at 13:53 by Howard Bashman



Ninth Circuit today grants rehearing en banc to further review case that I previously described as "So very Ninth Circuit": On the evening of September 30, 2002, in a post you can access here, I wrote:
So very Ninth Circuit: Most days I try to report any newsworthy decisions of the U.S. Court of Appeals for the Ninth Circuit early in the afternoon, shortly after their issuance by the court. Today, however, brought a decision so characteristic, so interesting on many different levels, and yet at the same time so gosh-darn complicated that I had to save mention of the ruling until now. It'll prove worth it, though, trust me.

Donald Scott Lagatree applied to work as a legal secretary at the law firm of Luce, Forward, Hamilton & Scripps LLP. The firm was interested in hiring him as an at-will employee, and the firm offered him a written employment agreement that contained the following arbitration clause:
In the event of any dispute or claim between you and the firm (including employees, partners, agents, successors and assigns), including but not limited to claims arising from or related to your employment or the termination of your employment, we jointly agree to submit all such disputes or claims to confidential binding arbitration, under the Federal Arbitration Act. Any arbitration must be initiated within 180 days after the dispute or claim first arose, and will be heard before a retired State or Federal judge in the county containing the firm office in which you were last employed. The law of the State in which you last worked will apply.
Lagatree balked at signing the arbitration agreement -- which he viewed as "unfair" -- and, after having worked two days at the firm, the law firm told Lagatree that it was not going to hire him. According to the Ninth Circuit's opinion, "It is undisputed that Luce Forward refused to hire Lagatree only because he would not sign the arbitration provision."

Thereafter, Lagatree lodged a complaint with the U.S. Equal Employment Opportunity Commission, and the EEOC sued the law firm asserting that a then-fairly recent Ninth Circuit decision prohibited the law firm from conditioning a person's hiring on his or her willingness to agree to arbitrate all employment-related claims that may arise. Complicating matters further, however, the earlier Ninth Circuit ruling in question didn't exist at the time that the law firm refused to hire Lagatree, today its holding has been rejected by every other federal appellate court, and arguably its foundation has been weakened by a March 2001 ruling of the U.S. Supreme Court. Oh, and by the way, the earlier Ninth Circuit ruling was written by Circuit Judge Stephen Reinhardt.

Today's decision was issued by a panel consisting of Circuit Judge Harry Pregerson, Circuit Judge Stephen S. Trott (who remains first in line to be chief judge of the still-nonexistent Twelfth Circuit), and Senior District Judge James M. Fitzgerald of the U.S. District Court for the District of Alaska (which would be located within the still-nonexistent Twelfth Circuit).

In a lengthy opinion that you can access here, Circuit Judge Trott, joined by Senior District Judge Fitzgerald, seemed to take great pleasure in overruling Judge Reinhardt's earlier decision based on the intervening U.S. Supreme Court decision that had weakened its foundation. Judge Reinhardt's decision had not only been rejected by all other federal appellate courts to have considered the issue in question, but the decision was also based on a selective sampling of the legislative history of a section of the The Civil Rights Act of 1991 that relates to Title VII, Judge Trott observed. Judge Trott's opinion had an easy time of demonstrating that Judge Reinhardt's earlier ruling probably was wrong on the law; what was much more difficult, however, was establishing that the intervening U.S. Supreme Court precedent allowed today's panel to declare the prior Ninth Circuit decision no longer good law.

On that point, Judge Pregerson's dissent proved more convincing to me. Yes, the Supreme Court's intervening ruling did cast doubt on the underpinnings of Judge Reinhardt's earlier ruling, but the Supreme Court's opinion did not mention Judge Reinhardt's opinion in its ruling (and how rarely does the Supreme Court affirmatively pass-up the chance to reverse Judge Reinhardt? -- but of course Judge Pregerson couldn't make that observation in his dissent). And while the Supreme Court's ruling called into question the foundation of Judge Reinhardt's earlier decision, the holdings of both cases could survive one another.

In closing, today's decision was so characteristically Ninth Circuit in multiple respects. First, it involved a quite questionable prior ruling by Judge Reinhardt. Second, it involved a majority consisting of one active judge and one district judge sitting by designation and a dissent by another active judge. Third, the dissent probably was right that the majority was out of line in declaring dead Judge Reinhardt's earlier ruling. And, if I were serving on the Ninth Circuit, I might favor rehearing en banc in today's case simply to let an eleven-judge en banc panel properly assign the Reinhardt opinion to the dustbin of history. But, this being the Ninth Circuit, a rehearing en banc could lead to a reaffirmation of Judge Reinhardt's ruling. It is rare when the Ninth Circuit comes close to outdoing itself in a single ruling, but today's decision came mighty close to accomplishing just that.

As for the merits of today's ruling, I'd be curious to hear the views of employee-side labor lawyer/blogger Sam Heldman.

Update: Jason Hoppin has this report on today's ruling that will run in tomorrow's edition of The Recorder.

Second Update: You can now access Sam Heldman's views on this matter at this link.
Why am I even bringing up this matter more than four months later? Because today the Ninth Circuit entered an order granting rehearing en banc in the case. And while I'm on the subject of the Ninth Circuit and rehearing en banc, I invite you to see this post of mine on the subject (entitled "A big reason why it's good to be the Chief") from last night.
Posted at 13:27 by Howard Bashman



Do I detect a hint of sarcasm? Today a unanimous three-judge panel of the U.S. Court of Appeals for the D.C. Circuit, in an opinion written by Chief Judge Douglas H. Ginsburg, issued an opinion that begins:
Glenn LaCedra wrote a letter to the Executive Office for United States Attorneys requesting documents pursuant to the Freedom of Information Act. He first asked generally for "all documents pertaining to" the criminal case against him; he then enumerated certain specifically requested items. The EOUSA construed the letter to request only the specifically enumerated items and therefore produced only 14 of the approximately 6,000 pages of documents it had concerning LaCedra. The district court, determining that the EOUSA adequately responded to LaCedra's request, granted summary judgment for the Agency. We hold the EOUSA's interpretation of LaCedra's request was not reasonable. Accordingly, we reverse the judgment of, and remand the case to, the district court for further proceedings.
My sarcasm detection device responded positively to the following passage of the opinion:
Initially we note the EOUSA's suggestion on brief that, as a prudential matter, we decline to hear this case because LaCedra then had pending before it a second, related FOIA request that might provide LaCedra with all the relief he was seeking here. Before the oral argument in this case, however, the EOUSA had finished processing the second request without producing any additional documents. As a result, we express our appreciation for, but decline the Agency's suggestion.

And so to the issue. * * *
Well, at least Chief Judge Ginsburg didn't call the suggestion "nonsense on stilts" (see this earlier post for an explanation). You can access the complete decision at this link.
Posted at 13:24 by Howard Bashman



"Princeton to End Minority Program": The Associated Press has this report.
Posted at 13:08 by Howard Bashman



Stuart Buck reports how the Web site of People For the American Way allowed him to express support for Miguel A. Estrada's confirmation: You can access Stuart's explanation at this link, via his blog "The Buck Stops Here."
Posted at 11:01 by Howard Bashman



Today's FindLaw Commentary: Vikram David Amar has an essay entitled "The Bush Administration and the Supreme Court's Michigan Affirmative Action Cases: Narrow Tailoring and Alternative Methods of Ensuring Diversity." Once again FindLaw reports that "Akhil Reed Amar is on vacation this week." It must be some vacation, as it has lasted for two whole weeks now.
Posted at 10:24 by Howard Bashman



Access online the transcripts of yesterday's U.S. Senate debate on Miguel A. Estrada's nomination to serve on the D.C. Circuit: Via the Congressional Record Web site, you can now access online the transcripts of yesterday's debate. Here are the instructions you need to follow. First, click here to bring up a page listing all of yesterday's Senate transcripts. Select item number 6, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 6, on the resulting page click on the link that reads "Printer Friendly Display." Then, return to the main page listing yesterday's transcripts, select item number 36, which is also entitled "Executive Session," and on the resulting page click on the link that reads "Printer Friendly Display."

Finally, for those readers of the blog who were wondering what happened to the circuit court nominees who were to have been considered at yesterday's Senate Judiciary Committee business meeting, item 27 on the main page of yesterday's Senate Congressional Record makes clear, through implication, that those nominations have been held over for a week. The three federal district court nominees up for consideration were favorably reported out of the Judiciary Committee yesterday, however.
Posted at 10:04 by Howard Bashman



"The rooftops of our past have evolved into the internet domain names of our present." A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today has issued a very interesting decision involving Lanham Act challenges to the defendant's registration of six Internet domain names.

The relevant facts are as follows:
Mishkoff is a resident of Carrollton, Texas, and a web designer by trade. Upon hearing the news that Taubman, a Delaware corporation with its principal place of business in Michigan, was building a shopping mall called "The Shops at Willow Bend," in Plano, Texas, Mishkoff registered the domain name, "shopsatwillowbend.com," and created an internet website with that address. Mishkoff had no connection to the mall except for the fact that it was being built near his home.

Mishkoff's website featured information about the mall, with a map and links to individual websites of the tenant stores. The site also contained a prominent disclaimer, indicating that Mishkoff's site was unofficial, and a link to Taubman's official site for the mall, found at the addresses "theshopsatwillowbend.com," and "shopwillowbend.com."

Mishkoff describes his site as a "fan site," with no commercial purpose. * * *

When Taubman discovered that Mishkoff had created this site, it demanded he remove it from the internet. Taubman claimed that Mishkoff's use of the domain name "shopsatwillowbend.com" infringed on its registered mark, "The Shops at Willow Bend." Taubman filed a complaint on August 7, 2001, claiming, inter alia, trademark infringement under the Lanham Act, 15 U.S.C. sec. 1114, asking for a preliminary injunction, and demanding surrender of Mishkoff's domain name.

Mishkoff responsively registered five more domain names: 1) taubmansucks.com; 2) shopsatwillowbendsucks.com; 3) theshopsatwillowbendsucks.com; 4) willowbendmallsucks.com; and 5) willowbendsucks.com. All five of these web names link to the same site, which is a running editorial on Mishkoff's battle with Taubman and its lawyers, and exhaustively documents his proceedings in both the district court and this Court, both through visual scans of filed motions, as well as a first person narrative from Mishkoff. In internet parlance, a web name with a "sucks.com" moniker attached to it is known as a "complaint name," and the process of registering and using such names is known as "cybergriping."
Today's Sixth Circuit ruling, from the plaintiff's perspective at least, dot sucks. On the first question presented, the Sixth Circuit's opinion explains that "In regard to the first website, 'shopsatwillowbend.com,' Mishkoff argues that his use is completely non-commercial and not confusing, and therefore speech entitled to the full protections of the First Amendment." Today's Sixth Circuit opinion agrees with these arguments.

With respect to the so-called "sucks" sites, the Sixth Circuit's opinion persuasively explains:
We find that Mishkoff's use of Taubman's mark in the domain name "taubmansucks.com" is purely an exhibition of Free Speech, and the Lanham Act is not invoked. And although economic damage might be an intended effect of Mishkoff's expression, the First Amendment protects critical commentary when there is no confusion as to source, even when it involves the criticism of a business. Such use is not subject to scrutiny under the Lanham Act. In fact, Taubman concedes that Mishkoff is "free to shout 'Taubman Sucks!' from the rooftops. . . ." Brief for Respondent, at 58. Essentially, this is what he has done in his domain name. The rooftops of our past have evolved into the internet domain names of our present. We find that the domain name is a type of public expression, no different in scope than a billboard or a pulpit, and Mishkoff has a First Amendment right to express his opinion about Taubman, and as long as his speech is not commercially misleading, the Lanham Act cannot be summoned to prevent it.
You can access the Sixth Circuit's opinion in its entirety at this link.
Posted at 09:44 by Howard Bashman



Paltry vs. measly: The next installment of my monthly appellate column will be published on Monday in The Legal Intelligencer. The working title for this month's column is "Appellate Court Web Sites: Some Are Excellent, But Many Others Could Easily Be Improved." In characterizing the seven cents per page charge that most every U.S. Court of Appeals imposes for docket access, I am employing the word paltry. In double-checking its meaning, I see that I could also use measly. Yuck!

And I've chosen a topic for my March 2003 column: "Talk about non-precedential -- a look at what federal appellate courts should do when forced to decide unresolved questions of state law." Thanks for the idea, Judge Kozinski (more details available here).
Posted at 08:03 by Howard Bashman



Today turns out to be a snow day after all: A forecasted two to three inches of snow has somehow materialized into an actual six to ten inches. Oh well. The snow should taper off around noon, and thereafter I'll make the joyous trek into work.
Posted at 07:52 by Howard Bashman



Today's Pledge of Allegiance news from Pennsylvania: The Philadelphia Daily News reports here that "'Patriotic' teen fights state patriotism law; Suing to halt requirement to say Pledge." And The Philadelphia Inquirer contains an article entitled "Indivisible in Pa.? Not exactly. Pledge law brings out opinions of all stripes."
Posted at 07:19 by Howard Bashman



Judicial nomination and confirmation news from here and there: The Times-Picayune reports here that "Bush nominee, Landrieu meet; Senator still unsure he is mainstream." The article goes on to note that "So far, Sen. John Breaux, D-La., is the only Democrat to announce that he will vote for Estrada. He called him 'uniquely qualified.' Sen. Ben Nelson, D-Neb., said he hasn't decided but opposes a filibuster."

The Pittsburgh Post-Gazette contains an editorial entitled "Jousting on judges; Bush and the Democrats need to compromise." Conservative commentator Tom Jipping has an essay entitled "Too conservative to be Hispanic or sit on bench?"

Could it be that President George W. Bush yesterday nominated another Hispanic American to serve on a federal appellate court? The San Antonio Express-News reports here that "U.S. District Judge Edward C. Prado of San Antonio was nominated Thursday by President Bush to serve on the 5th U.S. Circuit Court of Appeals." And The Dallas Morning News reports here that "Federal judge hopeful closer to post; Panel OKs Junell for Midland; 5th Circuit has a new candidate."
Posted at 07:04 by Howard Bashman



In Friday's newspapers: USA Today contains an article entitled "The court conservatives hate." Ninth Circuit Judge Alex Kozinski is quoted extensively in the article. In other news, you can access here an article reporting that "Emptied Ill. death row could get inmate soon; Number awaiting execution could climb to previous level in 2 years."

The Washington Times reports here that "Democrats bar vote, seek 'ample debate' on Estrada." In news from Virginia, this article reports that "A Fairfax judge presiding over the case of sniper suspect Lee Boyd Malvo yesterday denied a pretrial motion put forward by the 17-year-old's attorneys to keep expert witness requests secret from prosecutors." And you can access here an article that begins, "A federal judge says the Justice Department engaged in a cover-up in a lawsuit involving missing American Indian trust funds kept by the Interior Department, accusing the department of obstructing a legitimate inquiry into whether government attorneys lied to the court."

The Washington Post reports here that "Bush Nominates Texas Judge" to fill the one Fifth Circuit vacancy for which there had not been a nominee. A front page article reports that "Horan Says Malvo Didn't Visit Bank; Person on Tape Not Sniper Suspect." You can access here an article entitled "In Calif., Medical Marijuana Collective Loses Hope, Patients; State Law Provides No Shelter From DEA."

This morning's edition of The New York Times reports here that "Moussaoui Case May Have to Shift From U.S. Court to Tribunal." Who might have guessed that "After Sweeping Clemency Order, Ex-Gov. Ryan Is a Celebrity." An article you can access here explains that "Confederate Flag Boycott Tests Presidential Candidates' Resolve." In news from Brooklyn, here's an article entitled "Protecting a Gun Law, or a Family."

The Boston Globe reports here that "US District Judge Robert E. Keeton, at 83 the oldest member of the Boston federal bench, said yesterday he will step down as a full-time judge, creating the first opening on the bench in nearly eight years." And you can access here an article entitled "Kerry won't join boycott of S.C.; NAACP taking aim at Confederate flag on Capitol grounds."

The Los Angeles Times contains an editorial informing California's state court trial judges that "Life's Tough, Your Honors." Steve Lopez's column today is entitled "A Whistle-Blower Who Has the Gun Industry in His Sights." The LATimes reports here that "Texas to Ignore Court Order to Stay Executions." And fans of intellectual property will definitely enjoy reading an article entitled "Note: This Headline Is Patented; Not really -- but restroom instructions and a peanut butter and jelly sandwich were. The examples illustrate a bureaucracy in crisis." And also note that the article is part one of a two part series.

Finally for now, The Christian Science Monitor today contains an article entitled "Mexico's death-penalty juncture; One state votes on reinstating executions, while World Court orders US not to kill 3 Mexicans."
Posted at 06:09 by Howard Bashman



Thursday, February 06, 2003
A big reason why it's good to be the Chief: Ninth Circuit Local Rule 35-3 -- entitled "Limited En Banc Court" -- provides that "The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court." One qualifies to become Chief Judge of the Ninth Circuit under a formula that takes into account both seniority and age at the time the post of Chief Judge becomes vacant.

It strikes me as odd that the Chief Judge of the Ninth Circuit is guaranteed a seat on every eleven-judge en banc panel, while the remaining judges on the en banc panel are essentially selected at random. Having a guaranteed seat on every eleven-judge en banc panel gives the Chief Judge much more power to shape the law than his or her colleagues possess. And the decision to give the Chief Judge a seat on every en banc panel was not a decision that federal law required. The applicable law simply provides that "any court of appeals with more than 15 active judges [may] perform its en banc function by such number of members of its en banc courts as may be prescribed by its own rule."

Does anyone else view it as odd that the Ninth Circuit's Chief Judge -- a designation someone attains essentially through happenstance -- avoids having to qualify by further happenstance to sit on each of that circuit's eleven-judge en banc panels? This isn't an issue that arises in any other federal court of appeals, because, in every other circuit, all non-disqualified active judges get to participate in every single en banc ruling.
Posted at 23:06 by Howard Bashman



Available online from law.com: In news from Philadelphia, Shannon Duffy reports here that "Suit Opposes Mandated Pledge of Allegiance." I'm actually friends (and former colleagues) with too many of the lawyers on the plaintiffs' side of the case to make any snide remarks about this matter, so instead I'll simply refer you back to my first substantive comments on the Ninth Circuit's Pledge of Allegiance ruling.

In news directly pertaining to the Ninth Circuit, Jason Hoppin reports here that "High-Tech Logrolling to Get Day in Court." Sounds a little bit like a contest on NBC's "Fear Factor," although I prefer to view the "food" eating competitions, myself.

Finally for now, The New York Law Journal reports here that "DOJ Is Quietly Rejecting Death Penalty Deals." And here you can access an article entitled "Juror's 'Confusion' Does Not Nullify Conviction of Child Pornographer."
Posted at 22:46 by Howard Bashman



D.C. Circuit law clerk comments on hullabaloo over Miguel A. Estrada's nomination to join that federal appellate court: I received the following email this morning:
I write for two reasons.

First, I just wanted to tell you -- although you plainly hear it all the time -- that you are doing a fantastic blogging job. Like so many other law clerks, I head on over to How Appealing first thing in the morning, before reading the "newspapers of record." Your clear-minded and often entertaining coverage is matched in too few other places on the Web.

Second, serving as I do as a clerk on the D.C. Circuit, I've been following the Miguel Estrada nomination and confirmation process fairly closely. (Thank you for all of the links.) I wonder if you -- or your readers, should you choose to post this -- are as struck as I am by the inconsistencies in the attacks on Mr. Estrada. The most notable inconsistencies were reflected in comments that Angelo Falcon -- Senior Policy Executive of the Puerto Rican Legal Defense and Education Fund -- made in a press conference this morning on C-SPAN2. One is that the PRLDEF: (a) is "scared as hell" about Mr. Estrada's "extreme" ideology, which, according to another group who opposes his nomination, will undoubtedly "smash the American dreams" and violate the civil rights of all Hispanic Americans; and (b) has been inexcusably left in the dark by Mr. Estrada, who has given the group nothing at all by which to evaluate either his ideology or his fitness to serve on the "second most important court in the land." These remarks make no sense to me. Am I missing something? How can this group complain that it knows absolutely nothing about the man yet, at the same time, strut utter certainty that he is an extremist on a genocidal mission to "roll back" the rights of Hispanics everywhere (even outside the admittedly broad jurisdiction of the D.C. Circuit)? I would be less troubled by such views if they were not publicly shared (sincerely or not) by every Democrat on the Senate Judiciary Committee. Another inconsistency -- which, fortunately, has not been advanced by prominent Senators so far as I can tell -- is that while Estrada is not really an Hispanic at all (to paraphrase Falcon, who said that Mr. Estrada is the son of well-to-do Hondurans and therefore does not really know what it's like to be Hispanic), groups like PRLDEF have special standing nonetheless to comment on Mr. Estrada's qualifications. This logic makes no sense to me either. If Mr. Estrada is not Hispanic -- and, incidentally, whether he is or is not should make no difference to the success of his nomination in any event -- why should we (or, more importantly, the Senate) care what PRLDEF thinks any more than we should care what Concerned Women for America thinks?

Just wondering if the remarks struck anyone else's last nerve on this matter. Hope all is well and that How Appealing keeps on keepin' on.

Take care,

Disturbed in D.C.

P.S.: Nice job on the "FERC" post; alas that more people do not understand why Estrada's views on "the right to privacy" will matter zippo on this court. Just this past month, when a massive group of protestors strolled by on Constitution Avenue on the anniversary of some-or-another 1973 case having to do with a complex Fourteenth Amendment (?) issue, my co-clerks and I chanted in unison with them (or so we thought), "What do we want?! Arbitrary-and-capricious review!!! When do we want it?! Within a reasonable time!!!" That is, until we realized, to our great surprise: (a) that is not what they were chanting at all; and (b) they were apparently headed to a different Court up the street that opines on matters with which the garden-variety special interest group is actually familiar.
Thanks for sharing those interesting remarks. My "Bring in 'da Noise, Bring in 'da FERC" post is accessible here in case anyone missed it.
Posted at 22:22 by Howard Bashman



Tonight's musical selection: "Bother" (Real Player required) from Stone Sour.
Posted at 22:15 by Howard Bashman



Peter Roff of UPI supports the confirmation of D.C. Circuit nominee Miguel A. Estrada: You can access Peter's column at this link.
Posted at 22:01 by Howard Bashman



Today's FindLaw columnists: Edward Lazarus argues here that "The Solicitor General's Brief in the Michigan Affirmative Action Cases Fails to Fulfill His Office's Proper Role." And Elaine Cassel has an essay entitled "Did the Beltway Sniper Case Influence the Supreme Court's Recent Decision to Decline to Review the Juvenile Death Penalty?" Where'vya been Elaine, I made this same point months ago! Back on October 24, 2002, in a post you can access here, I wrote:
This morning's sniper arrests, and their impact on the juvenile death penalty debate: Early reports this morning indicate that the two men arrested in Maryland overnight are the prime suspects in the DC-area sniper spree. One of the two men is seventeen years old, and apparently there is also evidence that links this young man to a killing that occurred in Montgomery, Alabama.

Coincidentally, today's edition of The New York Times contains an editorial calling on the U.S. Supreme Court to rule that the death penalty is cruel and unusual punishment for crimes committed before the age of eighteen. Yesterday, The Washington Post contained an editorial that advanced the same argument. You can access my prior posts on the U.S. Supreme Court's recent actions concerning the death penalty for sixteen- and seventeen-year-old offenders here and here.

If the seventeen-year-old individual arrested this morning in fact is eligible for the death penalty for having had a role in the sniper shootings, it will be interesting to see what impact that will have on the debate over whether the death penalty should be available to punish those who commit horrific crimes before reaching the age of eighteen.
At times like these I occasionally think that I should get me one of them FindLaw gigs, but then I remember that press outlets which will pay me to write for them are interested in running my work, if only I had the time to write stuff for them.

And now, on to bigger fish to fry. If you do a Google search, you see that Lazarus and Judas are two characters from the New Testament. Some have criticized Ed Lazarus for his "egregious breach of duty to the Supreme Court" in publishing a first-hand account of behind-the-scenes events during his U.S. Supreme Court clerkship. Yesterday liberal blogger Joshua Micah Marshall attempted to use Lazarus' book as a basis for criticizing D.C. Circuit nominee Miguel A. Estrada. Now I know that opponents of the Estrada nomination complain that they are left to grasp at straws because they have nothing of substance on which to oppose the nomination, but this well-reasoned post at the Greedy Clerks board provides a complete debunking of Marshall's unsupported criticism.
Posted at 21:19 by Howard Bashman



Discovered by Denise Howell: If it wasn't for Denise Howell of "Bag and Baggage" fame, "How Appealing" wouldn't exist. I've said it before, and I'll probably eventually say it again. If you're lucky, one day I might even explain what it all means.

But tonight, I have two points to make. First, Denise commemorates the Law Blog Web Ring's one hundredth member.

More importantly, though, yesterday morning Denise noted how very pleased she was to have discovered the new group blog known as "The Academy." I quickly browsed on over to the site and confirmed that Denise's reaction was indeed justified. As it turns out, I actually "know" three of the contributors to that blog (if you define "know" to mean "have exchanged multiple emails in the past with"), and they are quite wonderful people. They seem to like me too, as posts here and here confirm. What makes it all the more cool is that I actually understand most (but far from all, mind you) of what they're talking about over there.

So welcome to the blogosphere, members of "The Academy." You're off to a wonderful start.
Posted at 21:12 by Howard Bashman



"Raiders get new day in court over tax challenges": The Associated Press sees a silver (and black?) lining in today's Ninth Circuit Oakland Raiders tax ruling. You can access The AP's report here.
Posted at 21:00 by Howard Bashman



Snow is on the way: Fortunately, where I live is forecasted to get less than the four to eight inches predicted for Philadelphia itself. I really need to get into the office tomorrow after having worked from home today. If I can just make it to the train station, the rest of the commute should be smooth sailing.
Posted at 20:57 by Howard Bashman



"Poetic Licenses: Are 'Choose Life' license plates free speech or state-sponsored infomercials?" Once a South Carolina legislator advocated production of a "Choose Death" license place to mollify the pro-choice crowd, I had to figure that this controversy had finally become bizarre enough to merit coverage from Slate's Dahlia Lithwick. And, once again, she does not disappoint. (P.S. No one needs to email me to suggest that I don't understand what the word "mollify" means. I'm using it sarcastically, ok?)
Posted at 19:04 by Howard Bashman



President Bush nominates U.S. District Judge Edward C. Prado to fill the remaining Fifth Circuit vacancy for which there was no nominee: You can access the White House's official announcement here, coverage from The Associated Press at this link, and local news coverage from The San Antonio Express-News at this link. Additionally, you can access Judge Prado's official Federal Judicial Center biography at this link.
Posted at 18:25 by Howard Bashman



An almost positive review of A.U.S.A.: In the words of this review from The New York Times, at least it's not a reality show.
Posted at 18:24 by Howard Bashman



It's principally a matter of principle: I received an email this afternoon about a First Circuit ruling that I mentioned here last night. The email states:
I'm a civilized man (or rather, a civilized former appellate law clerk), but would someone please tell the clerks and judges of America to learn once and for all the difference between "principle" and "principal"? (See, e.g., UPS v. Flores-Galarza, 1st Cir., slip op. at 31, in an otherwise excellent opinion.)

It's got to be the single most common proofing error in appellate decisions -- a close second to the misuse of "forego," which is at least semi-permitted by dictionaries. I'm no language prescriptivist -- one of the English-speaking world's most creative eras was the Elizabethan, when no one even knew how to spell), but this one just wrecks my concentration whenever I see it. It's the, um, principle of the thing.
The ruling in question states, on page 31, "We therefore affirm in principle part but remand on three selected issues for further proceedings consistent with this opinion."
Posted at 17:19 by Howard Bashman



"Firms: Affirmative Action Helps Recruits": Anne Gearan of The Associated Press has a report this evening that begins, "Dozens of big companies are backing the University of Michigan and its affirmative action policy before the Supreme Court, saying such programs help produce better workers of all races and ethnic backgrounds."
Posted at 17:14 by Howard Bashman



Supreme Court of North Dakota affirms certification of consumer class action against Microsoft Corp. alleging unlawful overcharges: You can access last week's ruling at this link.

Coincidentally, the Supreme Court of North Dakota's Web site is one of several state appellate court Web sites that I'm ranking as the best around in my appellate column to be published on Monday, February 10, 2003. You can complete a free and easy sign-up form here to receive my monthly appellate column via email in PDF format on the second Monday of each month, which is the day it is published in The Legal Intelligencer. And, because The Legal Intelligencer has recently stopped providing free online access to its content, the option of receiving my monthly appellate column by email now may seem more attractive than ever.
Posted at 15:38 by Howard Bashman



The U.S. Supreme Court has posted online all oral argument transcripts from its January 2003 session: You can access those transcripts via this link.
Posted at 15:12 by Howard Bashman



Another trouncing for the Oakland Raiders: Last month the Oakland Raiders lost the Super Bowl; today the U.S. Court of Appeals for the Ninth Circuit ruled 3-0 that the Raiders will owe the federal government a bunch in taxes as the result of having received millions of dollars to settle a dispute with the City of Oakland. You can access the Ninth Circuit's decision here.
Posted at 13:55 by Howard Bashman



Ninth Circuit reinstates suit brought by potential "vote swappers" challenging California's ban on that practice: If spouse swappers can have Web sites (sorry, I don't have a link readily available), then why not vote swappers? That's a question a California-based U.S. District Court will need to consider now that the U.S. Court of Appeals for the Ninth Circuit has reinstated (opinion available here) a First Amendment challenge to California's intended ban on a Web site that sought to facilitate vote swapping. And while vote swapping may sound a bit kinky, it's merely an agreement whereby someone who would otherwise vote for a third-party candidate in a State in which the outcome of the presidential election contest is expected to be too close to call agrees to vote for a major party candidate in exchange for picking up a third-party vote in a state where the outcome seems much clearer.
Posted at 13:33 by Howard Bashman



Justice can be devilish: At least when expressed in a parody. Today the Appellate Division of the New York State Supreme Court, Third Department, issued a decision that recognizes the First Amendment right of an artist to satirize a justice of the peace.
Posted at 13:25 by Howard Bashman



From grottie to A.U.S.A.: Just received an email from a reader entitled "AUSA/girls club." The email states:
Your girls club reference is particularly appropriate because Scott Foley, star of AUSA, portrayed Lynne's (Gretchen Mol's) creepy stalker capital-murder-charged client on "girls club." You remember, right? Ah, that old story -- a young lawyer's first trial and your client is facing the death penalty. Happens every day. Anyway, this is a dubious distinction for teen heartthrob Scott Foley -- he will have appeared on the two shortest-lived law series in recent history. (Oh... unless you count First Monday... oh, and The Court....).

As the self-appointed expert on terrible law TV, I watched AUSA. Really. I watched the whole thing. I can't think of anything interesting to say about it. It was too bad to even be funny-bad. Perhaps most ridiculous, the show is set in the Southern District of New York. Now, AUSA's are humorless pretty much everywhere, I think -- but if there's anywhere they're really, really, super-duper, extra humorless, it's the good old SDNY.

Here are the drive-in totals: 1 instance of jury tampering; 1 geeky paralegal; 1 wistful reference to prosecuting the Gambino crime family; 1 hottie of a Legal Aid attorney; and ... 1 Martha Stewart joke.
Thanks much for sharing your entertaining review of this obviously not entertaining show.
Posted at 13:11 by Howard Bashman



If the D.C. Circuit were to be assigned a number to replace the "D.C.," what would it be? Perhaps an exception should be made for brand new U.S. Senators? But, if not, a reader has emailed to note that when brand new U.S. Senator Saxby Chambliss (R-GA) took the floor in yesterday's debate over a judicial nominee, he said "Mr. President, today I rise in support of Miguel Estrada, the nominee for the 12th Circuit Court of Appeals." And to think, I had always envisioned the currently non-existent Twelfth Circuit as being located out west.
Posted at 13:05 by Howard Bashman



University of Virginia School of Law's Web site reports on Fifth Circuit Judge Edith H. Jones's recent Federalist Society speech at that school: You can access the write-up -- entitled "Supreme Court Has Been Contributing to Social Decay, Jones Argues" -- at this link. (Via "a mad tea party.")
Posted at 12:56 by Howard Bashman



Senator Patrick J. Leahy states that Puerto Rico is in the Second Circuit: Ranking Democratic Senate Judiciary Committee member Senator Patrick J. Leahy, both in his prepared statement and on the floor of the U.S. Senate in yesterday's debate, incorrectly stated that Puerto Rico is under the jurisdiction of the U.S. Court of Appeals for the Second Circuit. In fact, Puerto Rico is within the jurisdiction of the U.S. Court of Appeals for the First Circuit, and one of the judges who has served on the First Circuit since 1984 (including a seven-year term as that court's chief judge) was both born in and resides in Puerto Rico.
Posted at 12:16 by Howard Bashman



Senator Rick Santorum (R-PA) makes an interesting if perhaps obvious point in the Miguel A. Estrada debate: Comparing the debate over Estrada to the debate that occurred over the nomination of Judge D. Brooks Smith to serve on the Third Circuit, Santorum just observed on the floor of the U.S. Senate that the Democrats cannot argue that Estrada belonged to any clubs that excluded minorities.
Posted at 12:03 by Howard Bashman



A news report concerning yesterday's Senate Judiciary Committee hearing for Ninth Circuit nominee Jay S. Bybee: The Las Vegas Review-Journal reports here that "No-shows smooth judicial nominee's path."
Posted at 12:01 by Howard Bashman



Access online Senator Orrin G. Hatch's statement from yesterday's Senate Judiciary Committee hearing: You can access it here.

Minutes from now, the committee is scheduled to begin a business meeting to discuss and vote on the three federal appellate court nominees who were the subject of last week's hearing. The Democrats, however, have the right to force a one week postponement of the vote. You can access an audio feed of today's business meeting via this link (select Room Dirksen SD-226).
Posted at 11:21 by Howard Bashman



The transcript of yesterday's debate in the U.S. Senate on Miguel A. Estrada's nomination to serve on the D.C. Circuit is now available online: You can access the transcript of yesterday's debate via the Congressional Record. To do so, click here to bring up a page listing yesterday's U.S. Senate transcripts. Select item number 12, entitled "Executive Session," from that list. Then, after have clicked on the "Executive Session" link at item 12, on the resulting page click on the link that reads "Printer Friendly Display" to bring up the entire lengthy transcript of yesterday's debate.
Posted at 09:49 by Howard Bashman



The U.S. Senate's debate on the nomination of Miguel A. Estrada to serve on the D.C. Circuit has resumed this morning: You can watch the debate live here via C-SPAN2. The Senate expects to remain in session until around noon today. A vote on the nomination could occur next week.
Posted at 09:36 by Howard Bashman



"Dems to Miguel Estrada: You're Not Hispanic Enough": Byron York today offers this commentary at National Review Online.
Posted at 09:08 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Breaux breaks rank, will back Estrada." Bob Dole has an op-ed about civil rights entitled "Never stop trying." And David Limbaugh has an op-ed entitled "Gun-control bullies."

In The Los Angeles Times, David G. Savage reports that "Bush's Opposition to Racial Preferences Gets Big Support." You can access here an article entitled "Democrats Spoiling for Estrada Fight; Senators threaten a filibuster over judicial nominee. Battle will test party's resolve in fighting the GOP on makeup of courts." This article reports that "A federal judge in Baltimore indicated yesterday that he would make public much of the sealed juvenile record of sniper suspect Lee Boyd Malvo." You can access here an article entitled "2 Texans Charged With Stealing Wreckage." In news from California, this article reports that "Decision Saves Frog-Jumping Competition From Croaking; The event's fate was in doubt because of a law banning release of nonnative species." You can access here an editorial entitled "Cleaner Coastal Agency." And Norah Vincent has an op-ed entitled "Feminists Are Poor Sports on Issue of Fairness to Male Athletes."

In news relating to the U.S. Senate's consideration of Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit, Newsday reports here that "Dems Eye a Filibuster on Nomination." The Atlanta Journal-Constitution contains an article entitled "Judicial nominee may face filibuster; Democrats question expertise for post." The Financial Times reports here that "Bush's choice of judge set to raise hackles." And The Cybercast News Service offers commentary entitled "Liberals Struggle To Justify Blocking Estrada."
Posted at 08:48 by Howard Bashman



In Thursday's newspapers: Neil A. Lewis of The New York Times reports here that "Delayed Debate Starts on Judge Picked by Bush." A related editorial is entitled "Steamrolling Judicial Nominees." Reporter Adam Liptak has two articles in Thursday's paper. Here, in an article entitled "No Legal Precedent Is Seen Should Columbia Families Choose to Sue," he discusses the so-called government contractor defense, which protects such contractors from suit so long as they have followed government specifications. Liptak's other article runs under the headline "Maine Suits Swirl on Hebrew National Umbrella Ads." In international news, you can access here an article entitled "World Court Tells U.S. to Delay Executing 3."

Thursday's edition of The Washington Post reports here that "Filibuster Over Estrada Considered; Democrats Weigh Tactics to Defeat Appellate Court Nomination." An article that you can access here begins, "A federal judge yesterday ordered the head of the Justice Department's civil division and five other government attorneys to pay personal sanctions for their tactics in defending the Interior Department in a long-running lawsuit alleging chronic mismanagement of an Indian trust fund." Finally for now, in news regarding the space shuttle disaster, this article reports that "2 Texans Charged In Theft of Debris; Teams Continue Search for Vital Wreckage."
Posted at 00:16 by Howard Bashman



Wednesday, February 05, 2003
A reader reviews NBC's newest lawyer comedy, A.U.S.A.: I didn't watch the debut of A.U.S.A. last night, but yesterday evening I did ride the train home with several actual A.U.S.A.s, and one reminded another upon exiting the train to tune in to the show. Thankfully, one of this blog's readers was kind enough to send in his thoughts about the show:
This being my first e-mail to you, of course I must start by saying that you are doing a truly unbelievable job. I'm currently a 3L at Notre Dame and last semester I taught as an adjunct professor in the University's political science department. (Coincidentally enough, I was replacing Frank Colucci, whom I have never met, but whose e-mail on Kennedy you recently posted). Anyway, the class was "Judicial Politics" and your blog was a savior in keeping me updated for class, since I was spending most of my time preparing the material, having never taught anything before. Next year I will be clerking, and of course I'll be staying tuned to your blog.

Anyway, the real reason for my e-mail was my curiosity to your reaction to the new show AUSA. I realize that there was a lot going on today with Estrada and everything, but I thought if anyone could quickly reel off some smart quotes about the worst law related show I've seen on TV since First Monday, you would.
Because I didn't see the show last night, I don't have any relevant smart quotes to share. But I did see the first (and only) two episodes of FOX's girls club, and I thought that this UPI review by Cathy Seipp was both right on and quite funny.
Posted at 23:16 by Howard Bashman



More death, please: Thursday's edition of The New York Times contains an article entitled "Ashcroft Orders Prosecutors to Seek Death in More Cases."
Posted at 23:09 by Howard Bashman



Available online at law.com: Jonathan Ringel reports here that "Georgia Governor, AG Plunge Into Constitutional Crisis; Governor hires former U.S. Attorney General Griffin Bell in dispute with state attorney general." And you can access here an article entitled "N.J. Justices: Duty of Loyalty Continues After Client's Death." Fortunately, however, the duty of loyalty finally does come to an end upon the lawyer's death.
Posted at 23:07 by Howard Bashman



Apropos of nothing: Song that I currently cannot get out of my head -- TRUSTcompany's "Downfall" (Real Player required).
Posted at 23:00 by Howard Bashman



Text of the floor leaders' statements at today's debate on the nomination of Miguel A. Estrada to join the D.C. Circuit: You can access the text of the opening statement of Senator Orrin G. Hatch (R-UT), chair of the Senate Judiciary Committee, at this link. The text of the opening statement of Senator Patrick J. Leahy (D-VT), ranking Democrat on the Judiciary Committee, is available here. The entire text of today's debate on the floor of the U.S. Senate could become available online as early as tomorrow via the Congressional Record.
Posted at 22:19 by Howard Bashman



On the agenda for tomorrow's Senate Judiciary Committee business meeting: The Senate Judiciary Committee, at its business meeting set for 11:30 a.m. tomorrow (access agenda here), is tentatively scheduled to vote on the nominations of Deborah L. Cook and Jeffrey S. Sutton to serve on the U.S. Court of Appeals for the Sixth Circuit and John G. Roberts, Jr. to serve on the U.S. Court of Appeals for the D.C. Circuit. Democrats on the committee can force these votes to be held over for a week, and chances are that is what will happen. Check back tomorrow to find out for sure.
Posted at 22:14 by Howard Bashman



Unanimous Fifth Circuit panel rejects Mississippi's efforts to dismiss suit brought against it by the federal government to enforce the Americans with Disabilities Act: Mississippi argued that for the federal government to enforce the Americans with Disabilities Act against the State would violate the Eleventh Amendment, even though that argument was a clear loser. The Fifth Circuit also rejected the State's argument that the federal law in question exceeded Congress's powers under the Commerce Clause and the Fourteenth Amendment. You can access today's ruling at this link.
Posted at 21:59 by Howard Bashman



Life tenure apparently doesn't mean that a federal district judge may take forever to decide pending cases: Today the U.S. Court of Appeals for the First Circuit decided a criminal appeal that involved a thankfully very unusual procedural setting. As the First Circuit's opinion explains:
Following remand, Colon filed a motion on September 13, 2000, under Rule 33 of the Federal Rules of Criminal Procedure, for a new trial on the basis of newly discovered evidence. No action was taken on the new trial motion or the re-sentencing for over eighteen months. Accordingly, in early 2002, over five years after his conviction, Colon remained free on bail and without a sentence.

On April 8, 2002, the Judicial Council of this circuit issued an order pursuant to 28 U.S.C. sec. 332 (d)(1) (1994). This order reflected the Judicial Council's concern with the backlog of cases that had developed in the docket of the district court judge who presided over the Colon-Munoz trial and had resumed authority over the case following this court's remand. The Judicial Council's order, which was not concerned in particular with the Colon-Munoz case, adopted several temporary measures to ameliorate the problem. One such measure was the creation of a three-judge committee of the district court, authorized for a limited period to transfer criminal cases that had been pending before the district judge in question for more than two years, and civil cases pending for more than three years, where the committee determined that this transfer would expedite resolution.

On April 12, 2002, the committee entered an order directing that twenty-four long-pending criminal cases on the docket of the district judge in question, including the Colon-Munoz case, be randomly reassigned to other judges. Accordingly, this case was transferred to another district judge. Colon moved to retransfer the case back to the original trial judge. On April 24, 2002, Judge Juan M. Perez-Gimenez, the successor judge, denied both the motion to retransfer and the motion for a new trial. On May 14, 2002, Judge Perez-Gimenez re-sentenced Colon, imposing an amended sentence of sixteen months' imprisonment in lieu of the sentence of twenty-one months that had been imposed following the 1996 convictions, and setting a reporting date of May 17, 2002.
On appeal, the defendant challenged the transfer of his case to a newly assigned judge by arguing that Federal Rule of Criminal Procedure 25(b) lists the circumstances in which a criminal case may be transferred following a conviction, and yet the circumstances of this case differ from those listed. Today the First Circuit rejected the defendant's challenge to the transfer in an opinion that you can access here.
Posted at 21:35 by Howard Bashman



A big win for the United Parcel Service in Puerto Rico: Yesterday the U.S. Court of Appeals for the First Circuit affirmed an injunction that precluded Puerto Rico from enforcing "a statutory regime that prohibits an interstate air carrier from delivering any package unless the carrier first provides proof that the package's addressee has paid the appropriate excise tax, or the carrier prepays the amount of the tax on the addressee's behalf." You can access the ruling here. The ruling deprives Puerto Rico of a very easy way in which to raise and collect millions of dollars in tax revenue per day.
Posted at 21:34 by Howard Bashman



Our taxpayer dollars at work: Welcome to today's installment of "Which party seems to have the better argument?"

The opening paragraph from an opinion that a divided three-judge panel of the U.S. Court of Appeals for the Second Circuit issued today states:
J.B. Hunt Transport, Inc. chose not to employ over-the-road truck drivers who used prescription medications with side effects that might impair driving ability. The Equal Employment Opportunity Commission argued that under the Americans with Disabilities Act, Hunt's decision violated the rights of job applicants using those medications. We disagree.
Meanwhile, the dissenting opinion begins:
This case is quite straightforward. Based upon a list of drugs and their potential side effects compiled by David Whiteside, a Hunt employee with no medical training, and a Medical Guidelines policy developed by Michael Gray, a former Red Lobster cashier with no medical training who was, nevertheless, Hunt's Medical Advisor, Hunt determined that certain applicants were unfit to be truck drivers. The EEOC has provided substantial evidence that Hunt believed that these individuals were unfit to drive a truck, or, for that matter, to drive at all and were incapable of performing the broad class of jobs that fall under the classification "truck driving." Based upon this showing, I would vacate the district court's grant of summary judgment and hold that there is a genuine dispute of material fact with respect to whether the EEOC has established a prima facie case of disability discrimination. I therefore respectfully dissent.
It's certainly a tough call.
Posted at 21:27 by Howard Bashman



Circuit Judge Frank H. Easterbrook explains the economics of a broken MRI machine: You can access today's ruling of the U.S. Court of Appeals for the Seventh Circuit at this link.
Posted at 21:14 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Overturns Death Sentence in N.C." The U.S. Court of Appeals for the Fourth Circuit is the court that issued this 2-1 ruling today, and you can access the opinions here. In other news, this article reports that "Idaho Poised to Restore Death Penalty." And you can access here an article entitled "Ga. Democrat Retains Redistricting Appeal."
Posted at 20:55 by Howard Bashman



"Senate Democrats Undecided on Estrada": The Associated Press offers this report, which states that "A final showdown on Estrada's nomination is not likely until next week."
Posted at 20:19 by Howard Bashman



In U.S. Supreme Court news from Georgia: The Associated Press reports here that "Attorney General Bucks Governor On Redistricting."
Posted at 16:54 by Howard Bashman



"Suicide Attempts Reported at Guantanamo": The Associated Press provides this coverage.
Posted at 16:38 by Howard Bashman



International Court of Justice orders United States not to execute death sentences for three Mexican nationals pending that court's further order: You can access today's ruling of the International Court of Justice at this link. The separate declaration of Judge Shigeru Oda is available here. BBC News offers this report on the matter.
Posted at 16:36 by Howard Bashman



"2 Texans Charged in Shuttle Debris Theft": The Associated Press provides this report. The article notes that "Federal officials in Texas also declared an amnesty period extending until 5 p.m. Friday, during which people who have collected shuttle debris can turn it in without fear of being prosecuted. After that, prosecutions will resume, they said."
Posted at 15:06 by Howard Bashman



Fourth Circuit issues corrected stay order in Sun Microsystems v. Microsoft Corp. appeal: Unlike the original order that the U.S. Court of Appeals for the Fourth Circuit issued on Monday of this week, the corrected order issued yesterday (and posted online today) shows the names of the three judges who served on the panel that entered the stay.
Posted at 14:59 by Howard Bashman



The U.S. Senate's debate on the nomination of Miguel A. Estrada to serve on the D.C. Circuit is now underway: You can view the debate live at this link, via C-SPAN.
Posted at 14:49 by Howard Bashman



See the U.S. Senate's debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit: You can access a live video feed of the Senate session at this link via C-SPAN. The debate was scheduled to begin at 2:15 p.m. today, but the Senate is running slightly behind schedule.
Posted at 14:23 by Howard Bashman



"Ex-POW Fights for Veteran Health Care": The Associated Press offers this report on a case that is now pending on petition for writ of certiorari before the Supreme Court of the United States.
Posted at 14:04 by Howard Bashman



Judicial nomination and confirmation news from here and there: The Cybercast News Service reports here that "Democrats Contemplate Unprecedented Filibuster Threat." The American Prospect has an article entitled "Circuit Breaker: If you're worried about conservative control of the federal judiciary, keep your eyes on the District of Columbia."

In news from Ohio, you can access here an article entitled "Conservative lawyer argued both sides of death penalty."

Finally, The Oklahoman yesterday contained an editorial entitled "Call Their Bluff."
Posted at 13:43 by Howard Bashman



Access online Senator Patrick J. Leahy's statement from this morning's Senate Judiciary Committee hearing: You can now access online here the written statement that Senator Patrick J. Leahy (D-VT), the ranking Democratic member of the Senate Judiciary Committee, prepared for delivery at this morning's hearing to consider four judicial nominees.
Posted at 13:29 by Howard Bashman



Democrats Plan Filibuster of Estrada Nomination: FOXNews has this report.
Posted at 12:57 by Howard Bashman



Senior Ninth Circuit Judge John T. Noonan, Jr. to speak tomorrow evening at the Howard University School of Law: Admission is free and the event is open to the public. More details are available here via the Web site of The American Constitution Society.
Posted at 11:35 by Howard Bashman



Some news from South Carolina: You can access here an article reporting that "S.C. top court refuses to overturn ruling in case against crack mom," and The State reports here that "Lawyers want retarded inmates off Death Row; High court considers procedure to define which inmates are mentally retarded."
Posted at 11:19 by Howard Bashman



"Don't filibuster Estrada!" Guest commentator Kim Daniels has this essay now available at National Review Online.
Posted at 11:02 by Howard Bashman



"The White House Case for Miguel Estrada": Byron York has this report at National Review Online.
Posted at 09:13 by Howard Bashman



State of Ohio may ratify the Fourteenth Amendment: Better late than never, right? A columnist for The Cincinnati Enquirer offers this report. (Thanks to a Cincinnati-based reader for forwarding along a link to this news.)
Posted at 09:11 by Howard Bashman



Dorf on preambles: Today at FindLaw, columnist Michael C. Dorf has an essay entitled "Why A Recent Supreme Court Copyright Ruling May Have Important Implications for Second Amendment Gun Rights As Well."
Posted at 08:57 by Howard Bashman



"Engendering Confusion": The law blog "The Advocate's Devil" offers a very funny post (dated Feb. 4, 2003 at 4:20 p.m.) explaining how, in light of recent decisions from the Nation of India and the U.S. Court of Appeals for the Seventh Circuit, "Somewhere out there, someone woke up one morning thinking that she was an Asian woman, and went to bed at night as a white man."
Posted at 08:53 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times today contains an editorial entitled "The Estrada nomination." An article you can access here reports that "Education Secretary Rod Paige was a leading advocate of President Bush's brief to the Supreme Court against the University of Michigan's race-based admissions policy, the Cabinet member told editors and reporters of The Washington Times yesterday." And an op-ed by Jay Ambrose is entitled "Title IX a good law, with bad regulation." The op-ed begins, "Here is what can happen when liberty-scoffing bureaucrats and law-ignoring judges -- cheered on by ideological fanatics -- get hold of a well-meaning, superachieving law. They can twist it into something despotic, overlaying the good with huge amounts of bad, and they can sometimes get away with it even if their actions contravene the law's language."

The Los Angeles Times today contains an op-ed by Antonia Hernandez entitled "Latino Would Set Back Latinos." And this article reports that "San Diego OKs Medical Use of Marijuana; Council acts on task force report. Patients can keep up to a pound if doctors approve."
Posted at 08:29 by Howard Bashman



"Nominee Had Been Investigated for Intervening in Iraq Inquiry": Neil A. Lewis has this report in today's edition of The New York Times. The nominee in question is Jay S. Bybee, whom President Bush has asked to serve on the U.S. Court of Appeals for the Ninth Circuit. In an amazing coincidence, this morning at 9:30 a.m. the Senate Judiciary Committee holds a hearing to consider Bybee's nomination. You can access the agenda for this morning's hearing at this link, and you can access an audio feed of the hearing via this link.

And at 2:15 p.m. today, of course, the full U.S. Senate is scheduled to begin consideration of the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. I'll provide additional coverage of this event, including a link to a live video feed of the debate, in the very near future.
Posted at 08:15 by Howard Bashman



In Wednesday's newspapers: The Washington Post contains an editorial entitled "Filibustering Judges." The editorial states, "With the Estrada nomination due to come to the Senate floor today, [Senate Democrats] are contemplating a dramatic escalation of the judicial nomination wars. They should stand down. Mr. Estrada, who is well qualified for the bench, should not be a tough case for confirmation. Democrats who disagree may vote against him. They should not deny him a vote." In a correction, The Post a day late identifies the correct Judge Motz (see my post here from yesterday for many more details). You can access here an article entitled "Talks Held in Bid to End Asbestos Suits; Lawmakers in Both Parties Monitor Negotiations as Cases Take Economic Toll." And this article reports that "Arab American Held on Secret Evidence Released; 26 of 27 Charges Dropped Against Atriss, Who Admitted Selling Fake IDs to Sept. 11 Hijackers."

The New York Times reports here that Seventh Circuit Judge Richard A. Posner today will begin presiding over a hugely important trial involving "an essential patent covering GlaxoSmithKline's top-selling drug, Paxil." All that I can say is please hurry back to the appellate bench, Judge Posner. You can access here an article entitled "Jurors Who Convicted Marijuana Grower Seek New Trial." And this article reports that "Economic Woes Hit Law Firms."
Posted at 00:12 by Howard Bashman



Tuesday, February 04, 2003
Available online at law.com: Jason Hoppin of The Recorder has an incredibly interesting article in which he interviews Senior Ninth Circuit Judge Edward Leavy about the judge's recent service on the United States Foreign Intelligence Surveillance Court of Review. A related article is entitled "Though Rare, FISA Cases Occasionally Show Up in Courts." And you can access here "Excerpts From the First-Ever FISA Review Court Hearing."

In other news, Hoppin reports here that "9th Circuit Says Public Defender Can Be Sued." You can access here an article entitled "U.S. Supreme Court Asked to Review Juror-Access Limits." And, finally for now, this article reports that "The California Supreme Court didn't seem inclined Tuesday to let plaintiffs who file private attorney general class actions use the state's unfair competition law to avoid arbitration."
Posted at 23:50 by Howard Bashman



"Hatch Predicts Senate Confirmation of Estrada": Reuters offers this report.
Posted at 23:49 by Howard Bashman



David J. Garrow reviews the new books from Kenneth W. Starr and Ninth Circuit Judge John T. Noonan, Jr.: You can access Garrow's review here, via the Wilson Quarterly.
Posted at 23:35 by Howard Bashman



On rehearing, Indiana Supreme Court reduces to public reprimand a thirty-day suspension imposed for calling appellate judges results-oriented in appellate brief: Back on October 31, 2002, a post appeared on my blog that stated:
An unethical attack on intermediate appellate judges, or no worse than what one sometimes finds in a Justice Scalia dissent? Law Professor Jeff Cooper reports, over on his blog, on a recent 3-2 ruling of the Supreme Court of Indiana that imposed a thirty-day suspension on a lawyer for a rather intemperate attack on the intermediate appellate court judges who delivered a ruling adverse to the lawyer's client. In dissent, a justice serving on Indiana's highest court wrote that the lawyer's assertion "seems to me no different from the attacks many lawyers and nonprofessionals have launched on many court decisions," and in support of that proposition the dissenting justice cited two opinions by U.S. Supreme Court Justice Antonin Scalia (including this one) in which Justice Scalia chided his colleagues on the Court who had disagreed with him.
A few days after my post appeared, New York Times reporter Adam Liptak had an article about the ruling entitled "Indiana Court Bars Lawyer for Criticizing an Opinion." Liptak's article reported that one of the Indiana Supreme Court Justices who voted in favor of suspension in that court's 3-2 ruling probably should have recused himself from the case.

Today, the Supreme Court of Indiana issued an opinion (not yet available online) in which the court granted reconsideration and in which the justice about whom Liptak's article raised recusal questions did in fact recuse himself from the case. (Update: You can access that justices recusal ruling here). The court today ruled, by a vote of 3-1, that the attorney's thirty-day suspension would be vacated and a public reprimand would be imposed instead. On the question of whether the attorney's allegedly intemperate attack was no worse than what Justice Scalia sometimes writes, today's lead opinion states:
We find unpersuasive, however, assertions that some other prominent American lawyers or judges may have engaged in similar techniques of argument. Such unfortunate occasional resort to uncivil dialogue should not be our standard for acceptable Indiana pleading and practice.
Today's most interesting opinion, however, was the opinion concurring in the result by Justice Theodore R. Boehm, who had dissented from the court's original ruling. Justice Boehm's opinion today states, in full:
I continue to adhere to the view that the respondent did nothing that this court should find sanctionable. Specifically, I believe the statements attributed to the respondent are protected by both the First Amendment to the Constitution of the United States and by Article I, Section 9 of the Indiana Constitution. Even if these statements were not constitutionally protected, for the reasons given in my original dissent, I would not find them to violate the Rules of Professional Responsibility. I nevertheless concur in the sanction of a public reprimand that the court imposes today. I write separately to explain my reasons for these facially inconsistent positions.

The respondent's petition to rehear this matter arrives in an extremely unusual procedural posture. Although the full court addressed the case initially, only four Justices remain to consider the petition to reconsider. Although all four vote to grant rehearing, that action itself does nothing to erase the original disposition, which was a thirty day suspension. If two Justices vote to reduce the sanction to a public reprimand, and two Justices vote for no sanction at all, the result is no plurality for any action on remand, and the original thirty days suspension remains in place. Lewis Carroll would love that result: half the court votes for no sanction, and half votes for a small sanction, so the result is a major penalty. Only those who love the law could explain that to their children. To free parents everywhere from that burden, I join in the vote to reduce the sanction to a public reprimand.
Thanks so much to the esteemed reader who forwarded along a copy of today's ruling to me.
Posted at 22:50 by Howard Bashman



PDF for online appellate opinions -- thumbs up or thumbs down? Just because I have a popular Web site devoted to appellate litigation doesn't make me a technical wizard or an expert on Internet standards of accessibility. So, when I say that I like appellate court Web sites that offer opinions in nicely printed PDF format, that's just my own personal preference.

I think that my preference originated from the opinion pamphlets that the U.S. Supreme Court issues. That Court makes its online opinions available in PDF format while maintaining the very nice image that one finds in the printed pamphlets. Here's one very recent example.

As I noted here earlier today, the D.C. Circuit on this very day became the most recent federal appellate court to begin offering PDF-format printed pamphlet opinions. Here's an example. Other federal appellate courts that do so are the Fourth Circuit (see here), the Seventh Circuit (see here), and the Ninth Circuit (see here). The Sixth Circuit issues its opinions in pamphlet form but its online PDF access is amazingly useless (see for yourself).

Other federal appellate courts appear not to issue opinions in pamphlet form but nonetheless do make a PDF file of the typescript available on their Web sites. See, for example, the First Circuit (example here), the Fifth Circuit (here), the Eighth Circuit (here), and the Tenth Circuit (here).

Both the Second Circuit and the Third Circuit issue their opinions in pamphlet form, but make the opinions available in non-pamphlet typescript PDF format. I hope that both of these federal appellate courts will soon join the D.C., Fourth, Seventh, and Ninth Circuits in making the pamphlet opinions themselves available online in PDF format. In particular, the Third Circuit's PDF typescripts are particularly annoying, because the pagination of the document follows the pagination of the pamphlet, and not the pagination of the PDF document (see this example). And then there's the Eleventh Circuit's Web site, where "access" to opinions is little more than a cruel joke.

All this is just an unfortunately longwinded introduction to an email that I received today from the Webmaster for the Washington State Courts. (Imagine what it would be like to introduce yourself using that title at a cocktail party.) The email states:
I am a Webmaster for the Washington State Courts Internet site (www.courts.wa.gov). We have been posting published and unpublished opinions on our website since 1996. When we started making the opinions available, we had a requirement to do so in text format and we are still doing the same today.

However, come summer we will have a new Appellate Court processing system in place and our options for changing how we make opinions available will broaden. Given this, we are looking at html, Word, and PDF as alternative display methods. We are leaning strongly toward Word or PDF, with Word being our top choice at this time.

As these discussion move forward, I have been in contact with the Washington State Supreme Court Commissioner. He mentioned the "How Appealing" website and your comments regarding PDF as the preferred method for display.

Since you recommend PDF, I am wondering how you suggest courts deal with accessibility issues. As I am sure you know, PDF is not considered an accessible format, as a PDF document is essentially an image. While I realize that Adobe has recently come out with a version of PDF that is supposed to be able to be read by screen readers, my understanding is they are not very good and that documents have to go through an extraordinary conversion process.

When attending an accessibility seminar for Government employees held recently in Washington, the recommendation was to avoid the use of PDF unless an alternative version of the same document could also be provided. Do you know if most courts that provide PDF versions also provide an alternative format? If so what format seems to be the primary choice?

Thanks for your time and thoughts on this matter.
If any of my technologically proficient readers have thoughts to offer in response to the questions posed in this email from the Webmaster for the Washington State Courts Internet site, please send me an email, and I will collect and forward on to the Webmaster of the Washington State Courts system the most useful comments that I receive.
Posted at 21:36 by Howard Bashman



College students and Foggy Bottom apparently don't mix: Who would have guessed that George Washington University was a champion of substantive due process? Not me, at least not until I saw this ruling that the U.S. Court of Appeals for the D.C. Circuit issued today. The University was challenging a District of Columbia zoning board order that sought to limit the University's encroachment into the neighboring Foggy Bottom area of town. In today's ruling, the D.C. Circuit held that none of the University's constitutional rights had been violated.

Aside from the somewhat interesting subject matter of the dispute, the decision also contained two other matters of note. Senior Circuit Judge Stephen F. Williams's majority opinion states in footnote one:
We note with dismay that the Joint Appendix, though only 400 pages long, is broken into five separate volumes, evidently to attain maximum achievable inconvenience.
Lawyers who represent parties in appellate proceedings should remember that it is not advisable to inflict "maximum achievable inconvenience" on the judges assigned to decide the matter.

Circuit Judge Karen LeCraft Henderson concurred in the judgment. In footnote two of her separate opinion, Judge Henderson cites to a dissenting opinion written by Supreme Court Justice Thurgood Marshall. Unfortunately, the portion of the citation in parentheses that notes the dissenting Justice's last name spells it with only one "L." As a trip to the Post Office will readily confirm, that spelling isn't correct.
Posted at 21:07 by Howard Bashman



More proof that "How Appealing" gets results: On Thursday, January 30, 2003, in a post you can access here, I wrote:
Published? Unpublished? You make the call: This decision that the U.S. Court of Appeals for the Fourth Circuit issued today gives rise to the following conundrum. At the top of the opinion, in big, bold letters, is the notation PUBLISHED. The line-up of how the judges voted begins, "Affirmed by published opinion." But, making things much more interesting, page two begins with the disclaimer, "Unpublished opinions are not binding precedent in this circuit. See Local Rule 36(c)." That disclaimer, of course, is reserved for the Fourth Circuit's unpublished opinions. All this provides just one more reason in favor of my view that federal appellate courts should cease designating opinions as "non-precedential" at the time of issuance.
Yesterday the Fourth Circuit issued the following order amending its opinion in this case:
The court amends its opinion filed January 30, 2003, as follows:

On page 2 -- the reference to use of unpublished opinions as precedent is deleted.
In just a moment from now, I will have the pleasure (above) of pointing out an equally inconsequential error found in a concurring opinion that accompanies a ruling that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 21:06 by Howard Bashman



He literally wrote the book on excellence in appellate advocacy: This evening I received a very kind email from the federal appellate judge who is the author of what I consider to be the leading book on appellate advocacy. He is in the midst of preparing a revised and updated version of the book, and he has asked me and just a handful of other appellate lawyers to provide him with our succinct suggestions, for inclusion in the book, about how lawyers can improve their appellate brief writing and oral advocacy skills. It's very exciting to have been asked to participate.
Posted at 20:24 by Howard Bashman



Fourth Circuit's order granting emergency stay in Sun Microsystems v. Microsoft Corp. is now available online: You can access the Fourth Circuit's order granting a stay, issued yesterday, at this link.
Posted at 17:25 by Howard Bashman



Thanks to the D.C. Circuit for today beginning to make its opinions available as PDF documents to better represent the printed slip opinions: You can access the D.C. Circuit's official announcement at this link. And an example of an opinion issued today in the new format can be accessed here.
Posted at 17:18 by Howard Bashman



"Media Seek Teen Sniper Suspect's Records": The Associated Press reports here that "Attorneys for several newspapers and The Associated Press will ask a federal judge Wednesday to open the sealed records of federal juvenile proceedings involving 17-year-old sniper suspect Lee Boyd Malvo."
Posted at 17:12 by Howard Bashman



"ABA Confronts Asbestos Lawsuit Limits": Gina Holland of The Associated Press has this report.
Posted at 17:10 by Howard Bashman



D.C. Circuit reinstates Endangered Species Act claim, alleging mistreatment of Asian elephants, against Ringling Bros.: Today the U.S. Court of Appeals for the D.C. Circuit reversed the dismissal for lack of standing of a claim under the Endangered Species Act, asserted by a former elephant handler, that Ringling Bros. and Barnum & Bailey Circus had mistreated its Asian elephants. You can access the court's ruling at this link. According to the court's ruling, under current law "an injury in fact can be found when a defendant adversely affects a plaintiff's enjoyment of flora or fauna, which the plaintiff wishes to enjoy again upon the cessation of the defendant's actions."
Posted at 17:01 by Howard Bashman



Link of the week: Thanks to the Social Law Library of Massachusetts for designating "How Appealing" as its "link of the week." I received the following email from a reader this afternoon reporting the news:
Perhaps you are tiring of accolades and praise, but I thought you might like to know you've attained "Link of the Week" status at the Massachusetts Social Law Library.

I work for a judge on the Massachusetts Appeals Court. The Social Law Library is in the same building as the Appeals Court and the Supreme Judicial Court. The Social Law site is very useful, especially for daily slip opinions. I was pleased to see your site prominently listed during my visit to the site today.

You've mentioned articles about the "google-opoly" ... maybe you are on your way to being the legal "blog-opolist" or having a law blog "blog-opoly." Not that I would mind, "How Appealing" is great.
This is excellent news. But given the treble-damages that being a legal "blog-opolist" might entail, let me stress that plenty of other worthwhile law blogs also exist and that entry costs remain quite low.
Posted at 15:52 by Howard Bashman



Memo to The Washington Post -- Know your Judge Motz: Thanks to those readers who have emailed this morning to point out an error contained in this news report from this morning's edition of The Washington Post. As one email observes:
I'm continuing to enjoy "How Appealing." I thought I would draw your attention to an error in today's Post story about the Prince George's police ruling, just in case you cared to come up with some clever post to point out the error. The Post reports that the opinion was written by Chief Judge J. Frederick Motz, the Chief Judge for the District of Maryland. The opinion was actually written by Diana Gribbon Motz, who is, of course, a Fourth Circuit Judge. The two are married and they work in the same court building, but they don't write each other's opinions . Otherwise Judge Diana Gribbon Motz would be getting credit for Judge J. Frederick Motz's preliminary injunction in the Microsoft/Sun case.
Or, as another reader has emailed to say:
Just a note to point out a rather flagrant instance of a persistent problem in the reporting of judicial decisions (which, if I recall, you have pointed out in the past) -- the media's screwing up who wrote the opinion in question.

In the Washington Post's article titled "Ex-Officer's Conviction Upheld," the paper reports that the opinion affirming the conviction was written by "Chief Judge J. Frederick Motz." This is wrong in every possible respect.

1. The opinion was written by Diana Gribbon Motz, not J. Frederick Motz. Judge Diana Motz is a judge on the 4th Circuit; her husband, Judge Fred Motz, is a judge on the District of Maryland.

2. Judge Fred Motz used to be, although no longer is, the chief judge of the District of Maryland. Judge Diana Motz is not the chief judge of the 4th Circuit -- that is J. Harvie Wilkinson (although his 7-year term is about up and he will be replaced as chief judge this month by Judge William Wilkins). Chief Judge Wilkinson was on the panel and joined in, but did not write, the opinion.

3. Usually, it is not obviously incorrect to say that a district judge authored an opinion of a circuit court, as of course district judges routinely sit by designation on circuit courts. Judge Fred Motz, however, never sits by designation on the 4th Circuit, because his wife is a judge on that court. So Judge Fred Motz would never be the author of a 4th Circuit opinion.
You can access the Fourth Circuit ruling in question, which issued yesterday, at this link.
Posted at 11:26 by Howard Bashman



Commentary available online at FindLaw: Joanne Mariner has an essay entitled "A Fair Trial for Moussaoui," and Juliette Kayyem has an essay entitled "The Sentencing of 'Shoe Bomber' Richard Reid: Its Larger Significance for Terrorism Cases and the 'War on Terrorism' In General." Meanwhile, tomorrow FindLaw columnist Michael C. Dorf will address "the implications of Eldred v. Ashcroft on Second Amendment gun rights." Chances are that Dorf's column will focus on the fact that both the Second Amendment and the Constitution's Copyright Clause have similar preamble clauses.
Posted at 08:21 by Howard Bashman



Elsewhere in Tuesday's newspapers: Lyle Denniston of The Boston Globe reports here that "Microsoft wins a reprieve; Won't have to distribute Java." And you can access here an article entitled "SJC rules doctor can sue over rumor."

In The Washington Times, Greg Pierce reports here that "The political war to get President Bush's judicial nominees confirmed begins at 2:15 p.m. tomorrow, according to conservative activist Kay Daly. That's when the Senate is scheduled to consider Miguel Estrada, the first Hispanic nominated to the D.C. Circuit Court of Appeals." And in news from Maryland, this article reports that "Ehrlich faces test in bill on abortion."

The Los Angeles Times reports here that "Disney Seeks Dismissal of Pooh Suit; The company alleges that the heirs have lied under oath and concealed stolen files." And you can access here an article entitled "Jurors Say Key Information Withheld in Case of Pot Grower; Some would have voted to acquit if they knew the man grew medical marijuana for Oakland. Experts say judge was right to exclude the fact."

Finally for now, The Mercury News reports here that "Court reinstates freed inmate's suit against Clark County."
Posted at 07:50 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports here that "Ex-Officer's Conviction Upheld; Appeals Court Rules in Attack by Pr. George's Police Dog." The article reports on a ruling issued yesterday by the U.S. Court of Appeals for the Fourth Circuit. Television reviewer Tom Shales pans the new NBC comedy A.U.S.A. in a review that begins, "Might a sparkling, clever new sitcom help to lift a nation's sagging spirits? It might indeed, but the new sitcom on NBC tonight hardly qualifies as sparkling or clever. It hardly even qualifies as 'sit' or 'com.'" And you can access here an article entitled "Shuttle Contractors May Face Liability Suits; But Contract and Court Ruling Could Prevent Repeat of Challenger's $10 Million in Settlements."

Finally for now, The New York Times reports here that "Gun Industry Ex-Official Describes Bond of Silence."
Posted at 00:09 by Howard Bashman



Monday, February 03, 2003
A closer look at today's Ninth Circuit en banc ruling: As I reported here earlier today:
En banc Ninth Circuit rules head of public defender's office may be held liable in civil rights suit for denial of effective counsel to defendant: Today a divided eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the head of a public defender's office may be held liable in civil rights suit to a criminal defendant for denial of effective representation of counsel. You can access both the majority and dissenting opinions at this link.
According to the plaintiff's complaint, the head of the public defender's office in Clark County, Nevada "allocated investigative and defense resources based upon a defendant's performance on a polygraph examination and assigned inexperienced and untrained attorneys to capital and other felony cases." While on first blush it may sound quite outrageous for a public defender's office to allocate resources based on a defendant's polygraph examination results, Circuit Judge Andrew J. Kleinfeld's dissenting opinion does quite a persuasive job of explaining how this really isn't as bad as it sounds. Here's a sample:
Maybe to those who haven't done any criminal defense, it isn't obvious why a polygraph examination would be used except to sort the innocent from the guilty. But to an experienced criminal defense lawyer, the distinction between lying and telling the truth is altogether different from (and much more important than) the distinction between guilt and innocence. If the police, prosecutors, and grand jury are doing their screening jobs well, the public defender should have few innocent clients. A criminal defense lawyer occasionally must defend the innocent, a fearfully grave responsibility, but more often defends the guilty. In defending the guilty, criminal defense lawyers perform two noble and just functions: they protect our society from unconstitutional excesses, and they protect criminals from judgments and sentences in excess of what their crimes deserve and ordinarily and properly receive under the law.

The biggest problem criminal defense lawyers face is that their clients often lie to them. Criminal defense clients lie a great deal to their lawyers, they lie to their lawyers more than they lie to the police, they lie about things that don't matter, they lie about things that matter tremendously, they lie in ways that hurt their cases, and most importantly, they lie in ways that disable their lawyers from defending them successfully. Frequently, criminal defendants tell their lawyers some ridiculous fairy tale, even though they have truthfully admitted most or all of what is at issue to the police. It is very difficult for a lawyer to prepare a good defense or negotiate effectively for a plea agreement when the client lies to the lawyer. The polygraph is a high-tech way to scare some of the clients into telling their lawyers the truth, and identifying other clients who won't.

The problem with the lying client isn't that he's guilty. One hopes, if one does criminal defense, that most clients are guilty, because of the terrible risk of an innocent person being convicted. The problem is that the lying client wastes the lawyer's time and his office's resources with a whole lot of rabbit tracks that consume scarce investigative and legal resources but don't lead anywhere. The majority opinion, by carelessly reading into the complaint what isn't there, overlooks what is there. Miranda accuses Harris of using the polygraph to sort out which clients get more resources allocated to them due to a perception of truthfulness, not because the polygraph indicates guilt.

It may or may not be a good idea to use the polygraph this way. But it is a lawyer's decision -- a decision that all criminal defense attorneys make in some form or another.
Judge Kleinfeld's dissent is well worth reading in full.
Posted at 23:55 by Howard Bashman



Thanks to the Managing Editor of Legal Affairs magazine for his very kind email today: You can learn more about that publication at this link.
Posted at 23:45 by Howard Bashman



Considering the possibility of rehearing en banc of today's Sixth Circuit ruling involving the Bankruptcy Code and state sovereign immunity: In a post that appeared here this morning, I reported:
Sixth Circuit rules that the Constitution's Bankruptcy Clause gives Congress the power to abrogate States' sovereign immunity: In a very important and interesting ruling issued today, the U.S. Court of Appeals for the Sixth Circuit has held that the U.S. Constitution's Bankruptcy Clause gives Congress the power to abrogate the sovereign immunity of a State. The opinion notes that five other federal appellate courts have previously reached the opposite conclusion, holding that Congress may not validly abrogate state sovereign immunity under its Bankruptcy Clause powers.
Circuit Judge Karen Nelson Moore wrote the majority opinion, in which Senior District Judge David D. Dowd, Jr., sitting by designation, joined. Senior Circuit Judge Cornelia G. Kennedy concurred in the judgment on other grounds.

Thus, today the Sixth Circuit created a circuit split on a very important issue of sovereign immunity law via a three-judge panel's ruling in which only one active Sixth Circuit judge was in the majority and in which a senior Sixth Circuit judge refused to join. Cases that create a circuit split are prime candidates for rehearing en banc, because the en banc court could avoid the need for U.S. Supreme Court review by ruling in accordance with the other circuits that have previously considered the matter.

Making this exercise even more interesting is the fact that two Sixth Circuit nominees are likely soon to receive U.S. Senate confirmation to join that federal appellate court. Notably, one of those two nominees is Jeffrey S. Sutton, who is quite an expert on the subject of when Congress may or may not lawfully abrogate state sovereign immunity. If the case in which today's ruling issued goes en banc, and if Sutton joins the Sixth Circuit before the case is reargued en banc, he would have the option of electing to participate in the en banc court's consideration of the matter. And if that happens, it would be quite interesting to say the least.
Posted at 23:17 by Howard Bashman



"Kudos from Indiana State Bar Association": An email bearing that title arrived today. It states:
Your blog is listed in the January/Feburary issue of Res Gestae, the journal of the Indiana State Bar Association, in an article entitled "Many 'blawgs' provide practical information." The blurb about your blog reads as follows:

"Thanks to Howard J. Bashman, chair of the appellate group at Philadelphia's Buchanan Ingersoll, this is one of the best resources on the Web for tracking appellate litigation throughout the United States."

I'll add my thanks for your fine work, which--as a clerk for a judge on one of the U.S. Courts of Appeal--I do find useful.
Thanks to both the reader who sent the email and the Indiana State Bar Association for those very kind words.
Posted at 23:10 by Howard Bashman



"Bush did exactly the right thing politically in the University of Michigan case": That's the conclusion of this article from today's edition of The New Republic.
Posted at 23:02 by Howard Bashman



Available online at law.com: You can access here an article by Jonathan Groner entitled "Losing Talent to the Federal Bench; Firms have big holes to fill when top litigators become judges." Readers who are still in law school may or may not enjoy reading news that "Academic Performance Is Still an Issue for Gibson Dunn Well After Law School." Finally, Leland Ware has a commentary entitled "Affirmative Action: Still a Useful Social Tool."
Posted at 23:00 by Howard Bashman



Ninth Circuit Judge Stephen Reinhardt profiled in the cover story of the February 2003 edition of The California Lawyer: You can access here this very interesting article, entitled "The Last Liberal."
Posted at 21:57 by Howard Bashman



"The moral vision of SpongeBob SquarePants": Slate today offers this report. Meanwhile, now that I have seen "The Piano Teacher," I unfortunately cannot recommend it. Just a bit too extreme for me, I'm sad to say. But "Dogtown and Z-Boys" was surprisingly good (NYTimes review here).
Posted at 21:42 by Howard Bashman



Fifth Circuit reinstates product liability suit against maker of Aim 'n Flame, which four-year-old used to burn down trailer, killing self and mother: You can access here today's ruling of the U.S. Court of Appeals for the Fifth Circuit in this quite tragic case. You can access an earlier report -- entitled "Defective Utility Lighter Suit Tossed; Fire Victims' Family Vows to Appeal" -- about the trial court's ruling in the case at this link.
Posted at 21:27 by Howard Bashman



"Microsoft wins stay of Java order": Declan McCullagh has this report on a stay order that the U.S. Court of Appeals for the Fourth Circuit issued today. You can access Microsoft's emergency appellate motion for a stay at this link, and Sun's unsuccessful answer in opposition here. A copy of the Fourth Circuit's order granting the stay doesn't appear to be available online yet.
Posted at 21:08 by Howard Bashman



U.S. Senate changes schedule for consideration of Miguel A. Estrada's nomination to serve on the U.S. Court of Appeals for the D.C. Circuit: I had reported here last week that the full U.S. Senate was scheduled to consider the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit on Tuesday, February 4, 2003 starting at 10 a.m. The schedule has since changed. Under the new schedule, the Senate will reconvene at 4 p.m. tomorrow to enable Senators "to make statements relative to the Columbia tragedy." Currently, the Estrada nomination is scheduled to come up for debate, followed by a vote, at 2:15 p.m. on Wednesday, February 5, 2003. You can access the current Senate schedule here on the right-hand column of the page.

It is also worth mentioning that both of the major political parties have had a Senator undergo heart surgery in recent days. You can access today's Associated Press article entitled "Ky. Sen. McConnell Has Heart Surgery" at this link.
Posted at 20:57 by Howard Bashman



"Do We Want Another 100 Years Of Racial Preferences?" That's the title of Stuart Taylor Jr.'s column this week in National Journal.
Posted at 20:21 by Howard Bashman



"White House May Defend Stance in Court": Anne Gearan of The Associated Press reports here that "The [Bush] administration is expected to ask the high court this month for permission to participate in the April 1 oral arguments over race-conscious admissions policies at the University of Michigan and its law school."
Posted at 18:05 by Howard Bashman



En banc Ninth Circuit rules head of public defender's office may be held liable in civil rights suit for denial of effective counsel to defendant: Today a divided eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the head of a public defender's office may be held liable in civil rights suit to a criminal defendant for denial of effective representation of counsel. You can access both the majority and dissenting opinions at this link.
Posted at 14:50 by Howard Bashman



Sixth Circuit rules that the Constitution's Bankruptcy Clause gives Congress the power to abrogate States' sovereign immunity: In a very important and interesting ruling issued today, the U.S. Court of Appeals for the Sixth Circuit has held that the U.S. Constitution's Bankruptcy Clause gives Congress the power to abrogate the sovereign immunity of a State. The opinion notes that five other federal appellate courts have previously reached the opposite conclusion, holding that Congress may not validly abrogate state sovereign immunity under its Bankruptcy Clause powers.
Posted at 09:34 by Howard Bashman



Google news: No, this post isn't about Google News, that amazing new computer-driven news search service from Google. Rather, this post is to remark that not only is "How Appealing" now the top listed site on a Google search for the word "appealing" (my apologies to the formerly top-ranked lingerie site), but now "How Appealing" is also the nineteenth highest ranked site when you search Google for the word "how." How about that.
Posted at 09:08 by Howard Bashman



Your license plate is speaking, and someone doesn't like what it is saying: Blogger Will Baude has some thoughts about legislation under consideration in Virginia (as reported here in yesterday's edition of The Washington Times) to offer a "Choose Life" license plate. Will's post stresses the absurdity of requiring a State to offer license plates expressing every possible point of view on a controversial subject.

After Will emailed me to draw his post to my attention, I wrote back to alert him to pending legislation in South Carolina (as reported here in The State) that would authorize a "Choose Death" license plate. The proposed legislation in South Carolina was in response to a federal district judge's ruling that did require South Carolina to offer a forum to express opposing political viewpoints. And while both the newspaper article and common sense suggest that a "Choose Death" license plate will not be very popular among pro-choice supporters, the article says that the plate could prove popular among death penalty enthusiasts.
Posted at 08:30 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Veterans press for promised free care." An op-ed by Jacob Sullum is entitled "Product liability tilt to rationality?" And an editorial about the death penalty in Maryland is entitled "Joe Curran, Steven Oken and justice."

In The Boston Globe, you can access here an article entitled "Deadline on abuse cases at issue; SJC to hear appeal on three-year limit." And here's an article entitled "Lawsuit challenges nonprofits' protections."

Finally for now, The Los Angeles Times reports here that "Science Casts Doubt on FBI's Bullet Evidence; Method uses trace elements in lead to link slugs from crimes with suspects' ammunition. Study finds it is based on false assumptions."
Posted at 07:28 by Howard Bashman



Even more evidence that law librarians love "How Appealing": Thanks to the good folks at the George Mason University School of Law for including "How Appealing" on its very short list of worthwhile law-related blogs in the Internet Research Class outline. Just the other day I was marveling at the fact that the Law Blog Web ring, which the author of the "Sua Sponte" blog launched not too long ago, now has ninety-four sites listed. Lengthy lists of law blogs are also available at the "Bag and Baggage" blog and here via the blog known as "Ernie the Attorney."
Posted at 00:40 by Howard Bashman



In Monday's newspapers: The Christian Science Monitor reports here that "An Iranian businessman abducted in a sting operation by American undercover customs agents 12 years ago has successfully sued the US government in a Tehran court, which last week awarded him half a billion dollars in damages."

The New York Times, in Monday's edition, contains an Editorial Observer essay by Adam Cohen entitled "The McNugget of Truth in the Fast-Food Lawsuits." An article entitled "Selling Funeral Supplies Online" reports on, among other things, a recent controversial ruling of the U.S. Court of Appeals for the Sixth Circuit. I first reported on that ruling on the day of its issuance in a post entitled "An appellate decision that fans of 'Six Feet Under' might enjoy." And here's an article entitled "U.S. Seeks Dismissal of Suit By Critic of Missile Defense."

Charles Lane of The Washington Post reports here that "Douglas's Military Claim Questioned by Biographer." The article reports that "a scholar of court history * * * has concluded, based on extensive archival research and interviews with Douglas's old acquaintances, that the justice's claim to have served in the military during World War I is false." You can access here an article entitled "Bush Budget Includes D.C. School Vouchers." Finally for now, Monday's edition of The Post contains a review of John Grisham's latest book, "The King of Torts," chapter one of which you can read online here.
Posted at 00:05 by Howard Bashman



Sunday, February 02, 2003
Site stats from last week: On Monday, January 27, 2003, this blog received 8,348 visits; on Tuesday, January 28, 2003 -- 7,218 visits; Wednesday, January 29, 2003 -- 7,758 visits; Thursday, January 30, 2003 -- 8,198 visits; and Friday, January 31, 2003 -- 6,456 visits. Thanks, everyone, for visiting.
Posted at 22:48 by Howard Bashman



Not to be missed: The Newseum has an online feature known as "Today's Front Pages," and it is not to be missed this evening. And The Tyler Morning Telegraph tells the story of an amateur photographer whose pictures from Saturday morning have landed him in the national spotlight:
Dr. Scott Lieberman, a Tyler cardiologist, is a space buff.

Saturday, his hobby put him in the national spotlight when he snapped eight digital images of the Columbia's final moments as the spacecraft raced across Texas skies.
You can access the complete article here and the images here.
Posted at 22:40 by Howard Bashman



"Mail Call: Not Just an Issue of Black and White." The February 10, 2003 edition of Newsweek contains a large number of letters to the editor in response to that magazine's recent cover story about racial preferences in student admissions at public universities.
Posted at 19:41 by Howard Bashman



A comedy about being a novice Assistant U.S. Attorney? NBC gives this mid-season replacement a try out, with the pilot scheduled to air Tuesday, February 4, 2003 at 9:30 p.m. eastern time.
Posted at 19:39 by Howard Bashman



"NASA Warns Public Not to Sell Debris": The Associated Press has this report. Selling debris from the space shuttle constitutes a federal crime. See 18 U.S.C. sec. 641.
Posted at 16:41 by Howard Bashman



In Sunday's newspapers: It is to be expected that most of today's news focuses on yesterday's tragedy involving the space shuttle Columbia. (See here, here, and here, for example.) In addition, though, today's major newspapers contain some other news that is also likely to be of interest to readers of this Web log.

The Week in Review section of The New York Times contains an article entitled "The New Calculus of Diversity on Campus." You can access here an article entitled "With a Lawsuit Pending, Charities Are Divided Over Disclosure." In news from Texas, a "School District Is Sued Over a Gay-Straight Club." And here's an article entitled "With Riches at Stake, Two Tribes Square Off."

The Washington Post's book review section contains a review of three books about gun control policy. The reviewer is Saul Cornell, director of the Second Amendment Research Center, John Glenn Institute For Public Service & Public Policy, at Ohio State University. You can access here an article entitled "Virginia Judges Under Siege." And Justice Antonin Scalia's recent speech in Virginia on the subject of religion and its role in American life has produced some letters to the editor.

The Washington Times contains an article entitled "Attorney general opposes death penalty." The article notes that while Maryland's Attorney General has expressed his personal opposition to the death penalty, his office is seeking to uphold Maryland's imposition of the death penalty in an important death penalty case soon to be argued before the U.S. Supreme Court. (To the reader of this blog who sent me an email the other day making the same observation, I say "thank you.") And in news from Virginia, this article reports that "The House Transportation Committee yesterday approved a bill in a 13-4 vote that would allow motorists to display the pro-life message 'Choose Life' on their license plates."

The Boston Globe reports here that "West Point and White House go opposite ways on diversity." You can access here an article entitled "SJC weighs children's welfare vs. rights." And the Globe's Magazine section contains a cover story entitled "A Nation of Voyeurs: How the Internet search engine Google is changing what we can find out about one another - and raising questions about whether we should."

Today's edition of The Los Angeles Times contains an op-ed by Arthur Levine, president of Teachers College, Columbia University, entitled "American Education: Still Separate, Still Unequal." And the Sunday Magazine section contains two articles on medical marijuana: this lead story, entitled "The Drug War Refugees: Cancer patient Steve Kubby and other California medpot practicianers are begging Canada for asylum, claiming U.S. drug warriors are out of control. Maybe they're high, but maybe they're right"; and this sidebar feature, entitled "Home Is Where the Hash Is."
Posted at 09:50 by Howard Bashman



Saturday, February 01, 2003
News of interest from here and there: Today's edition of The New York Post contained an editorial entitled "A Setback for Schumer." The Berkshire Eagle today contained an editorial entitled "More judicial games from GOP." The Web site "Focus on the Family" reports here that "Estrada Headed to Full Senate Vote." Yesterday's edition of The Dallas Morning News contained an article entitled "Full Senate gets Estrada judicial nomination." The Duluth News Tribune reports here that "Hispanic's nomination sent to Senate." And yesterday's edition of Newsday contained an article entitled "GOP Pushes Estrada Past Democrats, 10-9; After nearly two years, panel OKs appellate court nominee."

In news pertaining to the Justices of the Supreme Court of the United States, this article from yesterday's edition of The Contra Costa Times forgot which Breyer brother serves on the U.S. District Court. (Hint: His name is Charles, not Stephen.) A "petite and stern-looking" Justice Ruth Bader Ginsburg spoke recently at the University of Colorado in honor of her predecessor at the Court, Justice Byron R. White. The student newspaper there provided this report. Finally for now, The Free Lance-Star of Fredericksburg, Virginia contained an op-ed debate over the substance of Justice Antonin Scalia's recent remarks about religion and its role in society and government. You can access this op-ed (agreeing with Justice Scalia's remarks) and this op-ed (opposing them).
Posted at 23:33 by Howard Bashman



"Couple Sue McDonald's Over Tough Bagel": Today was a profoundly sad day due to the space shuttle Columbia tragedy. Not surprisingly, The Associated Press newswire is teeming with reports about the accident. Nestled within those articles was one that looked a bit out of place, entitled "Couple Sue McDonald's Over Tough Bagel."

So let's get this straight -- many have recently sued McDonald's because its food has allegedly caused them to become obese. And now McDonald's is being sued because its food is allegedly inedible. The company simply can't win, it seems.

For my readers who are language mavens: don't you think that the headline should have been "Couple Sues McDonald's Over Tough Bagel"? True, the word couple means, in the context of the article, two people, but it is "one couple" that is suing McDonald's, not "two couples." Only if more than one couple was suing should the verb in the headline be sue.
Posted at 23:26 by Howard Bashman



"Warnings issued about theft of shuttle debris": This article from The Daily Sentinel of Nacogdoches, Texas begins, "Officials with the U.S. Attorney's office, Eastern District of Texas, issued strong warnings Saturday afternoon to those who tamper with or attempt to take debris of the space shuttle Columbia."
Posted at 20:23 by Howard Bashman



"On the West Wing": The New York Review of Books contains this very interesting review, by Anthony Lewis, of two books -- Bob Woodward wrote one, and David Frum wrote the other -- about the presidency of George W. Bush. In discussing Woodward's book, Lewis writes: "When a lawyer arguing before the Supreme Court a century ago admitted that a precedent was against him and was complimented by a member of the Court on his candor, Justice Holmes murmured, 'There's nothing so deceptive as candor.'"
Posted at 12:04 by Howard Bashman



This evening on C-SPAN's "America and the Courts": Tonight's episode of C-SPAN's fine program "America and the Courts" will broadcast portions of this past Thursday's Senate Judiciary Committee business meeting, at which the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit was considered and approved by a party-line vote of 10-9. As I first reported here yesterday, the U.S. Senate has scheduled a debate and vote on Estrada's nomination to begin at 10 a.m. on Tuesday, February 4, 2003.

For those who can't wait to see tonight's show, or for those who miss it, C-SPAN already has a video of the entire business meeting available online for viewing (Real Player required), and you can access it here.
Posted at 11:40 by Howard Bashman



"Supreme Court petitioned to hear free health care case": The Daily Herald of Everett, Washington reports here that the U.S. Supreme Court has been asked to review a recent en banc ruling (MSWord document) of the U.S. Court of Appeals for the Federal Circuit that refused to enforce promises of free lifetime health care made to members of the military by military recruiters and service leaders. I previously reported on the Federal Circuit's decision here.
Posted at 11:29 by Howard Bashman



"Judge Orders Access to Detainee for Moussaoui's Lawyers": Today's edition of The Washington Post contains this report. Observers believe that this development may cause the U.S Department of Justice to conclude that Zacarias Moussaoui should instead be tried by a military tribunal.
Posted at 11:20 by Howard Bashman



BREAKING NEWS: It appears that the Space Shuttle Columbia has exploded while on its way in for a landing and that debris from the explosion may reach the earth near the Dallas-Ft. Worth area of Texas. Additional live news coverage is available from the usual sources. NASA's official Web site for the Space Shuttle is available here but may soon be overwhelmed by users seeking access. It states that "A contingency has been declared," which is government talk for something not very good. Information on the crew, which included an Israeli astronaut, is available here.

Update: The Associated Press now has this report. While the likelihood of terrorism seems exceptionally remote, it is worth mentioning (as NBC News has just reported) that the Israeli astronaut had piloted an Israeli fighter jet that participated in the 1981 attack on a nuclear reactor being constructed in Iraq.

As you would expect, InstaPundit has much more news and commentary available here and in the updates found below Glenn's initial entry.

Second Update: Among those whose lives were tragically lost today was Ilan Ramon, Israel's first astronaut ever to travel into space. You can read his biography here (via Ha'aretz) and here (via The Jerusalem Post (free registration required)).
Posted at 09:38 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Va. to Get First Black High Court Chief." His swearing-in occurs today. And this article reports that "A woman who asked police to keep an eye on her home while she was on vacation, only to have officers break in and burglarize it, cannot sue the department, an appeals court ruled." The ruling in question is a non-precedential decision of the U.S. Court of Appeals for the Third Circuit, but that hasn't stopped it from getting some press attention. The opinion's author is the Third Circuit's newest Circuit Judge, D. Brooks Smith.
Posted at 09:23 by Howard Bashman



Elsewhere in Saturday's newspapers: The Boston Globe offers this profile of the federal district judge who sentenced the confessed shoe bomber to spend the rest of his days in prison. The Los Angeles Times reports here that a "Third-Strike Inmate Wins His Freedom." The trial judge involved was Lance Ito (remember him?). Finally for now, The Washington Times contains an op-ed by Clarence Page entitled "Why business likes diversity."
Posted at 09:00 by Howard Bashman



In Saturday's edition of The New York Times: You can access here an article entitled "Seeking Execution, Ashcroft Overrules Plea Deal." This correction (second item) reports that "An article yesterday about a vote by the Senate Judiciary Committee to approve the nomination of Miguel Estrada to a federal appeals court misstated the position taken by the Hispanic advocacy group La Raza on his nomination. While La Raza expressed concern about Mr. Estrada, it did not oppose him." And Brent Staples, in an Editorial Observer column, writes about "Pondering Condoleezza Rice's Affirmative Action Problem -- and Mine."
Posted at 00:20 by Howard Bashman



"Forget Diversity": That's the title of James Traub's essay from this upcoming Sunday's edition of The New York Times Magazine.
Posted at 00:16 by Howard Bashman







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