How Appealing

Monday, March 31, 2003
Get your scorecard here: The U.S. Supreme Court's "Day Call" for April 1, 2003 -- reflecting the order of oral arguments in the University of Michigan racial preferences in student admissions cases and who will be arguing when -- is accessible here.
Posted at 23:55 by Howard Bashman



U.S. Supreme Court round-up for Monday, March 31, 2003: The Supreme Court of the United States issued two opinions today, bucking its usual practice of not issuing opinions on a Monday during a week when cases are being argued. The reason for the Court's usual practice is to allow the order list to have the spotlight all to itself on Monday, to be followed on Tuesday and sometimes Wednesday by the issuance of opinions. This week, however, the eagerly anticipated University of Michigan racial preferences in university admissions cases are being argued on Tuesday (yes, I mean tomorrow!), and the Court obviously believes that those oral arguments should not be delayed by, or subject to distraction from, the announcement of opinions. Whether today's opinions -- if they had issued tomorrow -- really stood any chance of distracting attention away from tomorrow's oral arguments is a question that each of us must decide individually, but I vote "no." Indeed, the only distracting aspect of today's rulings was that Justice Clarence Thomas in both cases voted opposite from the way that Justice Antonin Scalia voted. Today's opinions involved the dischargeability in bankruptcy of an obligation incurred in settling a claim of fraud, and whether a three-judge federal district court in Mississippi acted lawfully in drawing that State's new congressional districts when the State failed to do so in time for the 2002 election.

1. Although the goal of bankruptcy is to provide the debtor with a fresh start, not all debts are dischargeable. In particular, any debt for money, property, or services to the extent obtained by fraud are nondischargeable in bankruptcy. In Archer v. Warner, No. 01-1418 (U.S. March 31, 2003), the Court confronted an interesting set of facts. In 1992, the Warners sold to the Archers a business. A few months later, the Archers sued the Warners for fraud in connection with the sale. In 1995, the parties reached a settlement of the litigation. The Warners agreed to pay the Archers $300,000 less certain expenses "as compensation for emotional distress/personal injury type damages" in exchange for releases of all claims and no admission of liability. After the Warners had paid all but $100,000 of the settlement, the Warners defaulted on the remaining balance. As a result, the Archers brought suit to collect on the settlement agreement in state court, and the Warners filed for bankruptcy. The question thus arose whether the $100,000 debt owed on the settlement was a nondischargeable debt for money or property obtained by fraud or whether it was simply an unsecured contractual claim arising under the settlement agreement that was subject to discharge in bankruptcy. A divided panel of the U.S. Court of Appeals for the Fourth Circuit ruled 2-1 (you can access the opinion here) that the settlement obligation was dischargeable in bankruptcy. Because this question had split the circuits, the Supreme Court granted review.

Today, by a vote of 7-2, the Court held that the existence of the settlement did not prohibit the Archers from establishing that the amount still owed on the settlement represented a debt for money or property obtained by fraud because the settlement agreement was entered into in satisfaction of a fraud claim. In other words, even if the act of settling the case was not fraudulent, the debt that the settlement evidences is nondischargeable if the claim giving rise to the settlement debt would have produced a nondischargeable judgment had the claim been successfully litigated to a conclusion. Justice Stephen G. Breyer wrote the majority opinion, in which the Chief Justice and Justices O'Connor, Scalia, Kennedy, Souter, and Ginsburg joined. Justice Clarence Thomas wrote a dissenting opinion, in which Justice Stevens joined. The dissent argued that the doctrine of novation caused the fraud claim, once settled, to transform into a contractual obligation. And contractual obligations, of course, are dischargeable in bankruptcy.

Today's ruling represented the second trouncing at the hands of the Court that attorney Donald B. Ayer (argument transcript here) has received in cases involving the dischargeability in bankruptcy of debts relating to fraud. The earlier case was a 9-0 loss in Cohen v. De La Cruz. If it's any consolation, I happen to think that the Court reached the wrong conclusion in both cases, although I might be a bit biased in the Cohen case because I too worked on petitioner's behalf in that case while it was pending before the Court.

2. The other case that the Court decided today was Branch v. Smith, No. 01-1437 (U.S. Mar. 31, 2003). After Mississippi lost one seat in the U.S. House of Representatives as a result of the 2000 census, it was necessary for the State to redraw its congressional map. When the State failed to come up with a redistricting plan that was capable of receiving the necessary approval from the U.S. Department of Justice in time to take effect for the 2002 elections, a three-judge U.S. District Court panel for the U.S. District Court for the Southern District of Mississippi implemented its own replacement congressional districts.

In today's decision, the Court addressed two main issues. First, the Court unanimously concluded that the federal district court properly acted in the absence of a state-sponsored plan that would have gone into effect in time for the 2002 elections. Next, the Court confronted the much more challenging question of whether federal law allowed the district court to implement single-member districts or whether an arguably conflicting provision of federal law required at-large elections. On this much more complicated question, the Court essentially split (4-3)-2, holding that the federal district court acted properly in drawing single member districts.

Justice Antonin Scalia wrote the opinion of the Court on the first point and announced the judgment of the Court on the second point. On the more complex point, Justice Scalia, joined by the Chief Justice and Justices Kennedy and Ginsburg, concluded that the provision requiring at-large elections applied only in exceptionally limited circumstances, none of which were present here. Justice Stevens filed an opinion concurring in the judgment, in which Justices Souter and Breyer joined, which concluded that the statute providing for single-member districts worked an implied repeal of the earlier statute providing for at-large elections. Justice Sandra Day O'Connor wrote a dissenting opinion, in which Justice Thomas joined. Justice O'Connor disagreed that any implied repeal had occurred and further disagreed that the at-large elections provision was inapplicable. Rather, she would have held that Mississippi under the circumstances of this case was required to hold at-large elections to fill its congressional delegation. Justice O'Connor's dissenting opinion was noteworthy for the extent to which it relied on prior opinions and other writings of Justice Scalia as authority for its points. Of course, Justice O'Connor's heavy reliance on Justice Scalia's earlier writings somehow failed to convince Justice Scalia to adopt her view of the case, but it nevertheless made for some very interesting reading (at least for those of us who aren't Justice Scalia).

And now it's on to what's sure to seem like non-stop coverage tomorrow of the University of Michigan racial preferences in student admissions cases.
Posted at 23:16 by Howard Bashman



Available online at law.com: Jason Hoppin reports here that "Court Tosses Out Suit Against Groups That Vet Judges for Bush." From New York comes news that "Race at Issue in Opening Arguments of Gun Industry Trial." And in other news from New York, you can access here an article entitled "Judicial Conduct Commission Fires Back After 'Spargo'" and here an article entitled "Former Court of Appeals Judge Levine Defends Common Law Adjudication." Finally for now, in news from the Third Circuit, Shannon P. Duffy has an article entitled "Courts May Sever Invalid Portions of Arbitration Agreement; Faulty provision need not invalidate entire agreement."
Posted at 23:09 by Howard Bashman



Elsewhere in Monday's newspapers: Today's edition of The Los Angeles Times contains an article entitled "Justices to Reconsider Race in Admissions; In 1978, the high court upheld the use of race as a 'plus factor' in colleges' choices. Now it will hear challenges to University of Michigan policy." The newspaper also contains two related op-eds: Stuart E. Eizenstat has an essay entitled "Racial Preferences as Slavery Reparation; Michigan case opens broader questions"; and David J. Garrow has an essay entitled "Lessons From Affirmative Action's Past." In blogging-related news, a front page article is entitled "War Diary Spins Web of Intrigue; A mystery man's descriptive dispatches about life in Baghdad grip Internet denizens. But is Salam Pax really in Iraq, or is he a hoax?" From Texas comes news that "DNA Lab's Woes Cast Doubt on 68 Prison Terms; Forensic science at a Houston police unit was plagued by problems. The inmates for whom retesting is ordered include 17 on death row." George Skelton's Capitol Journal is entitled "Attorney General's Office Is Catbird Seat for Gubernatorial Hopeful Lockyer." And letters to the editor run under the heading "Free Speech Comes With Consequences."

Today's edition of The Washington Times reports here that "GOP stands by Frist amid Senate setbacks." Frank J. Murray reports that "School's $250,000 campaign gives both sides of race case." Tom Bray has an op-ed entitled "Supreme benchmarks of diversity," and Nat Hentoff has an op-ed entitled "Pro-lifers make their mark in the public square."

The Boston Globe reports here that "Activist challenges the use of churches as polling places." And USA Today contains an article entitled "Two suspected in post-9/11 plot; Second round of attacks may have been planned."
Posted at 20:45 by Howard Bashman



"Supreme Court Considers Sex Crime Limits": Gina Holland of The Associated Press has this report.
Posted at 20:40 by Howard Bashman



In case you didn't already know: Anne Gearan of The Associated Press reports here that "O'Connor, Kennedy Key in Mich. Race Case."
Posted at 17:11 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Supreme Court Hears Indian Lands Case" and here an article entitled "Bush Won't Appeal Calif. Oil Drilling Ban."
Posted at 16:28 by Howard Bashman



Some federal judicial confirmation news and commentary from here and there: The Beaumont Enterprise last Friday published an editorial entitled "Senate should vote on Owen." quepasa.com last Thursday published an article entitled "Hispanic lawmakers, activists support Bush judicial nominee." Alfred P. Carlton Jr., the American Bar Association's current president, has an essay entitled "More and Faster--Now: The Crisis in the Federal Judiciary." An op-ed by Linda Campbell in The Huron Daily Tribune notes that "The continuing Senate impasse over appellate court nominee Miguel Estrada signals grim prospects for sanity and civility should a Supreme Court retirement this spring open the door for the appointment of the first new justice in nine years." And Wyatt Emmerich of The Northside Sun has an essay entitled "Activist judiciary is out of control."
Posted at 16:25 by Howard Bashman



This week in the U.S. Senate: The U.S. Senate returns to work at this hour. Tomorrow, the Senate will convene at 9:30 a.m. and begin consideration of Timothy M. Tymkovich to be U.S. Circuit Judge for the Tenth Circuit. The Senate has scheduled six hours of debate on the nomination, and upon use or yielding back of time, the vote on confirmation will occur. It is also possible that the Senate may hold this week another cloture vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.

Also tomorrow, the Senate Judiciary Committee will hold a hearing on judicial nominations beginning at 9 a.m. Ninth Circuit nominee Carolyn B. Kuhl is scheduled to have her confirmation hearing tomorrow, even though only one of California's U.S. Senators has returned a "Blue Slip" concurring in the nomination. Of course, by having received at least one favorable Blue Slip, Judge Kuhl is much better off than the four Sixth Circuit nominees from Michigan. Both of Michigan's U.S. Senators have returned negative Blue Slips as to all four of those nominees (see this chart for all the details).
Posted at 15:27 by Howard Bashman



More bad news for the younger of the two D.C.-area sniper suspects: The Associated Press reports here that "Sniper Case Judge OKs Family's Testimony."
Posted at 15:26 by Howard Bashman



An astonishing breach of courthouse confidentiality: National Public Radio's All Things Considered program on Saturday, March 29, 2003 aired a segment entitled "McCain-Feingold Bill Languishes." The segment's online description is:
When the McCain-Feingold Campaign Finance Law was signed into law, it was immediately challenged in court. Observers expected the case to be pending before the Supreme Court by now, but it's not. NPR's John Ydstie hears from NPR's Legal Affairs Correspondent Nina Totenberg about the hold up.
You must hear the segment to believe it. You can access the segment (Real Player required) here. Update: Law Professor Rick Hasen has the transcript of the segment here at his "Election Law" blog.
Posted at 13:18 by Howard Bashman



"U.S. Courts Allowed to Shape Districts": Gina Holland of The Associated Press has this report on one of the U.S. Supreme Court's two decisions issued today.
Posted at 11:27 by Howard Bashman



"Supreme Court Rejects Iran Terrorism Case": The Associated Press has this report.
Posted at 11:01 by Howard Bashman



Today's U.S. Supreme Court opinions and orders: The Court today issued two opinions. Justice Stephen G. Breyer delivered the opinion of the Court in Archer v. Warner (available here), in which the judgment of the U.S. Court of Appeals for the Fourth Circuit was reversed. And Justice Antonin Scalia announced the judgment of the Court in Branch v. Smith (available here), in which the judgment of the U.S. District Court for the Southern District of Mississippi (on direct appeal to the Court) was affirmed. You can access the oral argument transcript in Archer here and in Branch here.

The Court's order list issued today is available here. The Court today did not grant review in any cases.
Posted at 10:00 by Howard Bashman



Tomorrow's U.S. Supreme Court oral arguments in the University of Michigan cases: If you attend tomorrow's U.S. Supreme Court oral arguments in the two cases that challenge the University of Michigan's use of racial preferences in student admissions, or if -- like me -- you merely listen to the broadcast of the oral argument audiotape, feel free to send along via email your impressions of the argument and predictions based on what you have seen and/or heard in the oral arguments. Chances are that "How Appealing" will be focused quite heavily on the University of Michigan cases tomorrow, and I look forward to posting interesting emails from readers who have attended or tuned in to the oral arguments.

If I were a U.S. Supreme Court Justice, I would ask Solicitor General Theodore B. Olson the following question: "If the Court concludes, contrary to the government's position, that it is impossible to rule in the plaintiffs' favor while adhering to Bakke, would the government favor a ruling in plaintiffs' favor that overturns Bakke?"
Posted at 08:39 by Howard Bashman



On the agenda: The Supreme Court of the United States is expected to issue both orders and opinions at 10 a.m. this morning. Usually in a week when cases are being argued, the Court only issues orders on Monday and saves opinions for Tuesday and sometimes Wednesday. Yet in order to avoid distractions tomorrow, when the University of Michigan racial preferences in university admissions cases are to be argued, the Court is issuing opinions today instead of tomorrow. After today, the Court will next issue more opinions on Wednesday of this week.
Posted at 08:32 by Howard Bashman



Interesting law blog of the day: "The LitiGator."
Posted at 08:30 by Howard Bashman



From the April 7, 2003 issue of The New Yorker: Louis Menand has an essay entitled "The Thin Envelope: Why college admissions has become unpredictable." And in war-related coverage, you can access here Seymour M. Hersh's article "Offense and Defense: The battle between Donald Rumsfeld and the Pentagon"; here a Letter from Baghdad by Jon Lee Anderson entitled "Ill Winds: Tomahawks, bunker busters, and dust storms afflict the Iraqi capital"; and here a Talk of the Town piece entitled "A Butcher from Baghdad."
Posted at 08:16 by Howard Bashman



"U-M Admissions Cases: Analysis -- Decision may emerge from middle; Kennedy, O'Connor are court's swing votes": Today's edition of The Detroit Free Press contains this report. Meanwhile, The Michigan Daily reports here that "Rejected students speak out on 'U' rationale for achieving diversity," here that "'U' admissions supporters stand by claims," and here that "Line forms on steps of Supreme Court." Also, Johanna Hanink has an op-ed entitled "After trial, campus will need to reevaluate."
Posted at 06:20 by Howard Bashman



In Monday's newspapers: In The Christian Science Monitor, Warren Richey has an article entitled "Court takes up racial preferences in landmark case; Debate Tuesday on affirmative action in college admissions will have big impact."

In The New York Times, Adam Liptak reports on a case that arose in the suburbs of Philadelphia in an article entitled "Suit Challenges Right to Report Political Slurs." He also is the co-author of an article entitled "Groups Fault Rule on Automatic Detention." And Adam Cohen has an Editorial Observer column entitled "Why the Supreme Court Needs to Visit Cass High School."

Finally for now, The Washington Post contains an op-ed by Richard D. Kahlenberg entitled "Affirmative Action: There's a Third Way."
Posted at 00:10 by Howard Bashman



Sunday, March 30, 2003
An email from one of Philadelphia's most highly regarded appellate lawyers in criminal matters: I received the following email yesterday entitled "2003 Amendments to Federal Rules of Appellate Procedure":
Really, Howard, I'm disappointed in you! Negligible?? As of December 1, 2003, the appellate forms are amended to replace "19__" with "20__" in the date lines. The three years' deliberation that went into announcing this change is itself a cause for admiring comment, to say nothing of the firm and courageous grip on right and wrong that it displays. I note with awestruck admiration the further judicious caveat that this amendment is to be applied to pending cases only "insofar as just and practicable"!
The email was in response to this post of mine from Friday afternoon.
Posted at 22:45 by Howard Bashman



Is it too much to ask for? On Tuesday, April 1, 2003, the Supreme Court of the United States will hear oral arguments in the two cases that challenge the lawfulness of the University of Michigan's use of racial preferences in student admissions. I have been looking forward to this day since May 14, 2002, when I wrote here about the U.S. Court of Appeals for the Sixth Circuit's 5-4 ruling that day in Grutter v. Bollinger.

I agree with Linda Greenhouse's evaluation in her article published in today's edition of The New York Times that the betting money now favors rulings that permit state universities to take race into account in deciding which students to admit. Rulings to the contrary are not impossible, but they are somewhat less likely.

What I sincerely hope for -- putting aside my views on the merits of these cases -- are decisions that command a majority of the Justices, no matter how slender that majority may be. I'm particularly concerned that if Justice Sandra Day O'Connor joins with Justices John Paul Stevens, David H. Souter, Ruth Bader Ginsburg, and Stephen G. Breyer to allow public universities to consider race in deciding whom to admit, Justice O'Connor will provide the crucial fifth vote by means of an opinion concurring in the judgment. Likewise, Justice O'Connor could provide the crucial fifth vote in favor of striking down such racial preferences by means of an opinion concurring in the judgment. It was bad enough when in Regents of the University of California v. Bakke Justice Lewis F. Powell, Jr. provided the crucial fifth vote by means of a separate opinion, but at least Justice Powell then remained on the Court for another nine years. Justice O'Connor's time on the Court could be at an end as early as this summer, and few see her serving anywhere near nine more years on the Court. To have Justice O'Connor provide the key fifth vote in the University of Michigan cases through a separate opinion followed soon thereafter by her departure from the Court would destroy any possibility that the Court's upcoming rulings will finally settle the law in this controversial area.

So, while most everyone else will be busy between Tuesday and the end of June wishing for their preferred outcome in the University of Michigan cases, I will be wishing the most for an opinion that commands at least five votes. The only way I'd be happier was if the Court issued a majority opinion and that opinion reaches the result that I favor.
Posted at 22:20 by Howard Bashman



Steven Wu profiles Supreme Court of California Associate Justice Janice Rogers Brown: Here. Justice Brown, of course, is viewed as a possible nominee to fill one of the next U.S. Supreme Court vacancies.
Posted at 22:15 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Supreme Court to Hear Race Bias Case" and here an article entitled "Inmates, Prisons Feud Over Phone Bills."
Posted at 14:59 by Howard Bashman



Some news from Houston: Today's edition of The Houston Chronicle reports here that "Rosenthal testimony lackluster in capital; DA struggled to back sodomy law in Supreme Court" and here that "10% no perfect solution to college admissions."
Posted at 14:50 by Howard Bashman



Interesting law blog of the day: "Jottings By An Employer's Lawyer."
Posted at 10:23 by Howard Bashman



Man bites dog: Perhaps this is even worse -- today's edition of The Dayton Daily News contains an article entitled "Court: OK to bark at K-9 dog."
Posted at 10:15 by Howard Bashman



"Affirmative Action Alive on Tenn. Campus": The Associated Press offers this report.
Posted at 10:12 by Howard Bashman



Elsewhere in Sunday's newspapers: The Washington Times contains a report from The Associated Press entitled "Tech alumni criticize policy." And in the op-ed category, Cal Thomas has an essay entitled "The law, liberty and license," while Bruce Fein writes of "Sex offender tocsin."

Today's edition of The Boston Globe contains an editorial entitled "No Justice in Guantanamo." And columnist Ellen Goodman has an op-ed entitled "Mission: admission."

Finally for now, The Los Angeles Times runs an AP story entitled "A Long Wait to Die on S.C. Death Row; Inmates at S. Carolina facility spend their time alone, waiting for the final day or an appeal that could spare their life. Many are in denial."
Posted at 10:00 by Howard Bashman



In Sunday's newspapers: In The New York Times, Neil A. Lewis reports that "Impasse on Judicial Pick Defies Quick Resolution." In the Week in Review section, Linda Greenhouse has an article entitled "Affirmative Reaction: Can the Justices Buck What the Establishment Backs?" A related article reports that "Attack on Colleges' Aid to Minorities Widens." You can access here an article entitled "Puzzling Over Motives of the Men in the Lackawanna Qaeda Case." Steven Greenhouse reports that "Lifetime Affliction Leads to a U.S. Bias Suit." And an article from the Style section is entitled "Surprise, Mom: I'm Anti-Abortion."

The Washington Post reports here that "At Boston U., 'Holistic' Admissions Venture Beyond Black and White; Struggle With Race Comes Scrutiny in U-Mich. Court Case." In the Book World section, Garrett Epps has a review of Seventh Circuit Judge Richard A. Posner's latest book, "Law, Pragmatism, and Democracy." And you can access here a review of "After: How America Confronted the September 12 Era," which is Steven Brill's new book.
Posted at 00:16 by Howard Bashman



Saturday, March 29, 2003
Available online from law.com: Tony Mauro's latest Courtside column is entitled "Gay Rights a Personal Issue for High Court Advocate." And the New York Law Journal reports here that "Law Students Joining Affirmative Action Rally in D.C."
Posted at 17:58 by Howard Bashman



Even more press coverage of the University of Michigan racial preferences in student admissions cases: The Ann Arbor News reports here that "Faculty silent on admissions: Many at U-M are reluctant to discuss affirmative action" and here that "Policy foe stays true to U-M, beliefs; Admissions fight has not dampened loyalty." Yesterday's edition of The Detroit Free Press, meanwhile, contained an op-ed by Zach Seal entitled "Students benefit from multicultural experiences."
Posted at 17:54 by Howard Bashman



"No Gay Things Allowed?" Yahoo! News yesterday posted this essay from William F. Buckley Jr.
Posted at 17:38 by Howard Bashman



"Professor examines women in the courts": Yesterday's edition of The Penn contained this report.
Posted at 17:35 by Howard Bashman



"The virtues of discrimination": Patti Waldmeir has this essay in The Financial Times.
Posted at 17:32 by Howard Bashman



"Supreme Court to strike a blow for Texan gays": Tomorrow's edition of The Independent contains this report. Apparently a pun-dit wrote the headline.
Posted at 17:26 by Howard Bashman



"God bless the 9th Circuit": That's what commentator Mark Q. Rhoads says in today's UPI Outside View commentary.
Posted at 17:23 by Howard Bashman



Interesting law blog of the day: "So Cal Law Blog." Still to come: the no-cal law blog, for readers interested in diet-related law.
Posted at 12:42 by Howard Bashman



Good stuff: The past few days have generated some quite interesting posts at the "Sub Judice" blog. And "PejmanPundit" has a new address and a new blog name too.
Posted at 10:43 by Howard Bashman



"Bloggers' Delight: Will the war become the breakthrough Webloggers have been waiting for?" Steven Levy has this report, online at Newsweek.
Posted at 10:40 by Howard Bashman



"High Court to Weigh Diversity in Michigan Case Next Week": The Gannett News Service offers this report.
Posted at 10:14 by Howard Bashman



In news from Michigan: The Detroit News (via The AP) reports here that "Self-segregation exists on campus at center of affirmative action case" and here that "Bush administration promotes 'race-neutral' college ideas; Education Department releases 40-page guide." The Detroit Free Press, meanwhile, has an article entitled "U-M took a risk; a stellar career took root. Successful law grad defends affirmative action." And here's an article entitled "Washington-Bound: Buses to carry thousands to back affirmative action; Tuesday's rally will support U-M during arguments at the Supreme Court."

In other news, The Free Press reports here that "Court voids guilty verdicts; Men were convicted in date-rape drug death," while The News contains an article entitled "Appeals court throws out convictions in date-rape drug case."

Finally, you can access here an article entitled "Government presents drawings it says are of terrorist targets" (det news) and here an article entitled "Terrorism Trial: Prosecutors offer journal sketches as key evidence; They say primitive drawings depict 2 overseas targets" (freep).
Posted at 10:13 by Howard Bashman



"Gay couple won't get Texas divorce; State law does not recognize same-sex unions, ruling says": Today's edition of The Houston Chronicle contains this report. Earlier in the week, The Beaumont Enterprise contained an article entitled "No gay marriage, no gay divorce, AG says." Back on Monday, The Enterprise reported that "Anti-gay protester to picket in Beaumont." This week's developments marked a change in course from earlier in the month, when the headline read "Judge grants divorce to men who got civil union a year ago."
Posted at 10:02 by Howard Bashman



"Justice O'Connor Extols Diversity in Book": Anne Gearan of The Associated Press has this report. Be sure to read the whole thing so as not to miss an unrelated story about Justices Clarence Thomas and Stephen G. Breyer and their love of alphabet soup.
Posted at 09:52 by Howard Bashman



In Saturday's newspapers: The New York Times today devotes its op-ed page to the University of Michigan racial preferences in student admissions cases to be argued at the U.S. Supreme Court on Tuesday. In alphabetical order by the author's last name, Benjamin Forest has an essay entitled "A Policy That Depends on Segregation." Glenn C. Loury has an essay entitled "Admissions (and Denials) of Responsibility." Stanley Rothman asks, "Is Diversity Overrated?" And the dynamic duo of Lawrence H. Summers and Laurence H. Tribe not only demonstrate different spellings of a first name but also have an essay entitled "Race Is Never Neutral." And if it's "op-art" you seek, Scott Stowell and Susan Barber supply this effort. In the news, you can access here an article entitled "Defense Is Told of Missing Transcripts in Embassy Bombings Case." And "Topics of The Times" notes "A Win for Legal Services."

In Sunday's edition of The Los Angeles Times, David G. Savage has an article entitled "Affirmative Action Case Splits Asian Americans; University of Michigan's admissions policy, to be debated by the Supreme Court this week, is seen as a threat and a crucial protection, lawyers say." And today's newspaper contains an article entitled "O.C. Judge OKd for Federal Bench."

The Boston Globe reports here that "Claim of church rights panned." And an editorial about the case from Texas challenging that State's prohibition of homosexual sodomy is entitled "Unequal protection."
Posted at 08:20 by Howard Bashman



Friday, March 28, 2003
A first: This may be the first opinion that the U.S. Court of Appeals for the Tenth Circuit's Web site has posted for which Circuit Judge Michael W. McConnell is credited as the author.
Posted at 20:56 by Howard Bashman



"Another Democratic Filibuster? Democrats prepare to obstruct again -- war or no war." Byron York has this essay today at National Review Online about the expected Democratic U.S. Senate filibuster of Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit.
Posted at 20:26 by Howard Bashman



Some judicial confirmation-related news and commentary: Jonathan Tilove of the Newhouse News Service has an article entitled "Affirmative Action Complicates Burden of Proof in Minority Success." The article focuses on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. Meanwhile, the Feminist Daily News Wire has an item entitled "Anti-Women Judicial Nominee Approved by Senate Committee." Ironically, the supposedly "anti-women" nominee just happens to be a woman.
Posted at 17:12 by Howard Bashman



"NYC Firings in Racist Flap Questioned": The Associated Press provides this report.
Posted at 16:28 by Howard Bashman



Access the U.S. Supreme Court's press release on the University of Michigan racial preferences oral arguments audiotape: Here.
Posted at 15:45 by Howard Bashman



"Mich. Date-Rape Death Charges Tossed": The Associated Press has this report. You can access yesterday's unpublished ruling of the Michigan Court of Appeals at this link.
Posted at 15:30 by Howard Bashman



Rules, anyone? The Supreme Court of the United States yesterday sent to Congress proposed amendments to the Federal Rules of Appellate, Bankruptcy, Civil, and Criminal Procedure. The amendments (which you can access via this post at SCOTUSblog) will take effect on December 1, 2003 unless Congress rejects them. The amendments to the Federal Rules of Appellate Procedure seem negligible, so chances are you won't be hearing much more from me about them anytime soon. Readers interested in class action procedures, however, should be sure to check out the amendments to the Federal Rules of Civil Procedure.
Posted at 15:21 by Howard Bashman



"Court to Examine Old Molestation Cases": The Associated Press offers this report.
Posted at 14:17 by Howard Bashman



What a difference two days make: On Wednesday, The Associated Press had a report from New Mexico entitled "Antiwar prosecutor on leave." Yesterday, The Albuquerque Tribune reported here that "Assistant DA's job might be in jeopardy, her attorney says." Today's news brings word that "Prosecutor Fired Over Undercover Flap."
Posted at 13:10 by Howard Bashman



I really, really dissent: Today a three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued an opinion from which Senior Circuit Judge Donald P. Lay dissented. Judge Lay's dissent concludes:
This case troubles me as much as any case that I have sat on in over thirty-seven years on this court. In the present case, the law is clear. There can be little doubt that the district court exercised a reasonable interpretation to the contract and correctly submitted the case to the jury. In writing this dissent, I recognize that it is a strong one; however, as I have indicated, to deny a party a commission properly earned under the express terms of a contract in the manner the majority has attempted to do in this case, requires strong words and a strong objection. I accordingly strongly dissent.
You can access both the majority and dissenting opinions at this link.
Posted at 11:32 by Howard Bashman



"Judge Bans Leather Clothes in Courtroom": The Associated Press this morning offers this report. Relatedly, yesterday's edition of The Deseret News contained an article entitled "A 'dress code' for Utah trial."
Posted at 09:50 by Howard Bashman



Yesterday's federal judicial nominations: The White House yesterday announced three nominations to fill U.S. District Court vacancies. Among the nominees was Connecticut attorney Mark R. Kravitz, who has served as appellate columnist for The National Law Journal.
Posted at 08:23 by Howard Bashman



In judicial nomination/confirmation news from Texas: Today's edition of The Dallas Morning News reports here that "Split Senate panel backs Owen's nomination; Texas judge gets 2nd chance after defeat by Democrats last year." And Fifth Circuit nominee Edward C. Prado sailed through his confirmation hearing with ease yesterday, this article from The Herald Democrat reports.
Posted at 08:10 by Howard Bashman



Elsewhere in Friday's newspapers: The Washington Times reports here that "Senate panel OKs Owen for judgeship." According to the article, the full U.S. Senate could vote on the nomination as early as next week.

The Boston Globe reports here that "Court halts racial decree for Fire Dept."

And The Los Angeles Times today contains a column by Steve Lopez entitled "Mustard Company Doesn't Relish Any Attack on Its Name."
Posted at 07:45 by Howard Bashman



"Court to quickly provide U-M tape; Widespread interest results in unusual move": Today's edition of The Detroit Free Press contains this report. The Detroit News, meanwhile, reports here that "Coleman stresses diversity; U-M president outlines agenda at her inaugural." The Michigan Daily reports here that "High school students: 'U' lawsuits critical to education" and here that "Coleman highlights future at ceremony." And columnist Hussain Rahim has an op-ed entitled "Diversity! Where?"
Posted at 07:39 by Howard Bashman



The Senate Judiciary Committee has scheduled a hearing for April 1, 2003 on the nomination of Carolyn B. Kuhl to serve on the Ninth Circuit: Notwithstanding that one of Kuhl's two home-state U.S. Senators, Senator Barbara Boxer (D-CA), apparently has not returned a "blue slip" to signify approval of the nomination. This hearing should therefore be rather interesting.
Posted at 06:00 by Howard Bashman



Interesting law blog of the day: "UnivAtty."
Posted at 00:50 by Howard Bashman



In Friday's newspapers: In The New York Times, Linda Greenhouse reports here that the U.S. Supreme Court has announced that it will be making an audiotape of oral arguments in the University of Michigan racial preferences in student admissions cases available immediately after those oral arguments conclude next Tuesday. I look forward to joining with the readers of "How Appealing" in listening to those oral arguments online early on the afternoon of April 1, 2003. In other news, Neil A. Lewis reports here that "On 2nd Try, U.S. Court Nominee Advances."

The Washington Post reports here that "Moussaoui Said Not to Be Part of 9/11 Plot; Al Qaeda Operations Chief Tells Interrogators Accused Terrorist Here for 2nd Wave." In news pertaining to an alleged home-grown terrorists, you can access here an article entitled "Mental Health Experts to Evaluate Sniper Suspect." And here's an editorial entitled "Detention Without End (Cont'd)."

In The Christian Science Monitor, Warren Richey has an article entitled "Affirmative action's evolution; How the debate has changed since 1970s." And an op-ed by Jerome Karabel is entitled "Race and national security."
Posted at 00:25 by Howard Bashman



Thursday, March 27, 2003
In memory of Amanda Davis, 1971-2003: Here in The New York Observer, and here at McSweeney's.
Posted at 22:39 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Bound Suspect's Rights Up for Discussion at High Court." Jason Hoppin reports on an en banc oral argument in an article entitled "9th Circuit Grapples With 'Duffield.'" In news from New York, you can access here an article entitled "Judges May Decide Whether to Probe Pro Se Competence" and here an article entitled "Conviction Reversed Over Juror's Poor English Skills."
Posted at 22:24 by Howard Bashman



Senator Patrick J. Leahy (D-VT) has a few things he'd like to say: Senator Patrick J. Leahy (D-VT), the ranking Democratic member of the Senate Judiciary Committee, issued three statements concerning judicial nominations today. You can access here the "Opening Statement Of Senator Patrick Leahy; Business Meeting Of The Senate Judiciary Committee"; here the "Statement Of Senator Patrick Leahy On The Nomination Of Priscilla Owen To Be A Judge On The United States Court Of Appeals For The Fifth Circuit"; and here the "Statement Of Senator Patrick Leahy On The Breach Of Judiciary Committee Rules."
Posted at 20:54 by Howard Bashman



In news from Texas: The Associated Press reports here that "Texas Executes Mentally Ill Convict." The Daily Texan reports here that "Convicted mentally ill inmate put to death; Colburn was competent despite illness, say court's psychologists." And The Courier reports here that "Conroe man's execution evokes strong emotions from family."
Posted at 20:30 by Howard Bashman



Some on Charleston's city council refuse to sit through atheist's invocation: Today's edition of The Post and Courier contains this report.
Posted at 17:02 by Howard Bashman



"F. Lee Bailey Ordered to Pay Feds $5M": The Associated Press has this report.
Posted at 16:59 by Howard Bashman



Divided First Circuit panel holds that Boston has sufficiently remedied effects of past discrimination against blacks and Hispanics in hiring firefighters: You can access today's ruling at this link.
Posted at 16:47 by Howard Bashman



"Law Review: Scalia on gay rights; Breyer on Dr. Seuss; and more on oral arguments in the Texas sodomy case." E.J. Graff has this essay online at The American Prospect.
Posted at 15:49 by Howard Bashman



President Bush commends Senate Judiciary Committee for its favorable action today on Priscilla R. Owen's nomination to the Fifth Circuit: The White House's press release is available here.
Posted at 15:42 by Howard Bashman



"Attorney visits no closer for 'enemy combatant'": CNN.com offers this report.
Posted at 14:19 by Howard Bashman



In news from Tennessee: You can access here an article entitled "'Dirty movie' vehicle bill hits constitutional bump." The sponsor of the legislation, according to the article, is Rep. Bubba Pleasant, R-Arlington.
Posted at 13:59 by Howard Bashman



"Judicial hopefuls in verbal tightrope": The Associated Press issued this report from Pennsylvania earlier this week.
Posted at 13:51 by Howard Bashman



"Senate Panel OKs Owen's Nomination": The Associated Press offers this report.
Posted at 12:58 by Howard Bashman



Euphemistically speaking? Law Professor Eric Muller writes of "Scalia's Freudian Moment." Meanwhile, Clayton Cramer offers his thoughts on the Lawrence case here.
Posted at 12:38 by Howard Bashman



Results of this morning's Senate Judiciary Committee business meeting: "Priscilla Richmond Owen to be US Circuit Judge for the Fifth Circuit" -- Recommended 10-9 along party lines;

"Mary Ellen Coster Williams to be Judge for the Court of Federal Claims" -- Recommended 12-0 (all Republicans plus Senators Biden and Feinstein voting aye); 7 Democrats voted present;

"Victor J. Wolski to be Judge for the Court of Federal Claims" -- Recommended 11-5 (all Republicans and Senator Feinstein voting aye); 3 Democrats voted present;

"Ricardo H. Hinojosa to be US Sentencing Commissioner" -- Recommended 11-0 (all Republicans and Senator Feinstein voting aye); 8 Democrats voted present; and

"Michael E. Horowitz to be US Sentencing Commissioner" -- Same result as Hinojosa.
Posted at 12:22 by Howard Bashman



Time to abolish the U.S. Court of Federal Claims? Yesterday's edition of The Washington Post contained an editorial arguing that the answer is "yes." The argument in favor of abolishing the U.S. Court of Federal Claims is detailed in an article by Law Professor Steven L. Schooner that will be published this year in the George Washington Law Review. You can view Professor Schooner's article online at this link.
Posted at 12:12 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Justices Engage in Debate Over Equal Rights for Gays" and here that "Legal Aid Survives Challenge in Supreme Court; Justices reject a claim that the program is unconstitutional. The ruling is called 'a victory for expanding access to justice' for poor people." In other news, you can access here an article entitled "Court to Hear Microsoft Appeal; Adversaries renew hope for stiffer controls than the approved antitrust settlement imposes." From The Associated Press comes a report that "Judge Rejects 'Happy Cow' Lawsuit; Animal rights group said campaign by the California milk board was false advertising." (Denise Howell has more here.) And columnist Norah Vincent has an essay entitled "'Rights Just for Us': The Gay Left's Self-Serving Agenda."

In The Boston Globe, Lyle Denniston reports here that "Court hears suit on sodomy law; Gays argue that statute violates privacy rights" and here that "Ruling OK's use of funds to finance state legal aid." In local news, you can access here an article entitled "Appeals court: Judge overstepped authority on police hiring" and here an article entitled "SJC upholds a guilty verdict in '94 Latin Academy slaying." And here's a report entitled "Sides wrap up case for, against Lopez; Lawyers debate judge's remarks."

In USA Today, Joan Biskupic reports that "Justices hear anti-sodomy case Court is reviewing '86 decision." And in The Washington Times, Edward Blum and Roger Clegg have an op-ed entitled "Civil rights bias."
Posted at 11:30 by Howard Bashman



Sodomy is good: Andrew Sullivan makes the case here.
Posted at 11:02 by Howard Bashman



Steph and the Cave Species: Sure it sounds like a bad 70's band, but what it means is that Steph from "blueblanketblog" was the winning counsel in yesterday's Fifth Circuit Cave Species ruling. She takes the good news in stride in a post you can access here.
Posted at 10:44 by Howard Bashman



Interesting law blog of the day: "Decnavda's Dialectic."
Posted at 10:05 by Howard Bashman



On today's agenda: The Senate Judiciary Committee is holding a business meeting that is due to begin in just moments from now. The Committee is expected to re-vote on the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit and to vote on the nomination of Victor J. Wolski to serve on the U.S. Court of Federal Claims. Stay tuned for the results.

Then, at 2 p.m. today, the Judiciary Committee is scheduled to reconvene to hold a confirmation hearing for Fifth Circuit nominee Edward C. Prado.
Posted at 09:25 by Howard Bashman



In news from Washington State: The Seattle Times reports here that "High court backs legal aid for poor." (The Legal Foundation of Washington's Web site already notes the organization's victory.)

In other news, the Times reports here that "Bridge accepts treatment; DUI prosecution deferred," while The Seattle Post-Intelligencer contains an article entitled "Alcohol treatment, probation for Justice Bridge; She vows to meet court's conditions in plea agreement."
Posted at 07:02 by Howard Bashman



In news from (or involving) Texas: Today's edition of The Dallas Morning News reports here that "Justices hear sodomy law arguments. DA says regulation not discriminatory; lawyer says it denies rights." The Houston Chronicle reports here that "Sodomy law's moral issues raised at Supreme Court." The Web site 365Gay.com reports that "Justices Grill Lawyers In Supreme Court Gay Rights Case," while Gay.com News contains an article entitled "U.S. Supreme Court weighs landmark case."
Posted at 06:57 by Howard Bashman



In news from Detroit: Today's edition of The Detroit Free Press contains an article entitled "The Intervenors: Minority students argue a different view; For them, righting wrong - not diversity - is issue."

In other news, The Free Press reports here that "Terrorism trial under way: Prosecutors allege intent; defense says case flawed" and here that "Potential jurors in terrorism trial fret over serving; Safety, time, pressure among the factors cited." And The Detroit News contains an article entitled "Feds: Terrorists targeted Vegas; Prosecutor tells Detroit jury men on trial also wanted to hit Disney, nation's airports."
Posted at 06:47 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Owen to Get Rare Second Chance in Senate." The article notes that yesterday was day fifty of the Miguel A. Estrada filibuster. In other news, you can access here an article entitled "Wash. Court Justice Avoids Jail Time"; here, "Trial Opens in Alleged Terror Cell Case"; and here, "Judge: Farmers Must Pay for 'Got Milk.'"
Posted at 06:40 by Howard Bashman



Tom Goldstein reports on yesterday's U.S. Supreme Court homosexual sodomy oral argument: You can access his account here. My favorite line: Tom writes that the attorney for the Texas county "gave what may have been the worst oral argument in a truly important case in the past decade." Hmm, was Tom even old enough to gain admission to the Court to attend oral arguments ten years ago?
Posted at 00:45 by Howard Bashman



In Thursday's newspapers: In The New York Times, Linda Greenhouse reports here that "Supreme Court Seems Set to Reverse a Sodomy Law" and here that "Supreme Court Backs Plan on Financing of Legal Aid." Also, you can access here excerpts from oral argument today in the sodomy case. And the newspaper contains an editorial entitled "The Rights of Gay Americans."

In The Washington Post, the search for Charles Lane continues. Someone named Edward Walsh (a name that mysteriously contains all the same letters as "Charles Lane" -- hmm, maybe not) reports here that "Justices Hear Challenge to Texas Sodomy Law" and here that "Court, 5-4, Backs Legal Aid Financial Plan; System Used Nationwide to Afford Poor Free Representation Survives Challenge."

The Christian Science Monitor reports here that "Baby case tests rights of parents; Texas court weighs case of hospital that overrode parents to perform operation." And you can access here an article entitled "Of prison and publishing -- and who should profit."
Posted at 00:12 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Victory for IOLTA Programs at Supreme Court" and here that "Supreme Court Hears Lively Debate Over Sodomy Law." In news from California, "Justices to Tackle Case Pitting Berkeley Against Scout Group." And you can access here an article entitled "3rd Circuit: Hourly Workers Not Entitled to ERISA."
Posted at 00:05 by Howard Bashman



Wednesday, March 26, 2003
Thanks to Jane's Blogosphere, "How Appealing" now has an RSS/XML feed that really works! And you can access it using the adorable orange XML button on the left hand column of this page. Please re-set your newsreaders accordingly. Thanks, Jane's.
Posted at 23:17 by Howard Bashman



U.S. Supreme Court round-up for Wednesday, March 26, 2003: Back on June 10, 2002, the Supreme Court of the United States issued an order list in which the Court granted certiorari in a case then known as Washington Legal Foundation v. Legal Foundation of Washington. As I wrote here in a blog post that night:
The big case granted review today was Washington Legal Foundation v. Legal Foundation of Washington, No. 01-1325. That case presents another Fifth Amendment takings challenge to IOLTA programs. To those who hate acronyms, as I do, IOLTA stands for Interest On Lawyers' Trust Accounts. Most every state requires lawyers and law firms to open trust accounts for safekeeping of client funds. In many states, the interest on such accounts (where the amount is too small to pay to the depositor) is instead aggregated and paid over to organizations providing legal services for the poor. Some clients don't like that, and have challenged the program as unconstitutional. (Click here for my recent post about a similar IOLTA case in which the Fifth Circuit divided 7-7 over whether to grant rehearing en banc.) Let's not overlook the name of the case granted review today: Washington Legal Foundation v. Legal Foundation of Washington. Regardless of which side wins, the opposing parties have such similarly sounding names that each will be able to plausibly claim victory. The name of this suit reminds me of my former favorite U.S. Supreme Court case name, Village of Hoffman Estates v. The Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982).
Today, some nine months and sixteen days later, the Supreme Court issued its ruling in the case, which now magically bears the name Brown v. Legal Foundation of Washington, No. 01-1325 (U.S. Mar. 26, 2003). This case -- with or without its formerly confusing name -- stands as the poster child for 5-4 rulings, for reasons I shall now explain.

Although Billy Preston undoubtedly was correct when he wrote and sang that "Nothing from nothing leaves nothing," some public-interest-minded individual had the seemingly brilliant idea that perhaps nothing plus nothing plus nothing -- if repeated enough times -- might just in fact equal something. And indeed it has, to the tune of some $200 million. What I'm talking about is IOLTA accounts, which by law or regulation lawyers in all fifty States must use when holding client money in escrow if the amount of money is too small to be invested to earn interest for the client. So, when it is not possible for client funds to be invested to earn interest for the client, lawyers are required to put the funds into IOLTA accounts, where any interest is pooled and then paid a trust fund that is then used to pay for litigation and other lawyer-related services that are deemed to be in the public interest.

Of course, few things get conservatives more steaming mad than public interest litigation, and here we have an instance of public interest litigation that's being unwittingly (and often times unwillingly) funded using the interest earned on the escrow accounts of countless law firm clients. So into the void steps the Washington Legal Foundation, in order to vindicate the property interests of clients whose escrow monies are being used to fund public interest litigation. And if, as a result, public interest litigation is left unfunded -- or perhaps I should say even more unfunded than it already is -- then it's just a case of "so sad, too bad."

For reasons that are too uninteresting to explain, the Washington Legal Foundation's nationwide campaign against IOLTA accounts proceeded incrementally and with mixed results. The Fifth Amendment to the U.S. Constitution provides, in pertinent part, that "nor shall private property be taken for public use, without just compensation." In order for the Washington Legal Foundation to prevail, it first had to establish that the interest being earned on client funds in IOLTA accounts was indeed the private property of those clients. And, in June of 1998 in a case that arose from the Fifth Circuit, the Supreme Court answered that question in the affirmative by a 5-4 vote, with the usual suspects all where they usually will be. That ruling, however, did not answer two questions -- whether IOLTA funds are indeed taken by the States, and if so the amount of "just compensation" due to the owners of that private property.

Today the Court resolved both of those heretofore unanswered questions, in a decision that I've already characterized as the poster-child of all 5-4 decisions. Proving for the umpteenth time that it's Sandra Day O'Connor's world and we just live in it, today Justice O'Connor proved to be the switch in time that saved IOLTA programs (I know, this lacks the rhyme of "saved nine," but I do have some facts I must deal with here, okay?). Justice John Paul Stevens assigned the majority opinion to himself, and joining in it were Justices O'Connor, Souter, Ginsburg, and Breyer. Justice Stevens agreed that the property interests identified in the Court's 1998 ruling had been taken by the State, and that it was proper to apply a per se test that makes it quite easy to find a taking. What proved key to the majority was that the obligation to pay "just compensation" is measured by the property owner's net loss, and since the property owner would have earned no interest in the absence of IOLTA programs, the property owner has suffered no net loss. And for good measure, the majority pointed out that if escrow funds that could have produced net interest were improperly invested in an IOLTA program, the property owner's remedy would be a suit against the lawyer or other person who wrongfully invested the funds in the IOLTA program, and not against the State.

Justice Antonin Scalia wrote a feisty dissent, in which the Chief Justice and Justices Kennedy and Thomas joined. Justice Scalia's dissent was noteworthy for its proud use of the subjunctive ("That were surely an unprincipled distinction.") and for the sentence he began by writing "To confuse confusion yet again * * * ." Earlier today I highlighted another great passage from this dissent in a post you can access here. Justice Anthony M. Kennedy wrote a short separate dissent, flying solo, in which he explained that the clients whose property is being confiscated may yet be able to prevail on a forced speech, First Amendment challenge to the IOLTA construct. Perhaps if pigs could fly those clients with IOLTA escrows would have standing to wage such a challenge in the aftermath of today's ruling.

I find myself to be personally divided 5-4 over which side had the better argument in this case (and, as an added bonus, I regularly switch my allegiance between the majority and the dissent), so I'm more than ready to resume thinking about easier issues. This certainly was one of the most difficult cases that the Court will confront this Term. Conveniently, the Court resolved the case just in time for the submission of several of the other most difficult cases. By the way, today the Court managed to affirm the U.S. Court of Appeals for the Ninth Circuit's en banc ruling, and Justice Stevens' opinion for the Court had nice things to say about both the Ninth Circuit's majority and dissenting opinions.
Posted at 22:50 by Howard Bashman



Tenth Circuit chooses sides in circuit split over whether federal statute entitles state death row inmate to federally-funded counsel in state clemency proceeding: By a vote of 2-1, the court answered that question in the negative. You can access the opinion here.
Posted at 22:34 by Howard Bashman



In news from California: The Associated Press reports here that "State Supreme Court to review Berkeley's decision against scouts."
Posted at 22:26 by Howard Bashman



For someone who camped out overnight at the U.S. Supreme Court to see today's homosexual sodomy oral argument: University of Chicago student Will Baude has a remarkably cogent and entertaining post about what he observed at the Court today.
Posted at 22:24 by Howard Bashman



"The Supreme Court Tries Sodomy . . . and discovers that Texas is confused about it too." This could be Dahlia Lithwick's last Supreme Court Dispatch for a while, so be sure to take a look.
Posted at 20:39 by Howard Bashman



The victim of this alleged murder was a "notorious philanderer": Today the U.S. Court of Appeals for the Fourth Circuit issued an opinion that begins, "In March of 1992, wealthy art collector and notorious philanderer Roger de la Burde died from a single gunshot wound to the head."
Posted at 19:16 by Howard Bashman



Big win for the Cave Species in Texas: The U.S. Court of Appeals for the Fifth Circuit today issued an opinion that likely will be viewed as an important win for environmentalists. The court's opinion begins:
The Endangered Species Act of 1973, 16 U.S.C. sec. 1531, et seq. (ESA), contains a "take" provision, 16 U.S.C. sec. 1538(a)(1)(B). For this challenge to Congress' Commerce Clause power, U.S. Const. art. I, sec. 8, cl. 3, at issue is whether ESA's take provision is unconstitutional as applied to six species of subterranean invertebrates found only within two counties in Texas (Cave Species). Central to this question is whether, to demonstrate the requisite substantial effect on interstate commerce, Cave Species "takes" may be aggregated with those of all other endangered species. They can be; the judgment is AFFIRMED.
Circuit Judge Rhesa Hawkins Barksdale wrote the opinion of the court, and Circuit Judge James L. Dennis wrote a concurring opinion. This decision would appear to be a must-read for those interested in Commerce Clause challenges and/or environmental law.
Posted at 19:07 by Howard Bashman



Some excerpts from today's U.S. Supreme Court oral argument in the homosexual sodomy case: The Associated Press provides these excerpts.
Posted at 19:04 by Howard Bashman



Ten Commandments case to be argued in the U.S. Court of Appeals for the Third Circuit on April 7, 2003: The U.S. Court of Appeals for the Third Circuit has scheduled oral argument in Freethought Society of Greater Philadelphia v. Chester County, Pa. to occur on Monday, April 7, 2003.

U.S. District Judge Stewart R. Dalzell of the U.S. District Court for the Eastern District of Pennsylvania in March 2002 granted a permanent injunction that required Chester County, Pennsylvania to remove from the facade of its county courthouse a plaque bearing the text of the Ten Commandments. In April 2002, however, Judge Dalzell granted a partial stay pending appeal that required the county, during the pendency of its appeal, to "cover the Ten Commandments plaque on the Chester County Courthouse facade with an opaque drape of a color calculated to match, as closely as possible, the limestone on the High Street facade of the Courthouse."

This case has previously received much press coverage, both locally in Philadelphia (see here, here, here, and here) and nationally (see, for example, here). You can access Chester County's appellate briefs and the appellate briefs of several sympathetic amici at this link.
Posted at 16:30 by Howard Bashman



"High court to hear prison visitation case: Michigan lawyers are to argue against limitations." The Detroit Free Press contains this article on today's other U.S. Supreme Court oral argument.
Posted at 15:26 by Howard Bashman



"Staring Down Stare Decisis: Bowers and Roe." Richard Lessner has this essay just posted at National Review Online.
Posted at 15:14 by Howard Bashman



"Supreme Court Considers Challenge to Sodomy Law": Reuters offers this report.
Posted at 15:03 by Howard Bashman



"Court hears challenge to Texas sodomy ban": United Press International provides this report on today's oral argument.
Posted at 14:24 by Howard Bashman



"Court: Cuban Boy's Kin Can't Sue Reno": The AP offers this report.
Posted at 13:14 by Howard Bashman



"Court Appears Divided on Anti-Sodomy Case": Anne Gearan of The Associated Press has this report. And, lest we overlook today's other oral argument, you can access here an article entitled "Supreme Court Hears Prison Rights Case."
Posted at 13:08 by Howard Bashman



When litigants named "Dick Tracy" begin to appear: Today's edition of The Washington Post contains an editorial entitled "Court of Extravagance" that calls for the elimination of the U.S. Court of Federal Claims. In related news, Victor J. Wolski -- a nominee to that court -- is proving to be quite controversial, as this report and this letter in opposition suggest. (The title of this post refers to an earlier post about a recent USCFC ruling.)

Update: The author of the blog "How Green Is My Country" sets forth his/her views on the Wolski nomination here.
Posted at 13:00 by Howard Bashman



"US Supreme Court hears gay case": Leave it to BBC News to provide an article bearing this headline.
Posted at 12:38 by Howard Bashman



"U.S. Soldier 'Bloggers' Report from War Zone": Reuters provides this report.
Posted at 12:32 by Howard Bashman



Then again, maybe not: Today's Senate Judiciary Committee hearing has been postponed until tomorrow, Thursday, March 27, 2003 at 2 p.m. Tomorrow at 9:30 a.m., the Committee will hold a business meeting at which it will split 10-9 along party lines to approve the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit, thus setting the stage for the next U.S. Senate filibuster of a court of appeals nominee.
Posted at 12:25 by Howard Bashman



"Confirmation hearing today for S.A.'s Prado": Today's edition of The San Antonio Express-News contains this report. The hearing is scheduled to get underway at 2 p.m. today.
Posted at 12:00 by Howard Bashman



"Supreme Court Protects Legal Aid for Poor": Gina Holland of The Associated Press has this report on today's decision.
Posted at 11:51 by Howard Bashman



From the conclusion of Justice Antonin Scalia's dissenting opinion in today's IOLTA takings case:
Perhaps we are witnessing today the emergence of a whole new concept in Compensation Clause jurisprudence: the Robin Hood Taking, in which the government's extraction of wealth from those who own it is so cleverly achieved, and the object of the government's larcenous beneficence is so highly favored by the courts (taking from the rich to give to indigent defendants) that the normal rules of the Constitution protecting private property are suspended. One must hope that that is the case. For to extend to the entire run of Compensation Clause cases the rationale supporting today's judgment -- what the government hath given, the government may freely take away -- would be disastrous.
You can access the entire dissent here.
Posted at 11:15 by Howard Bashman



Tenth Circuit posts photos showing the Byron White U.S. Courthouse after the blizzard of 2003: You can access the blizzard photos here.
Posted at 10:48 by Howard Bashman



Say goodbye to that confusing name: You can now access the U.S. Supreme Court's 5-4 ruling in Brown v. Legal Foundation of Washington at this link.
Posted at 10:19 by Howard Bashman



Today's U.S. Supreme Court opinion: Today the Supreme Court of the United States issued one opinion, in the case with this Term's most confusing name: Washington Legal Foundation v. Legal Foundation of Wash. The Legal Foundation of Washington won, the Washington Legal Foundation lost, and the Ninth Circuit's en banc ruling was affirmed. Justice John Paul Stevens delivered the Court's opinion. You can access the oral argument transcript here. IOLTA programs live to see another day.
Posted at 10:00 by Howard Bashman



BREAKING NEWS: Janet Reno and other "supervisory defendants" are entitled to qualified immunity in connection with seizure of Elian Gonzalez, Eleventh Circuit holds: This morning the U.S. Court of Appeals for the Eleventh Circuit has posted to its Web site an opinion dated yesterday that begins:
In this case, we must decide whether former Attorney General Janet Reno, former Commissioner of the Immigration and Naturalization Service ("INS") Doris Meissner, and former Deputy Attorney General Eric Holder are entitled to qualified immunity for their alleged involvement in the seizure of Elian Gonzalez ("Elian") from the home of Lazaro, Angela, and Marisleysis Gonzalez ("the Gonzalezes") -- Elian's great-uncle, great-aunt, and cousin – on April 22, 2000. The defendants asserted their qualified immunity defense in a motion to dismiss, which the district court denied. We now reverse.
And the opinion concludes:
In sum, plaintiffs allege that the agents on the scene used excessive force in violation of their Fourth Amendment rights, but they fail to allege any facts which, if true, would establish that the supervisory defendants caused that violation. Because plaintiffs have failed to allege that the supervisory defendants' conduct constituted a constitutional violation, the supervisory defendants are entitled to qualified immunity under the first step in our qualified immunity analysis. The decision of the district court is therefore REVERSED.
You can access the opinion at this link.
Posted at 09:46 by Howard Bashman



"Of Blogs, Bloggers and Blawgs": The Oklahoma Bar Journal contains this report.
Posted at 09:45 by Howard Bashman



That didn't take long: The U.S. Court of Appeals for the Sixth Circuit has begun issuing its PDF opinions with the pages in sequential order (see this example issued today), rather than in the assemble-your-own-pamphlet format that I had found so useless.

Hmm, am I thus temporarily left without a crusade? Maybe not, as the April 2003 installment of my monthly appellate column, to be published in The Legal Intelligencer on Monday, April 14, 2003, will set forth my views concerning whether the U.S. Court of Appeals for the Ninth Circuit should be divided (or perhaps trivided). If you're one of the handful of "How Appealing" readers who hasn't yet taken advantage of the free and easy sign-up to receive email delivery of my monthly appellate column on the day it appears in print on the second Monday of each month, the sign-up form is available online here.
Posted at 09:30 by Howard Bashman



Today's FindLaw columnist: Sherry F. Colb has an essay entitled "The Supreme Court Hears the Texas Sodomy Case: Embracing the Right to Privacy."
Posted at 09:22 by Howard Bashman



Interesting law blog of the day: "Naked Ownership -- All Things Legal In Louisiana."
Posted at 09:18 by Howard Bashman



A Georgia restaurant without sweet tea is like a day without . . . : Today's edition of The Atlanta Journal-Constitution contains an article that begins, "A Georgia restaurant without sweet tea isn't just un-Southern -- it should be illegal, several lawmakers believe."
Posted at 09:14 by Howard Bashman



On the agenda: The Supreme Court of the United States may (or may not) issue one or more opinions at 10 a.m. today. At 11 a.m. or thereabouts, the Court is scheduled to hear oral argument in the case challenging the constitutionality of a Texas law that criminalizes homosexual sodomy between consenting adults. At 2 p.m. the Senate Judiciary Committee is scheduled to hold a hearing on judicial nominees. Although as of this moment the official notice doesn't specify which nominees will be the subject of the hearing, I previously noted a report that Fifth Circuit nominee U.S. District Judge Edward C. Prado is on the agenda. You can access a Web cast of the hearing at this link.
Posted at 09:10 by Howard Bashman



Per curious: A recent federal appellate law clerk who now works in the Los Angeles office of one of this Nation's largest law firms emails:
Your federal appellate jurist-correspondent ably catalogued the many uses of per curiam opinions. I wish to add an additional, rather unusual, item to the list. The circuit judge for whom I clerked was sometimes assigned to draft an opinion that required him to follow the holding or reasoning of a prior opinion with which he disagreed. On more than one of these occasions, my judge would draft a brief per curiam opinion applying precedent, then draft a concurrence in his own name explaining his reasons for disagreeing with the precedent he was required to apply. By drafting two opinions, my judge could both apply the law and soothe his conscience. The per curiam device enabled him to avoid revealing authorship of both opinions, which might have appeared awkward, perhaps even two-faced, to some observers. I have no idea whether this practice is followed in other federal circuits or in state appellate courts, but I know that other judges on my judge's circuit engaged in this dual authorship on occasion.

My judge's aversion to signing two opinions in the same decision is apparently not shared by all circuit judges, however. I believe Judge Randolph, for example, wrote both the majority opinion and the concurrence in the DC Circuit's recent case involving the Guantanamo Bay detainees.

This is nothing more than an interesting footnote, of course, but you do seem to specialize in such things and I enjoy your website because of it.
You can access my earlier posts on this topic here and here.
Posted at 08:56 by Howard Bashman



"Top court to rule on 'most important gay rights case'; Texas law forbids sodomy only by same-sex couples": Today's edition of The San Francisco Chronicle contains this report. And The Dallas Morning News reports here that "Texas sodomy law to go to high court today; Reversal would have sweeping effect for gays and lesbians nationwide."
Posted at 07:04 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports here that "Court Could Reverse Ban on Homosexual Sex." And this article reports that "Penn. Jury Considers Fetal Homicide Case."
Posted at 06:55 by Howard Bashman



News coverage pertaining to the University of Michigan racial preferences in student admissions cases: Today's edition of The Detroit Free Press contains an article entitled "The Defenders: Team builds defense on studies, precedent. Business, media campaigns bring school support." And in related news, "University threatened with another lawsuit."

The Detroit News today reports that "U-M race programs targeted; Conservative group calls for an end to school's minority-only scholarships, academic offerings." And from Sunday's paper, you can access here an article entitled "Three lives converge at U.S. Supreme Court; U-M admissions case bears their names"; here, "Rejection dashed woman's dream; She says U-M failed to live up to its promise"; and here, "Student settled for second choice; Top high school record didn't help get him in to U-M."
Posted at 06:50 by Howard Bashman



"Jury pool in terror trial is narrowed": Today's edition of The Detroit News contains this report.
Posted at 06:47 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Jurist Fears Effects of Budget Cuts on Courts; The state's chief justice tells Legislature that civil and family law services will suffer and that more courthouses may close." In other news, "Another Yemeni American Admits to Al Qaeda Training; A plea by a third alleged cell member in New York includes a promise to implicate three more." And columnist Dana Parsons has an essay entitled "Hacking Away at Privacy Rights."

The Boston Globe contains an article entitled "Freed detainees cite rewards, beatings; Ex-prisoners talk of treatment at Guantanamo Bay." And you can access here an article entitled "US judge orders state to pay lawyers who took case for free."

Finally for now, The Washington Times contains an op-ed by James L. Martin entitled "Picking judges judiciously."
Posted at 06:35 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices Hear Arguments on Campaign Finance." An article reports that "U.S. to Appeal Order Giving Lawyers Access to Detainee." Adam Liptak reports that "Public Opinion Effort Leans on Rules of War." And in news from Buffalo, "New York Man Admits to Attending Al Qaeda Camp."

Finally for now, The Washington Post reports here that "Court Broadens Limits on Appeals; Justice Thomas Clarifies Rules in Death Penalty Cases."
Posted at 00:10 by Howard Bashman



Tuesday, March 25, 2003
French, yellow, electrocution, cat, UFO: "The Academy" makes sense of it all in a post you can access here.
Posted at 23:35 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Campaign Contributions Debated at High Court." Jason Hoppin has an article entitled "Supreme Court Refines Rules in Death Row Appeals; High court limits application of older, lenient standard of review." This article reports that "U.S. Seeks Appeal of Padilla Attorney-Access Ruling." And Shannon P. Duffy reports that "3M Again Stuck With $68M Antitrust Verdict."

In The Legal Times (free registration required), Tony Mauro has an article entitled "Court Weighs Claim of Police Misconduct; Supreme Court asked to review 4th Circuit ruling in suit by suspect handcuffed to pole by Prince George's cops." And in commentary, Senator Edward M. Kennedy has an essay entitled "What 'Gideon' Promised: It's shameful that 40 years later America still doesn't guarantee a competent defense," while Law Professor Mark V. Tushnet has an essay entitled "Thinking While Black: Diversity sparks a better legal education."
Posted at 23:00 by Howard Bashman



U.S. Supreme Court round-up for Tuesday, March 25, 2003: Tomorrow the Supreme Court of the United States will hear oral argument in a case that presents the question whether a State may lawfully outlaw homosexual sodomy between consenting adults. Thus, tomorrow and Thursday nearly every mention of the Supreme Court that you will see in print will be in close proximity to the words "homosexual sodomy." Today the Court issued two opinions, neither of which involved consensual homosexual sodomy. In fact, chances are that the vast majority of you have never heard of the two cases decided today and probably never will hear of them again after you've completed reading this summary. But, better safe than sorry, so be sure to read on to see whether I'm able to complete tonight's round-up without any more mentions of homosexual sodomy.

1. Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to reduce delays in the execution of state and federal criminal sentences, particularly in capital cases. More specifically, the AEDPA placed new constraints on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court. Today, in Woodford v. Garceau, No. 01-1862 (U.S. Mar. 25, 2003), the Supreme Court explained that it granted review because "Courts of Appeals have divided on the question whether AEDPA applies to a habeas application filed after AEDPA's effective date if the applicant sought the appointment of counsel or a stay of execution (or both) prior to that date." Five federal appellate courts had ruled that the date on which a habeas application was filed determined whether the AEDPA applied, while one federal appellate court had ruled that if the habeas applicant sought appointment of counsel and/or a stay of execution before the AEDPA's effective date, the AEDPA didn't apply even if the prisoner's habeas application wasn't filed until after the AEDPA's effective date. And which federal appellate court was the only one to take such a prisoner-friendly approach? You've guessed it -- the U.S. Court of Appeals for the Ninth Circuit, en banc, in a 10-1 decision. Senior Circuit Judge Cynthia Holcomb Hall was the lone judge on the eleven-member en banc court who arrived at the correct answer.

A reader who should know the impact of today's ruling in Garceau emailed earlier today to say:
[A]bout 45 California federal capital cases became AEDPA cases this morning. In light of the remarkable series of SCOTUS cases interpreting AEDPA in the most stringent fashion and specifically reprimanding the 9th Cir. for its misguided application of the new statute (Packer, Visciotti, and Andrade), it is difficult to imagine a stronger signal from Washington.

This case is a prime example of the importance of tenacity in SCOTUS practice, at least in the contentious and complicated realm of federal habeas. SCOTUS allowed the 9th Circuit's distortion of the statute to fester for almost five years, despite the California AG's repeated efforts to catch the Court's attention. [The California AG] never quit, and that tenacity finally paid off this morning.
Justice Clarence Thomas wrote the majority opinion, in which the Chief Justice and Justices Stevens, Scalia, and Kennedy joined. Justice O'Connor concurred in the judgment in a short opinion that I found more convincing than the majority's approach. Justice David H. Souter dissented, and Justices Ginsburg and Breyer joined in that dissent. Why did Justice John Paul Stevens abandon the Court's three other more liberal Justices to join in Justice Thomas's majority opinion? We may never know.

2. Justice O'Connor recently visited Ohio (as I reported here), and today she had the pleasure of delivering a unanimous opinion that ruled in favor of an Ohio municipality. Her opinion in Cuyahoga Falls v. Buckeye Community Hope Foundation, No. 01-1269 (Mar. 25, 2003), begins:
In 1995, the city of Cuyahoga Falls, Ohio (hereinafter City), submitted to voters a facially neutral referendum petition that called for the repeal of a municipal housing ordinance authorizing construction of a low-income housing complex. The United States Court of Appeals for the Sixth Circuit found genuine issues of material fact with regard to whether the City violated the Equal Protection Clause, the Due Process Clause, and the Fair Housing Act, 82 Stat. 81, as amended, 42 U.S.C. sec. 3601 et seq., by placing the petition on the ballot. We granted certiorari to determine whether the Sixth Circuit erred in ruling that respondents' suit against the City could proceed to trial.
The Court ruled that the Sixth Circuit did err in allowing the suit to proceed to trial. The substantive due process claim that the plaintiffs asserted, and which the Court's opinion orders dismissed, managed to provoke a short concurring opinion from Justice Antonin Scalia, in which Justice Thomas joined. Justice Scalia's record for never having met a substantive due process claim that he really likes thus continues uninterrupted.

One or more opinions could issue tomorrow at 10 a.m. Or not, if the Court doesn't want to risk distracting observers from the issue of homosexual sodomy.
Posted at 22:00 by Howard Bashman



A new day in England: Which again has resulted in a new address for the BBC News war blog.
Posted at 20:47 by Howard Bashman



"Sodomy Flaw: How the courts have distorted the history of anti-sodomy laws in America." Kristin Eliasberg has this essay online at Slate.
Posted at 18:50 by Howard Bashman



"Higher ed awaits a diversity ruling": Roger Clegg has this essay today at National Review Online.
Posted at 17:26 by Howard Bashman



"Ex-Conn. Mayor Convicted in Kid Sex Case": The AP provides this report.
Posted at 16:45 by Howard Bashman



"Supreme Court Hears Campaign Finance Case": Gina Holland of The Associated Press has this report on today's lone U.S. Supreme Court oral argument.
Posted at 16:35 by Howard Bashman



Another mystery solved: Last night, in a post you can access here, I posed the question "why [do] federal appellate judges sometimes issue opinions per curiam rather than signed?" Today I received the following email from a federal appellate judge:
Your question regarding why some opinions are designated "per curiam" is one that is commonly asked. Different judges will give somewhat different answers. Shorter opinions that are more in the nature of orders are usually per curiam. They don't provide extensive discussion, and there is no reason to designate an "author," though under most court rules there is still a "writing judge" or "initiating judge" who is more or less in charge of the opinion. Some judges will designate an opinion as per curiam when the opinion is largely prepared by central staff attorneys instead of by the judge or his or her own in-chambers law clerks. Sometimes, an opinion is not fairly attributable to just one judge, because two or three judges have made substantial contributions to one or more parts of the opinion; in some such cases, the final product may be a compromise of the various positions, for the purpose of reaching a unanimous consensus. (In other words, judges do not always register a dissent when they disagree with the majority's position on some of the issues.) A rarer use of per curiams is to keep from disclosing the name of the writing judge in cases of vexatious litigants, to prevent harassment of a particular writing judge. Undoubtedly, some judges and courts have other reasons for the per curiam designation that are not mentioned above. One surprising fact is that there can be a dissent from a per curiam opinion; in other words, "per curiam" doesn't necessarily mean "unanimous," despite the Black's Law Dictionary definition of "per curiam" as "[b]y the whole court." Some courts occasionally make the mistake of spelling it "per curium," see, e.g., Tilley v. Office of Personnel Mgmt., 2003 U.S. App. LEXIS 4001 (Fed. Cir. Mar. 6, 2003).
Thanks much for this thoughtful and informative email.
Posted at 16:32 by Howard Bashman



Fourth Circuit grants rehearing en banc to consider further an appeal in which panel, by vote of 2-1, granted writ of habeas corpus in death penalty case: You can access both the notation that rehearing en banc has been granted and the panel's original opinion, plus dissent, at this link.
Posted at 16:05 by Howard Bashman



The Associated Press is reporting: For those who just can't wait for my possibly witty summary of today's U.S. Supreme Court rulings to appear online here tonight, you can access here an article entitled "Court Clarifies Death-Row Appeal Rules" and here Anne Gearan's article entitled "Ohio Suburb Wins Discrimination Case." In other news, "3rd Man Pleads Guilty in N.Y. Terror Case."
Posted at 15:41 by Howard Bashman



Despite the possibility that she could soon be promoted to Miss Universe: A (An?) Hispanic woman last night was crowned Miss USA, The Associated Press reports here in an article entitled "Miss Massachusetts Crowned Miss USA 2003." No filibuster was attempted.
Posted at 15:34 by Howard Bashman



Today's FindLaw commentary: Joanna Grossman and Brian Lehman have an essay entitled "Does Discrimination Against Gay Men and Lesbians Count As Sex Discrimination? The Supreme Court May Soon Give An Answer."
Posted at 15:05 by Howard Bashman



As I had predicted, en banc Third Circuit disagrees with three-judge panel's ruling and affirms nearly $69 million antitrust judgment against 3M: Today the en banc U.S. Court of Appeals for the Third Circuit issued its long-awaited ruling in LePage's v. 3M, which I previously characterized as one of the most significant antitrust cases to come before the Third Circuit in quite some time. By a vote of 7-3, the en banc court reinstated the trial court's judgment of nearly $69 million in favor of plaintiff LePage's. The trial court upheld that judgment on post-trial motions, but then a three-judge panel of the Third Circuit voted 2-1 to reverse and render judgment in favor of defendant 3M.

Today's result represents another huge victory for my friend Roy T. Englert, Jr., whom LePage's brought into the case on rehearing en banc and who argued for LePage's before the en banc court. I attended the en banc oral argument, and you can access my account of the argument and my prediction of today's result at this link. The two judges from the panel who voted to reverse the trial court's judgment (see the panel opinion here) only picked up one additional vote from the en banc court, that of soon-to-be Chief Judge Anthony J. Scirica. The Third Circuit's newest addition, Circuit Judge D. Brooks Smith, voted with the en banc majority to affirm the trial court's judgment
Posted at 14:54 by Howard Bashman



"Japanese court spurns sex slaves": The Associated Press offers this report from Tokyo. A related article from Agence France-Presse entitled "Japan's Supreme Court rejects South Korean sex slave suit" can be accessed here.
Posted at 14:41 by Howard Bashman



Today's two U.S. Supreme Court opinions are now available online: Woodford v. Garceau is available here, and Cuyahoga Falls v. Buckeye Community Hope Foundation is available here.
Posted at 10:23 by Howard Bashman



The Supreme Court of the United States has issued two opinions today: Opinions issued in Woodford v. Garceau (oral argument transcript available here) and Cuyahoga Falls v. Buckeye Community Hope Foundation (oral argument transcript available here). Coincidentally, both cases were argued on January 21, 2003.
Posted at 10:00 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Justices Reject Challenge to Surveillance; High court refuses to intervene in a case involving government's expanded powers to wiretap, search people linked to terrorists." In other news from the U.S. Supreme Court, Bloomberg News reports that "MGM Harassment Claim to Go to Trial." You can access here an article entitled "N.Y. Man Pleads Guilty to Training With Al Qaeda; The Yemeni American, allegedly a member of a cell near Buffalo, is the first person to be convicted under a 1996 anti-terrorism law." Another installment in the continuing series known as "the tort suits of Madison County" is entitled "County Is Known as Friendly to Tort Suits; Philip Morris and business groups slam a $10.1-billion verdict in Madison County, Ill." And Law Professor Erwin Chemerinsky has an op-ed entitled "By Flouting War Laws, U.S. Invites Tragedy."

In USA Today, Joan Biskupic reports that "Justices to revisit sodomy laws; Case tests changes in society, on court." You can access here an article entitled "Court or tribunal among options if Saddam captured." From New York comes news that "Second suspect pleads guilty to terror charges in Buffalo." And DeWayne Wickham has an op-ed entitled "Tulsa case is key reparations test."

In The Boston Globe, Lyle Denniston reports that "Supreme Court rejects wiretap case; Secret tapings in war on terrorism at issue." And in The Washington Times, Frank J. Murray reports that "High court rejects challenge to spy laws."
Posted at 09:54 by Howard Bashman



Interesting law blog of the day: "Statutory Construction Zone."
Posted at 09:47 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Mentally Ill Inmate Faces Death This Week"; here, "Feds Eye Charges in Bill of Rights Theft"; and here, "N.Y. Terror Suspect Feared Treason Charge."
Posted at 09:45 by Howard Bashman



Avert your eyes: Today's edition of The Minneapolis Star Tribune reports here that "Minneapolis librarians sue over Internet porn."
Posted at 09:41 by Howard Bashman



Plaintiffs' U.S. Supreme Court reply briefs now available online in cases challenging University of Michigan's use of racial preferences in student admissions: The reply briefs were filed with the Court yesterday. You can access the Grutter (law school admissions) reply brief here and the Gratz (undergraduate admissions) reply brief here. Both of these cases will be argued at the Court one week from today.
Posted at 07:06 by Howard Bashman



"U-M Admissions Cases: Professor is root of lawsuits. His inquiry gave advocates ammunition for fight." Today's edition of The Detroit Free Press contains this report. And today's edition of The Michigan Daily contains an article entitled "Student sentiment missing from 'U' admissions policies."
Posted at 07:00 by Howard Bashman



Dahlia Lithwick they ain't: Will Baude and Amanda Butler were both at the U.S. Supreme Court yesterday to see the oral arguments. You can access their reports here, here, and here.
Posted at 06:50 by Howard Bashman



"Covenant doesn't exempt NMI from federal wire fraud": Today's edition of The Saipan Tribune contains this report.
Posted at 06:48 by Howard Bashman



On today's agenda: The Supreme Court of the United States is scheduled to issue one or more opinions at 10 a.m. this morning.
Posted at 06:40 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports here that "Justices Hear Md. Death Row Appeal; High Court Weighs Issues of Childhood Abuse, Lawyers' Competence." You can access here an article entitled "High Court Won't Rule on Terror Surveillance." In news pertaining to the U.S. Court of Appeals for the Fourth Circuit, "Moussaoui Hearing Closed to Public; Appeals Panel's Ruling Renews Debate on 9/11 Case Secrecy." And here's an article entitled "Guilty Plea in N.Y. Terror Probe; Accused Member of Sleeper Cell Admits to Aiding Al Qaeda."

In The New York Times, Linda Greenhouse reports here that "Death Penalty Lawyers' Duty Is Taken Up by Supreme Court" and here that "Groups Lose Challenge to Government's Broader Use of Wiretaps." In local news, "U.S. Says Lawyer Aided Terror Signals From Sheik." And Web logs that cover the war in Iraq are featured in the final segment of this article.

Finally for now, Warren Richey of The Christian Science Monitor has an article entitled "Court test of gay rights vs. traditional values; Landmark sodomy case holds implications for privacy rights and definition of marriage."
Posted at 00:05 by Howard Bashman



Monday, March 24, 2003
"Abortion bitterness: Senate continues the battle on a secondary front": Yesterday's edition of The Pittsburgh Post-Gazette contained this editorial.
Posted at 23:10 by Howard Bashman



Available online at law.com: On Wednesday, the Supreme Court of the United States will hear a constitutional challenge to a Texas law that prohibits same-sex consensual sodomy. You can access here an article entitled "Showdown at Supreme Court Over Same-Sex Sodomy Law"; here, "Sodomy Laws Drop off the Books"; and here, "In the Bedroom: Gay rights are at the center of the sodomy case at the Supreme Court." In other news, here's an article entitled "Philip Morris to Pay $10.1 Billion in Damages; Illinois court finds fraud by tobacco company in case pioneered by Philadelphia firm."
Posted at 22:55 by Howard Bashman



Finally, an article about lawyer blogs that doesn't mention "How Appealing"! And I'm so happy to have a moment away from the spotlight. But dozens of my law blogging colleagues should promptly flock to visit this article by Robert J. Ambrogi, published in The National Law Journal, to see themselves mentioned.
Posted at 22:38 by Howard Bashman



"We need go no further." Fans of First Circuit Judge Bruce M. Selya will recognize that closing line anywhere, whether in one of his signed opinions or in a per curiam opinion for which he quite likely was the author. And this reminds me of one of my recurring yet so-far-unanswered questions: is author anonymity a reason why federal appellate judges sometimes issue opinions per curiam rather than signed? Of course, those appellate judges who issue their opinions in a format unique to themselves probably aren't seeking anonymity when they issue a per curiam opinion in precisely the same format.
Posted at 22:22 by Howard Bashman



Spiny lobsters present thorny jurisprudential issues for the Eleventh Circuit: On Friday, a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit, by a vote of 2-1, upheld the convictions of various defendants who had been charged with shipping undersized lobster tails to the United States in violation of Honduran regulations. The opinion begins:
[Defendants] appeal the convictions and sentences they received after a jury found them guilty of conspiracy, smuggling, money laundering, and Lacey Act violations in connection with the importation, sale, and purchase of Caribbean spiny lobsters from Honduras. The defendants' main argument on appeal is that the district court erred in determining that the Honduran laws that served as the underlying basis of their convictions were valid and enforceable. The defendants contend that the Honduran laws were invalid, and, therefore, there was no violation of foreign law upon which to base their convictions.

The defendants' challenge to the validity of the Honduran laws requires us to undertake our own foreign law determination. Our task is complicated by conflicting representations from Honduran officials regarding the validity of the Honduran laws. Throughout the investigation and trial, Honduran officials offered support and assistance to the United States government, and both the government and the district court relied upon the Honduran officials' verification of the Honduran laws. Shortly after the defendants were convicted, the Honduran government reversed its position; it currently refutes the validity of the laws it previously verified. Therefore, we must decide whether our courts are bound by a foreign government's new representations regarding the validity of its laws when its new representations are issued only postconviction and directly contravene its original position upon which the government and our courts relied and the jury acted. This question is a matter of first impression in this Circuit and apparently the other circuits as well.
You can access both the majority and dissenting opinions at this link.
Posted at 22:02 by Howard Bashman



What's next -- Green Lantern v. USA? The U.S. Court of Federal Claims this past Friday decided the case of Dick Tracy v. United States of America. The opinion explains that "plaintiff * * * is using the fictitious name 'Dick Tracy' in order to protect his identity * * * ." The reader who emailed to bring this decision to my attention asked whether there were any limits on the fictitious names that other Drug Enforcement Agency informants might seek to use if they ever happen to sue the federal government. Only time will tell, I'm afraid.
Posted at 20:42 by Howard Bashman



A new day in England: Which again means a new address for the BBC News war blog.
Posted at 20:22 by Howard Bashman



The Associated Press is reporting from the U.S. Supreme Court: Anne Gearan reports here that "Justices Mull New Standards for Lawyers," while Gina Holland has an article entitled "High Court Rejects Civil-Rights Challenge."
Posted at 18:38 by Howard Bashman



Chief Justice Rehnquist's remarks last Friday at the Symposium on Judicial Independence at the University of Richmond T.C. Williams School of Law: You can access the prepared text of those remarks online here via the U.S. Supreme Court's Web site. Now if only the rest of the Justices would likewise begin posting the text of their speeches at that location.
Posted at 15:10 by Howard Bashman



"Jury Mulls Fate of Conn. Ex-Mayor": The AP offers this report.
Posted at 14:50 by Howard Bashman



Terror and more terror: The Associated Press reports here that "Second N.Y. Terror Suspect Pleads Guilty" and here that "Judge: Mich. Terror Trial to Continue."
Posted at 14:00 by Howard Bashman



Fifth Circuit nominee Edward C. Prado reportedly will have his Senate Judiciary Committee confirmation hearing this Wednesday: At least that's what The Alliance for Justice is reporting. The official hearing announcement does not yet disclose the nominees scheduled for consideration. Judge Prado currently serves as a federal district judge on the U.S. District Court for the Western District of Texas. You can access Judge Prado's biography here, and you can access articles reporting on his nomination here, here, here, and here.
Posted at 13:39 by Howard Bashman



Justice Anthony M. Kennedy's recent in-chambers opinion denying stay of an alien's removal: On Friday, March 21, 2003, Justice Anthony M. Kennedy issued an in-chambers opinion denying a stay of removal to an alien whose case, while it involved a circuit split, did not present an appropriate vehicle for resolving the split.
Posted at 12:33 by Howard Bashman



"The presence of the prison recording device destroyed the attorney-client privilege." Today the U.S. Court of Appeals for the Eighth Circuit issued an opinion that states:
Finally, Angelo Porrello argues that the District Court erred in refusing to order the government to turn over tapes of conversations between the cooperating coconspirators and their attorneys. These conversations took place while the coconspirators were incarcerated, and the parties to these conversations were aware that they were being recorded by the prison. The District Court ruled that these tapes were protected by the attorney-client privilege and therefore would not order their disclosure to the defendants. * * *

We respectfully disagree. The presence of the prison recording device destroyed the attorney-client privilege. Because the inmates and their lawyers were aware that their conversations were being recorded, they could not reasonably expect that their conversations would remain private. The presence of the recording device was the functional equivalent of the presence of a third party. These conversations were not privileged. The very existence of the tapes, which were made by and are now in the custody of the United States, was factually sufficient to demonstrate that the coconspirators waived the attorney-client privilege. [citations omitted]
You can access the opinion at this link.
Posted at 12:24 by Howard Bashman



"High Court to Review Traffic Stop Arrests": Anne Gearan of The Associated Press has this report on the case the U.S. Supreme Court today agreed to review on the merits. And here Anne reports that "Internet Competition Appeal Rejected."
Posted at 11:20 by Howard Bashman



Balkin and Buck continue their debate over the jurisprudence of Antonin Scalia: Their most recent exchange can be viewed here and here.
Posted at 11:01 by Howard Bashman



A win? The AP has changed the headline I noted in the immediately preceding post (below) to "U.S. Wins Appeal on Domestic Spy Powers." In other news, "High Court Eyes Limits on Inmate Visits."
Posted at 10:50 by Howard Bashman



"Supreme Court rejects attempt to appeal cases testing scope of secret spy court": Anne Gearan of The Associated Press has this report.
Posted at 10:34 by Howard Bashman



Today's U.S. Supreme Court order list: Available here. The Court granted certiorari in one case and called for the views of the Solicitor General in another.
Posted at 10:10 by Howard Bashman



Interesting law blog of the day: "The Manifest Border."
Posted at 09:53 by Howard Bashman



"Right to lawyer still not a given for poor defendants": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 09:49 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times today contains two op-eds of note. Nat Hentoff writes of "Bringing the Constitution to life," while Jacob Sullum has an essay entitled "Courting anti-gun ambitions."

Finally for now, The Los Angeles Times contains an article entitled "Tree-Sitters Hang On to Perches; Some activists return to redwoods right after being forcibly removed by fed-up lumber firm."
Posted at 06:35 by Howard Bashman



The U.S. Supreme Court is back in session today: At 10 a.m., the Court is expected to issue orders. The Court will hear two oral arguments this morning, and SCOTUSblog provides an admirably thorough preview of the cases in which the oral arguments will be occurring here and here.
Posted at 06:30 by Howard Bashman



"A Baghdad Blogger": The March 31, 2003 edition of The New Yorker contains this profile of the author of the blog "Where is Raed?"
Posted at 01:10 by Howard Bashman



In Monday's newspapers: In The Washington Post, Charles Lane reports here that "High Court to Hear Texas Gay Rights Case; Review of Sodomy Conviction Seen as Important by Both Sides of Issue." You can access here an article entitled "Timeline Tightens for Campaign Finance Case; Supreme Court Awaits Ruling From Judges as Term Starts Drawing to a Close." A front page article is entitled "U.S. Steps Up Secret Surveillance; FBI, Justice Dept. Increase Use of Wiretaps, Records Searches." And this article reports that "'Murder Inc.' Defendants Wore Stun Belts; Judge Permitted Marshals to Use Shock Devices for Additional Security at Trial."

Finally for now, in The New York Times, Adam Liptak reports here that "Longtime Death Case Lawyer Appeals Ouster."
Posted at 00:05 by Howard Bashman



Sunday, March 23, 2003
The New York Review of Books reviews Stuart Banner's latest book, "The Death Penalty: An American History": Banner is of course one of the contributors to "The Volokh Conspiracy," but there doesn't seem to be mention of this newly-published book review yet at that site (but stay tuned!). Update: You can access an excerpt from Stuart's book here (PDF document).
Posted at 22:49 by Howard Bashman



I'm not much in the mood to watch The Academy Awards tonight: But I'm still somewhat interested in who wins, and what they happen to say at the podium. Via this link, I can access that information (if the winner's name is a hyperlink, the winner's acceptance speech can be accessed by clicking on the name).
Posted at 22:10 by Howard Bashman



"Standing alone, however, a litigant's bizarre behavior is insufficient to trigger a mandatory inquiry into his or her competency." When is a federal trial court required to decide if a pro se litigant is too crazy to represent himself or herself in court? The U.S. Court of Appeals for the Second Circuit issued an opinion resolving that question this past Friday.
Posted at 20:53 by Howard Bashman



Just how long is one year? Sure, everyone knows the answer is 31,536,000 seconds, when it's not a leap year. But for lawyers the answer isn't necessarily that simple. The Antiterrorism and Effective Death Penalty Act of 1996 provides that a motion by a federal prisoner for postconviction relief under 28 U.S.C. sec. 2255 is subject to a one-year time limitation that generally runs from "the date on which the judgment of conviction becomes final." Earlier this month, in Clay v. United States (a decision I previously summarized here), the Supreme Court of the United States examined when the one-year time limit begins to run. This past Friday, the U.S. Court of Appeals for the Tenth Circuit issued an opinion that decided the surprisingly complicated question of when the one-year time limit ends. Does the Tenth Circuit choose "the calendar method" or "the anniversary method"? The answer can be found here.
Posted at 20:40 by Howard Bashman



A new day in England: That means a new address for the BBC News war blog. "The Command Post" blog has a new URL, too.
Posted at 20:19 by Howard Bashman



"Supreme Court Considers Texas Sodomy Case": The Associated Press offers this report.
Posted at 15:16 by Howard Bashman



"Federal judge is handpicked in Morales case": Today's edition of The San Antonio Express-News contains an article that begins:
A judge who once clashed bitterly with Dan Morales deviated from standard courthouse procedure by handpicking the judge who will oversee the criminal case against the former state attorney general.

Bypassing the courthouse computer that randomly assigns criminal cases, the region's chief federal judge, James Nowlin, gave the Morales case to the faster and, by some accounts, tougher of the two other judges who handle Austin's federal indictments.
You can access the article at this link.
Posted at 13:40 by Howard Bashman



"Democrats rebuff bid by Estrada": The Hill this past Wednesday offered this report.
Posted at 13:36 by Howard Bashman



Sarasota Herald-Tribune suggests "Citadel of Irony Award" for Justice Antonin Scalia: Here, in an editorial entitled "Not so free with his speech: As protector of the First Amendment, Scalia pulls the plug on the media."
Posted at 13:35 by Howard Bashman



"Estrada opposition fueled new caucus": The San Antonio Express-News last week offered this report. The Miami Herald also covered this story, in an article entitled "Three GOP House members from Miami help organize new Hispanic caucus."
Posted at 13:33 by Howard Bashman



"Ohio's Republicans to seek conservative for high-court seat": Today's edition of The Toledo Blade contains this report about the effort to find a replacement for Ohio Supreme Court Justice Deborah L. Cook, nominated to serve on the U.S. Court of Appeals for the Sixth Circuit.
Posted at 13:30 by Howard Bashman



"High court to hear sodomy case; Hearing next week in challenge to Texas law, maybe others": The March 21, 2003 issue of the Houston Voice contained this report.
Posted at 13:22 by Howard Bashman



The Detroit News today previews the University of Michigan racial preferences in student admissions cases pending before the U.S. Supreme Court: On Tuesday, April 1, 2003, the Supreme Court of the United States will hear oral argument in two cases challenging the University of Michigan's use of racial preferences in student admissions. Today's edition of The Detroit News contains a number of articles about the case. The lead article is entitled "O'Connor pivotal to U-M's cases; Experts say her vote hard to predict." A profile of Maureen Mahoney is entitled "U-M litigator has winning record." A profile of John Payton is entitled "Rights lawyer in familiar territory." A profile of Kirk Kolbo is entitled "Ex-liberal takes on U-M policy." A profile of Solicitor General Theodore B. Olson is entitled "Solicitor leaves conservative mark." And here the newspaper takes a look at "Where the justices stand."

Yesterday, The Detroit News reported here that "Admissions lawsuits cost U-M $9 million." Friday's edition of The Michigan Daily contained an article entitled "The science of diversity: 'U' defense cites studies linking diversity to intellectual excellence." And Nat Hentoff, writing in The Village Voice, has an essay entitled "How Much Diversity Is Enough?"
Posted at 13:05 by Howard Bashman



Interesting law blog of the day: "The Indiana Law Blog."
Posted at 12:24 by Howard Bashman



"Symposium: Ashcroft Justice": A very interesting transcript from FrontPage magazine.com.
Posted at 12:20 by Howard Bashman



"Tobacco firm lawyer derides court's reputation": Yesterday's edition of The St. Louis Post-Dispatch contained an article that begins, "A $10.1 billion verdict against Philip Morris USA confirms Madison County's reputation as a paradise for plaintiffs' lawyers looking for a big payday, a high-ranking company officer said after hearing the verdict." In related news, you can access here an article entitled "Philip Morris must pay $10.1 billion, a new landmark" and here an article entitled "Low-key judge issued high-profile verdict."
Posted at 12:15 by Howard Bashman



"The Command Post": These bloggers scour the Web for war news, and then collect it all here.
Posted at 12:10 by Howard Bashman



That didn't take very long: Clayton Cramer reports on his own blog that his status as a contributor to "The Volokh Conspiracy" has already come to an end. Because Clayton's hyperlink for the post in question isn't working, I'm reprinting what Cramer has written in a post dated Saturday, March 22, 2003 at 9:09 p.m. pacific time: "Back On My Own Blog Again: It turns out that there was a style inconsistency between The Volokh Conspiracy and your wonderful self. That's life." Wow, I predicted that result some eighteen minutes earlier last night, which may cause some to wonder if I had inside information. I didn't.
Posted at 10:34 by Howard Bashman



Seventh Circuit Judge Richard A. Posner to serve as the next dean of the Harvard Law School? Apparently not, but this recent article from The Harvard Crimson suggests that he was among the candidates under consideration.
Posted at 10:20 by Howard Bashman



"Hyphenation is a mess": Those of us who write for a living may learn a thing or two from (or, better yet, be reinforced in our good habits by) William Safire's "On Language" column in today's edition of The New York Times Magazine.
Posted at 09:55 by Howard Bashman



In Sunday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Equal Rights for Gays Faces Supreme Court Test; Justices will be asked to throw out sodomy convictions of two Texas men as well as extend constitutional privacy accorded heterosexuals." Columnist Dana Parsons has an essay entitled "Born of Painful Klan Memories, a Simple Message for Cross-Burners." And an editorial is entitled "Brave Quests for Freedom."

In The Washington Times, Bruce Fein has an op-ed entitled "Confirmation treachery."

The New York Times today contains an article entitled "Trying Again to Make Gun Makers Liable for Shootings." The Week in Review section includes a piece entitled "Freedom: More Than Just Another Word for Nothing Left to Lose." And you can access here letters to the editor responding to the recent New York Times Magazine cover story about the U.S. Court of Appeals for the Fourth Circuit.
Posted at 08:30 by Howard Bashman



Saturday, March 22, 2003
Clayton's Dozen: Clayton Cramer really seems to be stirring up the pot over at "The Volokh Conspiracy." Some reactions here, here, and here (caution -- this last link contains profanity). It's even causing me to question my plan to become a pseudonymous contributor to TVC once "How Appealing" ceases to exist. I'm sure that in time, though, all will work out for the best.
Posted at 23:51 by Howard Bashman



Sunday's edition of the BBC News war blog: Available here, with coverage of the terrorist attack on American troops in Kuwait for which an American soldier may be among those responsible.
Posted at 23:03 by Howard Bashman



More information about Chief Justice William H. Rehnquist's speech yesterday at the University of Richmond School of Law: Available here. And Anne Gearan of The Associated Press yesterday had this report on the speech.
Posted at 15:44 by Howard Bashman



Online at law.com: The Recorder of California contains commentary by Greg Mitchell entitled "It's Time to Split the [Ninth] Circuit." The essay provides a link to "How Appealing" and mentions my recent "20 questions" interview with Ninth Circuit Judge Diarmuid F. O'Scannlain, which you can access directly by clicking here. Readers who were wondering how long it might take for my "20 questions" feature to gain mention by the popular press now have your answer -- not very long at all. An archive containing both of my "20 questions for the appellate judge" interviews published so far exists at this link, and the third installment of the "20 questions" feature is due to appear online here on Monday, April 7, 2003.

law.com's U.S. Supreme Court correspondent Tony Mauro provides a comprehensive preview of the upcoming oral arguments in the cases challenging the University of Michigan's use of racial preferences in student admissions. Tony's lead article is entitled "Law School Admissions Face Intense Scrutiny." It concludes:
Olson's compromise brief was reportedly the result of conflicting pressure within the administration over the hot-button issue of affirmative action.

"It is one of the intellectually weakest briefs I've ever seen the United States file," says Dellinger, in a rare rebuke of a successor. "It has a hole in the middle of it the size of Detroit. It's as if some pages fell out of the undergraduate brief on the way to the printer, and they were stuck back into the law school brief by mistake."
Tony also has a related article entitled "Strange Bedfellows?" Here Tony provides a sampling of the briefs filed in the cases. And here Tony summarizes all the cases to be argued at the Court over the next two weeks.

An article reporting on a recent Second Circuit decision is entitled "No Immunity for Private Defendant in Conspiracy Case." You can access here an article entitled "Congress Comes After a Federal Judge; Sentencing at issue in subpoena uproar." And in news from Georgia, "Cold-Calling DJs May Keep Dialing for Now."
Posted at 12:51 by Howard Bashman



Interesting law blog of the day: "Ninomania" -- now in soothing blue.
Posted at 10:55 by Howard Bashman



"Tampa trial will test antiterrorism law": Last week The Miami Herald published this report.
Posted at 10:39 by Howard Bashman



"Love No Longer the Drug for Divorced Bryan Ferry": Reuters has this report from London.
Posted at 10:38 by Howard Bashman



"Junk fax ruling may help antispam effort": Declan McCullagh of c|net News.com has this report on yesterday's ruling of the U.S. Court of Appeals for the Eighth Circuit, which I first reported on here.
Posted at 10:35 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Man Charged in Sept. 11 Attacks Demands That Qaeda Leaders Testify." You can access here an article entitled "Motion Contends Sniper Defendant Killed 2." An article reports that "Philip Morris Faces Big Penalty." In news from Connecticut, "Ex-Mayor in Sex Trial Opens Door to Bribery Questions." Adam Liptak has an article entitled "How Much Freedom Is Too Much?" And here's an article entitled "Civilian Toll: A Moral and Legal Bog."

The Washington Post reports here that "Moussaoui Asks to Call Three More al Qaeda Witnesses." You can access here an article entitled "Experts Sought In Sniper Defense; Muhammad Asks For Investigators." And this article reports that "Federal Agents Arrest 9 in Moves Against Possible Terrorist Funding."

Sunday's edition of The Los Angeles Times contains an article entitled "Raped, Pregnant and 9, She's Cause Celebre; Despite opposition of the Catholic Church and some Nicaraguan officials, girl got an abortion. Now foes demand stricter laws." Today's newspaper reports here that "Moussaoui Seeks 9/11 Suspects as Witnesses." And you can access here an article entitled "Philip Morris Loses Lawsuit; An Illinois judge orders the tobacco giant to pay $10.1 billion over claims that it deceived smokers into believing lower-tar cigarettes are safer."
Posted at 10:10 by Howard Bashman



The Associated Press is reporting: Anne Gearan has an article entitled "Rehnquist: Independence of Court Is Vital." In other news, you can access here an article entitled "Court Rules Against Unsolicited Fax Ads"; here, "Moussaoui Wants Testimony of Suspects"; here, "Sniper Suspect's Lawyer Asks for Expert"; here, "Judge Orders Philip Morris to Pay $10B"; and here, "Moose Lawyer Criticizes Book Ban."
Posted at 00:10 by Howard Bashman



"Party of One": This upcoming Sunday's edition of The New York Times Magazine contains a profile of Senator Lincoln Chafee (R-RI).
Posted at 00:08 by Howard Bashman



Friday, March 21, 2003
"In my fantasy Chief Justice Rehnquist delivers my baby while Justice Souter holds my hand": No, not my fantasy, but Dahlia Lithwick's. She explains it all here, in the final installment of her Slate diary.
Posted at 15:22 by Howard Bashman



BBC News war blog: Yesterday's link works only for yesterday's dispatches. To access today's latest reports, click here.
Posted at 14:01 by Howard Bashman



And furthermore: On March 5, 2003, Ninth Circuit Judge Stephen S. Trott dissented from a ruling that the Ninth Circuit issued that day declaring unconstitutional a suspicionless parole search that produced a confession to bank robbery. Also on March 5, 2003, the Supreme Court of the United States issued several opinions (which I previously summarized here) that appear to have bolstered the arguments asserted in Judge Trott's dissent. Accordingly, today Judge Trott has issued an amended dissenting opinion that cites to and relies on the Supreme Court decisions that issued the same day as his original dissent.
Posted at 13:44 by Howard Bashman



"Gov't Defends Extentions of Detentions": The Associated Press offers this report.
Posted at 12:38 by Howard Bashman



Keep it copacetic: I don't mind the use of contractions in appellate court opinions. Indeed, the following sentence from a dissenting opinion that the Eighth Circuit issued today -- "We are essentially telling school districts that its copacetic to deal with students with behavioral disabilities by punishing them for their disability, rather than finding an approach that addresses the problem." -- suggests that at least one judge should be less reluctant to use contractions. (This post's title courtesy of Local H.)
Posted at 12:34 by Howard Bashman



900,000: "How Appealing" has just experienced its 900,000th page view since this Web log's Bravenet hit counter was installed on May 7, 2002.
Posted at 12:24 by Howard Bashman



Eighth Circuit reverses trial court ruling which had held that federal law prohibiting unsolicited fax advertising violated First Amendment: Today's unanimous three-judge panel's decision of the U.S. Court of Appeals for the Eighth Circuit states at its close:
We conclude that 47 U.S.C. sec. 227(b)(1)(C) satisfies the constitutional test for regulation of commercial speech and thus withstands First Amendment scrutiny. There is a substantial governmental interest in protecting the public from the cost shifting and interference caused by unwanted fax advertisements, and the means chosen by Congress to address these harms directly and materially advances the governmental interest. The statute is also narrowly tailored to create a reasonable fit with its objective. Accordingly, we reverse the judgment dismissing the claims asserted under sec. 227(b)(1)(C) and remand the case to the district court for further proceedings consistent with this opinion.
You can access today's opinion at this link.
Posted at 12:15 by Howard Bashman



Exploring Baghdad from the safety of your computer monitor: Newsweek via MSNBC offers this amazing eye-in-the-sky resource.
Posted at 11:28 by Howard Bashman



Law Professor Jeff Cooper mentioned in article about blogging in today's edition of The Indianapolis Star: You can access the article here and Jeff's blog here. Congrats, Jeff!
Posted at 11:20 by Howard Bashman



"N.Y. Man Found Guilty in Train Sex Case": The Associated Press this morning has a report that begins, "The train was a rockin' and the cops came a knockin'." Today's edition of Newsday reports here that "Man Convicted in LIRR Sex Case." The New York Post today contains an article entitled "Menage-A-Guilty." The NYPost's earlier coverage included "How Conductor Uncoupled Menage A Train Trio"; "'Sex' Duo on Wrong Track: DA"; and "Train-Sex Woman Wanted to 'Keep it in Family.'"
Posted at 11:18 by Howard Bashman



"No rush to replace Cook, but Taft wants to be ready": The Associated Press offers this report from Columbus, Ohio.
Posted at 09:44 by Howard Bashman



"Bored by Estrada? Owen may prove to be a reprise": Byron York had this essay in Wednesday's edition of The Hill.
Posted at 09:40 by Howard Bashman



Today's FindLaw commentator: Vikram David Amar has an essay entitled "Can't Win for Losing--the Bizarre World of the Eleventh Amendment, Governing Suits in Federal Court Against States."
Posted at 09:38 by Howard Bashman



"Saddam Hussein, Eco-Criminal": Jonathan H. Adler has this essay today at National Review Online.
Posted at 09:35 by Howard Bashman



Interesting law blog of the day: "Sub Judice." (Even if they don't always remember my posts from long ago exactly right.)
Posted at 07:09 by Howard Bashman



"Texas Executes 300th Inmate": The Associated Press provides this report.
Posted at 07:06 by Howard Bashman



Available online at law.com: Jason Hoppin has an article entitled "9th Circuit: Feds Can't Try Child Porn Case." In news from Pennsylvania, Shannon P. Duffy reports that "Minor, in Abortion Appeal, Is Ruled Capable of Deciding." This article is entitled "2nd Circuit Revives Policewoman's Sex Bias Claim." And finally, you can access here an article entitled "California Prosecutors Blast Execution Moratoriums."
Posted at 06:55 by Howard Bashman



In Friday's newspapers: The Washington Times contains an op-ed by R. Emmett Tyrrell, Jr. entitled "A judicious sushi catch?"

In The New York Times, Adam Liptak reports that "Officer Shows Uncertainty in Disputed Drug Cases." In news from Connecticut, "Ex-Mayor Denies Sexual Abuse of 2 Young Girls." And an editorial is entitled "Gideon's Trumpet Stilled."

The Washington Post reports here that "Prosecution Agrees to 3 Experts For Malvo." And an editorial is entitled "No Hear Ye."

Finally for now, The Boston Globe reports here that "Church presses case to dismiss suits; Appeals Court is asked to intervene."
Posted at 06:50 by Howard Bashman



Thursday, March 20, 2003
"Court Upholds $26.5M Tobacco Verdict": The Associated Press has this report from California.
Posted at 20:04 by Howard Bashman



BBC News war blog: Online here, with reporters seemingly based everywhere over there.
Posted at 16:39 by Howard Bashman



Day four of Dahlia Lithwick's online Slate diary: Just posted here.
Posted at 16:03 by Howard Bashman



Eleventh Circuit upholds Florida public school's ban on the display of Confederate flags on school grounds: An opinion that the U.S. Court of Appeals for the Eleventh Circuit issued today concludes:
In sum, the school administrators did not violate the plaintiffs' constitutional rights by banning the display of Confederate flags on school grounds and subsequently enforcing the ban by suspending them. Having found no constitutional right violated, the plaintiffs have failed to set forth a prima facie case for sec. 1983 relief. The district court properly granted the defendant's motion for summary judgment.
You can access the opinion at this link.
Posted at 15:55 by Howard Bashman



WWSD? Yale Law School Professor Jack Balkin and former D.C. Circuit law clerk Stuart Buck continue their discussion (here and here) about whether Justice Antonin Scalia's interpretive approach logically should produce a ruling that upholds the constitutionality of the use of racial preferences in university admissions at issue in the University of Michigan cases.
Posted at 14:52 by Howard Bashman



WTOP news radio (CBS network) from Washington, D.C.: Providing excellent live coverage of today's war on Iraq developments, and you can listen online via this link.
Posted at 13:49 by Howard Bashman



See "an artist's lifelike glass-in-glass sculptures of jellyfish": Yes, this copyright opinion that the Ninth Circuit issued today contains photos, but not color photos, unfortunately.
Posted at 13:46 by Howard Bashman



Sharply divided Ninth Circuit panel holds that Congress may not outlaw simple intrastate possession of child pornography that hasn't traveled interstate: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a majority opinion, written by Circuit Judge Stephen Reinhardt and joined in by Circuit Judge A. Wallace Tashima, that begins:
Appellant Rhonda McCoy entered a conditional plea of guilty to possession of child pornography after photo shop employees discovered a picture of her and her daughter with their genital areas exposed. Specifically, she reserved the right to appeal on constitutional grounds the denial of her motion to dismiss the charges against her. In her appeal, McCoy challenges the section of the federal statute that prohibits the possession of child pornography made with materials that have traveled in interstate commerce, 18 U.S.C. sec. 2252(a)(4)(B), asserting that the provision constitutes an unconstitutional exercise of Congress's power under the Commerce Clause.

We hold that 18 U.S.C. sec. 2252(a)(4)(B) is unconstitutional as applied to simple intrastate possession of a visual depiction (or depictions) that has not been mailed, shipped, or transported interstate and is not intended for interstate distribution, or for any economic or commercial use, including the exchange of the prohibited material for other prohibited material.
Circuit Judge Stephen S. Trott dissented in an opinion that begins:
My colleagues have finessed an unavoidable issue in this case: whether 18 U.S.C. sec. 2252(a)(4)(B) is unconstitutional on its face. They have attempted to restrict their holding to McCoy and to others "similarly situated," but it is not clear to me that the law permits such a limitation. I so conclude because McCoy's conduct clearly falls within the language of the statute, and because the Supreme Court appears under such circumstances to have ruled out "as applied" challenges in Commerce Clause cases. In my view, if the conduct under review falls within the plain language of the statute, precedent requires us to take the statute head on, not carve pieces out of it. Because I disagree with my colleagues' approach to the issues as well as to their holding, I respectfully dissent.
You can access both the majority and dissenting opinions at this link.
Posted at 13:23 by Howard Bashman



If you're reading this, you may be thoughtful: Law Professor Rick Hasen has another interesting post about the Miguel A. Estrada standoff over at his "Election Law" blog, and his post refers to "the many thoughtful readers of How Appealing."
Posted at 11:50 by Howard Bashman



"Pledge of Allegiance Ruling Condemned": The Associated Press reports here that the U.S. House of Representatives has today joined the U.S. Senate in voting to condemn the Ninth Circuit's revised Pledge of Allegiance ruling and refusal to grant rehearing en banc.
Posted at 11:30 by Howard Bashman



Anti-war protests cause postponement of jury trials at Philadelphia's federal courthouse: The Philadelphia Inquirer reports here that "At the federal courthouse, Michael E. Kunz, the clerk of courts, said officials told federal jurors yesterday not to report to the courthouse and canceled today's sessions of all ongoing jury trials. The clerk's office was open for the filing of lawsuits and litigation-related documents, Kunz said, but only essential court employees were told to report to work." (Thanks to Adam Bonin for the pointer.)
Posted at 11:26 by Howard Bashman



"Much More Democratic Obstruction: Democrats move to kill an entire slate of Bush nominees": Byron York has this morning has this essay at National Review Online.
Posted at 10:38 by Howard Bashman



Senate Judiciary Committee's vote on Priscilla R. Owen's Fifth Circuit nomination held over for a week at the request of committee Democrats: A reliable source so advises. Committee rules allow one such postponement, so a vote is certain to occur at the committee's next business meeting.
Posted at 10:30 by Howard Bashman



"Ignoring Longstanding Fiduciary Duties to Tribes": FindLaw commentator Edward Lazarus has an essay today that seeks to draw a comparison between the war against Iraq and the U.S. Supreme Court's recent decision in United States v. Navajo Nation.
Posted at 10:20 by Howard Bashman



Interesting law blog of the day: "SW Virginia law blog."
Posted at 10:13 by Howard Bashman



Third Circuit holds that Pennsylvania's prison system violated inmates' rights by denying access to Nation of Islam texts: Yesterday a three-judge panel of the U.S. Court of Appeals for the Third Circuit ruled 2-1 that employees of Pennsylvania's Department of Corrections violated the First Amendment free exercise of religion rights of inmates who were members of the Nation of Islam when the prison system denied access to various texts written by Fard Muhammad, Elijah Muhammad and Louis Farrakhan. The majority proceeded to rule, however, that the prison officials were entitled to qualified immunity, and thereby unanimously affirmed the trial court's entry of summary judgment against the plaintiffs. You can access yesterday's ruling at this link.
Posted at 10:02 by Howard Bashman



"Man Moons Judge, Gets More Jail Time": The Associated Press this morning offers this report. Meanwhile, an article entitled "Wis. Man Eats His 19,000th Big Mac" reports that "attorneys defending McDonald's against a lawsuit claiming its food makes people fat used [this individual] as an example of someone who frequently ate fast food but stayed slim."
Posted at 09:50 by Howard Bashman



The Senate Judiciary Committee is scheduled to be holding a business meeting at this hour: On the agenda is a committee vote on the nomination of Priscilla R. Owen to serve on the U.S. Court of Appeals for the Fifth Circuit.
Posted at 09:40 by Howard Bashman



"Inmate Set to Be Texas' 300th Execution": The Associated Press this morning has a report about the second person in line to be number 300.
Posted at 06:55 by Howard Bashman



In Thursday's newspapers: In The Los Angeles Times, David G. Savage reports that "Some 'Mystified' by Award to Scalia for Free Speech; Law experts say the justice, who controls media access to his talks, has a mixed record." In news from California, "State Death Penalty Defended; Prosecutors say the system is fair and no moratorium is needed. Report draws criticism." And you can access here an article entitled "Charge Against Lawyer Dropped; State won't prosecute an attorney accused of perjury by a judge. His criticism prompted an appeals court to overturn her verdict."

In The Washington Post, Charles Lane reports that "Recordings Banned As Scalia Accepts Free Speech Award." You can access here an article entitled "FBI Recovers Missing Copy of Bill of Rights; Document Was Stolen From N.C. During Civil War." This article reports that "Rules on Detention Widened; FBI, Marshals Can Hold Foreigners." In TV-related news, "Monica Fills The Bill for Fox." And a letter to the editor runs under the heading "Behind the Estrada Filibuster."

The New York Times reports here that "Study Challenges Case for Diversity at Colleges." This article reports that "Ashcroft Says Retarded Man No Longer Faces Death Penalty." And in news from Connecticut, "Ex-Mayor Linked to Semen in Waterbury Abuse Case."

Finally for now, you can access the "Today's Front Pages" feature from the Newseum at this link.
Posted at 06:40 by Howard Bashman



"Scalia says his beliefs and feelings can differ": Today's edition of The Cleveland Plain Dealer contains this report on Justice Antonin Scalia's speech yesterday.
Posted at 06:37 by Howard Bashman



"Blawgs: More Than Just Fluff": Robert J. Ambrogi has this article online today at law.com.
Posted at 06:25 by Howard Bashman



Wednesday, March 19, 2003
The Associated Press is reporting: You can access here an article entitled "Court Won't Use Moussaoui Jail Quotes"; here, "Prosecution Rests in Child Sex Abuse Case"; and here, "Original Copy of Bill of Rights Recovered."
Posted at 20:50 by Howard Bashman



On the eve of war: The U.S. Court of Federal Claims last Friday denied a $50 million takings claim asserted by the owner of a Sudanese pharmaceutical plant destroyed by U.S. missiles in August 1998 in retaliation for the al-Qaeda embassy bombings in Africa earlier that month. The opinion states, "No authority has been presented, among the large body of takings precedent during military operations, where the enemy target of military force was able to invoke the Takings Clause. And for good reason." You can access the opinion at this link.
Posted at 16:57 by Howard Bashman



"Going 'Nuclear' on Estrada nomination": Law Professor Rick Hasen tries to predict what Senator Trent Lott (R-MS) may have had in mind when he gave the quote that appears in this article from today's edition of The Washington Times.
Posted at 16:10 by Howard Bashman



Guns, Wonderland, and a circuit split: Today a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit ruled that a defendant convicted of a misdemeanor crime of domestic violence but who never lost his civil rights as a result of that conviction may be prosecuted under federal law for possessing a firearm or ammunition, even though Congress expressly exempted from prosecution such misdemeanants who have had their civil rights restored. A circuit split already existed on this issue. In dissent, Circuit Judge H. Emory Widener, Jr. criticized the majority for applying the federal statute in an "overly-literal" manner:
Upon first glance, it might seem that the majority's reading is correct: construing the word "restored" over-literally, the defendant's civil rights were never revoked, therefore, there was nothing to restore and the restoration exception is inapplicable as it pertains to him. But this is like the offer of "more" tea to Alice who yet had had none.
You can access both the majority and dissenting opinions at this link.
Posted at 15:38 by Howard Bashman



From today's edition of The Los Angeles Daily Journal: A California-based reader emails that Ninth Circuit Judge Stephen Reinhardt has an op-ed in today's edition of The Los Angeles Daily Journal in which he writes that "[California Attorney General] Lockyer is way off base and owes Kozinski an apology" for challenging the propriety of Circuit Judge Alex Kozinski's visit with a San Quentin prisoner. Unfortunately, the Daily Journal op-ed is not available online. Earlier press coverage of this matter can be accessed here and here.
Posted at 15:17 by Howard Bashman



Part three of Dahlia Lithwick's Slate diary: It's now available online, here.
Posted at 14:19 by Howard Bashman



"White House Counsel to Give Inaugural Powell Lecture": This press release reports that "The Honorable Alberto R. Gonzales, President Bush's personal counsel and a former justice of the Texas Supreme Court, will give the inaugural address at Washington and Lee University's First Annual Powell Lecture on March 31." The Washington and Lee School of Law student who emailed to draw this press release to my attention advises that he has already drawn to his school's attention the error in the press release about Justice Lewis F. Powell, Jr.'s prior judicial service.
Posted at 14:01 by Howard Bashman



Student newspaper at Cal. Berkeley thinks U.S. Supreme Court hears testimony? Today's edition of The Daily Californian contains an article entitled "Affirmative Action: Supreme Court to Hear Testimony in April." And the article's first sentence states, "In less than two weeks, the U.S. Supreme court will hear testimony on the University of Michigan's race-conscious admissions policies."

While I agree that the legality of racial preferences in university admissions presents an important and perhaps difficult question, isn't it also a bit troubling that a student newspaper reporter and editors at a highly regarded university apparently haven't a clue concerning how the Supreme Court of the United States goes about deciding cases. Here's a hint -- it doesn't involve hearing testimony.
Posted at 12:16 by Howard Bashman



Washington, D.C.'s "tractor man" is now in police custody: WTOP radio is reporting that he has surrendered peacefully. For background, click here.
Posted at 11:46 by Howard Bashman



Balkin's backwards on Scalia: That's what Stuart Buck argues, here.
Posted at 11:38 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Justice Bans Media From Free Speech Event"; here, "Mich. Judge Denies Separate Terror Trial"; and here, "Pa. Judge Orders Spanish Ballots."
Posted at 11:28 by Howard Bashman



"[A]t no time has this Department of Justice or the White House ever reviewed the memoranda that Miguel Estrada wrote during his tenure in the Solicitor General's office." Yesterday Acting Assistant Attorney General Jamie E. Brown, of the U.S. Department of Justice's Office of Legislative Affairs, sent a letter to Senate Minority Leader Tom Daschle (D-SD) "to correct a significant and recurring misstatement of fact regarding the nomination of Miguel Estrada."

You can access the complete text of Ms. Brown's letter online here, at "How Appealing Extra." (P.S. to The Washington Times -- Jamie E. Brown is a she, not a he.)
Posted at 11:13 by Howard Bashman



U.S. Supreme Court oral argument transcripts for February 2003 argument session: They are now all available online, here.
Posted at 10:08 by Howard Bashman



Today's FindLaw commentary: Law Professor Michael C. Dorf has an essay entitled "Is the War on Iraq Lawful?" And Barton Aronson addresses "Are the Lawsuits Against Gun Makers Really the Best Way to Address the Huge Costs of Gun Violence?"
Posted at 10:01 by Howard Bashman



Interesting law blog of the day: "Rory Perry's Weblog."
Posted at 07:00 by Howard Bashman



Today's Antonin Scalia Ohio speaking tour news: This morning's edition of The Cleveland Plain Dealer reports here that "Scalia requests ban on broadcast media at talk." The Associated Press reports here that "Justice bans broadcast media from speech" and here that "Justice Scalia says war justifies rights' recess."
Posted at 06:56 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times reports here that "Estrada nomination 'on life support.'" In news from Maryland, "Senate upholds death penalty." And an op-ed by Terry Eastland is entitled "A milestone for judicial nominations."

The Los Angeles Times reports here that "Gulf War Veteran Executed for 1995 Murder; Lawyers for Louis Jones Jr. tried to show his exposure to nerve gas and apparent brain damage led him to kill an Army recruit." You can access here an article entitled "Rights Groups Blast Policy to Detain Asylum Seekers." An article reports that "Judge Finds Antiabortion Activist Guilty of Murder; James C. Kopp faces up to 25 years in prison for killing a New York obstetrician. At his request, he was tried without a jury." And an editorial is entitled "Hypocrisy in Abortion Vote."

The Boston Globe reports here that "Antiabortion extremist convicted of murder; Doctor gunned down at his home in 1998." And this article reports that "SJC chief lobbies legislators on courts."
Posted at 06:30 by Howard Bashman



"Antonin Scalia Declares Affirmative Action Constitutional": Yale Law Professor Jack Balkin provides this explanation over at his blog, "Balkinization."
Posted at 00:37 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Linda Greenhouse reports here that "Libertarians Join Liberals in Challenging Sodomy Law." You can access here an article entitled "Guilty Verdict in Killing of Abortion Provider." An article is entitled "A Capital Case, and a Defendant Who May Be Retarded." Adam Liptak reports here that "Texas Drug Sting Leader Defends Methods and Men." And an article is entitled "Tobacco Companies Pledge to Fight Justice Department."

The Washington Post reports here that "In Major Case, U.S. Alleges Tobacco Firms' Conspiracy." You can access here an article entitled "In Detroit, First Post-9/11 Terrorism Trial; Credibility of Justice Dept. Tactics at Stake, Experts Say." This article reports that "Antiabortionist Guilty of Killing Doctor; Convicted by Judge, Kopp Faces 25 Years to Life in Shooting of Gynecologist." In local news, "Execution Moratorium Rejected; Md. Senators Opposed to Bill Say Sufficient Safeguards Exist." An editorial is entitled "Stalled on Soft Money." And a letter to the editor runs under the heading "Scenes From Camp Limbo."

Finally for now, The Christian Science Monitor contains an editorial entitled "Libraries and Web Porn."
Posted at 00:15 by Howard Bashman



Tuesday, March 18, 2003
The AP's report on Justice Scalia's speech this evening is entitled "War Means Rights May Be Scaled Back": You can access the article -- which begins "The government has room to scale back individual rights during wartime without violating the Constitution, Supreme Court Justice Antonin Scalia said Tuesday" -- at this link.
Posted at 22:55 by Howard Bashman



"Judicial Conference Asks Congress to Create 57 New Judgeships": The Administrative Office of the United States Courts today issued this press release. Eleven additional U.S. Court of Appeals judges are included in the fifty-seven. Seven of those eleven are slated for the Ninth Circuit, two for the Second Circuit, and one each for the First Circuit and the Sixth Circuit.
Posted at 22:48 by Howard Bashman



Available online at law.com: Jason Hoppin has an article entitled "Ninth Circuit Tops New-Judge Wish List; Biggest and busiest court would get 7 of 11 new circuit seats." If approved, the Ninth Circuit would have thirty-five authorized active judgeships. A related chart is accessible here. Vivian Berger has a commentary entitled "Consenting Adults." And in news from New Jersey, you can access here an article entitled "Laser Surgeon Loses Appeal Against Med-Mal Lawyer."
Posted at 22:44 by Howard Bashman



"NAACP reps travel to hear Scalia lecture, back admissions policies": Today's edition of The Michigan Daily contained this report.
Posted at 22:15 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Won't Reconsider Anti-War Lawsuit"; here, "'Religious Candy' Students Win Case"; here, "GOP Hispanics Form Congressional Group"; and here, "Girl Testifies Against Connecticut Mayor."
Posted at 22:14 by Howard Bashman



"Unprecedented Logic: Why slippery-slope arguments against invading Iraq don't hold water." The foreign policy of UCLA School of Law Professor Eugene Volokh is on display in this essay posted online this evening at Slate.
Posted at 19:38 by Howard Bashman



"Must...sleep": Wow, a law student's blog that's both interesting and entertaining. Thanks, Denise, for the pointer.
Posted at 16:27 by Howard Bashman



War in Iraq: That's the name of Jeff Jarvis's very interesting war-news Web log. Meanwhile, Kevin Sites is a CNN war correspondent who is blogging from inside Iraq. LT Smash is "Live from the Sandbox." And The Guardian is all set to map the war, as you'll see here and here.
Posted at 16:02 by Howard Bashman



Fourth Circuit upholds on direct appeal federal death sentence imposed for murder committed in national forest: Among the defendant's arguments on appeal was that "that the indictment was defective under the Fifth Amendment Indictment Clause, as interpreted in light of Ring v. Arizona, 122 S. Ct. 2428 (2002), and Apprendi v. New Jersey, 530 U.S. 466 (2000), for failing to allege aggravating circumstances necessary for the imposition of the death penalty, and that absent such allegations, the death penalty could not have been imposed." The three-judge panel was unanimous in its rejection of this argument, although the panel split 2-1 on the rationale.

You can access today's ruling of the U.S. Court of Appeals for the Fourth Circuit at this link. The defendant had previously been sentenced to death in North Carolina state court, but the Supreme Court of North Carolina set aside that death sentence in 1998 in an opinion you can access here.
Posted at 15:19 by Howard Bashman



First Circuit denies "petition for rehearing on an emergency basis" in appeal challenging President's authority to initiate war against Iraq: You can access today's order of the U.S. Court of Appeals for the First Circuit at this link.
Posted at 14:56 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Man Convicted in Abortion Doctor Slaying" and here an article entitled "Mich. Terror Trial Jury Selection Closed."
Posted at 14:46 by Howard Bashman



Dahlia Lithwick is the Stay-Puft Marshmallow Man: And she has a photo to prove it, here in part two of her week-long Slate diary.
Posted at 14:24 by Howard Bashman



D.C. Circuit holds that "catalyst theory" remains viable basis on which to award attorneys' fees under the Clean Air Act: You can access today's decision of the U.S. Court of Appeals for the D.C. Circuit at this link. (Thanks to Jason Rylander for the pointer.)
Posted at 14:18 by Howard Bashman



Access the Committee Print of the Senate Judiciary Committee's 2002 confirmation hearing for Fifth Circuit nominee Charles W. Pickering, Sr.: You can access it in either HTML or PDF format via this post at the Greedy Clerks Board.
Posted at 13:56 by Howard Bashman



"Scalia says he can't judge constitution on when it was written": Another report on yesterday's speech.
Posted at 13:41 by Howard Bashman



Ninth Circuit reinstates damages claim brought by FAA employee who objected to suspicionless search of his vehicle at entrance to Air Force Base: Today's opinion for a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit begins:
As a matter of first impression in this Circuit, we must decide when a search conducted at the entry gate to a military base is reasonable. Because such installations often warn of the possibility of search as a condition to entry, a warrantless search of a person seeking to enter a military base may be deemed reasonable based on the implied consent of the person searched. We remand to the district court to allow the development of a more complete factual record to determine whether implied consent was present here.
You can access the complete opinion at this link.
Posted at 13:29 by Howard Bashman



"GOP Fails to Break Judicial Filibuster": The Associated Press offers this report.
Posted at 13:13 by Howard Bashman



The third Miguel A. Estrada cloture vote fails by a vote of 55 for, 45 against: Sixty votes for were needed to invoke cloture. Fifty-five votes for is the same number of Senators who voted in favor of cloture in the first two cloture votes. Update: The official vote tally is now available via the U.S. Senate's Web site, and you can access it here.
Posted at 12:28 by Howard Bashman



"Judging Pay: Rehnquist has for years argued that low salaries threaten the quality of the nation's judiciary. He just hasn't made the case." Law Professor Steven Lubet has this commentary in the March 2003 edition of The American Lawyer.
Posted at 12:25 by Howard Bashman



Here's a problem of which I was unaware: The Associated Press reports here that the state Senate of Tennessee voted yesterday to ban the occupants of automobiles from watching pornography videos if the images can be seen by those outside the automobile.
Posted at 12:08 by Howard Bashman



The Miguel A. Estrada cloture vote (round three) is now underway: Results to follow soon. You can watch the vote live online here, via C-SPAN2.
Posted at 12:03 by Howard Bashman



Do-over: The Senate Judiciary Committee is scheduled to vote (again) on Priscilla R. Owen's nomination to serve on the U.S. Court of Appeals for the Fifth Circuit at a business meeting that will occur on Thursday, March 20, 2003. The Judiciary Committee has revamped its Web site a bit, and you can access here its newfangled "Report on Nominees" (PDF file).
Posted at 10:56 by Howard Bashman



You're welcome: Sam Heldman joins me in welcoming Clayton Cramer to The Volokh Conspiracy.
Posted at 10:51 by Howard Bashman



"'JEWBAN' plate A-OK, says DMV": Saturday's edition of The Miami Herald contained this report. And last Friday the Herald published an article entitled "'JEWBAN' to state: Hands off my plate!" Friday's article also explains whether a Florida resident was allowed to keep a license plate bearing the word "ATHEIST."
Posted at 10:41 by Howard Bashman



"Justice of top court visits UT for lecture": Today's edition of The Toledo Blade contains this report on Justice Antonin Scalia's visit yesterday to The University of Toledo. Today Justice Scalia is scheduled to speak at John Carroll University on the topic of "Catholicism and Justice."
Posted at 10:25 by Howard Bashman



And now, for my next trick: First, "How Appealing" -- with a crucial behind-the-scenes assist from Third Circuit Chief Judge Edward R. Becker -- convinced the Tenth Circuit to list precedential opinions separately from non-precedential opinions on that court's Web site.

Second, yesterday the Eleventh Circuit began to offer its published opinions in PDF format over the court's own Web site, as I noted here last night. Easy opinion access via the Eleventh Circuit's Web site has been something "How Appealing" has advocated almost since this blog's inception some ten months and twelve days ago.

What's next on my agenda? Convincing the U.S. Court of Appeals for the Sixth Circuit to issue online PDF opinions that are paginated in an actually useful format. (Click here for a recent example of what's wrong with the current format. And for examples of PDF opinion formats that make sense, click here, here, or here.)
Posted at 09:41 by Howard Bashman



Interesting law blog of the day: "The Trademark Blog."
Posted at 07:00 by Howard Bashman



On today's agenda: The U.S. Senate is scheduled to hold its third cloture vote today on the nomination of Miguel A. Estrada to serve on the D.C. Circuit. The past two cloture attempts both fell five votes short of the sixty needed to invoke cloture. Today's vote is expected to occur at noon eastern time.
Posted at 06:55 by Howard Bashman



Elsewhere in Tuesday's newspapers: Today's edition of The Los Angeles Times contains a front page article entitled "Cries for Freedom Still Ring: In long-ago lawsuits uncovered in St. Louis, slaves tell of their suffering. Dozens won release from bondage before all-white juries." An article reports that "Abortion Foe Says Slaying Was Unintended; James C. Kopp meant only to wound a Buffalo, N.Y., doctor in 1998, his lawyer argues. The trial of the onetime fugitive is finished in one day." Elsewhere, this article reports that "Ruling Might Aid Defense in Ex-Judge's Porn Case; Jurist calls the hacker who alerted police a government informant against Ronald Kline, raising constitutional concerns." From the forest comes news that "Tree-Sitters Forcibly Removed; With police help, Pacific Lumber Co. begins taking activists from redwoods." A report about a decision that the Supreme Court of California issued yesterday is entitled "Court Clarifies Rights of Defendants as Lawyers." And an op-ed by a former law clerk to U.S. Supreme Court Justice Antonin Scalia is entitled "Good for GM, Bad for Racial Fairness."

The Boston Globe reports here that "Victim's daughter says US lied about crash; Ruling from 1948 accident shapes national security law." From Buffalo comes an article entitled "Intent was to wound doctor, gunman's lawyer maintains." And an editorial is entitled "DNA tests' value."

USA Today reports here that "Trial for Muslim terror suspects is 'test for justice'; Prosecutors say group belonged to sleeper cell." And The Washington Times contains an op-ed by Bruce Fein entitled "Judges treading with care."
Posted at 06:30 by Howard Bashman



Today's FindLaw commentators: Julie Hilden has an essay entitled "A Unanimous Supreme Court Decision Means Whistleblowers Can Go After Counties, Not Just Companies," and guest contributor Paul R.Q. Wolfson has an essay entitled "Can Congress 'Find' That the Supreme Court Was Wrong About Evidence? It Attempts to Do Just That in a Pending Abortion Bill."
Posted at 06:25 by Howard Bashman



In Tuesday's newspapers: The New York Times reports here that "U.S. Seeks $289 Billion in Cigarette Makers' Profits." Adam Liptak has an article entitled "Texas Cases Challenged Over Officer's Testimony." And you can access here an article entitled "As Layoffs Rise, So Do Age-Discrimination Charges."

Finally for now, The Christian Science Monitor contains an editorial entitled "Terror Detainees and US Law."
Posted at 00:10 by Howard Bashman



Monday, March 17, 2003
Available online from law.com: You can access here an article entitled "Law Firm Sanctions Vacated by 2nd Circuit; Pennie & Edmonds had acted in good faith." I previously mentioned that ruling in a post you can access here. In news from Texas, "Court Sides With State in Mental Hospital Sovereign Immunity Case." Finally, Marcia Coyle reports here that "Outlook Brightens for Action on Asbestos; Lawmakers are closer on the issue."
Posted at 22:45 by Howard Bashman



Will miracles never cease! As of today, the Eleventh Circuit allows direct Internet access to its for-publication opinions via the court's Web site. You can access today's lone published opinion at this link. Today's opinion, ironically, is written by a Senior Circuit Judge sitting by designation from the U.S. Court of Appeals for the Sixth Circuit. Excellent work Eleventh Circuit, and welcome to the information age!
Posted at 22:29 by Howard Bashman



Word from the U.S. Senate on tomorrow's Miguel A. Estrada cloture vote: Just received the following email from someone who works at the U.S. Senate: "The cloture vote is at noon. There will be no debate prior to the vote. I do not know if Dr. Frist will be speaking following the vote, but suspect that he will not because they're trying to get back to the Budget and have time considerations there. So, in short, expect no news tomorrow."
Posted at 19:56 by Howard Bashman



And in other news from Ohio: The Dayton Daily News reports here that "Club drops student in pledge dispute."
Posted at 19:54 by Howard Bashman



"Supreme Court Justice Visits Toledo": The Associated Press provides this report on Justice Antonin Scalia's appearance today.
Posted at 19:53 by Howard Bashman



"High Court Won't Block Gulf Vet Execution": The Associated Press offers this report, which concludes: "If the execution [scheduled to occur tomorrow] proceeds, Jones would be the third person - after Oklahoma City bomber Timothy McVeigh and drug kingpin Juan Garza - put to death by the federal government since 1963."
Posted at 17:18 by Howard Bashman



"Plaintiffs Seek Anti-War Suit Rehearing": The Associated Press has this report from Boston.
Posted at 16:52 by Howard Bashman



"Justice O'Connor speaks on diversity": The Lantern -- The Ohio State University's student newspaper -- has this report (free registration required). The blog "Zipsix," meanwhile, has now also posted a report (free registration not required).
Posted at 16:48 by Howard Bashman



"S.C.'s Shedd sworn in as appeals court judge": This past Saturday's edition of The State contained this Fourth Circuit-related news.
Posted at 16:36 by Howard Bashman



Dahlia Lithwick is this week's Slate diarist: Her first entry, just posted online, begins: "A brief, precatory disclaimer, for those of you reading this week's 'Diary' in the hopes of gaining life-changing insight on the inner workings of the U.S. Supreme Court: I am 36 weeks pregnant and change. Which means that at any moment now, my belly button will simply pop out with a ping and the Wee Bald Stranger will be cooked--like a blueberry Poptart."
Posted at 15:05 by Howard Bashman



"A man who took power illegally is now taking us into war." Yale Law School Professor Jack M. Balkin speaks his mind in this post from earlier today at his blog, "Balkinization."
Posted at 14:45 by Howard Bashman



"Rule Breaker: When it comes to Helen Thomas, Miguel Estrada and acts of war, George W. Bush isn't big on convention." The American Prospect today offers this essay by Mary Lynn F. Jones.
Posted at 14:42 by Howard Bashman



"Keeping 2004 in focus": Today's edition of The Washington Times contains this commentary.
Posted at 14:40 by Howard Bashman



But is it cruel and unusual itchiness? The Associated Press this afternoon reports here that "Jail Seeks Source of Inmates' Itchiness." The Charleston Daily Mail provides additional coverage at this link.
Posted at 14:21 by Howard Bashman



Virgin Islands District Court Judge files amicus brief asking U.S. Supreme Court to hold that territorial courts are Article III courts: I received the following email this afternoon from a reader who clerks for a judge on a U.S. Court of Appeals:
I just wanted to alert you to an interesting development in Nguyen v. U.S., which is presently pending before the Supreme Court. As you know, Nguyen involves the consolidated appeal by two criminal defendants who were convicted of drug charges in the District Court of Guam. The convictions were upheld on appeal to the Ninth Circuit by a panel consisting of two regular Ninth Circuit Article III judges (Judges Schroeder and Goodwin) as well as Judge Alex Munson, the non-Article III judge of the District Court for the Northern Mariana Islands. The defendants filed a cert petition challenging the Ninth Circuit's judgment affirming their convictions, arguing that the judgment "is rendered invalid by the participation of a non-Article III judge on the panel." The Court granted cert last November, and argument is set for the 24th of this month.

The exciting development (limiting the domain to law geeks, of course) is that on Feb. 21, Judge Thomas Moore of the District Court of the Virgin Islands filed an amicus brief with the Supreme Court. Judge Moore's brief is certainly worth mention for its arguments alone -- e.g., that the Insular Cases should go the way of Plessy, and that territorial judge are de facto Article III judges -- but it is perhaps more notable for the simple fact that it represents the (to say the least) extremely unusual step of a currently-presiding judge filing a brief in a pending case. The ethical issues inherent in doing so are significant and challenging, and the brief is certain to raise a few eyebrows; indeed, it seems that raising a few eyebrows, and accordingly getting some publicity for the way we treat the territories generally and our territorial judges specifically, was much of Judge Moore's goal.
Thanks to the good folks at SCOTUSblog, I have been able to post a copy of Judge Moore's amicus brief at this link. I previously discussed the Nguyen case and provided links to additional background materials in a post you can access here.
Posted at 14:14 by Howard Bashman



Must be a hub-and-spokes type: Clayton Cramer becomes the twelfth person to join "The Volokh Conspiracy." Only time will tell whether Clayton's writings about the Ninth Circuit will become more respectful.
Posted at 13:19 by Howard Bashman



"20 questions for the appellate judge," part three: I have just dispatched via email 20 questions to the third appellate judge who volunteered to participate in this Web log's newest monthly feature, "20 questions for the appellate judge." My questions and the interviewee's answers are due to be published online here on Monday, April 7, 2003. April's interviewee serves on a state court of last resort located in the South, and I for one am very much looking forward to her answers. You can access the first two installments of the "20 questions" feature here. Five interview slots remain open for the balance of 2003, and those slots will be filled by the next five appellate judges who volunteer to be interviewed. To volunteer, simply send me an email from your official court address, and I'll promptly respond to advise you of the month in which your interview will appear and the date on which you can expect to receive your written questions from me.
Posted at 12:49 by Howard Bashman



Interesting law blog of the day: "FourthAmendment.com."
Posted at 09:44 by Howard Bashman



"The Left's Estrada plan revealed!" Robert Alt offers these thoughts this morning at National Review Online.
Posted at 09:36 by Howard Bashman



"Falsely Accused 'Enemies' Deserve Due Process": Stuart Taylor Jr. has this essay in the current issue of National Journal.
Posted at 09:32 by Howard Bashman



"Race-Related Cases Test Court's Mettle, Justice Says at OSU": Saturday's edition of The Columbus Dispatch contained this report. Meanwhile, today's edition of The Michigan Daily reports here that "BAMN rallies during O'Connor speech."
Posted at 06:50 by Howard Bashman



Elsewhere in Monday's newspapers: In The Washington Times, Frank J. Murray reports that "Execution rate drops as scrutiny intensifies." And Nat Hentoff has an op-ed entitled "A secret quota."

Today's edition of The Los Angeles Times contains an article entitled "Terror Plots, Not Actions, Go on Trial; Ashcroft hails four cases against disaffected U.S. citizens or immigrants. Foes cite poor judgment." And David Cole has an op-ed entitled "Still No Equal Justice for Poor."
Posted at 06:40 by Howard Bashman



In Monday's newspapers: The New York Times contains an article entitled "As Abortion Battle Escalates, Both Sides Look to the Supreme Court." From Detroit comes news that "Trial Set to Begin for Four Men Accused of Being in Terror Cell." And letters to the editor appear under the heading "Filtering the Web, for Better or Worse."

Finally for now, The Washington Post reports here that "Abortion Doctor's Killer Waives Jury Trial."
Posted at 00:16 by Howard Bashman



Sunday, March 16, 2003
"Elected judges are best for Texas": Today's edition of The Jacksonville Daily Progress contained this op-ed.
Posted at 23:37 by Howard Bashman



"Black groups shunning Pickering": The Clarion-Ledger last Tuesday contained this article.
Posted at 23:35 by Howard Bashman



Reader mail: The following email arrived just a few moments ago:
I don't know about you, but I thought that piece by Linda Greenhouse in the New York Times today about Chief Justice Rehnquist epitomized unconscious liberal bias. Let's rehash the facts. In the Rummel case, a criminal defendant challenged the state's "three-strikes" law, claiming that he had a constitutional right to not be punished severely as a recidivist felony offender. This was a novel claim, and the Court rejected it, declining the invitation to create a new constitutional right. As Greenhouse concedes, and as C.J. Burger laid out in dissent, the Court ignored Rummel in Solem v. Helm and decided there that the Constitution indeed created just such a right. (By way of full disclosure, I clerked for [name of U.S. Supreme Court Justice omitted] that term.) In the current case, the Court has discarded Solem and returned to the Rummel holding. Greenhouse characterizes all this as a product of a decades-long campaign by Rehnquist to "turn the court toward greater deference to the states." Her implication is that Rehnquist is a radical, intent on imposing dramatic changes on our constitutional structure. Of course, that is not what these cases illustrate at all. What they illustrate is that Rehnquist and his colleagues are unreceptive to claims that the courts should create new constitutional rights which have no basis in this country's history or its jurisprudence. What is remarkable to me is how Greenhouse views the liberal justices' willingness to create brand new rights as the norm, while the refusal to do so is somehow underhanded and sneaky.
You can access the article that is the subject of the above email at this link.
Posted at 22:20 by Howard Bashman



"Captures reopen tribunal questions; Terrorism suspects seen as candidates": Today's edition of The Chicago Tribune offers this report. (Via "TalkLeft.")
Posted at 20:39 by Howard Bashman



On the eve of Justice Antonin Scalia's three-day tour through Ohio: Justice Sandra Day O'Connor spoke this past Friday at the Moritz College of Law of The Ohio State University. The Law School has a press release that reports on Justice O'Connor's visit, and you can access photos here.
Posted at 20:34 by Howard Bashman



Senator Arlen Specter (R-PA) says Miguel A. Estrada will be confirmed to serve on the D.C. Circuit: See this article published in today's edition of The Pittsburgh Post-Gazette.
Posted at 18:10 by Howard Bashman



Opinions from Denver: Today's edition of The Rocky Mountain News contains an editorial entitled "Filibustering Estrada." And today's edition of The Denver Post contains an op-ed by Al Knight entitled "Why they change the subject."
Posted at 18:00 by Howard Bashman



Coming soon to a newsstand near you: The March 24, 2003 edition of Newsweek contains an article entitled "Rumble for the Robes: Miguel Estrada is no household name. But both parties see his bid for a judgeship as an issue in 2004." And the March 24th edition of U.S. News and World Report contains an article entitled "Docs vs. lawyers: Who should decide when and how to perform an abortion?"
Posted at 17:58 by Howard Bashman



"Top justice to render law views in UT talk; High court's Scalia gives pointed opinions": Today's edition of The Blade of Toledo, Ohio contains this report.
Posted at 17:57 by Howard Bashman



Interesting law blog of the day: "Legal Theory Blog."
Posted at 17:56 by Howard Bashman



Too nice out to blog: It's sunny and nearly 70 degrees outside -- the first warm day in who remembers how long -- so I'll see you again after sundown.
Posted at 13:11 by Howard Bashman



In Sunday's newspapers: In today's edition of The New York Times, Linda Greenhouse has an article entitled "For a Supreme Court Graybeard, States' Rights Can Do No Wrong." Adam Liptak reports here that "Condemned Killer Exposed to Nerve Gas Seeks Mercy" and also has an article entitled "You Think DNA Evidence Is Foolproof? Try Again." The Week in Review section reports that "The Senate Acts on Abortion." And in local news, "Antiwar Group Gets a Permit for a March."

The Washington Post reports here that "Tabloid's First Amendment Suit Against St. Mary's Stands." And you can access here an article entitled "Malvo Writings Found in Cell, Authorities Say; Notes, Drawings Refer To Reggae, Philosophers."

Today's edition of The Los Angeles Times reports here that "FBI Casts Wide Net to Battle Terrorism; Separating those who pose a threat from mere sympathizers proves complex. Investigators are using their powers like never before." This article from The Associated Press is entitled "Informants May Get a Pass on Murder; Former FBI agents say violent crimes can be ignored because they are seen as a necessary evil of criminal investigation." In letters to the editor, several letters run under the heading "Laws That Put 'God' on Money and in Pledge," while a single letter runs under the heading "Judicial Nominees."

Finally for now, The Boston Globe contains an op-ed by Ellen Goodman entitled "A final skirmish in war against consensual sex."
Posted at 11:00 by Howard Bashman



Saturday, March 15, 2003
Tonight on C-SPAN's "America and the Courts": The online program guide provides this description of tonight's show: "This week, America and the Courts presents a portion of the Senate's debate on judicial nominations from Tuesday, March 11, 2003. With Vice President Dick Cheney presiding, the Senate debated Miguel Estrada's nomination to the U.S. Court of Appeals for the DC Circuit. The Senate began debating Mr. Estrada's nomination on February 6th. On Thursday, March 20, 2003 the second cloture vote also failed with a vote of only 55 out of the 60 votes needed for ending debate."
Posted at 15:14 by Howard Bashman



"U.S. Supreme Court Justice Scalia to Speak Monday": On Monday, March 17, 2003, Justice Antonin Scalia will speak at the University of Toledo, according to this press release (and this one, too). The event is sponsored by The University of Toledo College of Law.

On Tuesday, March 18th, Justice Scalia is scheduled to speak at John Carroll University on the topic of "Catholicism and Justice."

Finally, on Wednesday, March 19th, Justice Scalia will receive The Citadel of Free Speech Award from the City Club of Cleveland and will deliver a speech at the event.
Posted at 14:57 by Howard Bashman



"Estrada opposition short on facts": The Arizona Republic today contains this letter to the editor.
Posted at 14:53 by Howard Bashman



"It's often a win when Court doesn't act": Yesterday's edition of Indian Country Today contained this article. And you can access here an editorial entitled "Supreme Court deals a win and a lesson."
Posted at 14:52 by Howard Bashman



"Assistant Attorney General Jay Bybee Confirmed as Ninth Circuit Judge": The Metropolitan News-Enterprise yesterday provided this report.
Posted at 14:50 by Howard Bashman



"Library cops: Can Washington require Internet 'filters'?" Today's edition of The Pittsburgh Post-Gazette contains this editorial.
Posted at 14:49 by Howard Bashman



"Victim's family stunned by stay in Banks case": Yesterday's edition of The Houston Chronicle contained this report.
Posted at 14:46 by Howard Bashman



"What, besides ethnicity, explains the disparate treatment of these two judicial nominees?" The Committee for Justice yesterday issued this press release.
Posted at 14:44 by Howard Bashman



Ruby, Zeus, and Miguel A. Estrada: The photo that The Washington Post left out of the online version of its profile yesterday of this D.C. Circuit nominee can now be viewed online here, courtesy of The Detroit News.
Posted at 14:42 by Howard Bashman



Interesting law blog of the day: "How Green Is My Country."
Posted at 09:49 by Howard Bashman



"Eyman a 'horse's ass'? We may never know": In law-related news from Washington State, The Seattle Times brings us this report from The Associated Press. Today's edition of The Seattle Post-Intelligencer contains an article entitled "A bum rap? Eyman initiative is ruled out." And a Web site in support of the ballot initiative in question can be accessed here.
Posted at 09:36 by Howard Bashman



In Saturday's newspapers: Today's edition of The New York Times contains a lengthy article by Eric Lichtblau with Adam Liptak entitled "On Terror and Spying, Ashcroft Expands Reach." You can access here an article entitled "Battle Over Judgeship Tests Congressman's Loyalties." In news from Connecticut, "6 Men Say They Drove Girls to Ex-Mayor." And this report states that "5 in Jogger Case Plan to Sue, Lawyers Say."

The Washington Post reports here that "U.S. Files Terror Briefs in Secrecy; 4th Circuit to Rule In Moussaoui Case." And an article bears the headline "More Experts Sought For Malvo Defense; Lawyers Ask Judge to Limit Testimony."

In The Boston Globe, Lyle Denniston reports that "Lawyers hoping to avert war plan push to reopen case."

Today's edition of The Los Angeles Times contains an article entitled "Torture, handled lightly" and a related article entitled "The art of interrogation: Experts say subtle psychological ploys may be better than thumbscrews when it comes to getting terror suspects to confess." An article that could have received the headline "Good news for Good News" instead is entitled "District Drops Fee for Campus Use by Religious Groups; Sponsors of evangelical club said the $60 charge was unconstitutional. Others had free access." Finally, letters to the editor run under the heading "Fallout of Three Strikes."
Posted at 08:59 by Howard Bashman



Friday, March 14, 2003
In news from Columbus, Ohio: You can access here a report entitled "Affirmative Action Rally Greets Justice O'Connor; Court To Hear Case April 1." And yes, zipsix was present for Justice O'Connor's speech and promises a full report soon.
Posted at 22:49 by Howard Bashman



Available online at law.com: "Democrats Likely to Filibuster Owen Nomination," this article reports. Tony Mauro has an article entitled "Supreme Court May Revisit Same-Sex Harassment Issue." In news involving the Third Circuit, Shannon P. Duffy reports here that "3rd Circuit Opts to Drop Class Action Appeal; Action sets aside panel decision viewed as short-circuiting class actions" and here that "TWA Vouchers Ruled Invalid After Sale of Airline's Assets." Finally, The Recorder of California runs comments from individuals serving "Three Strikes" sentences in that State, and you can access here an essay entitled "Gideon's Gift."
Posted at 22:24 by Howard Bashman



En banc Fifth Circuit upholds death sentence of Texas defendant who alleged abuse endured as a child as a mitigating circumstance: Today an overwhelming majority of the en banc U.S. Court of Appeals for the Fifth Circuit rejected a Texas death row inmate's challenge to jury instructions that, according to the inmate, did not allow the jury at sentencing to give adequate consideration to mitigating evidence that he had been subjected to abuse as a child. Although the defendant's jury received the same instructions that the U.S. Supreme Court found to be unconstitutional in Penry v. Johnson (2001), today the Fifth Circuit ruled that the instructions were adequate in this defendant's case. You can access the en banc court's decision and the opinions concurring in and dissenting from the decision at this link.
Posted at 19:42 by Howard Bashman



Dissent accuses Second Circuit majority of creating circuit split on standard for imposing Rule 11 sanctions: Today a three-judge panel of the U.S. Court of Appeals for the Second Circuit issued a decision that, by a 2-1 vote, vacated a federal district court's imposition of Rule 11 (Fed. R. Civ. P. 11) sanctions against the law firm of Pennie & Edmonds LLP.

In dissent, District Judge Stefan R. Underhill of the U.S. District Court for the District of Connecticut, sitting by designation, writes:
Prior to 1983, the imposition of sanctions under Rule 11 required a finding of subjective bad faith. When amending Rule 11 in 1983, however, the drafters abandoned the subjective bad faith standard and adopted a standard of "reasonableness under the circumstances." Since adoption of the 1983 amendments, the Supreme Court and every court of appeals has held that district courts should apply an objective reasonableness test when deciding whether Rule 11 has been violated. With today's decision, the Second Circuit becomes the first and only court to hold that the 1993 amendments to Rule 11 reverted to the pre-1983 subjective bad faith standard for even a subset of Rule 11 sanctions. The majority bases its holding principally on a single sentence from the Advisory Committee notes to the 1993 amendments and on its own policy analysis. In my view, neither basis can support the weight of today's decision. Accordingly, I respectfully dissent.
You can access the majority opinion here and the dissenting opinion here. As of this moment, the law blog "Rule 11" contains no mention of this decision.
Posted at 17:06 by Howard Bashman



"Flight Attendants Lose Settlement Gains": The Associated Press has this article about a ruling that the U.S. Court of Appeals for the Third Circuit issued yesterday.
Posted at 16:29 by Howard Bashman



At least it's only Canadian money: The Globe and Mail of Toronto reported here last Friday that "The federal government lost $1.26-billion in uncollected taxes in an instant Thursday, when the Supreme Court of Canada ruled in favour of a Vancouver stock promoter who defaulted on his back taxes." The Ottawa Citizen provided a similar report, here.
Posted at 16:08 by Howard Bashman



"The Supreme Court avoids being a superlegislature": Terry Eastland weighs in on several of last week's U.S. Supreme Court rulings.
Posted at 16:04 by Howard Bashman



"Try, Try Again: The Senate passes a partial-birth abortion ban. The president says he'll sign it. Will it hold up before the Court?": The Weekly Standard today offers this op-ed by Rachel DiCarlo. And UPI features commentary by legal affairs correspondent Michael Kirkland entitled "Partial-birth hypocrisy."
Posted at 16:00 by Howard Bashman



"What sentence is too harsh for a 14-time loser?": James J. Kilpatrick has this op-ed in today's edition of The Repository of Canton, Ohio.
Posted at 15:53 by Howard Bashman



From the transcript of today's White House press briefing:
Q I have one more. On Miguel Estrada, two failed crucial votes, and another scheduled for next Tuesday. How long is the President going to continue this stalemate, when it is now obvious Democrats won't budge on the nomination?

MR. FLEISCHER: I think the issue is how long will the liberal Democrats choose to pursue obstruction. The President has already answered his part of that question, and he says he will continue to fight of Miguel Estrada until the day he is sworn-in.
You can access the complete transcript at this link.
Posted at 15:43 by Howard Bashman



It's happened before: Law Professor Eric L. Muller explains here on his "Is That Legal?" blog that a congressional committee's subpoena requiring a federal judge to explain his or her judicial actions isn't exactly unprecedented.
Posted at 14:49 by Howard Bashman



How many ways can one photograph a blue vodka bottle? Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued an opinion that begins, "This long-running litigation is fundamentally about how many ways one can create an advertising photograph, called a 'product shot,' of a blue vodka bottle. We conclude there are not very many." You can access the opinion here and a photograph of the product in question here.
Posted at 14:19 by Howard Bashman



This afternoon's Miguel A. Estrada confirmation battle round-up: Today's edition of The Chicago Tribune reports here that "Neither side blinking in Senate judicial fight." The Miami Herald reports here that "Florida's Sen. Graham helps block vote on Hispanic judicial nominee." The Post-Tribune reports here that "Hispanic group faults Bayh on nomination." And Reuters reports here that "Sen. Lott Urges Peace on Judicial Nominations."

In commentary, UPI runs an essay by John C. Armor entitled "Stop judicial filibusters." Juan Andrade has an op-ed entitled "Bush doesn't get it: Not just any Latino judge will do" in today's edition of The Chicago Sun-Times. And George Knapp has an essay entitled "GOP faces losing battle over Estrada nomination" in The Las Vegas Mercury.
Posted at 13:01 by Howard Bashman



"Plaza appeal goes to top court ; LDS Church wants a 'public forum' injunction reversed": Yesterday's edition of The Deseret News contained this report.
Posted at 12:45 by Howard Bashman



"Don't Mess with Texas; Non-issue holding Justice Owen": National Review Online today features this essay by Christopher Flannery.
Posted at 12:42 by Howard Bashman



"Democrat attack milder at second Owen hearing": Today's edition of The Austin American-Statesman contains this report, which notes at its conclusion that "A third Estrada [cloture] vote is scheduled for Tuesday as the GOP tries to pressure Democrats into abandoning the filibuster tactic."
Posted at 11:44 by Howard Bashman



"The real Priscilla Owen": U.S. Senator John Cornyn (R-TX) had this op-ed in yesterday's edition of The Austin American-Statesman.
Posted at 11:23 by Howard Bashman



"An OK for Estrada won't help nation": Today's edition of The San Antonio Express-News contains this op-ed by Congressmen Ciro D. Rodriguez (D-TX) and Charles Gonzalez (D-TX).
Posted at 10:48 by Howard Bashman



"Clerking for the Supreme Court": The March 2003 edition of Washington Lawyer contains this lengthy and interesting article. (Via SCOTUSblog.)

Update: A reader emails to note that the article contains an inexplicable error, stating that former D.C. Circuit Chief Judge Harry T. Edwards -- who continues to serve as an active D.C. Circuit judge -- instead works on the U.S. Court of Appeals for the Third Circuit.
Posted at 10:14 by Howard Bashman



For your viewing pleasure: The Senate Judiciary Committee has archived the video feed of yesterday's hearing entitled "Setting the Record Straight: The Nomination of Justice Priscilla Owen." So if you find yourself with an extra nine hours or so, be sure to take a look.
Posted at 10:04 by Howard Bashman



"Equal time for protest signs: In a controversial decision, a federal court says that if California allows Old Glory to hang from overpasses, it must allow political banners, too." Salon.com today features this essay (which means click soon, before that site runs out of money).
Posted at 09:33 by Howard Bashman



"Gays and Genes": The March 27, 2003 edition of The New York Review of Books contains this book review, which happens to mention the U.S. Supreme Court.
Posted at 09:27 by Howard Bashman



Forget Texas; Delaware is the death penalty capital of the USA: At least on a per-capita basis, blogger "Edward Boyd" asserts here.
Posted at 09:23 by Howard Bashman



"Bybee OK'd for federal judge post; Senate confirms ex-UNLV professor for 9th Circuit Court": Today's edition of The Las Vegas Review-Journal contains this report. Additional background on the Bybee nomination is available from The Las Vegas Sun, which has previously published pieces entitled "Bybee vote becomes example of bipartisan cooperation"; "Bybee at heart of three-nominee circus"; "Senate panel OKs ex-UNLV law professor for judge post"; and "Former LV law professor questioned on legal views; Senate panel grills appeals court nominee Bybee about 1989 probe."
Posted at 09:15 by Howard Bashman



In Friday's newspapers: Today's edition of The Washington Post contains a lengthy profile of D.C. Circuit nominee Miguel A. Estrada that runs under the headline "A Man on Hold; While the Senate Debates, Judicial Nominee Miguel Estrada Waits. And Waits." You can access here an article entitled "Senate Moves to Restrict Abortions; Ban on Late-Term Procedure Passed." This article reports that "House Votes To Cap Damages For Medical Malpractice; In Suits, Punitive Awards Could Not Exceed $250,000." In local news, "D.C. Killers Get Life After Stalemate on Death Penalty." An article reports that "New Va. Tech Rules Rile Warner, Campus; Surprise Move By Board Halts Affirmative Action." You can access here a report entitled "Medical Marijuana Advances in Md. House." Tax day is just one month and one day away, I'm reminded by an article entitled "U.S. Seeks to Shut Down Income Tax Foe; Pressing Recent Attack, Government Accuses Schiff of Encouraging Evasion" And an editorial bears the headline "Watching Guantanamo."

The New York Times reports here that "Judicial Nominee Gets Second Chance." You can access here an article entitled "Lopsided Vote in Senate to Ban Type of Abortion." This article reports that "House Acts to Limit Malpractice Awards." In local news, you can access here an article entitled "New Jersey Adopts Ban on Racial Profiling" and here an article entitled "Prostitute Recounts Ex-Mayor's Trysts With 2 Girls." And here's an article entitled "Judge to Intervene in Tax Case."

The Washington Times reports here that "Senate Democrats block Estrada again." An article reports that "Senate OKs ban on late abortions." You can access here an article entitled "Teen access to porn on Web angers Hill." And this article reports that "Warner assails Va. Tech move."

The Los Angeles Times reports here that "Conservative Confirmed as 9th Circuit Judge; The Justice Department official will fill one of three vacancies on the appeals court, which some have criticized as too liberal." In somewhat related news, "Caltrans Can't Choose Banners, Court Rules; The agency violated free speech rights by allowing flags but not antiwar signs on highway overpasses, the 9th Circuit finds." This article reports that "Senate OKs Bill to Curb Abortions; Republican-backed measure would outlaw a midterm procedure. House expected to pass ban. Bush hails vote, but critics vow a fight." You can access here an article entitled "House Would Expand Malpractice Shield; Under bill, hospitals, HMOs and others would also be protected from unlimited awards." And an article reports that "Stern Sues ABC Over TV Show."

Bob Egelko of The San Francisco Chronicle reports here that "U.S. flag denied special status on freeways."

Today's edition of The Christian Science Monitor contains an article entitled "In Texas, new option for murder sentencing? 11th-hour stay of execution raises core questions, as state ponders life without parole."

And finally, The Boston Globe reports here that "Senate OK's ban on a late-term form of abortion."
Posted at 08:11 by Howard Bashman



Interesting law blog of the day: "actualmalice.com."
Posted at 08:05 by Howard Bashman



"No Indefinite Detention; Illegal Aliens Cannot Be Held, Even if Home Countries Won't Take Them": I'm quoted in this article, which appears in the online version of the ABA Journal today, concerning a very important recent en banc decision of the U.S. Court of Appeals for the Sixth Circuit.
Posted at 06:16 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Court Affirms Rejected Anti-War Lawsuit"; here, "Court Nullifies Calif. Freeway Policy"; here, "Political Parties Court Hispanic Vote"; and here, "Calif. Tree Sitters Refuse to Budge."
Posted at 06:11 by Howard Bashman



Thursday, March 13, 2003
Spell check doesn't always catch every error: A pointer from Denise Howell leads to what may be one of the most amazing typos of all time found in a law firm's retainer letter.
Posted at 23:37 by Howard Bashman



What I meant to say was "procedurally out of luck": An email arrives forwarded fifth-hand suggesting that a Web filter in use at the U.S. District Court for the Central District of California blocks access to "How Appealing" because this blog is classified as objectionable. Now there certainly are days when I am of the view that it wouldn't be such a bad thing if over-aggressive Web filters entirely blocked access to my blog, so that I could shut down the blog, spend my free time doing something much less constructive, and no one would notice or complain. But don't despair, because I've promised myself to keep "How Appealing" in existence at least until I reach the age of forty on October 28, 2004. After that, all bets are off. As for why Web filtering software may find my blog currently objectionable -- perhaps I shouldn't have written here recently that the respondent in Lockyer v. Andrade, No. 01-1127 (U.S. Mar. 5, 2003), was "procedurally screwed"?
Posted at 23:12 by Howard Bashman



Tomorrow Justice Sandra Day O'Connor will speak at the Moritz College of Law of The Ohio State University: Limited details are available here. Will the author of the blog "zipsix.com" be in attendance to provide a report? Time will tell.
Posted at 23:03 by Howard Bashman



Judicial confirmation news and commentary from here and there: The Atlanta Journal-Constitution reports here that "Senate again fails to force vote on Estrada" and here that "Metro Latinos split over Estrada judicial nomination."

In commentary, today's edition of The Ft. Worth Star-Telegram contains an op-ed entitled "Courts do matter." The Arkansas Democrat-Gazette contains an op-ed entitled "The race card and how to play it." And The Sun of Western Puget Sound, Washington contains an op-ed entitled "Miguel Estrada: Hostage of the Democrats."
Posted at 22:35 by Howard Bashman



Available online at law.com: You can access here an article entitled "New Light on Old Defense of 'Secrets'; Writ attacks a 1953 high court ruling." In news from the Eleventh Circuit, Jonathan Ringel reports that "Winning Immigration Lottery Pays Nothing; Kenyan loses bid to revive visa application killed by the INS' inaction." And an article is entitled "California Justices Wary of the Hunt for 'Lost' Punitive Damages."
Posted at 22:20 by Howard Bashman



In news from Washington State: Yesterday's edition of The Seattle Post-Intelligencer contained an article entitled "Justice Bridge wants to earn public's trust; She may recuse herself from cases of drunken driving" and an op-ed entitled "Fascination with pie-eyed politicians is staggering." Yesterday's edition of The Seattle Times, meanwhile, contained an article entitled "Bridge faces questioners." Finally, courtesy of FindLaw, is the DUI report itself, or at least a heavily redacted version thereof.
Posted at 22:14 by Howard Bashman



Today's FindLaw commentators: Law Professor Marci Hamilton has an essay entitled "The Supreme Court's 'Three Strikes' Opinion: Another Strike for Federalism," while Shavar D. Jeffries has an essay entitled "An Unusual Dissent By Justice Clarence Thomas In a Case Alleging the Use of Race-Based Challenges During Jury Selection Shows His Willful Blindness On Race Issues."
Posted at 22:11 by Howard Bashman



"New committee hearing, same questions for Owen; Judicial pick still trying to get past critics' conservative label": Tomorrow's edition of The Dallas Morning News will contain this report.
Posted at 22:09 by Howard Bashman



"Senate Confirms Jay S. Bybee to Serve on Court of Appeals": The Ninth Circuit this evening has issued this press release.
Posted at 20:31 by Howard Bashman



U.S. Senate confirms Jay S. Bybee to seat on U.S. Court of Appeals for the Ninth Circuit: Congratulations to Jay S. Bybee, whom the U.S. Senate confirmed this afternoon by a vote of 74-19 to a seat on the U.S. Court of Appeals for the Ninth Circuit. Soon-to-be Judge Bybee is the second nominee of President George W. Bush to reach the Ninth Circuit, and his chambers will be located in Nevada. Following today's confirmation, the Ninth Circuit has three vacancies (including one seat for which President Bush has not yet nominated anyone) and one future vacancy that is scheduled to occur on November 14, 2003.
Posted at 19:33 by Howard Bashman



"The Show Trial Must Go On: John Ashcroft choreographs the show trial of the century." Dahlia Lithwick's latest -- about the trial of Zacarias Moussaoui -- is now available online at Slate.
Posted at 19:22 by Howard Bashman



"Partisan Struggle in Senate Over Bush Judicial Nominees": The New York Times has just posted online this article by Neil A. Lewis.
Posted at 16:35 by Howard Bashman



"Bloggers on parade": This article appears in today's edition of The Baltimore Sun. (Via "Obscure Store," where the article is summarized as "Blogger who gets 100 visitors daily says it's 'the ultimate ego trip.'" Too funny.)
Posted at 16:30 by Howard Bashman



"President Calls on Senate to End Judicial Nomination Delays": President George W. Bush has issued a statement following this afternoon's second failed attempt at cloture on the Miguel A. Estrada nomination in the U.S. Senate.
Posted at 16:18 by Howard Bashman



"Justice Depart. Eyes Moussaoui Compromise": The Associated Press provides this report, which previews an appellate brief that the U.S. Department of Justice is due to file tomorrow in the U.S. Court of Appeals for the Fourth Circuit.
Posted at 16:15 by Howard Bashman



"Is It Ever All Right To Torture Suspected Terrorists?" Columnist Stuart Taylor Jr. addresses this question in his column in this week's edition of National Journal.
Posted at 16:04 by Howard Bashman



Some judiciary-related commentary from Philadelphia: Yesterday's edition of The Philadelphia Inquirer contained an op-ed entitled "Disabling rights for us all" that opposes Jeffrey S. Sutton's confirmation to the U.S. Court of Appeals for the Sixth Circuit. And yesterday's edition of The Philadelphia Daily News contained a column entitled "Voters will get another shot at Judge Lynn," which leads off "There's arrogance. And then there's James Murray Lynn."
Posted at 15:45 by Howard Bashman



"Senator Hatch's Double Standards and Abuse of Power": The group People For the American Way has today issued this press release. Thanks to Law Professor Rick Hasen for the pointer via his "Election Law" blog.
Posted at 15:44 by Howard Bashman



"Journey Into The Unknown": What's a federal court to do when forced to predict a difficult, unsettled issue of state law? My monthly appellate column for March 2003, originally published on Monday of this week in The Legal Intelligencer, is now available online here.
Posted at 15:11 by Howard Bashman



"Graham Votes to Uphold Estrada Filibuster": The Associated Press provides this report.
Posted at 15:07 by Howard Bashman



Second cloture motion on Estrada nomination fails by vote of 55 for, 42 against: Sixty votes were needed to invoke cloture. Today's fifty-five votes for cloture is identical to the number of Senators who voted for cloture one week ago today. Update: Today's official roll call tally is now available online here.
Posted at 14:43 by Howard Bashman



By vote of 8-4, Fourth Circuit denies rehearing en banc in newspaper confiscation First Amendment case: You can access yesterday's Fourth Circuit order denying rehearing en banc at this link. Back on January 16, 2003, the day the three-judge panel's opinion issued, I wrote a post about the ruling entitled "Fourth Circuit reinstates fascinating free press federal civil rights claim."
Posted at 13:51 by Howard Bashman



Today's Ninth Circuit ruling of note: Today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a federal trial court's preliminary injunction that prohibits the California Department of Transportation from following its policy of exempting American flags from permit requirements pertaining to highway overpasses but requiring permits for, or prohibiting altogether, the display of all other expressive signs and banners on such overpasses. The majority opinion, written by Circuit Judge Kim McLane Wardlaw, concludes:
In the wake of terror, the message expressed by the flags flying on California's highways has never held more meaning. America, shielded by her very freedom, can stand strong against regimes that dictate their citizenry's expression only by embracing her own sustaining liberty.
You can access the complete ruling at this link.
Posted at 13:32 by Howard Bashman



Second Estrada cloture vote rescheduled to occur at 2:15 p.m. today: A reader who works at the U.S. Senate emails to advise that the Senate has moved to 2:15 p.m. today the cloture vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 13:24 by Howard Bashman



"Owen Vows to Senate She'll Judge Fairly": The Associated Press offers this report.
Posted at 12:51 by Howard Bashman



Miguel A. Estrada cloture vote postponed? Instead of proceeding to a vote on cloture, which had been scheduled for 12:30 p.m. today, it appears that the U.S. Senate is moving directly to debate the nomination of Jay S. Bybee to serve on the U.S. Court of Appeals for the Ninth Circuit. The Senate is likely to confirm Bybee's nomination today.
Posted at 12:32 by Howard Bashman



In Thursday's newspapers: Today's edition of The New York Times contains an editorial entitled "Hold Firm on Estrada." An article is entitled "Frist Forsakes Deal Making to Focus on Party Principles." You can access here an article entitled "Texas Death Row Inmate Gets a Last-Minute Stay." This article reports that "Senate G.O.P. Holds Firm as Vote on Abortion Nears." In news from Connecticut, "U.S. Sex-Abuse Trial of Former Waterbury Mayor Opens." And an article reports that "Restaurateurs Sue to Block Nassau County's Ban on Smoking."

The Los Angeles Times reports here that "Latinos' Response to Estrada Is Mixed; Some see his judicial nomination as tokenism, others as a plus. But there's no groundswell to see him on U.S. appellate court." You can access here an article entitled "Supreme Court's Reprieve Halts Texas Execution at Last Minute; The justices, who rarely agree to hear such cases, issued stay without explanation." David G. Savage reports here that "Logic of Debate on Abortion Is Questioned; Mothers' safety is key, say doctors opposed to Senate bill outlawing midterm procedure."

In The Washington Post, Charles Lane reports here that "Tex. Execution Stayed at Last Minute; Supreme Court Considers Review." An article reports that "Senate Supports Roe Ruling but Advances Bill Limiting Abortion." And in news involving Zacarias Moussaoui, this article reports that "Judge Limits Sites To View Terror Trial; Prosecution's Expansion Effort Rejected."

The Boston Globe reports here that "Lawyer accuses firm of pregnancy bias; Says Goodwin Procter denied her partnership." And this article reports that "Activist waives jury murder trial; Man admitted killing N.Y. abortion doctor in 1998, can't testify."

Finally for now, The Christian Science Monitor contains an op-ed entitled "The true affirmative action."
Posted at 12:09 by Howard Bashman



BREAKING NEWS -- First Circuit affirms dismissal of suit challenging President's authority to initiate war against Iraq: You can access today's ruling of the U.S. Court of Appeals for the First Circuit at this link. The unanimous opinion begins:
Plaintiffs are active-duty members of the military, parents of military personnel, and members of the U.S. House of Representatives. They filed a complaint in district court seeking a preliminary injunction to prevent the defendants, President George W. Bush and Secretary of Defense Donald Rumsfeld, from initiating a war against Iraq. They assert that such an action would violate the Constitution. The district court dismissed the suit, and plaintiffs appeal. We affirm the dismissal.
And the opinion concludes:
As the circumstances presented here do not warrant judicial intervention, the appropriate recourse for those who oppose war with Iraq lies with the political branches.
Circuit Judge Sandra L. Lynch wrote the opinion of the court.
Posted at 11:55 by Howard Bashman



"More Racial McCarthyism; Why Estrada is being held back": Peter N. Kirsanow, who serves as a member of the U.S. Commission on Civil Rights, has this essay today at National Review Online.
Posted at 11:53 by Howard Bashman



299 and counting, part two: You can access here the U.S. Supreme Court's stay order issued yesterday evening stopping what would have been Texas' 300th execution since the State resumed capital punishment in 1982. As several readers have emailed to note in response to my related post from last night, "The Supreme Court's stay of Mr. Banks's execution would probably set some kind of record if it meant to give other states a fighting chance to catch up. As you can see by visiting this Death Penalty Information Center link, Virginia comes in second to Texas' 299 with 87 executions since 1976."
Posted at 11:48 by Howard Bashman



"House may subpoena Minnesota's chief federal judge": Today's edition of The Minneapolis Star Tribune reports here that "In a highly unusual development, the House Judiciary Committee is considering issuing a subpoena to force Minnesota's chief federal judge to turn over his records as part of a broader investigation into drug sentences."
Posted at 11:39 by Howard Bashman



On the agenda: Blogger Pro has been offline all morning, but now it's back. Already this morning, the U.S. Senate voted 64-33 to approve a ban on so-called "partial-birth abortion." The Associated Press has this report. And you can access the official vote tally here.

At 10:30 a.m. this morning, the Senate Judiciary Committee began a hearing entitled "Setting the Record Straight: The Nomination of Justice Priscilla Owen." So far, the hearing has consisted of the statements of Senators, and the questioning of Justice Priscilla R. Owen has yet to begin. [Update: At approximately 11:30 a.m., the question of Justice Owen began.] You can watch a live Webcast of the hearing at this link. The AP reports here that "Owen Tries Again With Judiciary Committee."

At 11:30 a.m., the full U.S. Senate will resume debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. At 12:30 p.m. today, the Senate will hold its second cloture vote on that nomination. We should then learn how Senator Bob Graham (D-FL), who missed the first cloture vote because he was recuperating from heart surgery, will vote on the question of cloture.
Posted at 11:21 by Howard Bashman



Wednesday, March 12, 2003
"Not Fair Game": This editorial -- which The Washington Post published on May 28, 2002 -- remains as timely as ever.
Posted at 23:01 by Howard Bashman



Available online at law.com: You can access here an article entitled "Agreement Reached on Federal Judge Nominee for Miami Bench." An article reports that "Pa. High Court Weighs Protection for Anonymous Online Critics." And an essay by Amitai Etzioni is entitled "Scrap Porn-Blocking Law, Start Over."
Posted at 22:55 by Howard Bashman



Maybe they truly are "freedom fries"? A law clerk to a judge on the U.S. Court of Appeals for the Seventh Circuit just emailed to draw my attention to this article from Reuters, which points out that when the U.S. Supreme Court earlier this evening granted a last-minute stay of execution to Delma Banks, "He had already eaten his last meal of two double cheeseburgers, a double order of french fries and orange juice, which he told prison officials was good."
Posted at 22:41 by Howard Bashman



"Losing the money when you didn't have to": Law blogger Fritz Schranck discusses further here the recent decision of the Supreme Court of Georgia holding unconstitutional the City of Atlanta's occupation tax for lawyers. I for one consider the ruling to be consistent with that court's most excellent motto.
Posted at 22:38 by Howard Bashman



Today's FindLaw commentators: Sherry F. Colb has an essay subtitled "Florida's Ban on Gay Adoption Reaches the U.S. Court of Appeals for the Eleventh Circuit." And Phillip Carter, a law student whose blog you can access here, has an essay entitled "Al Qaeda and the Advent of Multinational Terrorism: Why 'Material Support' Prosecutions Are Key In the War on Terrorism."
Posted at 22:30 by Howard Bashman



"Senate Debates Abortion Bill, Graham Back": The AP has this report. The article further notes that "Graham missed a closely watched vote last week on whether to block Miguel Estrada's judicial nomination to the U.S. Court of Appeals for the District of Columbia Circuit. Another vote on whether to end a filibuster against Estrada was set for Thursday, and * * * Graham will make the vote but was still undecided on whether to back Estrada." The Graham in question is U.S. Senator Bob Graham (D-FL), who recently had heart surgery.
Posted at 19:39 by Howard Bashman



299 and counting: The U.S. Supreme Court has issued a stay of execution, The Associated Press reports here in an article entitled "Supreme Court Stops 300th Texas Execution." Perhaps the goal is to allow some other States to catch up, although I'm not sure how far behind 300 other death-penalty-friendly States happen to be.
Posted at 19:34 by Howard Bashman



On the issue of federal appellate judicial confirmations, a look forward and a look back: Tomorrow at 9:30 a.m., the Senate Judiciary Committee is scheduled to hold a hearing entitled "Setting the Record Straight: The Nomination of Justice Priscilla Owen." (You can access biographical information about Justice Owen here and here.) The hearing's location has been moved to Dirksen 106, which if I understand correctly is a larger room than where the hearing was originally scheduled to occur. On September 5, 2002, the Judiciary Committee voted 10-9, along party lines, to refuse to recommend her nomination to the full U.S. Senate. This year, a party line vote would result in a 10-9 tally in favor of the nomination. But the Democrats in the Senate may very well choose to filibuster Justice Owen's nomination, too.

Speaking of filibuster, you can access online via the Congressional Record Web site a transcript of yesterday's debate in the Senate concerning Miguel A. Estrada's nomination to serve on the D.C.Circuit simply by following these instructions. Click here to bring up a page listing yesterday's available 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." Item 11 also is entitled "Executive Session" and contains an additional portion of the debate, so repeat the instructions substituting item 11 for item 7.

Today's edition of The Hill contains an article entitled "GOP moves ahead with controversial nominees." Today's edition of The Salt Lake Tribune contains an editorial entitled "Judicial Vivisection." U.S. Senator Elizabeth Dole (R-NC) has an op-ed entitled "Estrada deserves a vote; Democratic minority shouldn't keep qualified lawyer off the bench" in today's edition of The Charlotte Observer. Today National Review Online publishes an item entitled "Estrada & the Dream: A former Honduran presidential candidate and U.S. citizen questions the obstruction." The Estrada nomination has also been the subject of discussion at White House press briefings yesterday and today. From yesterday's transcript:
Q And I had a second question. This has to do with Miguel Estrada. I just saw that the President wrote a letter today to the head -- to Senator Frist and the Democratic Minority Leader, Senator Daschle, asking for -- again mentioning the Estrada case and asking for a new approach to judicial nominations. Is there anything that the White House can do to get this nomination moving again, or will it just be impasse, nobody is going to move?

MR. FLEISCHER: Well, of course, today, in a sign of how seriously the administration takes the importance of making progress on judicial nominations and ending the obstruction of Miguel Estrada's nomination. The Vice President went up to a session of the Senate and, in an unusual move, chaired the Senate. A letter was released from the President on this topic.

The President very much thinks it's in American interest to move beyond the cycle of both parties on recrimination and blame on judicial nominees.

Of course, this is precedent-setting, and there's never before been a successful circuit court filibuster. This would represent a real change in how the Senate perceives its constitutional responsibilities on advice and consent. This is an important and serious issue; the President hopes that the court -- that the Senate will confirm him to the court.
And from today's transcript:
Q Ari, another cloture is scheduled in the Senate tomorrow and it is not expected to pass. Meanwhile the Democrat filibuster on Miguel Estrada continues with no end in sight. What else can the President do to get an up or down vote on this nominee?

MR. FLEISCHER: Well, I think as an example of how this filibuster is not grounded in any principled approach other than a liberal political opposition to anybody that the President would name, like Miguel Estrada. Examine the facts. The Majority Leader filed cloture after an extraordinary offer was made of a second hearing for Miguel Estrada before the Judiciary Committee. The Democrat leadership refused this unprecedented offer of goodwill. So the Republican leadership will continue to show that the Democrats in this case are obstructing a nominee.

The President is committed to Miguel Estrada. He will continue to fight for Miguel Estrada. Several prominent judges have overcome failed cloture votes and gone on to distinguished careers as jurists. William Rehnquist is one, and 4th Circuit Appeals judge Harvey Wilkinson is another.
Today's edition of National Review Online also includes an essay entitled "The Power of the Sisterhood; The case of Priscilla Owen."

Finally for now, The Lodi News-Sentinel today contains an article entitled "Former San Joaquin County judge nominated to 9th Circuit Court of Appeals" about Ninth Circuit nominee Consuelo Callahan.
Posted at 16:41 by Howard Bashman



Elsewhere in Wednesday's newspapers: Michael Newdow has an op-ed entitled "Freedom From Religion -- That Too Is a Right; Why I sued over the intrusion of 'under God' into the Pledge of Allegiance" in today's edition of The Los Angeles Times. You can access here an article entitled "U.S. Appellate Court Rules Against Guantanamo Detainees; They have no right to seek due process or meet with an attorney because they aren't citizens and aren't on U.S. soil, panel says." And this article reports that "5 on Immigration Board Asked to Leave; Critics Call It a 'Purge'; Justice Dept. denies that the move is a bid to oust pro-immigrant officials from the appeals panel."

The Washington Times reports here that "Democrats reject new Estrada query." Frank J. Murray reports that "Appeals court rules against prisoners at Guantanamo." An article reports that "Democrats distract debate on abortion," while a related editorial is entitled "3 inches from infanticide." And in news from Texas, "Banks' execution expected to proceed." The article explains that "Tonight he would become the 300th inmate to die since the state reinstituted the death penalty in 1982."

In The Boston Globe, Lyle Denniston reports here that "Court gives no rights to detained; Military's prisoners can't appeal status." And USA Today contains an op-ed entitled "Fast food 'addiction' feeds only lawyers."
Posted at 15:40 by Howard Bashman



"Challenges to Abortion Bill Defeated": The Associated Press reports here that "The Senate brushed aside twin challenges Wednesday to a proposed ban on a controversial abortion procedure, signaling support for legislation that would impose the most significant limits since the Supreme Court legalized abortion three decades ago."
Posted at 14:57 by Howard Bashman



Courtesy of the Tenth Circuit, you can learn the history of "The Urantia Book": Yesterday a divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit issued a non-precedential opinion that explained:
This appeal arises out of the parties' dispute as to the present validity of Urantia Foundation's copyright in The Urantia Book, a document comprising the scriptural basis for the Urantia movement. The history of the composition of The Urantia Book, or such of that history as is available, bears directly upon the resolution of this case.

In approximately 1900, an unknown patient ("the Conduit") sought psychiatric help from Dr. William Sadler.[fn1] The Conduit behaved strangely in his sleep, and during sessions with the Conduit, Dr. Sadler became convinced that the Conduit was channeling "celestial personalities." At some point, the Conduit began presenting Dr. Sadler with handwritten "papers," purportedly consisting of the fruits of his communion with these celestial beings. Sometime later in the course of his treatment, Dr. Sadler opened up his sessions with the Conduit to a group of relatives that referred to itself as "The Contact Commission." During its sessions with the Conduit, the Contact Commission prepared stenographic notes of the Conduit's celestial dialogs, but it destroyed most of them. The notes formed no part of The Urantia Book.
----------------------------------------
fn.1 No one knows who the Conduit was, but the parties agree that he composed the text of The Urantia Book. Throughout its briefs, Urantia Foundation refers to him as "the subject"; Michael Foundation refers to him as "Writer." Given that the terms the parties have selected to refer to the composer of The Urantia Book carry overtones suggestive of the principles of copyright law underlying this case, and that his status as a conduit for celestial revelation is not in dispute, we refer to him by what we hope to be a copyright-neutral term.
In 1924, after approximately twenty years of treatment and generating "papers," the Conduit announced that he would compose The Urantia Book. He solicited questions from the Contact Commission to present to the celestial beings during his psychiatric sessions. Dr. Sadler formed a subgroup of the Contact Commission ("the Forum") to prepare these questions. Between 1935 and 1942, in response to these questions, the Conduit delivered a foreword and 196 handwritten "papers" that together constitute The Urantia Book. The Contact Commission reviewed the papers and typed them. It did not change their arrangement or edit them in any way other than to correct spelling and capitalization errors. It also destroyed all documents related to the questions presented to the Conduit. The Conduit was never compensated for his efforts in creating The Urantia Book.
The Urantia Foundation's Web site is accessible here, and the complete text of "The Urantia Book" appears to be available online via this link.
Posted at 14:32 by Howard Bashman



Whether and in what circumstances may a habeas certificate of appealability, once issued, be vacated? Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, in a short but very interesting opinion written by Circuit Judge Richard A. Posner, surveyed the conflicting landscape across the circuits and provided an answer to this question.
Posted at 14:19 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "N.J. Court Allows Gun Makers Suit"; here, "Sniper Jury Pool Change Prompts Challenge"; and here, "Lesbians Win Birth Certificate Case."
Posted at 14:16 by Howard Bashman



Police officer husband, exotic dancer wife, and adverse employment consequences don't equal Section 1983 claim, Eighth Circuit rules: You can access today's decision of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 14:07 by Howard Bashman



"With the advent of the internet, a public reprimand directly by the court is also a viable option." So says the U.S. Court of Appeals for the Sixth Circuit in an opinion issued today that vacates an order of criminal contempt imposed on an assistant federal public defender who arrived slightly late for court on two occasions in the U.S. District Court for the Western District of Tennessee. The Sixth Circuit's opinion explains:
As the district court rightly notes, Smothers's "tardiness resulted in a waste of time for fourteen jurors, one opposing counsel, the defendant, one court reporter, one case manager, numerous witnesses, and one judge." Courts cannot operate in a cost-effective manner if counsel does not appear on time. Logic dictates that courts use a form of progressive discipline in the face of such transgressions. First, a lecture from the court regarding the importance and significance of being on time for scheduled appearances is the mildest penalty. Obviously, this was done in Smothers's case without success; it was not until her second episode of tardiness that the court entered a contempt order. If such a lecture is not successful in correcting the problem initially, as it was not here, a court can involve the offending attorney's office management or partnership. An apology on the record and in front of the jury can also be required.

Courts also have the option of recommending to the appropriate bar association that the attorney be subject to disciplinary action such as a public reprimand. Such a recommendation would encourage state bar associations to assert their natural role and allow the attorney to be reprimanded by peers without the powerful stigma of an order of criminal contempt.

With the advent of the internet, a public reprimand directly by the court is also a viable option. All federal courts have embraced the internet, though some with more success than others. Disciplinary postings can be placed on a page associated with the court's website. The appropriate public posting might list the attorney's name, details of the misconduct, and the court's disapproval.

Finally, the imposition of a fine unaccompanied by a formal sanction could be used. District judges routinely impose monetary penalties for tardiness without resorting to a finding of criminal contempt. The amount of the penalty may be based upon the length of the delay or the cost to the court from such delay. Where a non-criminal monetary penalty is imposed, the district judges may direct the attorney to pay a fine to a charity of the attorney's choice or to the clerk's office to be used for expenses associated with the jury (e.g. coffee, donuts and newspapers), which necessarily increase when proceedings are delayed.
You can access the complete opinion at this link.

P.S. Thanks to the many Kentucky-based readers of "How Appealing" who emailed to note that the original version of this post erroneously stated that the Sixth Circuit's ruling arose from a Kentucky-based federal district court.
Posted at 11:24 by Howard Bashman



"Court Stay Issued in Airline Smoke Death": The AP has just reported that "Greece-based Olympic Airways won a stay at the Supreme Court that will protect it, for now, from paying $1.4 million to heirs of an asthmatic man who died after being exposed to second hand smoke on an international flight." According to the article, U.S. Supreme Court Justice Sandra Day O'Connor -- the Circuit Justice assigned to the U.S. Court of Appeals for the Ninth Circuit -- has issued the stay. I first reported on the Ninth Circuit's ruling in this matter on the day it issued, in a post you can access here.
Posted at 11:01 by Howard Bashman



"U.S. judge pulls out of lawsuit on Hanford radiation": The Associated Press, via The Seattle Times, offers this report.
Posted at 11:00 by Howard Bashman



"The other filibuster": Conservative commentator Thomas Sowell has an essay today in which he responds to this past Sunday's New York Times Magazine article about the U.S. Court of Appeals for the Fourth Circuit. Sowell's essay concludes, "Interpreting the law as written is not an ideology. It is what all judges swear to do when they go on the bench. Are those who do so now to be considered 'activists' or even 'extremists,' so that only those who lied when they took the oath are acceptable?"
Posted at 10:45 by Howard Bashman



"Court quashes tax on Atlanta lawyers; City budget surplus may shrink": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 10:44 by Howard Bashman



Second cloture vote on the Miguel A. Estrada nomination may occur tomorrow: According to "The Corner" and this post from Robert Alt at the "No Left Turns" blog.
Posted at 10:30 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "Senators Thumb Their Constitutions in Debate Over Judges." An article reports that "Bush Administration Wins Court Victory on Guantanamo Detentions," and a related editorial is entitled "Forsaken at Guantanamo." In news from Manhattan, "Judge Affirms Terror Suspect Must Meet With Lawyers." You can access here an article entitled "Senate Blocks an Amendment to Alter an Abortion Measure" and here an editorial entitled "Reproductive Rights in Peril." This article is entitled "Ex-Judges and Prosecutors Fight Milestone Execution in Texas." In news from Buffalo, "Man Who Killed Abortion Provider Asks for Trial by Judge." An article in the Business section reports that "Class-Action Lawyer's Fee Under Scrutiny." And a letter to the editor runs under the heading, "Bush and the Bench."

The Washington Post reports here that "Detainees Are Denied Access to U.S. Courts." In news from Boston, "Appeals Court Weighs Bush's War Powers; Act of Congress Needed for Iraq Invasion, Suit Says." An article reports that "Bush Calls for Limit to Senate Debates; Proposal Prompted by Month-Long Filibuster Blocking Estrada Nomination." A front page article is entitled "Reexamining Minority Admissions; Supreme Court Case Prompts Some Area Colleges to Make Subtle Changes in Policy," while a related item is entitled "Legacy Students A Counterpoint to Affirmative Action." Zacarias Moussaoui is in the news again, in an article headlined "Rules Set Who Can Watch Terror Trial; Attack Victims to Receive Applications." And an editorial is captioned "Get the Message."

[More to come!]
Posted at 06:45 by Howard Bashman



"Strip-search suit loses again in 11th Circuit": Today's edition of The Atlanta Journal-Constitution contains this report. You can access the recent ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 06:41 by Howard Bashman



Tuesday, March 11, 2003
In news from Washington State: The Associated Press reports here that "Justice Bridge considered quitting, but will stay on high court."
Posted at 22:45 by Howard Bashman



Online at law.com: You can access here an article entitled "Secrecy Within: Algerian native's federal appeal in Miami has court altering records, closing hearing in name of security." And this article reports that "Judge Sticks by Ruling on Attorney Access for 'Dirty Bomber.'"
Posted at 22:30 by Howard Bashman



Eighteen months: A year and a half ago today was September 11, 2001. Still seems like just yesterday in many respects, doesn't it? And although surely no one needs a reminder, the Newseum has compiled a large number of newspaper front page images from eighteen months ago tomorrow.
Posted at 20:44 by Howard Bashman



Judicial confirmation news and commentary from here and there: Today's edition of The Atlanta Journal-Constitution contains an op-ed entitled "Pickering rises above mudslinging."

The Weekly Standard's edition of March 17, 2003 contains an essay entitled "Filibuster Si, Estrada No! The great Republican divide over how to fight for Bush's judicial nominee." Today's edition of The New York Post contains letters to the editor under the heading "A filibuster for the wrong reason." The Billings Gazette finally gets around today to reporting that "Baucus votes against Estrada." From South Dakota comes word that "Protesters await Daschle in Spearfish."

The Santa Fe New Mexican contains commentary entitled "Bush Nominee is Blocked." The Troy Record contains an editorial entitled "Senate judgment wise in Estrada nomination." The Badger Herald contains an op-ed entitled "Estrada filibuster excessive." The Tribune-Review of Pittsburgh contains an editorial entitled "The Estrada blockade: DISGRACEFUL!" That publication doesn't usually bring out the all caps just for ANY OLD TOPIC!

The Corpus Christi Caller-Times contains an editorial entitled "Struggle over Estrada nomination unedifying." The Roanoke Times contains an editorial entitled "Break the political logjam over federal judges."

The Scripps Howard News Service recently offered an op-ed entitled "The law can never be independent of politics." The Omaha World-Herald published an op-ed entitled "Nominee for court hit by unfair queries." The Daily Ardmoreite published an op-ed entitled "President Bush's ongoing battle for the courts." An op-ed in The Orlando Sentinel was entitled "Judging Estrada: Democrats' gamble could help Bush." The Minneapolis Star Tribune published an essay by U.S. Senator Norm Coleman (R-MN) entitled "Democrats' filibuster harms more than Estrada."

The Tampa Tribune recently published an editorial entitled "Some Questions For Bob Graham." The Houston Chronicle contained an op-ed entitled "Yakety, yak -- keep talking, senators." The Herald News contained an op-ed entitled "Gloves off for good in Senate." The Augusta Chronicle contained an editorial entitled "Filibuster doomed to fail." The Ft. Worth Star Telegram contained an op-ed entitled "Estrada, the senators and the neo-Marxists." The Daily Nonpareil contained an op-ed entitled "Let Estrada serve on federal appeals court." And Congressman Mark Foley (R-FL), who has declared himself a candidate for the U.S. Senate in Florida, recently had an op-ed entitled "Senate must end Estrada filibuster."
Posted at 17:16 by Howard Bashman



Online at The American Prospect: This month's issue contains a bunch of essays that are grouped under the heading "The Right and the Law." You can access them all via this link. In "Web only" content, you can access here an essay entitled "Equal Opportunists: How the establishment learned to love affirmative action" and here an essay entitled "Bar None: Injury lawyers, defense attorneys, prosecutors -- the Bush administration can't conceal its contempt for all of them."
Posted at 15:33 by Howard Bashman



Larry Lessig's back: And he's at Disney World, no less. After a nearly two-month absence, a new blog post has appeared on the day after the U.S. Supreme Court denied (see docket entries here) the petition for rehearing in the Eldred v. Ashcroft case.
Posted at 14:45 by Howard Bashman



Access online today's federal district court decision upholding the accused dirty bomber's right of access to a lawyer: The decision is now available online here. CNN.com has this report on the ruling, which is described as a "setback for the Bush administration."
Posted at 14:04 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Washington Times reports here that "GOP to 'load' Senate with votes on judges." Frank J. Murray reports that "Court OKs damages for fear of asbestos." In op-eds, Bruce Fein writes of "Curbing career criminals," while Paul Greenberg discusses the "Wall of confusion."

In The Boston Globe, Lyle Denniston reports here that "Court allows asbestos anxiety claims; Railroad workers fear getting cancer" and here that "Top court to rule on Verizon lawsuits; Case to focus on level of access to networks firm must give rivals." An editorial is entitled "Affirmative healing." And a book review discusses "The Unabomber's Harvard years."

In today's edition of The Los Angeles Times, David G. Savage reports that "High Court OKs Extra Damages for Cancer Fear; The 5-4 ruling in an asbestos case could have implications for a broad range of litigation." This article reports that "Senate Targets Late-Term Abortion; Lawmakers debate a Republican-sponsored bill to outlaw a controversial procedure as conservatives seize their chance for change." And in news from Newport Beach, "Judge Says Free Sunday Parking Has Higher Good; He rules congregants and others don't have to feed meters because the exemption serves secular purpose of easing congestion." According to the article, "John Nelson, a Lido Isle resident, filed suit in January alleging that the city is violating the church-state separation clause of the 1st Amendment by giving worshipers special rights: free Sunday-morning parking at metered spots near four churches."
Posted at 13:46 by Howard Bashman



From one fan of Dr Pepper to another: The following email just arrived:
I am writing to offer some advice to the "Bashmaniacs." I too am a frequent visitor on your blog, but I have noticed a direct correlation between the number of cases on our "60 day report" and our chambers' frequent blogging forays.

Alas, a solution. I remembered a slogan for a soft drink that was produced in my humble state--now the #1 non-cola beverage in all of the land--reminding patrons to drink a Dr Pepper at 10, 2, and 4. (An early study on human fatigue showed that human energy dropped to its lowest levels during the day at 10:30 AM, 2:30 PM, and 4:30 PM daily. Therefore, drinking Dr Pepper at 10 AM, 2 PM, and 4 PM would boost energy at this less productive times of the day). The schedule works for blogging as well. For an enhanced experience, might I also suggest blogging while drinking a Dr Pepper.

I am happy to report that our chambers are turning and churning out opinions, we are well-informed on current developments in appellate law, and we are highly caffeinated. I mentioned our success to some clerks in the chambers downstairs, and they have also instituted the schedule. Fortunately, they had a fellow Texan to help administer the program--by the way did you hear about the Texan that graduated from Harvard Law School? He never knew which to mention first.

You should notice a spike in productivity here at the Eighth Circuit--you remember it right? The Circuit that is as exciting as the states that comprise it. The one with the really great website and the "scary" reindeer.

P.S. - I read the "blawging" story in the ABA journal. I noticed that you were featured first and I was thrilled to see that my favorite "blawging" site received such a prominent position in the story. Then I noticed that your last name begins with a "B."
Not only is Dr Pepper a longtime favorite of mine, but I'm pleased to report that you can even begin to like Red Fusion if you consume enough of it.
Posted at 13:23 by Howard Bashman



"Bush Calls for Mandatory Vote on Nominees": The Associated Press has this report concerning a letter that President Bush sent today to the U.S. Senate's leaders on the subject of judicial nominees.
Posted at 12:39 by Howard Bashman



"Court Denies Taliban, al-Qaida Hearings": The Associated Press provides this report on today's D.C. Circuit ruling.
Posted at 12:38 by Howard Bashman



"Judge OKs Lawyer for 'Dirty Bomb' Suspect": The Associated Press has this report.
Posted at 12:01 by Howard Bashman



BREAKING NEWS -- D.C. Circuit affirms dismissal of habeas petitions filed by alien enemy combatants captured in Afghanistan and detained at Guantanamo Bay, Cuba: You can access today's unanimous ruling of a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit at this link.
Posted at 11:11 by Howard Bashman



The U.S. Senate is again debating the Miguel A. Estrada nomination: You can watch the debate -- which is scheduled to last for the next hour and a half -- at this link via C-SPAN2. As anticipated, this morning Vice President Cheney is presiding over this debate.
Posted at 11:03 by Howard Bashman



In news from Georgia: The Atlanta Journal-Constitution reports here that "Drivers charged with minor traffic offenses can now demand a jury trial in light of a ruling issued Monday by the Georgia Supreme Court."
Posted at 10:42 by Howard Bashman



"Judge Rules Against Pot-Smoking Women": The Associated Press this morning offers this report.
Posted at 10:40 by Howard Bashman



"Estrada Battle Moves to Background": The Associated Press provides this report.
Posted at 06:00 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Linda Greenhouse reports here that "Justices Refuse to Limit Employers' Liability for Asbestos Exposure." You can access here an article entitled "Senate Revisits Ban of Abortion Procedure." And Adam Liptak reports that "Review of DNA Clears Man Convicted of Rape."

In The Washington Post, Charles Lane reports here that "Court Allows Suits Over Fear of Cancer; Workers Had Asbestos-Related Illness." An article reports that "Senate Poised to Ban 'Partial Birth' Abortions." And an editorial is entitled "Race and Juries."

Finally for now, The Christian Science Monitor reports here that "Court rules workers can collect damages for fear of illness."
Posted at 00:15 by Howard Bashman



Monday, March 10, 2003
Available online at law.com: Tony Mauro reports here that "Supreme Court Gives Boost to Those Claiming Asbestos Injury." Jonathan Groner has an article (free registration required) entitled "Air Wars: Spinning The Estrada Showdown Judicial nomination draws unprecedented TV treatment." Jonathan Ringel reports that "Georgia High Court Bars Lawyer Occupation Tax." And you can access here an article that begins, "A federal jury has awarded more than $24 million to a black Texas family that had a cross burned on their lawn by five white men three years ago."
Posted at 23:56 by Howard Bashman



Questions for, and answers from, Miguel A. Estrada: U.S. Senator Blanche Lincoln (D-AR) recently posed three written questions to D.C. Circuit nominee Miguel A. Estrada, and today Estrada tendered his responses. I'm pleased to report that I am in possession of those questions and of Estrada's answers.

The questions were: "1. Is diversity a factor that an employer or a school could take into consideration? 2. Other than cases in which you were an advocate, please tell us three cases from the last 40 years of Supreme Court jurisprudence you are most critical of, and just give me a couple of sentences as to why for each one. 3. Which judge has served as a model for the way you would conduct yourself as a judge and why?" You can access Estrada's thoughtful and interesting answers to these questions here, at "How Appealing Extra."
Posted at 23:33 by Howard Bashman



U.S. Supreme Court round-up for Monday, March 10, 2003: Sometimes all of the Term's juiciest cases either have already been decided, aren't quite ready to issue decisions in, or -- most definitely this Term -- haven't even been argued yet. On such a day, the least the Supreme Court of the United States can do is clear out the underbrush a bit. Today was such a day, as we learned (1) that railroad workers whose employers exposed them to asbestos can recover for fear of cancer if they suffer from asbestosis and (2) that counties, unlike States, can be sued under the federal False Claims Act. My summaries of these cases won't be entirely without redeeming value, so I invite you to stick around and see if I've been able to find anything of interest to talk about in today's two rulings.

1. Apparently the film "Blazing Saddles" wasn't too far off the mark in depicting the conditions to which railroad workers were subjected. Thus, in 1908, Congress enacted The Federal Employers' Liability Act (FELA), which makes common carrier railroads liable in damages to employees who suffer work-related injuries caused "in whole or in part" by the railroad's negligence. In a FELA case, the lone question determining the railroad's liability often is "whether negligence of the employer played any part, however small, in the injury or death which is the subject of the suit.”

Today the Court in Norfolk & Western R. Co. v. Ayers, No. 01-963 (U.S. Mar. 10, 2003), confronted four questions. First, can railroad workers diagnosed with asbestosis recover for fear of cancer? As to this question, the Court ruled 5-4 in the affirmative, so long as the "alleged fear is genuine and serious." Second, is the railroad jointly and severally liable for all such fear-related damages, even if other parties share responsibility for the plaintiff's condition? As to this question, the Court again answered in the affirmative, although it seems the ruling on this point was unanimous. Third, does the acronym "FELA" require the preceding article "the" (as in "The FELA mandates this result," instead of simply "FELA mandates this result")? The Court, by the same 5-4 vote, indicated "yes," and Justice Ruth Bader Ginsburg, who wrote the majority opinion, even went so far as to insert the article "the" into some quotes from older cases that had omitted it. And fourth, why is the Supreme Court of the United States serving as the very first appellate court anywhere to review a West Virginia state trial court's decision in this FELA case? Given that this was the oldest undecided case on the Court's docket until today, I'm sure that at least several of the Justices were wondering why themselves in the days leading up to this opinion's issuance.

The Court's 5-4 fear of cancer ruling produced an unusual line-up of Justices. Joining in Justice Ginsburg's majority opinion on that point were Justices John Paul Stevens, Antonin Scalia, David H. Souter, and Clarence Thomas. The Court's moderate wing found itself in dissent. Justice Anthony M. Kennedy wrote the lead dissent, in which Chief Justice William H. Rehnquist, and Justices Sandra Day O'Connor and Stephen G. Breyer joined. Yes, Justice Breyer is a moderate when it comes to asbestos cases, perhaps dating back to the days when he was on the hook for such liability through his Lloyd's of London dealings. What probably made this such a close case is that the dissenters do argue a darn persuasive point of policy, while the majority applies the Court's previously-announced rules in a way that seems most consistent with the rules' plain import.

Justice Ginsburg may have found it irresistible to lapse into a bit of railroad-induced wordplay. At page 22 of her opinion (which is on page 27 of this PDF file), she writes:
Resisting this reading, Norfolk trains on the statutory language conveying that a railroad is liable only for injuries an employee sustains "while he is employed by such carrier." Ibid. That language, Norfolk maintains, "makes clear that railroads are not liable for employee injuries that result from outside causes." Brief for Petitioner 32. Norfolk's argument uncouples the statutory language from its context, and thereby obscures its meaning.
Allowing people who have asbestosis to sue and recover for fear of cancer is a big deal, and I wouldn't be surprised if Congress were to try to repair some of the negative consequences to the economic condition of our Nation's railroads likely to flow from today's decision.

2. In today's other case, the Court resolved whether counties are subject to suit under the federal False Claims Act, which provides for treble damages and statutory fines. In 2000, the Court ruled that States were not subject to suit under the law, and following that decision several federal appellate courts ruled that counties were likewise exempt because they are so very similar to mini-States and are tiny little government entities in their own right. The U.S. Court of Appeals for the Seventh Circuit, however, wasn't buying the counties-are-the-same-as-States argument, and it turned out today that the Seventh Circuit was properly skeptical.

Justice David H. Souter wrote the Court's unanimous opinion in Cook County v. United States ex rel. Chandler, No. 01-1572 (U.S. Mar. 10, 2003). Justice Souter's intimate personal knowledge of the 19th Century came in handy, because it just so happens that "corporations" as that phrase was understood in the 1800s usually meant local government bodies such as counties. So, the understanding that corporations are liable as defendants under the False Claims Act more than sufficed to sweep in counties as defendants. Also, today we learn that while the False Claims Act's treble damages provision in 2000 was understood to be akin to punitive damages, and thus not appropriately imposed against States, in fact it's barely punitive at all, because the Act allows neither prejudgment interest nor consequential damages. Ironically, Justice Souter was one of just two dissenters from the Court's opinion in 2000 holding that States cannot be sued under the False Claims Act. In the spirit of forgive and forget, the Court today gave him the honor of casting doubt on whether the False Claims Act's treble damages provision is or is not predominantly punitive in nature.

Having today destroyed in two fell swoops the financial viability of our Nation's railroads and counties, the Court immediately embarked on a two-week recess. The March 2003 oral argument calendar begins on Monday, March 24, 2003, and that week and the next the Court will hear some very important cases. So, rest up everybody. We're in for a very interesting end of the October 2002 Term.
Posted at 22:15 by Howard Bashman



"Talkative lawyers create a nourishing thicket, or, Law is Free": Law blogger Rory Perry, who for his day job serves as Clerk of the Supreme Court of Appeals of West Virginia, has a post bearing this title at his blog.
Posted at 21:42 by Howard Bashman



"New Efforts Introduced in Senate, House to Break Up Ninth U.S. Circuit Court of Appeals": Today's edition of The Metropolitan News-Enterprise contains this report.
Posted at 21:10 by Howard Bashman



Tenth Circuit reinstates anti-fur protestor's challenge to constitutionality of Utah's hate crime statute: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Tenth Circuit reinstated a anti-fur protestor's challenge to the constitutionality of Utah's hate crime statute. According to the opinion, "Essentially advancing the view that one person's discordant protest is another's music, he asserts that the hate-crimes statute chills speech protected by the First Amendment because it 'inhibits legal peaceful conduct protected by the United States Constitution such as picketing, protesting, demonstrating and leafleting on a public street.'" The trial court had dismissed the case for lack of standing, and it was that dismissal the Tenth Circuit reversed today.
Posted at 21:00 by Howard Bashman



My advice -- add even more contributors: Eugene Volokh wants more visitors to his blog.
Posted at 20:09 by Howard Bashman



Tomorrow's not so secret location -- the U.S. Senate: The blog "No Left Turns" reports here that Vice President Dick Cheney "will be presiding over the Senate from 11:00 am till 12:30 p.m. tomorrow in a special session on Miguel Estrada" and here that "a special message from the President will be delivered during this time."
Posted at 19:54 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Whistle-Blower's Right to Sue Upheld"; here, "High Court Eyes States' Right in Lawsuits"; here, "Court Considers Antitrust Lawsuit Limits"; here, "Ark. Gov. Legalizes 'Choose Life' Plate"; here, "Senate Eyes 'Partial Birth' Abortion Ban"; and here, "Lawyer Allegedly Gives Pot to Client."
Posted at 19:52 by Howard Bashman



The pervasiveness of binding arbitration: The Recorder reports here that "Photo Shoot Calls for Bondage ... and Binding Arbitration."
Posted at 18:49 by Howard Bashman



Dahlia Lithwick explains "Why Can Shopping Malls Limit Free Speech?" Here, online at Slate.
Posted at 18:35 by Howard Bashman



Third Circuit en banc case goes by the wayside: Today the en banc U.S. Court of Appeals for the Third Circuit entered an order dismissing a case in which it had granted rehearing en banc on October 3, 2002 because the court concluded that it had erred at the outset in allowing appellate review under Fed. R. Civ. P. 23(f). I first mentioned this case back on October 4, 2002 in a post that stated, in relevant part:
[Y]esterday, the Third Circuit granted rehearing en banc to enable the full court to consider a recent three-judge panel's decision addressing whether a proposed class action suit becomes moot if the defendant offers to give the named plaintiff all relief sought by the named plaintiff before the court considers whether to certify the class. Shannon P. Duffy also has an article about the granting of rehearing in this case.
I discussed the en banc case dismissed today further in my monthly appellate column published in October 2002.
Posted at 17:08 by Howard Bashman



More news about antitrust laws and their extraterritorial limits: Earlier this afternoon I mentioned here a 5-4 en banc ruling of the U.S. Court of Appeals for the Seventh Circuit that issued today involving the Foreign Trade Antitrust Improvements Act. Back on January 17, 2003, I wrote a post that stated:
D.C. Circuit today decides exceptionally important appeal about the territorial reach of this Nation's antitrust laws: A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit issued an opinion today in an appeal arising from the federal vitamin antitrust litigation that required the court to determine the jurisdictional reach of the federal antitrust laws under the Foreign Trade Antitrust Improvements Act. According to the opinion, this is a question over which other federal appellate courts have already divided. Circuit Judge Harry T. Edwards issued the majority opinion, in which Circuit Judge Judith Rogers joined. Circuit Judge Karen LeCraft Henderson dissented and would have endorsed the Fifth Circuit's understanding of the FTAIA.
Today I received the following email from an experienced appellate lawyer practicing in Washington, DC:
The D.C. Circuit Friday entered the following unusual order:
CLERK'S ORDER filed [736611] that within 15 days of the date of this order, appellants file a response to the petition, not to exceed 15 pages. It is FURTHER ORDERED that, in light of appellees' representation that the United States has endorsed the decision in Den Norske Stats Oljeselskap AS v. HeereMac 241 F3d 420 (5th Cir 2001), the Solicitor General is invited to file a response to the petition for rehearing en banc, expressing views of the United States. The response may not exceed 15 pages. Date: 3/7/03] (mcm)
I won't say I'm sure this is the first time a court of appeals (as opposed to the Supreme Court) has ever invited the SG to file a brief stating the views of the United States, but no other instance leaps to mind.
Thanks for writing to share news of this interesting development.
Posted at 16:29 by Howard Bashman



Another unimpressive FindLaw commentary: I've been underwhelmed by the average quality of the legal commentary I find published at FindLaw. Sure, certain FindLaw commentators produce work of uniformly high quality, while some of the others have their moments, but often my reaction is, "I'm glad I didn't write that." (Admittedly, that may be the same reaction experienced by those FindLaw commentators who happen to read "How Appealing.")

The most recent example of FindLaw-published commentary to cause me to wonder "how did this ever get published" is an essay by David Maizenberg, Esq. entitled "If Bork Had Blogged." Maizenberg observes that if U.S. Supreme Court nominee Robert H. Bork had blogged, Bork's nomination to the U.S. Supreme Court never would have been approved. But, last time I checked, the U.S. Senate rejected Bork's nomination to the Supreme Court even in the absence of the hypothetical "Bork Blog." So, as a matter of pure logic, had Bork blogged it would have had no effect on his confirmation proceedings whatsoever. And if Miguel A. Estrada had a blog, the U.S. Senate couldn't claim to be so in the dark about how his mind works.

In short, having a blog does not necessarily equal saying stupid things, nor does it require one to write posts that might make the author, were he or she a potential candidate or nominee for judicial office, unconfirmable. One of the insightful bloggers at "The Academy" (where the contributors never fail to come to my defense no matter how piddling the accusation may be) has already pointed out the absurdity of Maizenberg's arguments. Now I'm not about to recommend that every potential candidate or nominee for judicial office should have a blog, but I could see the advantages of that point of view.
Posted at 15:50 by Howard Bashman



With friends like these: A longtime friend writes, at the end of an email exchange today on another issue: "By the way, did anyone tell you that you looked hot in that ABA Pictorial?" So I wrote back, "Nope. You can be the first if you'd like." No reply has yet arrived to my response.
Posted at 15:48 by Howard Bashman



"Senate Math -- 41 Is Greater Than 59!" U.S. Senator Zell Miller (D-GA) has this op-ed in today's edition of The Wall Street Journal.
Posted at 15:45 by Howard Bashman



An amazing oversight: Victor Williams of the Catholic University School of Law has an essay in the current issue of the National Law Journal urging President Bush to appoint Miguel A. Estrada to the D.C. Circuit using a recess appointment. In an amazing oversight, however, Williams's essay fails to mention that substantial concerns have been raised about whether using a recess appointment to place a judge on an Article III court is constitutional. My appellate column originally published in March 2001, entitled "Questioning the Constitutionality of Recess Appointments to the Federal Judiciary," reviews these concerns and explains the reasons why I have concluded that a recess appointment is an unconstitutional way to place a judge on an Article III court. Plus, Williams's point that President Bush could use a second recess appointment to put Estrada back on the D.C. Circuit after the first recess appointment expires borders on the laughable.
Posted at 15:30 by Howard Bashman



En banc Seventh Circuit divides 5-4 over whether Foreign Trade Antitrust Improvements Act's "substantial effect on U.S. commerce" requirement is jurisdictional: Circuit Judge Terence T. Evans wrote the majority opinion, in which Circuit Judges Richard A. Posner, John L. Coffey, Kenneth F. Ripple, and Michael S. Kanne joined. Circuit Judge Diane P. Wood wrote a dissenting opinion, in which Circuit Judges Frank H. Easterbrook, Daniel A. Manion, and Ilana Diamond Rovner joined. Chief Judge Joel M. Flaum and Circuit Judge Ann Claire Williams were recused. You can access the opinions in this very interesting case at this link.
Posted at 15:06 by Howard Bashman



Pointless GVR? This decision that the U.S. Court of Appeals for the Fourth Circuit issued today lets you decide for yourself.
Posted at 15:00 by Howard Bashman



From Ninth Circuit Judge Alex Kozinski -- a thirty-plus-page examination of the antitrust implications of multiple listing services: Today the U.S. Court of Appeals for the Ninth Circuit issued this decision.
Posted at 14:33 by Howard Bashman



Quick summary of today's U.S. Supreme Court actions: Today the Supreme Court of the United States issued opinions in two cases: Norfolk & Western R. Co. v. Ayers, which decides (among other things) when railroad workers may recover for fear of cancer from asbestos exposure; and Cook County v. United States ex rel. Chandler, which decides whether local governments may be sued as defendants under the federal False Claims Act. I'll have a somewhat more complete account of these decisions available online at "How Appealing" tonight.

The Court today also granted review in four cases, as reflected on its order list, and called for the Solicitor General's views on an additional case. Finally for now, the Court has allowed the Solicitor General to argue as amicus in both of the University of Michigan racial preferences in university admissions cases. This means that ten of the thirty minutes of argument time belonging to the plaintiffs who are challenging racial preferences will now belong to the federal government in each case. No word yet on whether the conservative organizations representing the plaintiffs in those cases will be bringing Fifth Amendment takings claims against the federal government as a result of today's developments.
Posted at 14:16 by Howard Bashman



Today's U.S. Supreme Court headlines: The Associated Press reports here that "High Court to Revisit Miranda Ruling," here that "Asbestos Case Ruling Sides With Workers," and here that "High Court Eyes Baby Bells Antitrust Case."
Posted at 14:03 by Howard Bashman



See for yourself: I'll be away from the computer for a little while this morning. Readers who wish to stay on top of today's activities at the U.S. Supreme Court can, sometime after 10 a.m. this morning, access the day's order list here (via Cornell) and here (at the Court's official site) and any opinions that issue today here (via Cornell) and here (at the Court's official site). As always, I'll post online tonight a complete wrap-up of the day's decisions.
Posted at 08:42 by Howard Bashman



"Off the Dean's list": Harvard Law student blogger Adam White takes a look at Presidential candidate Howard Dean's comments about judicial nominations on yesterday's edition of Meet the Press.
Posted at 08:10 by Howard Bashman



On the agenda: The U.S. Supreme Court is scheduled to issue orders and possibly one or more opinions at 10 a.m. this morning. And, at 2 p.m. today, the U.S. Senate is scheduled to resume debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 06:50 by Howard Bashman



In Monday's newspapers: Today's edition of The Washington Post contains an article entitled "Confirmed Frustration With Judicial Nomination Process." You can access here an article entitled "Ex-FBI Chief, Judges Take Interest in Texas Execution; Evidence Suppressed in Circumstantial Case Against Young Black Man Accused of Killing White Teen." And an editorial is entitled "Partial-Birth Rerun."

The New York Times contains an editorial entitled "Censoring the Internet." And columnist Bob Herbert has an op-ed entitled "Countdown to Execution No. 300."

The Washington Times reports here that "Ban seen likely on abortion procedure." And Nat Hentoff has an op-ed entitled "Estrada and the future of the judiciary."

The Los Angeles Times contains an article entitled "Ruling keeps Pledge alive; Judge delays ban on Pledge of Allegiance; waits for decision by Supreme Court." Law Professor Erwin Chemerinsky has an op-ed entitled "3 Strikes: Cruel, Unusual and Unfair; Sentencing petty crooks to life for shoplifting or drug use makes no sense constitutionally, morally or financially." Chemerinsky served as appellate attorney for one of the criminal defendants who lost a "Three Strikes" challenge last week in the U.S. Supreme Court. Law Professor Cass Sunstein has an op-ed entitled "Fear Factor: Truth is, sunbathing is probably more dangerous than terrorism." And a letter to the editor runs under the heading "Can the Pledge."

The Boston Globe contains an article entitled "Gays press states on unions; Push for new laws, court rulings part of coordinated plan."

And finally for now, USA Today contains a letter to the editor that runs under the heading "Estrada rightly succeeds on merit."
Posted at 06:20 by Howard Bashman



Sunday, March 09, 2003
Does federal tax injunction act prohibit a federal court from considering whether to invalidate Arizona tax credit for private school tuition contributions? Last week, two Ninth Circuit judges argued "yes" in a very interesting opinion dissenting from the court's denial of rehearing en banc. The original three-judge panel's unanimous opinion framed the issue as follows:
This case raises the question of when the federal courts may entertain constitutional challenges to state tax laws. Appellants, who are Arizona residents and taxpayers, contend that an Arizona statute permitting tax credits for contributions that support parochial schools violates the Establishment Clause. The district court granted the state's motion to dismiss on the basis that the Tax Injunction Act divests the federal courts of subject matter jurisdiction in this case, and on the basis of general principles of comity and federalism. Neither the statute nor the doctrines relied on by the district court bar Appellants' action. Because Appellants do not challenge any of the types of procedures specified in the Tax Injunction Act, and because they seek to enjoin the granting of a tax credit, rather than the collection of state revenue, the action is justiciable in federal court.
The three-judge panel's opinion was written by Circuit Judge Stephen Reinhardt. The dissent from the denial of rehearing en banc was written by Circuit Judge Andrew J. Kleinfeld and joined in by Circuit Judge Diarmuid F. O'Scannlain.
Posted at 22:35 by Howard Bashman



2002 amendments to Federal Rules of Appellate Procedure don't apply to non-final district court order issued in 1985, Judge Easterbrook opines: This opinion that Circuit Judge Frank H. Easterbrook published last week on behalf of a unanimous Seventh Circuit panel provides the details. As my monthly appellate column examining the 2002 FRAP changes explained, whether those new rules would apply to previously-issued intended-to-be-final but procedurally-flawed district court judgments presents a more complicated question than Judge Easterbrook's treatment of the question suggests. But his discussion is probably dicta, because the appeal in this case was filed before the 2002 rule amendments took effect.
Posted at 22:25 by Howard Bashman



"The so-called affirmative action of doing nothing" rejected in state-created danger case: On the other hand, clever doesn't always win, as this opinion that the U.S. Court of Appeals for the Seventh Circuit issued last week involving student-teacher lesbianism demonstrates.
Posted at 22:20 by Howard Bashman



Judge Posner explains that a competent criminal defense lawyer is adequate, but a clever one is better: As Seventh Circuit Judge Richard A. Posner explained in an opinion issued last week:
If, however, the argument that the lawyer fails to make is a subtle or esoteric one--something most lawyers would not have thought of, however conscientious they might be--then the lawyer cannot be said to have fallen below the minimum level of professional competence by failing to make it, and so the claim of ineffective assistance would fail even if the argument turned out to be a valid ground for a new trial. Criminal defendants have a right to a competent lawyer, but not to Clarence Darrow. A lawyer is not to be deemed incompetent merely for lacking the imagination "to anticipate arguments or appellate issues that only blossomed after defendant's trial and appeal have concluded," though the clever lawyer would have spotted the bud. [citations omitted]
You can access the complete opinion at this link.
Posted at 22:15 by Howard Bashman



"[W]e think it clear that a person has no expectation of privacy in a photograph of his face": Seventh Circuit Judge Terence T. Evans tells the story of a reluctant bank robber whose photograph led to a ten-year prison term.
Posted at 22:10 by Howard Bashman



Sue under false name, suffer dismissal of lawsuit: That's the lesson to be learned from this decision that the U.S. Court of Appeals for the Seventh Circuit issued last week.
Posted at 22:05 by Howard Bashman



"Pledge of allegiance ruling hits new lows of stupidity": The Modesto Bee recently published this op-ed.
Posted at 21:45 by Howard Bashman



"Past year's cases show unpredictable court": The Michigan Daily offers this analysis of The U.S. Supreme Court's recent rulings.
Posted at 21:43 by Howard Bashman



Some press coverage of last week's U.S. Supreme Court rulings in the Megan's Laws cases: The Anchorage Daily News reports here that "Sex offender registry upheld: It protects public, doesn't punish, justices say." The Hartford Courant reports here that "Online Megan Lists Upheld; Court OKs Registries Of Sex Offenders." West Hawaii Today reports here that "Sex offender list again going public." And The Arizona Republic reports here that "Court lets states post Web photos of sex offenders."
Posted at 21:36 by Howard Bashman



Press coverage and newspaper editorials concerning the U.S. Supreme Court's recent "Three Strikes" decisions: The award for most clever headline goes to The Star of South Africa, which ran an article entitled "'Batman Forever' stretches to 50 years in jail for thief." The Web site PGA.com found a headline likely to be of interest to its readers, "Supreme Court: Life sentence for stealing golf clubs not too harsh." The Straits Times of Singapore reports here that "Life term for man who stole three golf clubs; Supreme Court upholds tough 'three strikes and you're out' law in California for repeat offenders." The Sacramento Bee reports here that "Top court approves '3 strikes'; The justices say the statute is not 'cruel and unusual punishment.'" The Metropolitan News-Enterprise reports here that "Justices Uphold Application of Three Strikes Law to Theft Crimes." The Oakland Tribune reports here that "Justices uphold '3 Strikes'; High court rules locking up repeat offenders for minor crimes isn't cruel and unusual punishment." The Mercury News reports here that "'Three strikes' upheld by court; State Sentencing Law Ruled Constitutional." The Press-Enterprise reports here that "High court affirms 3-strikes law" and here that "Inland professors cited in Supreme Court ruling." And the Copley News Service reports here that "Court: Three-strikes law fits crime of repeat felons."

In commentary, United Press International ran an op-ed entitled "Common sense of judges questioned." The St. Petersburg Times ran an editorial entitled "Cruel and illogical." The Pittsburgh Post-Gazette published an editorial entitled "In the rough; Stolen golf clubs bring 25 years in prison." The Visalia Times-Delta ran an editorial entitled "Three strikes stands, but so do questions." The Dayton Daily News published an editorial entitled "'3-strikes' laws not justice at its best." The Berkshire Eagle ran an editorial entitled "High Court strikes out." The New York Post published an editorial entitled "Score Two for Public Safety." And The Commercial Appeal ran an editorial entitled "Three strikes and you're in."
Posted at 21:12 by Howard Bashman



In other Miguel A. Estrada-related news and commentary: The Portland Press Herald today contains a news analysis entitled "Congress fiddles as serious issues simmer." Today's edition of The New York Post contains an editorial entitled "Schumer's Shame." And The Times Herald-Record today contains an editorial entitled "How to end the filibuster."
Posted at 20:50 by Howard Bashman



From South Dakota: The blog "South Dakota Politics" examines here a resolution that the state legislature recently passed asking South Dakota's U.S. Senators to allow a vote up or down on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. The blog also discusses here a pro-filibuster letter to the editor that appeared in today's edition of The Argus Leader.
Posted at 20:40 by Howard Bashman



From today's edition of The Atlanta Journal-Constitution: You can access here an article entitled "Trials of a Southern judge: Will new evidence in Mississippi silence charges of racism against Pickering?" and here a related article entitled "The Cross-Burning Trial: Judge's handling of one case gave his critics ammunition."
Posted at 16:46 by Howard Bashman



"Kerry Voices Concerns for Justice System": The Associated Press offers this report.
Posted at 10:10 by Howard Bashman



From the March 17, 2003 edition of Newsweek: You can access here an article entitled "Chipping Away at Roe" and here an article entitled "White Power, Minus the Power." Plus, columnist George Will has an essay entitled "Three Strikes And You're In: The Ninth Circuit loses again. This time because the Supreme Court says 'arguabley unfair' is not a synonym for 'unconstitutional.'" Reminds me of a line from my earlier round-up of the "Three Strikes" cases: "But not fair and not constitutional are not always synonymous."
Posted at 09:55 by Howard Bashman



"El ajedrez politico de Bush": Last week El Norte published this op-ed about the Miguel A. Estrada nomination, and if you comprehend Spanish you will be able to understand what it says.
Posted at 09:49 by Howard Bashman



"GOP hopes to push Pickering through": Today's edition of The Clarion-Ledger contains this report.
Posted at 09:42 by Howard Bashman



In Sunday's newspapers: Today's edition of The Boston Globe contains an article entitled "For some Latinos, no call to arms over Estrada fight."

The Week in Review section of The New York Times contains an article entitled "Computers in Libraries Make Moral Judgments, Selectively." Letters to the editor run under the heading "Steal Some Videos, Get 50 Years." Justice Ruth Bader Ginsburg last night conducted the wedding of Jeffrey Rosen, who serves as legal affairs editor of The New Republic. And, as I first mentioned yesterday morning, don't miss the Magazine cover story about the Fourth Circuit.

The Los Angeles Times reports here that "Prominent Allies Attempting to Stop Texas Man's Execution; But time is running short for former FBI chief, others working to save Delma Banks Jr." And you can access here an article entitled "Court Hears Gay Marriage Case; Couples' lawsuit could make Massachusetts the first state to legalize same-sex matrimony."

The Washington Times contains an op-ed entitled "One nation under ... ?" and an op-ed by Thomas Sowell entitled "Diversity's limited backyard."

The Book World section of The Washington Post contains an item entitled "Do we need less activism from the bench or more? Four new books judge the state of our judiciary."

Finally for now, OpinionJournal contains an essay entitled "Assault on the Geneva Convention: The American Bar Association tries to legitimize terrorism."
Posted at 09:15 by Howard Bashman



Saturday, March 08, 2003
Twenty-five years to life for stealing a slice of pepperoni pizza -- here's the rest of the story: As Upfront Magazine (a joint venture of Scholastic and The New York Times) explained here in a recent issue:
In another noted case, Jerry Dewayne Williams was sentenced to 25 years to life for stealing a slice of pepperoni pizza. Though the sentence was later reduced to six years, many saw the case as proof that the law was misguided.
Similarly, The San Mateo County Times reported here:
In fact, the notorious "pizza thief" was a recipient of this discretion. Williams, who was originally sentenced to an indeterminate life sentence, later had his sentence reduced to six years. Citing his nonviolent criminal history, lack of weapon use, and relatively minor third strike offense, the sentencing judge agreed to strike a prior conviction in order to promote the interest of justice.

When three strikers like Williams are released from the mandatory constraints of the three strikes law through an act of discretion, it reassures us that the system is concerned with the proportionality of the punishment. And, giving prosecutors and judges the opportunity to call some offenses "balls" instead of "strikes" means that when offenders like Andrade and Ewing are fully sentenced it is because prosecutors and judges have independently decided that they are deserving of this punishment.
To summarize, it's true that Williams received a sentence of twenty-five years to life for stealing a slice of pepperoni pizza. It's also true, however, that Williams's sentence for having committed that crime was later reduced to six years.
Posted at 23:20 by Howard Bashman



"O'Connor could be Augusta's first female member": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 16:46 by Howard Bashman



"A Fickle Federalism: The Rehnquist Court hobbles Congress -- and the states, too": This article appears in the current edition of The American Prospect.
Posted at 16:39 by Howard Bashman



From today's edition of The Charlotte Observer: An article entitled "Court nominee's record blunts many accusations; Pickering was an easy target for undeserved charges of race bias."
Posted at 14:18 by Howard Bashman



For anyone interested in additional Miguel A. Estrada-related news and commentary: Today's edition of The Kansas City Star contains an article entitled "Foreboding future for federal judgeships warned." The Oregonian today contains an op-ed by David Reinhard ("no relation") entitled "Latino conservatives need not apply." The Modesto Bee contains an op-ed entitled "Estrada filibuster is an abuse of the system." Finally, The Berkshire Eagle contains an editorial entitled "Holding fast on Estrada."
Posted at 14:05 by Howard Bashman



On this evening's episode of C-SPAN's "America and the Courts": This evening's episode of C-SPAN's fine program "America and the Courts" once again focuses on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the District of Columbia Circuit. The program's description explains, "This week, two press events on the nomination of Miguel Estrada to a seat on the U.S. Court of Appeals for the D.C. Circuit. On Tuesday, Congressional Republicans held a rally in support of Mr. Estrada in the Hart Senate Office Building, featuring music by Latino performers. Then, on Wednesday, a group of Latinos, hosted by the Congressional Hispanic Caucus, held a rally to oppose Mr. Estrada's nomination at the Cannon House Office Building."
Posted at 13:56 by Howard Bashman



Los Angeles Times editorial cartoon on the Miguel A. Estrada nomination: You can access Michael Ramirez's cartoon here. It is the subject of some letters to the editor published in today's LATimes.
Posted at 10:13 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Poll: Public Split on Affirmative Action"; here an item entitled "Affirmative Action Poll Glance"; and here an item entitled "Affirmative Action Poll Method."
Posted at 10:08 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Gun Makers Will Not Face Trial, Judge Rules" and here that "Missile-Defense Critic's Suit Is Dismissed."

The Los Angeles Times reports here that "Teen Sniper Suspect Loses Jail Privileges." An op-ed is entitled "Remove the Incentive to Abuse 'Unfair' Law." And letters to the editor appear here under the heading "'Under God' in the Pledge" and here under the heading "On Judges, GOP Also Stood in the Doorway."

Today's edition of The Washington Post contains an editorial entitled "The Court Strikes Out."

The Boston Globe contains an article entitled "Defending history; Charlestown residents fight closing of symbolic courthouse." And in news from New Hampshire, "N.H. court rules in rape case; Says that outfit was not consent."

The Washington Times reports here that "Judge dismisses suit over gun-maker liability."
Posted at 09:40 by Howard Bashman



Pepperoni pizza: A reader who works within the State of California's judicial system has emailed, in response to my recent blog posts here and here about a California man sentenced to twenty-five years to life under that State's "Three Strikes" law for stealing a slice of pepperoni pizza, to say:
I always love it (not) when people bring up the case of poor Mr. Jerry Dewayne Williams. I suggest you read the Court of Appeal opinion (People v. Williams, Apr. 3, 1996, B091907) although since it was not published and predates the West compilation of nonreported decisions, it's not easy to find. Briefly, Mr. Williams (some 6 feet tall) and a companion came up to some kids sitting at a table (on the Redondo Beach pier, as I recall), said they were starving, asked for a piece of pizza, and, when they were turned down, took what they wanted. The kids were scared (doh), and Mr. Williams was in fact originally charged with two counts of robbery under California Penal Code section 211 -- "the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear." The jury, in its infinite wisdom, hung on the robbery charges; they were dismissed by the court on the prosecutor's motion; and Mr. Williams, with his prior convictions for robbery and attempted robbery, was convicted of petty theft with a prior theft-related conviction under California Penal Code section 666.

So, my question for all those out there thinking California so cruel for putting a man away for taking a piece of pizza -- what if it was your kid at that table? Seem so "not fair" now?
The reader's hypothetical suffers from a key flaw. The only type of pizza my son is willing to eat is plain pizza.
Posted at 09:20 by Howard Bashman



Judge Posner on intellectual property law: Seventh Circuit Judge Richard A. Posner is slated to give the keynote address at the upcoming ABA Techshow. Denise Howell has details, and a request, here.
Posted at 09:18 by Howard Bashman



The U.S. Court of Appeals for the Fourth Circuit is the cover story of tomorrow's edition of The New York Times Magazine: You can access the lengthy and detailed article -- entitled "The Power of the Fourth" -- at this link. The article -- written by Deborah Sontag, a staff writer for The New York Times Magazine -- argues that the Fourth Circuit both is far too conservative and serves as a template for what the Bush Administration seeks to achieve on all federal appellate courts. Whether you agree with neither, one, or both of these points, the article is very much worth reading.
Posted at 09:02 by Howard Bashman



"Court upholds Va. laws requiring pledge and 'In God We Trust'": The Associated Press offers this report, while The Washington Post reports here that "Judge Backs Va. Laws Requiring Pledge, Motto." You can learn more about this case here.
Posted at 00:21 by Howard Bashman



Friday, March 07, 2003
Available online at law.com: Tony Mauro's "Courtside" column this week is entitled "The High Court's Incredible Shrinking Docket." In the column's final segment, Mauro reports on several recent U.S. Supreme Court oral arguments:
When Assistant to the Solicitor General John Elwood rose to argue the opposite, the questioning was just as persistent and harsh. Usually lawyers have the chance to say at least one sentence of their own choosing before the questioning begins, but Elwood, making his debut before the justices, did not have that luxury. "Why does the government not want the CDA to apply?" Justice Sandra Day O'Connor asked suspiciously and right off the bat. "What's going on?"

In Elwood's case, it was hard not to suspect that the justices were toying with him as a sort of hazing -- a payback for Elwood's toying with them. For several years before joining the SG's office, Elwood dished out biting commentary on the Court in a daily e-mail that surely got back to the justices. But he was good at taking it as well as giving it, and acquitted himself well in his debut.

On March 6, the barrage continued during the more high-profile arguments in United States v. American Library Association, No. 02-361. During Solicitor General Theodore Olson's verbal defense of the law requiring public libraries to filter Internet access, it was Justice David Souter's turn to get hot under the collar. He disputed several of Olson's premises, and at one point Olson was rattled enough that he addressed Souter as "Justice Scalia."

Souter broke the ensuing tension by joking, "You do me a great honor."
You can access here an article by Shannon P. Duffy entitled "3rd Circuit Again Declares COPA Unconstitutional." An article you can access here reports that "Connecticut Supremes Radically Change Statutory Tack; Death penalty case alters rules for legislative interpretation." This article reports that "Internet Data Seller Can Be Sued in Stalking-Murder Case; New Hampshire's high court makes key ruling." An article reporting news from across the country is entitled "Punitive Measures: California justices to decide if lawyers are liable for 'lost' damages." Finally, you can access here an interview with Nike's corporate counsel in an article entitled "The Risks of Just Doing It."
Posted at 22:38 by Howard Bashman



Eleventh Circuit dismisses legal challenge to Florida's "Choose Life" license plates due to plaintiffs' lack of standing: Today a two-judge panel (with one post-oral argument recusal) of the U.S. Court of Appeals for the Eleventh Circuit issued a ruling that dismissed for lack of standing a lawsuit challenging a Florida statute authorizing specialty license plates bearing the message "Choose Life." The opinion explains:
Appellants filed this lawsuit in the Southern District of Florida on January 16, 2002, challenging the constitutionality of Florida's Choose Life license plate statute, Fla. Stat. sec. 320.08058(30). Appellants contend the statute violates their First Amendment right to freedom of speech by providing a forum for pro-life car owners to express their political views but not providing a similar forum for pro-choice car-owners, and by authorizing the distribution of funds in a manner that discriminates based on the viewpoint of the agency applying for the funds. Appellants also claim the statute violates their rights under the Establishment Clause by creating excessive entanglement with religion by preferring one religion over others and by delegating an important governmental function to religious organizations. Appellants further contend the statute violates their right to due process under the Fourteenth Amendment; they assert the statute conditions the receipt of funds on criteria so vague that it encourages discriminatory disbursements of money and fails to give applicants fair notice of what speech renders them ineligible for funds. The District Court dismissed Appellants' claims against Appellees Dickinson and the Florida counties in an order dated July 12, 2002, finding Appellants lacked standing to bring their claims.
You can access the complete opinion at this link.
Posted at 22:11 by Howard Bashman



From today's White House press briefing: Here are two excerpts from today's Press Briefing by Ari Fleischer:
Q Okay. The second question has to do with Miguel Estrada. After the vote yesterday and the statement put out by the President, what is the next step? How long before something moves in either direction?

MR. FLEISCHER: Well, the President viewed the action by the Senate to delay even giving Miguel Estrada an up or down vote as a disgrace. The President thinks that it was wrong, particularly given the fact that some of the leading opponents of giving Miguel Estrada an up or down vote vowed they would never filibuster a nominee because they thought it was wrong to do, yet nevertheless they turned right around and have done it. That's not right.

The President will continue to work with a bipartisan majority of the Senate. Clearly, the votes are there. There's a bipartisan majority that is there to confirm him. There is an obstructionist minority made up of liberals who oppose him. But he'll continue to work with the Senate to try to find a way to break the impasse. We hope that this will not be the last word. It's hard to imagine Senate procedures being more wrong than to allow this to be the last word, and the President will stay at it.

* * * * *

Q Two court related questions, if I may. First back on the Estrada nomination. You said earlier this week, Ari, that a few liberal Democrats are flexing their muscles and pushing for this filibuster. In the White House view, why are they so intent on blocking this particular nominee? Is he a stealth nominee, as the critics are charging?

MR. FLEISCHER: No, I think it's because of the Democrats, in some instances, have learned the wrong lessons of the last election. While the American people want Democrats and Republicans to work together in Washington, there is no question, there is public school of thought on this from the Democrats themselves, that instead of cooperating and working with President Bush, they believe their political best interest is to fight him at every turn. And that is particularly a point of view espoused by the wing of the Democratic Party which is in its ascendancy.

Q And then on a separate issue, given the President's state of opposition to the 9th Circuit Court's ruling on the Pledge of Allegiance, does the Bush administration have any plans on filing an appeal to go along with --

MR. FLEISCHER: Well, you know what the President has thought about this. He viewed it as a ridiculous ruling. These issues are matters, though, that get adjudicated by the Department of Justice. The appeals court ruling has been stayed, and anything beyond that would have to be referred to the Department of Justice.
You can access the complete transcript of today's press briefing at this link.
Posted at 20:04 by Howard Bashman



Cert. granted: That's always been my opinion of what would happen if U.S. Supreme Court review were sought of the Third Circuit's ruling in the case in which the press seeks access to terror-related INS deportation proceedings. You can see at this link the cert. petition the media filed late last week seeking review of the Third Circuit's ruling against press access. You will find many more details about this case, including a link to the directly conflicting ruling of the Sixth Circuit, at my post of December 2, 2002 entitled "Third Circuit, by particularly curious vote of six to five, denies rehearing en banc in case seeking press access to terror-related INS deportation proceedings." And my prediction concerning how the U.S. Supreme Court is likely to rule if review is granted can be found here. (Thanks to SCOTUSblog for the link to this cert. petition.)
Posted at 16:21 by Howard Bashman



Today's two U.S. Supreme Court orders: You can access them here. Page two of the PDF document confirms that Medical Bd. of Cal. v. Hason has been taken off the calendar for Tuesday, March 25, 2003. The Associated Press has this report on the development.
Posted at 15:59 by Howard Bashman



First Circuit's en banc ruling issued yesterday is now available online: You can access it here. An article in today's edition of The Boston Globe explains, "A federal appeals court yesterday gave former Boston police officer Kenneth Conley another chance to stay out of prison nearly five years after he was convicted of lying about what he saw the night undercover officer Michael Cox was beaten by fellow officers in 1995."
Posted at 15:22 by Howard Bashman



The day after: Here's a round-up of news and commentary on the day after the U.S. Senate voted against cloture of debate on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit.

The Times-Picayune reports here that "Breaux proposes accord to end Demo filibuster; GOP five votes short on judicial nominee." The Knight Ridder news service reports that "Democrats block a vote on Estrada judgeship; Republicans regroup after tactical defeat for Bush on court nominee." The Atlanta Journal-Constitution reports here that "Senate Democrats block forced vote on Estrada" and here that "Senate leader Frist won't run for re-election." VOANews reports here that "GOP Fails to End Democratic Senate Filibuster on Bush Court Nominee." From Arkansas comes an article entitled "Lincoln, Pryor Vote Against Estrada." And in news from New York State, The Ithaca Journal reports here that "State GOP head encourages Estrada to run for Senate."

In commentary, The Manila Times runs an essay entitled "Estrada fight shows wrong view of US judges." The Lebanon Daily News contains an editorial entitled "Reigning supreme." A commentator in The Carolina Morning News opines here that "S.C. deserves better from Hollings." And The Manitou Messenger contains an essay entitled "Democrats betray minorities by blocking circuit judge appointment."
Posted at 14:43 by Howard Bashman



You may have heard it here first: Today's edition of The Dallas Morning News contains an article reporting that "Owen gets new chance at bench." I first mentioned that news last night in a post you can access here. Official notice of the hearing, which will occur on Thursday, March 13, 2003, is now available online at the Senate Judiciary Committee's Web site.
Posted at 14:23 by Howard Bashman



"The War Is Just": The latest from Dean Douglas W. Kmiec of the Catholic University of America School of Law, via National Review Online.
Posted at 14:18 by Howard Bashman



A look ahead, and a look back: Before I turn in the text of my monthly appellate column to my editor at The Legal Intelligencer, I must select a topic for the column to be published the very next month, which then serves as a "coming attractions" notice at the column's conclusion. Having just done that, I'm pleased to announce that the topic of my April 2003 column will be "Should the Ninth Circuit be divided, and why or why not?" The column will appear in print on Monday, April 14, 2003, known around here as Tax Day minus one.

At least once in the ten months and one day in which "How Appealing" has now been in existence, I have expressed here my answer to the question "Should the Ninth Circuit be divided?" Next month you'll be able to see not just my answer (which remains unchanged) but also why I believe my answer is correct. Anyone wishing to receive the monthly installments of my appellate column via email in PDF format on the second Monday of each month can fill out a free and easy sign-up form at this link.

Not only did this blog turn ten months old yesterday, but the blog's Bravenet hit counter this week passed the 800,000 hit mark. The number of visits to the blog per day this week have ranged from 9,300 to 11,100.
Posted at 13:46 by Howard Bashman



"'Underwear Bandit' Facing Long Jail Term": The AP has this report on another case that may involve a sentence under California's "Three Strikes" law.
Posted at 13:00 by Howard Bashman



"Woman Who Slipped on Dog Feces in Lawsuit": The Associated Press offers this somewhat confusingly titled report on a Kentucky appellate court's ruling issued today.
Posted at 12:33 by Howard Bashman



Another federal district judge declares RLUIPA unconstitutional in suit brought by state prison inmate: District Judge Lynn S. Adelman of the U.S. District Court for the Eastern District of Wisconsin earlier this week entered a ruling in the case known as Kilaab al Ghashiyah v. Corrections WI Dept, et al. for which the docket entry provides:
DECISION & ORDER signed by Judge Lynn Adelman on 3/4/03 THAT 2000cc-1 of RLUIPA is declared unconstitutional, that defendants motion to dismiss plaintiffs claims thereunder is Granted, & that plaintiffs RLUIPA claims are Dismissed; THAT Defendants' motion to dismiss is, in all other respects, Denied.
The text of this decision doesn't appear to be available online yet, but apparently the court based its invalidation of RLUIPA on the First Amendment's establishment clause. RLUIPA, of course, stands for the "Religious Land Use and Institutionalized Persons Act of 2000." Thanks to Law Professor (and former Third Circuit law clerk) Marci A. Hamilton for the heads-up.
Posted at 11:26 by Howard Bashman



Welcome to the D.C. Circuit, Iraq: In just about ten minutes from now, the U.S. Court of Appeals for the D.C. Circuit is scheduled to hear oral argument in the case of Hill v. Iraq, a case that sought damages against the Republic of Iraq for taking American citizens hostage after the Iraqi invasion of Kuwait on August 2, 1990. According to this Web site about the case, "On December 5, 2001, Judge Thomas Penfield Jackson issued his decision in the Hill case, finding Iraq liable for acts of hostage-taking and false imprisonment. He has since entered default judgments for compensatory damages in favor of all 178 plaintiffs against Iraq and Saddam in amounts totaling more than $93 million in the aggregate. He also awarded punitive damages against Saddam in the amount of $300 million."
Posted at 09:21 by Howard Bashman



"Big Business vs. Estrada: Who the 'Hispanics' opposing the judicial nominee are": Christopher Morris and Timothy P. Carney today have this essay at National Review Online.
Posted at 09:07 by Howard Bashman



"Court nominee clears congressional hurdle; Senate panel budges, approves Tymkovich": Today's edition of The Rocky Mountain News contains this article.
Posted at 08:31 by Howard Bashman



"Judiciary Committee OKs Steele for district bench; Magistrate judge awaits confirmation by full Senate": The Mobile Register provides this report.
Posted at 08:29 by Howard Bashman



"With Filibuster, Dems Keep HLS Alum from Bench": Today's edition of The Harvard Crimson contains this report.
Posted at 08:28 by Howard Bashman



In news from California, "PL tells Freshwater tree-sitters to get out": The Eureka Times-Standard provides this report.
Posted at 08:24 by Howard Bashman



Elsewhere in Friday's newspapers: The Washington Times reports here that "GOP bid for floor vote on Estrada is defeated." In related news, this article reports that "GOP sees retribution for Estrada foes in 2004." An article you can access here reports that "Ashcroft insists rights being upheld." This article reports that "Morales, lawyer pal indicted in Texas." And an editorial is entitled "Moving forward on liability reform."

The Los Angeles Times reports here that "GOP Fails to Get Vote on Judicial Pick; The tally is five short to end debate on Latino nominee in Senate. Bush won't concede defeat." This article reports that "Assault on Lindh Probed by FBI." In news from San Diego, "'Bumfights' Participant Sues." Law Professor Eugene Volokh has an op-ed entitled "Forgive and Forget Sex Offenders? Not a Chance." And letters to the editor run under the heading "Supreme Court Upholds Three-Strikes Law."

The Boston Globe reports here that "Senate vote blocks Bush's judicial pick; Republican bid to end filibuster comes up short." And an article entitled "Conley gets chance at new trial; Court ruling sends ex-officer's case to another judge" reports on an en banc First Circuit decision issued yesterday that isn't yet available online from that court's Web site.

Finally for now, USA Today contains a front page article entitled "Democrats derail Bush's court candidate; Senate GOP leader vows to press for conservative nominee 'again and again.'"
Posted at 08:05 by Howard Bashman



In news from Canada, "Elvis told to leave building, permanently": A Canadian court doesn't look fondly on "serial litigant," this news report explains.
Posted at 07:50 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "GOP Senators Fail to Force Vote on Estrada Nomination." A related editorial is entitled "Escalation in the Senate." Charles Lane has an article entitled "2 Girls' Cases Endure In Court, State Laws." And the Volcker Commission, which among other things is seeking to raise the salaries of federal judges, is back in the news.

The New York Times reports here that "G.O.P. Loses Filibuster Vote on Judicial Nominee." An editorial is entitled "Fairness Strikes Out." You can access here an article entitled "Judge Discards F.B.I. Evidence in Internet Case of Child Smut." An article reports that "Court Strikes Down Seizure of Cars From Drunken Drivers." And this article reports that "New Jersey Democrats Benefit From Court Ruling on Districts."

The Christian Science Monitor examines here "Why the Estrada nomination matters." And an editorial is entitled "California's Strike Zone."
Posted at 01:06 by Howard Bashman



"Court Strikes Down Online Porn Law": The Associated Press has this report on Thursday's Third Circuit ruling.
Posted at 00:49 by Howard Bashman



Thursday, March 06, 2003
U.S. Supreme Court round-up for March 5, 2003: The Supreme Court of the United States yesterday issued four opinions, which on top of Tuesday's five opinions made this week feel like June, but for the fact that it was snowing and sleeting for a good part of the day here in Philadelphia. The Supreme Court is staying quite current on its docket this year, causing some observers to note that when the Chief Justice announces his retirement in early July, he should then be feeling rather well-rested.

Yesterday's four decisions shared a common theme -- crime doesn't pay. Any felony qualifies as a third strike in California, so do try to make it a good one, instead of stealing golf clubs, videotapes, or an especially tasty slice of pepperoni pizza. And those who have been convicted of sex crimes but who wish to jealously safeguard their privacy are out of luck -- we'll be seeing you online. In fact, if you live in Alaska, the U.S. Supreme Court has conveniently gone ahead and provided us with the URL so that we can learn all about you.

And now, on to the specifics of yesterday's rulings.

1. Say what you will about how crazy and liberal Californians are, but when it comes to putting away repeat offenders, the State of California certainly did itself proud. In late 1994, the voters of California approved a "Three Strikes and You're Out" initiative by a margin of 72 percent for, 28 percent against. If an individual who has previously been convicted of two or more "serious" or "violent" felonies is convicted of any other felony, he or she must receive "an indeterminate term of life imprisonment" with a minimum sentence of twenty-five years before parole eligibility.

Gary Ewing had been convicted of ten previous criminal offenses before he committed the crime that gave rise to yesterday's decision in Ewing v. California, No. 01-6978 (U.S. Mar. 5, 2003). Had each of those offenses counted as a strike, in baseball he would have had more than three outs and his side would have been retired. But four of those offenses did count as "serious" or "violent" felonies, subjecting Ewing to a twenty-five years to life sentence for his next felony conviction.

Perhaps aware of that fact, and undoubtedly growing tired of the life of crime, Ewing apparently decided to try his luck as a professional golfer. Successful golfers earn lots of money and don't have to resort to petty thievery just to stay afloat. Ewing's plan, however, had a minor hitch that revealed itself when he was apprehended while attempting to limp away from a golf pro shop with three golf clubs stuffed down his pant leg. As they say in the biz, "Strike Three."

The authorities charged Ewing with one count of felony grand theft of personal property in excess of $400. In fact, the clubs were worth just shy of $1,200, reminding me just how expensive the hobby of golf can be. (I prefer racquetball, handball, or squash myself.) Under California practice, the crime of grand theft of personal property in excess of $400 is known as a "wobbler," which means that either the prosecution or the trial court could decide to charge the offense as a misdemeanor rather than a felony. In that way, defendants charged under the Three Strikes law with a relatively minor third strike offense are provided with something of a safety valve that can be exercised at the discretion of the prosecution or the trial court. Also, the trial court has the power to vacate the defendant's prior convictions for "serious" or "violent" felonies if it doesn't appear fair to subject the defendant to the Three Strikes sentence.

A recidivist such as Ewing, however, probably did not make for a very sympathetic candidate in the eyes of the state trial judge, who refused to invoke any of the available safety valves. As a result, after Ewing was convicted, he was sentenced to the term of twenty-five years to life in prison. Ewing's earliest possible release date will be when he is sixty-three years old. But, according to Justice Stephen G. Breyer's dissenting opinion, Ewing was "seriously ill when sentenced [and] will likely die in prison."

Justice Sandra Day O'Connor announced the judgment of the Court and delivered an opinion in which Chief Justice William H. Rehnquist and Justice Anthony M. Kennedy joined. In both of her opinions today (see the next case summary for a description of the other one), Justice O'Connor abandoned her strict policy against footnotes and used them to respond to dissenting opinions. Her other footnote-free colleagues -- Justices Kennedy and Breyer -- remained mercifully footnote free.

In a nutshell, Justice O'Connor's opinion recognizes that the Eighth Amendment contains a narrow proportionality principle that applies to noncapital sentences. Here, though, Ewing's sentence was not grossly disproportionate to all the very, very bad things that he has been convicted of doing, and the State of California is therefore entitled to incapacitate him. In practice, yesterday's ruling will require a case-by-case, fact intensive determination for all three-strikers whose third strike is a relatively minor offense. But realistically, the decision doesn't provide much hope of release to those sentenced under California's Three Strikes law. Whether the fellow whose third strike was imposed for the theft of a slice of pepperoni pizza -- albeit an especially tasty and nutritious slice -- (see the very end of this article published today in The San Francisco Chronicle) can obtain a different result from Ewing is impossible to predict.

Justices Antonin Scalia and Clarence Thomas filed short opinions concurring in the judgment in which they expressed the willingness to reject any Eighth Amendment challenge to a prison sentence imposed for a criminal offense, regardless of its duration. If the defendants had been sentenced to brutal torture, however, these Justice indicate that their views may be different.

Justices John Paul Stevens and Breyer filed dissenting opinions. Justice Stevens, joined by Justices David H. Souter, Ruth Bader Ginsburg, and Breyer, wrote separately to point out that part of being a judge requires applying difficult, multifactor tests, and therefore Justices Scalia and Thomas were just silly for not being willing to apply such a test here. Justice Breyer, however, issued the main dissenting opinion, and Justices Stevens, Souter, and Ginsburg joined in his dissent too. Justice Breyer engaged in another one of his legislative-like tour de forces in which he submits an array of facts and details so thorough that you'd almost have to agree that receiving twenty-five years to life for stealing three golf clubs just simply isn't fair. But not fair and not constitutional are not always synonymous. So, should we feel sorry for Ewing, who is serving a twenty-five year sentence for stealing three golf clubs? Or should we feel happy for those law abiding citizens of California who are free to walk the streets unafraid that Ewing will attempt to make them his next victim? That's a question that each of us will have to decide for ourselves.

2. Yesterday's second decision also involved California's Three Strikes law, but it arose as a habeas corpus case on review from the U.S. Court of Appeals for the Ninth Circuit. The rest of this description therefore all but writes itself. Reversed. Goodnight. See you tomorrow.

But, since there's one more Ninth Circuit reversal on the agenda this evening, let me provide just slightly more detail about the Court's ruling in Lockyer v. Andrade, No. 01-1127 (U.S. Mar. 5, 2003). In November 1995, Andrade robbed two different Kmart stores of video tapes worth roughly a combined $150. In exchange, he received strikes three and four, meaning that he is serving a minimum of fifty years behind bars before enjoying the possibility of parole.

Andrade's problem is that, for lack of a better term, he's procedurally screwed, because not only did the Ninth Circuit rule in his favor (opinion here), but his habeas petition arises under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). In order to qualify for habeas relief under the AEDPA, Andrade had to establish that his conviction was contrary to, or involved an unreasonable application of, clearly established U.S. Supreme Court law.

Because the U.S. Supreme Court's law in this area before yesterday (and some might argue after, too) was far from pellucid, it was impossible for a lower court to rule that a California state court's decision upholding Andrade's sentence was contrary to, or unreasonable under, Supreme Court precedent. Justice O'Connor this time wrote the majority opinion, in which the Chief Justice and Justices Scalia, Kennedy, and Thomas joined. Justice Souter wrote a dissenting opinion in which Justices Stevens, Ginsburg, and Breyer joined. My copy of Justice Souter's dissent contains no markings from my red pen, suggesting either that it said nothing worthy of mention or I failed to understand it. My advice to pepperoni-pizza-man, however, is do your best to win in state court because federal habeas petitions seem to be quite a longshot these days.

3. Switching gears from actual, convicted recidivists to real live potential sex crime recidivists, yesterday's third decision came in the case of Smith v. Doe, No. 01-729 (U.S. Mar. 5, 2003). Despite possibilities to the contrary, only Doe is a pseudonym. This case too arose from the Ninth Circuit (opinion here), and Circuit Judge Stephen Reinhardt wrote the opinion there. On, then, to the details of this reversal.

The question presented can be stated simply -- Does Alaska's Sex Offender Registration Act violate the Ex Post Facto Clause insofar as it applies to sex offenders and kidnappers who were convicted before the Act took effect? The Supreme Court yesterday answered that question in the negative, finding that the Act doesn't constitute punishment.

The majority opinion, written by Justice Kennedy, in which the Chief Justice and Justices O'Connor, Scalia, and Thomas joined, first explained that Alaska's legislature intended to enact a civil, nonpunitive scheme. Then Justice Kennedy went on to hold that the scheme is not so punitive in purpose or effect to negate the legislature's intention to deem it civil. In a very interesting passage, Justice Kennedy writes:
[T]he stigma of Alaska's Megan's Law results not from public display for ridicule and shaming but from the dissemination of accurate information about a criminal record, most of which is already public. Our system does not treat dissemination of truthful information in furtherance of a legitimate governmental objective as punishment. On the contrary, our criminal law tradition insists on public indictment, public trial, and public imposition of sentence. Transparency is essential to maintaining public respect for the criminal justice system, ensuring its integrity, and protecting the rights of the accused. The publicity may cause adverse consequences for the convicted defendant, running from mild personal embarrassment to social ostracism. In contrast to the colonial shaming punishments, however, the State does not make the publicity and the resulting stigma an integral part of the objective of the regulatory scheme.
Justice Kennedy's opinion then goes on to note that the Internet did not exist in colonial times, thereby explaining Justice Souter's unfamiliarity with it. On page 17 of the majority opinion (which is found on page 22 of this PDF file), the Court helpfully provides us with the URL to Alaska's Sex Offender Registry, which proclaims "If you wish to view Registered Sex Offender Information, Please select from one of the following options." Given that the Court in recent years has classified the civil commitment of dangerous sex offenders as "not punishment," you had to guess that this case was going to be decided as it was. Justice Thomas wrote a short concurring opinion explaining that he would have limited his consideration of the ex post facto challenge to the statute in question, rather than considering how it was in fact being implemented.

Justice Souter concurred in the judgment but viewed the matter as a closer case than the five Justices in the majority. Justice Stevens dissented in an opinion that simultaneously concurred in the judgment in the day's fourth case, making for some anxious moments. Justice Ginsburg wrote a dissenting opinion in which Justice Breyer joined, finding the Act's burdens excessive in relation to the Act's nonpunitive purpose.

4. The day's final case was the only one in which all Justices agreed with the result, and in this newfound era of good feelings the Chief Justice kept the opinion for himself. The question presented in Connecticut Department of Public Safety v. Doe, No. 01-1231 (U.S. Mar. 5, 2003), was whether convicted sex offenders were unlawfully denied their right to due process of law when Connecticut failed to afford them a hearing to determine their "current dangerousness" before including them in the State's Internet database of sex offenders. (I didn't see the URL to that database in the decision.)

What made this case so simple was the Court's commonsense response -- By including you in the sex offender database, Connecticut isn't saying that you're currently dangerous, only that you're a convicted sex offender. And thus this case illustrates the dispositive difference between actually saying something and merely implying it. In order to hold the votes of the Court's most liberal members, the Chief Justice gritted his teeth and wrote before concluding that the case didn't involve a substantive due process challenge, but only a procedural due process challenge. Of course, if it had involved a substantive due process challenge, we can be sure that at least five votes would have existed to squash it like a bug. Even though every Justice save Stevens joined the Chief Justice's opinion, Justices Scalia and Souter (the latter joined by Ginsburg) wrote concurring opinions. You see, Justice Scalia couldn't wait for a substantive due process challenge actually to arise before disassociating himself from the concept. And Justice Souter wrote to point out the availability of an equal protection challenge if certain facts existed.

In closing, today's lesson, for those who are hard of learning, is that crime doesn't pay. More opinions are likely to issue on Monday, March 10, 2003, so stay tuned!
Posted at 22:30 by Howard Bashman



"14th Amendment possibly snagged in Ohio House; Some conservatives don't like how it's been used": Today's edition of The Dayton Daily News contains this report.
Posted at 22:24 by Howard Bashman



"Ex-Attorney General Morales Indicted": The Associated Press has this news from Texas.
Posted at 20:50 by Howard Bashman



Coming attractions: I am reliably advised that Justice Priscilla R. Owen of the Supreme Court of Texas is scheduled to return to Washington, DC next week for another hearing before the Senate Judiciary Committee. Justice Owen remains nominated to fill a vacancy on the U.S. Court of Appeals for the Fifth Circuit. On September 5, 2002, the Judiciary Committee voted 10-9, along party lines, to refuse to recommend her nomination to the full U.S. Senate. This year, a party line vote would result in a 10-9 tally in favor of the nomination.
Posted at 20:42 by Howard Bashman



"Tedious -- and Unconstitutional": The Catholic University Law School Dean Douglas W. Kmiec has this op-ed about the U.S. Senate's filibuster of Miguel A. Estrada's judicial nomination in today's edition of The Wall Street Journal. (Via "White Noise.")
Posted at 20:09 by Howard Bashman



"Judges Attack Online Child Porn Crackdown": The AP has this report.
Posted at 19:27 by Howard Bashman



"Ruling Leaves Judges In Political Quandary": Yesterday's edition of Newsday contained a commentary explaining that "When U.S. District Judge David Hurd issued his decision last week, essentially throwing out the state's rules of judicial conduct, a shock wave went through the bar and the bench."
Posted at 18:37 by Howard Bashman



"Ashcroft Defends Detention of 2 Americans": The Associated Press provides this report.
Posted at 18:32 by Howard Bashman



"Two Senators Push Courtroom Camera Bill": The Associated Press offers this report.
Posted at 17:45 by Howard Bashman



Available online from The Washington Post: You can access here an article entitled "Republicans Fail to Force Estrada Vote; Senate Five Votes Short of 60 Needed to End Filibuster." And avaiable here is the transcript of an online chat today with Nan Aron, who serves as President of the Alliance for Justice, an organization that is opposing many of the Bush Administration's federal appellate court nominees.

Update: The Post also had a pro-Estrada online chat today, involving Jeffrey Mazzella, vice president of legislative affairs at The Center for Individual Freedom, and you can access it here.
Posted at 17:40 by Howard Bashman



"Hail to the Juror? Not in This Case": Former President Clinton wasn't selected for jury duty, The New York Times reports here.
Posted at 17:33 by Howard Bashman



BREAKING NEWS -- Third Circuit again affirms preliminary injunction against enforcement of Child Online Protection Act: The U.S. Court of Appeals for the Third Circuit has today affirmed a federal district court's injunction prohibiting enforcement of the Child Online Protection Act on remand from the U.S. Supreme Court's decision last Term requiring reconsideration. You can access my coverage of the Supreme Court's ruling last May at this link (plus, as an added bonus, you'll also find there my discussion of Bollywood, "Ghost World," and "Jaan Pehechaan Ho"). The Third Circuit's ruling is not yet available online, but thanks to a kind reader who's a member of the press, I have a copy. Senior Circuit Judge Leonard I. Garth wrote today's opinion, in which Circuit Judges Richard L. Nygaard and Theodore A. McKee joined.

Update (4:30 p.m.): You can now access online the Third Circuit's decision at this link. In other good news, today the Third Circuit has begun putting its opinions online in printed pamphlet format (as I recently suggested), instead of in typescript. Yay!
Posted at 15:51 by Howard Bashman



Law Professor Jack Bogdanski says that Oregon's state judicial system is falling apart: You can learn the details here in a post at the aptly named "Jack Bog's Blog."
Posted at 15:31 by Howard Bashman



"Sen. Graham Delays Decision on Estrada": The Associated Press has this report.
Posted at 14:54 by Howard Bashman



"Glaxo Loses Ruling in Patent Trial for Depression Drug": Yesterday's edition of The New York Times contained this report. Seventh Circuit Judge Richard A. Posner presided over this trial in the U.S. District Court for the Northern District of Illinois, and you can access Judge Posner's findings of fact and conclusions of law at this link. The first paragraph alone is worth the visit. (Thanks to a former colleague who's also a big Judge Posner fan for the link.)
Posted at 14:49 by Howard Bashman



I'm officially out of step with America: Back in August, Slate published my essay "Poll-Tergeist: Why the Supreme Court shouldn't care what you think." Yesterday, The Associated Press reported here that "The majority opinions of Americans should influence decisions of the Supreme Court, three-fourths of the people in a new poll say. Most people think public opinion now has little influence on the court." So it's the public's opinion that public opinion should have more influence on the U.S. Supreme Court. Why am I not surprised?
Posted at 14:36 by Howard Bashman



Statement by President Bush on the U.S. Senate's failure to approve cloture: President Bush today issued the following statement after the U.S. Senate fell five votes short of approving cloture on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit:
STATEMENT BY THE PRESIDENT

Miguel Estrada is a well-qualified nominee to the U.S. Court of Appeals who has been waiting nearly two years for an up or down vote in the United States Senate. The decision today by 44 Senators to continue to filibuster and block a vote on this nomination is a disgrace.

The Senate has a responsibility to exercise its constitutional advice and consent function and hold an up or down vote on a judicial nominee within a reasonable time. Some Senators who once insisted that every appeals court nominee deserves a timely vote have now abandoned that principle for partisan politics. Their tactics are an injustice and unfair to the good man I have nominated, and unfaithful to the Senate's own obligations.

These Senators are holding Miguel Estrada to a double standard. I will stand by Miguel Estrada's side until he is sworn in as a judge. 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.
You can access the statement online at this link.

Meanwhile, The Associated Press now has a revised report entitled "Bush Dealt Setback on Judicial Nominee." And you can access the official cloture vote tally showing how Senators voted here, via the U.S. Senate's Web site.
Posted at 14:20 by Howard Bashman



Seventh Circuit reinstates claims against Paramount Pictures in suit filed by little league coach who asserts the movie Hardball defamed him: You can access the Seventh Circuit's ruling, issued today, at this link. The plaintiff claims that he is the person depicted in the film by Keanu Reeves.
Posted at 13:51 by Howard Bashman



Thanks for the mention: Slashdot.
Posted at 13:22 by Howard Bashman



Online at The American Prospect: Martin Garbus has an essay entitled "A Hostile Takeover: How the Federalist Society is capturing the federal courts." Joseph Rosenbloom has an essay entitled "No Death-Penalty Doubts at Justice: DNA testing and racial bias raise questions of fairness -- but not with Ashcroft." And Randall Kennedy has an essay entitled "Affirmative Reaction: The courts, the right and the race question."
Posted at 13:20 by Howard Bashman



"Three Strikes and You're Still Out": Jack Dunphy offers these thoughts at National Review Online.
Posted at 12:10 by Howard Bashman



"Walker Lindh assault claimed; 'American Taliban' reportedly beset in High Desert prison": Today's edition of The San Bernardino County Sun contains this report.
Posted at 12:05 by Howard Bashman



"Republicans Can't Stop Estrada Filibuster": The Associated Press offers this report. And Reuters reports here that "Republicans Lose Senate Showdown Test on Estrada." I compliment the Reuters headline writer for using both showdown and test when either alone would have sufficed.
Posted at 11:44 by Howard Bashman



The results of the U.S. Senate's cloture vote on Miguel A. Estrada's D.C. Circuit nomination: 55-44 in favor of cloture. Sixty votes were needed to invoke cloture, so the Republicans' motion to invoke cloture has failed. And now the Senate proceeds to consider "The Treaty Between the United States of America and the Russian Federation on Strategic Offensive Reductions, Signed at Moscow on May 24, 2002."
Posted at 11:03 by Howard Bashman



The results of today's Senate Judiciary Committee business meeting: "Voted out en banc by unanimous consent: District Court Judges J. Daniel Breen, WD Tenn; Thomas A. Varlan, ED Tenn; William H. Steele, SD Ala; U.S. Atty. for Dist. of Puerto Rico Humberto S. Garcia; and USM for ED NY Eugene J. Corcoran.

"Voted out by roll call 10-6-3 passes Timothy M. Tymkovich for the Tenth Circuit--Record Left Open Untill 4pm Today for Senators Biden, Kohl, and Schumer to vote."
Posted at 11:00 by Howard Bashman



Letters to the editor relating to the Estrada nomination: Law Professor Rick Hasen has sent a letter to the editor responding to a commentary written by Morton Kondracke that appeared in Roll Call (full text of the commentary is not available online). You can access Hasen letter to the editor here, at his blog "Election Law."

Meanwhile, a reader who wishes to remain anonymous has sent me an email in connection with the second of two letters to the editor that The Washington Post published today. The letter to The Post states, in pertinent part:
Under Senate rules, one senator can file an objection to a nominee from his or her state, even if that nominee would be overwhelmingly approved in the Senate. A case in point was the nomination by President Clinton of Ronnie White, a Missouri state Supreme Court judge, to a federal district court. Then-Sen. John Ashcroft (R.-Mo.) objected to the nomination and persuaded his fellow Missouri Sen. Christopher S. Bond to go along, and the Senate Judiciary Committee voted Judge White down.
My reader emails in response:
The second Wash. Post letter you link to is simply wrong: Ronnie White was not blocked by Sen. Ashcroft using his unilateral powers (blue slip or hold) nor was White defeated in committee. Indeed, then Senator Ashcroft specifically did NOT block White by blue slip or place a hold on his nomination on the floor. White received a floor vote and was defeated 45-54. (For full details, including record of his floor vote, that he was reported out of committee "favorably", and that there was unanimous consent that he receive a floor vote, one can go to http://thomas.loc.gov/home/nomis.html and search either for nomination number PN49-106 or all nominees from Missouri considered during the 106th Congress.) Of course, that is all the Republicans seek for Miguel Estrada -- a floor vote.

Does the Post do any fact checking at all before it publishes a letter? Yes, a rhetorical question.
Thanks for writing, everyone.
Posted at 10:36 by Howard Bashman



Some anti-Estrada commentary from here and there: Today's edition of The Atlanta Journal-Constitution contains an op-ed entitled "Don't let mum be the word for Estrada." And Tuesday's edition of The Chicago Tribune contained an op-ed by Eduardo M. Penalver, a former law clerk to Justice John Paul Stevens, entitled "Are Estrada's opponents anti-Latino? No merit to argument that to oppose Estrada's nomination is to oppose interests of Latinos."
Posted at 10:29 by Howard Bashman



"Ruling could threaten long-standing content protections": An article posted online at c|net News.com begins, "A controversial case before a federal appeals court could significantly restrict legal protections that have long absolved Internet companies from responsibility for their customers' actions." Thanks to the author of the blog "Balasubramania's Mania" for drawing this article to my attention.
Posted at 10:15 by Howard Bashman



Some undergraduate students report on attending the Seventh Circuit's kitty litter oral argument: It just so happens that two readers of "How Appealing" who are undergraduates attending the University of Chicago were present for the recent Seventh Circuit oral argument in the kitty litter case, decided yesterday (my report is here). These students emailed me separately last night to describe what they saw and heard during that oral argument.

The first email explains:
I just happened to read your post on the kitty litter opinion. As it happens, I was in the courtroom watching the oral arguments that day. The judges were very very excited about the kitty litter. The substance of the case was not nearly as interesting as the establishment-clause-challenge to Chicago's church zoning restrictions, but the way Judge Evans sat forward in his chair at rapt attention from the first mention of "kitty litter" made me suspect he was going to get the opinion. It's nice to know that judges take joy from the little things in life.
And the second email states:
I was watching oral arguments at the 7th Circuit the day that case was heard.

Don't underestimate how much fun three judges can have talking about kitty litter and oozing creosote (I noticed the opinion used the phrase "seep out"). The judges didn't spend much time talking about providing dirt or sawdust to cover the railway ties with. It felt like they were trying to figure out how many times they could each use the words "kitty litter." Questions along the line of, does CSX provide kitty litter at the site, or is an employee expected to pick up kitty litter himself? Will he get reimbursed if he buys kitty litter? There was a certain joy and glee with which they pronounced the words. After a while, though, kitty litter lost its novelty. They attempted to replace it with "ooze," relishing the way it comes out of the mouth, but it was slightly less successful.

The other highlight was Posner asking a lawyer for the city of Chicago "Wait, so what's the difference between a church and a funeral parlor?"
Thanks for writing! One of the joys of the Seventh Circuit's Web site is that you can listen online to the oral argument in the kitty litter case via this link.
Posted at 09:52 by Howard Bashman



Some details on today's U.S. Senate cloture vote on the nomination of Miguel A. Estrada: The U.S. Senate's cloture vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the District of Columbia Circuit is scheduled to occur at 10:30 a.m. eastern time. It will be preceded by one half hour of debate, with that time evenly divided between the Democrats and Republicans. You can watch the debate and the vote online via C-SPAN2 at this link. And you can learn more about filibuster and cloture here.

Republicans anticipate that 55 votes exist in favor of cloture, but for cloture to be invoked at least 60 votes are needed. It is quite possible that not every Senator will be present for today's vote, and if that's the case there may be fewer than 55 votes in favor of cloture. We shall know for certain in the very near future.

Update: The official debate begins with the call of the roll due to the absence of a quorum.
Posted at 09:44 by Howard Bashman



Today's my deadline to submit for publication my appellate column for March 2003: This month's column, which will be published in The Legal Intelligencer (Philadelphia's daily newspaper for lawyers) on Monday, March 10, 2003, addresses some of the more interesting issues surrounding how federal courts, and federal appellate courts in particular, should go about resolving unsettled questions of state law in diversity cases. The column will discuss three main points: when should federal appellate courts certify unresolved questions of state law to the highest court of a State?; is it appropriate, as a default rule, to resolve uncertainties in state law against the party that caused the case to be pending in federal court?; and may federal trial courts more readily disregard how their supervisory federal appellate court has resolved an unsettled question of state law than how the appellate court has resolved a previously unsettled question of federal law?

If you'd like to receive via email each month in PDF format a copy of my appellate column on the day it appears in print in The Legal Intelligencer, simply complete this online form. And if you'd like to access online the wealth of information that some believe may exist in my appellate columns from prior months, they are all accessible here.
Posted at 09:25 by Howard Bashman



What a difference a day makes: It turns out that postponing my wrap-up of yesterday's U.S. Supreme Court rulings until today was a smart move, because now I actually have some thoughts about what to say.

So here's a preview of what you'll find mentioned in the wrap-up, which should be appearing online here before the end of today: baseball; golf; pizza; we're horribly confused so you lose; further proof that crime doesn't pay; sorry, Ninth Circuit (part one); some people like to have photos of themselves appear online; but apparently not when identified as a convicted sex offender; if keeping sex offenders institutionalized post-prison isn't punishment, then this isn't either; how kind -- the Supreme Court gives us the URL to visit and browse through Alaska's Internet sex offender registry; sorry Ninth Circuit (part two); and there's a world of difference between saying something and merely implying it. Now the wrap-up will practically write itself.
Posted at 09:09 by Howard Bashman



This morning's Miguel A. Estrada news and commentary round-up: With the U.S. Senate scheduled to hold a cloture vote today on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit, today's edition of The Chicago Sun-Times reports here that "Frist set to get vote on Estrada." The Times-Picayune reports here that "Bush finds foes in Louisiana." The Tallahassee Democrat reports here that "Zell Miller marches to his own beat." And at FindLaw, Edward Lazarus has an essay entitled "George Will, Miguel Estrada, and the Cloture Vote: How Will's Flip-Flop of Positions Illustrates the Increasing Collapse of the Politics/Law Distinction."
Posted at 08:00 by Howard Bashman



Elsewhere in Thursday's newspapers: In The Los Angeles Times, David G. Savage reports here that "U.S. Supreme Court Affirms Megan's Laws, Three-Strikes" and here that "Library Software Filters Debated; Solicitor general argues for restoration of a law that requires computers to block pornography. Most justices sound supportive of statute." In related news, "Police, Advocates for Victims Hail Megan's Laws Ruling; Decision allows states to expand public access to information about sex offenders, experts say." An article entitled "Court Curbs Searches of Parolees' Homes; Police must have a reasonable suspicion even though waivers are a condition of release" reports on yesterday's very controversial ruling by the Ninth Circuit in a case that may very well be accepted for review on the merits by the U.S. Supreme Court. (I first reported on this ruling yesterday afternoon in a post you can access here.) And Law Professor Jonathan Turley has an op-ed entitled "Rights on the Rack; Alleged torture in terror war imperils U.S. standards of humanity."

The Washington Times reports here that "Senate GOP may see cloture vote on Estrada fall short." Frank J. Murray reports here that "Estrada 'success story' not echoed by activists" and here that "Court upholds 'three strikes' law." You can access here an editorial entitled "Three strikes and you're in."

In The Boston Globe, Lyle Denniston reports here that "'Three strikes' sentences upheld; High court also OK's online sex offender lists" and here that "Justices hear Internet filtering case; Case challenges constitutionality of 2001 library law." In news from Boston, this article begins: "Ruling that the Archdiocese of Boston and its leaders could not presently receive a fair trial, Superior Court Judge Constance M. Sweeney yesterday delayed the first civil lawsuits in Massachusetts stemming from the sex abuse scandal until after mid-June."

In USA Today, Joan Biskupic reports here that "Tough crime laws OK'd; Supreme Court upholds '3 strikes'" and here that "Court's crime rulings give wide latitude to the states." A letter to the editor is entitled "American first, Hispanic second."

In The New York Times, Linda Greenhouse reports that "Sides Debate Web Access in Libraries." And The Washington Post publishes letters to the editor under the heading "Anatomy of a Filibuster."
Posted at 07:39 by Howard Bashman



Tim Tymkovich is on the agenda: The Senate Judiciary Committee is scheduled to hold a business meeting at 9:30 a.m. this morning, and Tenth Circuit nominee Timothy M. Tymkovich is the lone federal appellate court nominee who is scheduled for a vote.
Posted at 06:45 by Howard Bashman



Stealing a slice of pepperoni pizza equals strike three for this California inmate: Be sure to check out the list of "strike three inmates" that follows Bob Egelko's report entitled "Top court upholds '3 strikes'; Justices allow 25-year-to-life terms for shoplifting" in today's edition of The San Francisco Chronicle.
Posted at 06:40 by Howard Bashman



In Pledge of Allegiance-related news and commentary: Today's edition of The Washington Times reports here that "DeLay threatens to curb courts' jurisdiction." The Sacramento Bee reports here that "Pledge-ban judge OKs a new stay; Elk Grove school officials are glad; the case's next stop may be the U.S. Supreme Court." The Lodi News-Sentinel contains a similar report. The Press-Enterprise reports here that "'Under God' ban put on hold; A federal court stays its order that the phrase is unconstitutional." The San Francisco Chronicle reports here that "Ban on pledge in schools delayed; U.S. appeals court grants Elk Grove district's request for 90-day stay." Finally, The Jackson Sun contains an editorial entitled "Supreme Court should strike Pledge ruling."
Posted at 06:30 by Howard Bashman



"GOP Hopes to Break Democrats on Estrada": The Associated Press offers this report.
Posted at 06:15 by Howard Bashman



"Unearthed military secret brings new life to old case": Yesterday's edition of The Philadelphia Inquirer contained an article that began:
In an extraordinary legal petition, a Philadelphia lawyer is telling the U.S. Supreme Court that it was defrauded 50 years ago by military officials who lied to win a precedent-setting ruling in a national-security case.

The petition of Wilson M. Brown 3d, a lawyer with Drinker, Biddle and Reath, was so unusual that the staff at the Supreme Court clerk's office didn't know what to do with it when it was filed last week - and returned it. Brown said yesterday the petition would be refiled today.
You can access the complete article at this link.
Posted at 06:05 by Howard Bashman



In Thursday's newspapers: OpinionJournal offers an editorial entitled "The Estrada Precedent: Democrats take judicial confirmation battles to a new low."

In The Christian Science Monitor, Warren Richey reports here that "High court OKs 'three strikes' law; In win for tough-on-crime sentences, court says law isn't cruel and unusual" and here that "Megan's Law upheld; High court allows Internet lists that track sex offenders." And an op-ed is entitled "Death penalty: How foolproof is our justice?"

In The Washington Post, Charles Lane reports here that "California's '3-Strikes' Law Upheld; Supreme Court Decides Long Prison Terms Legal" and here that "Megan's Laws Affirmed by High Court; Statutes Not Regarded As Extra Punishment."

Finally for now, in The New York Times Linda Greenhouse reports here that "Justices Uphold Long Prison Terms in Repeat Crimes" and here that "Justices Reject Challenges to Megan's Laws."
Posted at 00:15 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Supreme Court OKs Three Strikes Statutes, Megan's Laws" and here that "High Court Hears Arguments on Library Internet Filters." Shannon P. Duffy reports that "Chertoff Nominated for 3rd Circuit Seat." Jonathan Ringel reports that "11th Circuit Picks at ACLU Arguments Against Ten Commandments." And you can access here an article entitled "Pa. High Court Panel Finds Bias Infects Justice System."
Posted at 00:05 by Howard Bashman



Wednesday, March 05, 2003
Notice of postponement: If the Senate Judiciary Committee could at the very last second postpone its hearing scheduled for today, I too can postpone my round-up of today's four U.S. Supreme Court rulings until tomorrow.
Posted at 23:12 by Howard Bashman



Don't underestimate the power of cat litter: Today a three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a unanimous opinion written by Circuit Judge Terence T. Evans that begins:
Every day, cat owners see accidents that result when there's no kitty litter around. But it seems quite odd to have a case where a human blames his own accident on the absence of kitty litter. This, however, is such a case.
Also on the panel was Circuit Judge Richard A. Posner, who has described himself as "the owner of a celebrity cat."
Posted at 22:10 by Howard Bashman



En banc Eleventh Circuit allows Hartsfield Atlanta International Airport to charge fee to newspapers for use of newsracks located there: You can access the en banc Eleventh Circuit's decision, which rules against The Atlanta Journal-Constitution, USA Today, and The New York Times, at this link. The opinion issued last Friday. Monday's edition of The Atlanta Journal-Constitution contained this report, entitled "Court OKs city's fees for newspaper racks."
Posted at 22:08 by Howard Bashman



Federal judicial nomination and confirmation news and commentary from here and there: Tomorrow the U.S. Senate is scheduled to have a cloture vote on the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. The Estrada matter was discussed at today's White House press briefing, and you can access the pertinent question and answer at this link. The Financial Times contains an article entitled "Move to end Estrada standoff." Newsday reports here that "GOP Aims to Halt Debate Over Judge; Neither side will budge over appeals court nominee." The Guardian tries to explain it all to its readership in the United Kingdom. A report from New Jersey is entitled "N.J. senators help stall appointment."

In commentary, The Oklahoman contains an editorial entitled "More Judicial Delays." And the Feminist Majority Foundation announces here that it "Opposes [the] Nomination of Jeffrey Sutton to the Sixth Circuit."
Posted at 21:32 by Howard Bashman



Compare and contrast: This very brief Fifth Circuit decision issued last week but posted to that court's Web site today is squarely in conflict with the Sixth Circuit's en banc ruling today concerning whether excludable aliens may be detained indefinitely when their country of origin refuses to accept their return.
Posted at 21:25 by Howard Bashman



It was a very nice lunch: You can learn about my lunch yesterday with a quite wonderful contributor to "The Academy" blog at this link (which, of course, just happens to take you to "The Academy" blog, of all places).
Posted at 20:34 by Howard Bashman



"Bush Nominates Chertoff to Appeals Court": The Associated Press has this report about the person nominated today to serve on the U.S. Court of Appeals for the Third Circuit.
Posted at 20:29 by Howard Bashman



The lack of rules precludes a claim of cheating: A reader who works as an attorney for one of the Nation's largest law firms emails to provide what he describes as the definitive answer for the meaning of "whyss" (see here for more details):
I called the store, explained to the very pleasant woman who answered the phone who I was and why I was calling, and asked if she could tell me what "whyss" is. She had never heard of such a word. She looked at the opinion and suggested that it may have been a typo for "whips."

Accordingly, if you should ever find yourself in Elizabethtown, Kentucky and in need of a whip, by all means visit the very nice people at Cathy's Little Secret.
As this article from CNN.com explains, Victor's Little Secret is now known as Cathy's Little Secret.
Posted at 19:14 by Howard Bashman



Senator Tom Harkin issues a statement entitled "The World According To Sutton": In the statement, Senator Harkin (D-IA) announces his intention to vote against Sixth Circuit nominee Jeffrey S. Sutton.
Posted at 19:08 by Howard Bashman



"The Supreme Court finds a library porn filter it can love": Dahlia Lithwick at Slate has this report on today's oral argument.
Posted at 19:05 by Howard Bashman



"Bush's White House speaks fluent Latino": Syndicated columnist Ruben Navarrette Jr.'s most recent essay on the Miguel A. Estrada filibuster is available online here. (Thanks to Stuart Buck for the link.)
Posted at 17:22 by Howard Bashman



White House news release announcing today's judicial nominations: You can access it online here, and my coverage from earlier this afternoon is available at this link.
Posted at 17:08 by Howard Bashman



Available online from The Washington Post: Charles Lane reports here that "Supreme Court Upholds 'Three-Strikes' Sentencing." And The Post earlier this afternoon held an online chat with Paul M. Smith, the attorney who argued today's Web filtering case in the U.S. Supreme Court on behalf of the American Library Association. You can access the transcript of the chat here.
Posted at 16:40 by Howard Bashman



Whyssing for an answer? The call went out this morning to the readers of this Web log -- what's a "whyss"? The term appeared in the already famous footnote four of yesterday's U.S. Supreme Court ruling in Moseley v. V. Secret Catalogue, Inc.

Many people had written in to ask that question. And many wrote in to answer, too. Here are the best of the answers received so far:
I believe "whyss" is the americanized spelling of "whiss" to be found in the OED under the latter, English spelling. It derives from the verb "to flog." I leave the rest to your imagination.
A reader who clerks on the First Circuit (where a certain Circuit Judge is the master of obscure words) emails:
Could it be a variant spelling of "whiss" defined by the OED as "a blow with something pliant, a lash," derived from the verb form, "whiss," meaning "to strike with something pliant, to flog."
A law student at the University of Chicago Law School writes:
I'm afraid I can't solve the mystery of "whyss," but I can supply a little more information.

The OED would be the only place you'd expect to surely have it. Alas, that is not the case. It does, however, show up in two entries.

The first is, oddly enough, as an obsolete variation under the most common sense of the word "cushion," with this example:

c1340 Gaw. & Gr. Knt. 877 Whyssynes vpon quelde~poyntes, a[t] koynt wer boe.

Given that it only showed up as a prefix there, I'm inclined to doubt that explanation.

The second one, alas, is (i) a verb and (ii) obsolete, but sense 1. gives me the guess that "whyss" might simply be an obfuscatory way of saying whistle, an item that would make some sense given the general timbre of the list of merchandise:

WHISS, v. Obs.

Also 5 quysse, 6 whisse, whyss(e, wiss(e, Sc. quheiss.

1. intr. To make a sibilant sound of some kind; to whistle, hiss, whizz, or wheeze; trans. to whistle to. Hence whissing vbl. n. and ppl. a.

2. trans. ? To strike with something pliant, to flog: cf. quot. c 1590 in n. below.

Hence whiss n., a blow with something pliant, a lash.

c1590 J. STEWART Poems (S.T.S.) II. 235 Tak thair ane quheiss it vith my skoullon clout

I'll see if I can't poke around into this some more, although a supplementary Google showed nothing.
A law clerk to a judge on the Fifth Circuit emails:
After some research, I found that Whyss is a tecnique of electrical stimulation designed to cause muscles to contract (a bit like those ab machines, but based on a different signal frequency). Here's an example of an application of this technology.

What exactly the Victor's Little Secret version does I leave to your imagination.

As a disclaimer, I want to say that I had no idea what Whyss was when I set out on my research. This is why they pay me the big bucks.
Finally, a recent U.S. Supreme Court law clerk who's now a high-powered law professor remains hot on the trail of the answer to the Whyss question, and she has already solved the "hosiery bubble machine" conundrum:
I thought the Court might have missed a comma, too, but I was insufficiently respectful of the library's fact-checking ability. A hosiery bubble machine is a machine for dispensing little toys/etc. encased in plastic bubbles, as one sees in some supermarkets to attract kids. So named for the bubbles' resemblance to a certain egg-shaped package used to sell hosiery.
Thanks to everyone who is trying to figure out the answer to this mystery.
Posted at 16:21 by Howard Bashman



"W. House Offers Dems New Chance to Question Estrada": Reuters offers this report. You can access the text of the White House letter in question here, at "How Appealing Extra."
Posted at 16:06 by Howard Bashman



"GOP Pushing Estrada's Hispanic Heritage": The Associated Press offers this report.
Posted at 16:04 by Howard Bashman



Today's letter from White House Counsel Alberto R. Gonzales to Senator Tom Daschle about the Estrada nomination: You can access the letter that White House Counsel Alberto R. Gonzales sent today to Democratic Leader Senator Tom Daschle (D-SD) about Miguel A. Estrada's nomination to serve on the D.C. Circuit via this link, at "How Appealing Extra."
Posted at 14:21 by Howard Bashman



Today's noteworthy Ninth Circuit ruling: Today a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued a ruling that begins:
Pursuant to a mandatory condition of Raphyal Crawford's parole, FBI agents entered Crawford's home to conduct a "parole search" on July 27, 2000. The agents conducted the search despite the fact that they expected to find absolutely no evidence of a crime on the premises, because they thought it would help pressure Crawford into talking about his role in an unsolved robbery committed two years before. Less than two hours later, Crawford confessed to participating in the robbery.

We hold that the search of Crawford's home without any reasonable suspicion, although pursuant to a parole condition authorizing such searches, violated the Fourth Amendment. Because Crawford's confession resulted from the suspicionless search of his residence, we reverse the district court's decision denying his motion to suppress and remand to allow him to withdraw his guilty plea.
Circuit Judge Stephen Reinhardt wrote the majority opinion, in which Circuit Judge A. Wallace Tashima joined. Circuit Judge Stephen S. Trott dissented. You can access the ruling and dissent, in their entirety, at this link.
Posted at 13:50 by Howard Bashman



"High Court Considers Library Porn Filters": Anne Gearan of The Associated Press provides this report.
Posted at 13:41 by Howard Bashman



The White House has today nominated two individuals to serve on the U.S. Courts of Appeals: Assistant Attorney General Michael Chertoff has been nominated to serve on the U.S. Court of Appeals for the Third Circuit, and Judge Richard C. Wesley of the New York State Court of Appeals, that State's highest court, has been nominated to serve on the U.S. Court of Appeals for the Second Circuit.
Posted at 13:36 by Howard Bashman



"Tribal sovereignty on line in U.S. Supreme Court": Today's edition of The San Diego Union-Tribune contains this report about a case to be argued March 31, 2003 (the day before the Michigan racial preferences in university admissions cases). Thanks to "The Angry Clam" for sending along the link.
Posted at 12:36 by Howard Bashman



Sacrificial lamb? Philippe de Croy just emailed to suggest that I check out his latest post at "The Volokh Conspiracy" about the Estrada nomination. I have done so, and you can do so too if you'd like. I don't think that either side will view Philippe's proposal as acceptable (I know that I certainly don't), but perhaps that's the beauty of it.
Posted at 12:13 by Howard Bashman



The Oklahoma Bar Journal discovers Web logs: Thanks for the mention, OK.
Posted at 12:07 by Howard Bashman



The U.S. Supreme Court has issued four opinions today: Opinions were delivered today in Ewing v. California, Lockyer v. Andrade, Smith v. Doe, and Connecticut Dept. of Public Safety v. Doe. Doe lost both cases, and California won the other two. My summary of these rulings will appear online at "How Appealing" tonight. Following yesterday's affirmance (affirmation?), the Supreme Court reversed the Ninth Circuit twice today.
Posted at 10:38 by Howard Bashman



Just in time for Major League Baseball's spring training: Early reports indicate that today is "three strikes" day at the U.S. Supreme Court. Also not a good day for convicted sex offenders who don't want photos of themselves posted on the Internet.
Posted at 10:18 by Howard Bashman



Whyss and chaise? A multitude of readers, including a judge serving on the U.S. Court of Appeals for the Sixth Circuit, have emailed to ask what in the world does the term "whyss" mean. It's found in footnote four of the U.S. Supreme Court's ruling yesterday in Moseley v. V. Secret Catalogue, Inc., and it failed to merit its own "[sic]," so presumably it must mean something. Enquiring minds want to know (especially if it's something really kinky).
Posted at 09:59 by Howard Bashman



Stuart Smalley: Was I the only person surprised by Justice Ruth Bader Ginsburg's use of the word affirmation, rather than affirmance, the following sentence from her ruling yesterday in Clay v. United States: "For the purpose of starting the clock on sec. 2255’s one-year limitation period, we hold, a judgment of conviction becomes final when the time expires for filing a petition for certiorari contesting the appellate court’s affirmation of the conviction." I, for one, found her use of the word pathmarking; something I don't usually see in the mine run of cases.
Posted at 09:55 by Howard Bashman



Blues Brothers -- part 3: I hereby declare last night's U.S. Supreme Court round-up (accessible here) an instant classic, even under my own less than exalted standards. But the purpose of this post is to ask readers who attended yesterday's U.S. Supreme Court session to report to me via email on the debut oral argument of Assistant to the Solicitor General John P. Elwood. Readers interested in learning more about Elwood can access "Blues Brothers -- part 1" here and "Blues Brothers -- part 2" here.
Posted at 09:51 by Howard Bashman



It's no fun being an illegal alien: Today the en banc U.S. Court of Appeals for the Sixth Circuit ruled 6-3 that inadmissible aliens -- aliens who fail to gain entry into the United States -- cannot be indefinitely detained if their country of origin refuses to allow their return. The dissenting opinion of Circuit Judge Danny J. Boggs begins:
In deciding these two consolidated cases today, the court makes two holdings that are both quite striking, novel and, in my opinion, incorrect. I therefore respectfully dissent. The court first finds that Congress, in the course of enacting a statute that virtually all concede was designed to tighten immigration procedures, instead amended the statute in such a way as to obliterate a longstanding distinction that recognized the lessened constitutional protection of persons who had been affirmatively denied entry into the United States, detained at the border, and physically allowed inside the country only as a matter of legislative grace. Instead, the court finds that Congress deliberately accorded such persons the same status as long-time permanent residents. Second, and perhaps even more disturbing, the court essentially accords such persons all of the due process rights of American citizens. The court therefore makes it impossible, in our circuit at least, for the United States government to detain for more than six months any number of aliens who present themselves at our border and are denied entry, or are paroled into the United States only conditionally. It further extends this status regardless of whatever criminal acts those persons may have committed. I believe that this result cannot be derived from the text of the Constitution and is contrary to existing Supreme Court precedent, which the Supreme Court has recently explicitly relied on and refused to overrule.
You can access the entire decision at this link. (This post's title courtesy of Genesis.)
Posted at 09:42 by Howard Bashman



On the agenda: At 9:30 a.m. this morning, the Senate Judiciary Committee is scheduled to hold a hearing. I wish I could tell you what's on its agenda other than the general topic of "judicial nominations," but so far the agenda available online provides no details. At 10 a.m., the U.S. Supreme Court is scheduled to issue one or more opinions. At 11 a.m., the U.S. Senate is scheduled to spend one measly hour (see the right-hand column of this page) debating further the nomination of Miguel A. Estrada to serve on the D.C. Circuit. A cloture vote on the nomination remains scheduled for tomorrow.

[Update: Today's Senate Judiciary Committee hearing has been postponed.]
Posted at 09:32 by Howard Bashman



Dorf on Scheidler v. NOW: Today at FindLaw, Law Professor Michael C. Dorf has an essay entitled "The Supreme Court Rejects Racketeering Liability for Anti-Abortion Protesters, But Fails to Admit How Close the Question Actually Was."
Posted at 07:21 by Howard Bashman



"High Court Considers Library Porn Filters": Anne Gearan of The Associated Press has this preview of today's U.S. Supreme Court oral argument. Porn filters -- you gotta love 'em.
Posted at 07:10 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Washington Times reports here that "GOP files for vote on Estrada." A related editorial is entitled "Make 'em talk." Another editorial is entitled "Tackling asbestos reform." And conservative commentator Cal Thomas has an essay entitled "Ceremonial deism or real faith?"

In The Boston Globe, Lyle Denniston reports here that "Justices limit protection of trademark; Find no harm done to Victoria's Secret" and here that "US court stays order restricting Pledge; High court to get 'under God' appeal." And this article reports that "SJC peppers lawyers on same-sex marriage."

In The Los Angeles Times, Bloomberg News reports that "Justices Deny Boeing's $419-Million Tax Claim; The high court rules against the airplane maker in a dispute over a tax break for exporters." You can access here an article entitled "Should We Call Him Sommelier General? California vintners tap Whitewater prosecutor Kenneth Starr to fight alcohol sales rules." An article reports that "Ban on Reference to God Delayed; Stay gives the high court time to decide whether to review the Pledge of Allegiance case." In news from California, "Lesbian's Insemination Suit Upheld; A state appellate court ruled Tuesday that a woman has the right to sue her doctor for refusing to help her conceive a child through artificial insemination." Finally for now, an editorial is entitled "Ashcroft's Russian Roulette."
Posted at 06:45 by Howard Bashman



In news from The Hill: You can access here an article entitled "Frist invokes cloture vote over Estrada" and here an article entitled "GOP poll: Estrada opposition could cost Dems." And Dick Morris has an op-ed entitled "The whole (Hispanic) world is watching."
Posted at 06:40 by Howard Bashman



"Scalia Criticizes Politics in Nominations": Gina Holland of The Associated Press has this report.
Posted at 06:30 by Howard Bashman



Available online at law.com: Tony Mauro reports here that "Victoria's Secret Loses High Court Trademark Fight." The National Law Journal reports here that "Courts Increase Intervention in Arbitrations; Experts disagree over whether it is positive." And Alan B. Morrison has a commentary in The Legal Times (free registration required) entitled "Time for a Bigger Audience: Bench nominees who tell the White House their views should tell the Senate, too."
Posted at 06:14 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, Charles Lane reports here that "Justices Side With Trademark 'Copycat'; Victoria's Secret Didn't Prove Name Was Harmed by Similarly Named Store." The Post notes here that "Justices Hear Arguments on Internet Filtering Law." You can access here an article entitled "GOP Senators Move to Force Vote on Estrada." An article reports that "District Teacher Appeals Firing Under Hatch Act; Man Who Sought Office Wants Law Changed." Here's an article entitled "Mass. Asked to Allow Same-Sex Marriages." And an editorial about the death penalty asks "Why Not Know?"

In The Christian Science Monitor, Warren Richey has an article entitled "Should libraries filter out Internet porn? The high court weighs the protection of children against free-speech rights." And you can access here an article entitled "Court scores one for a store called 'Victor's Little Secret.' In trademark case, justices say a store with a similar name does not necessarily infringe on a famous brand."

Linda Greenhouse of The New York Times reports here that "Ruling on Victor vs. Victoria Offers Split Victory of Sorts." The newspaper reports here that "Vote Set on Ending Filibuster on Judge." And Adam Liptak reports here that "Suspension of Executions Is Urged for Pennsylvania."
Posted at 00:15 by Howard Bashman



Women can't be sexual predators: That's what a Missouri appellate court has ruled, The Associated Press reports here.
Posted at 00:13 by Howard Bashman



Tuesday, March 04, 2003
U.S. Supreme Court round-up for Tuesday, March 4, 2003: It doesn't quite feel like June yet, but nevertheless the Supreme Court of the United States today issued a total of five decisions. Among the Court's rulings today were cases involving coal, Victoria's Secret, and dilapidated buildings. Had the Court stopped there, I might have been able to use that combination of subjects to say something humorous about my Third Circuit judicial clerkship a little over ten years ago based in Pottsville, Schuylkill County, Pennsylvania. But, the Court didn't stop there, as it also released decisions dealing with an extraordinarily complex corporate tax question and an extraordinarily simple habeas statute of limitations question. Those two additional topics, regrettably, ruined any chance of constructing a halfway decent Pottsville-related joke. And thus it's on to the specifics, with a momentary pause to note that the Ninth Circuit was affirmed once today and reversed zero times.

1. Victor/Victorious. God forbid that the thought of Victoria's Secret should conjure up thoughts of sex in your mind. Concerned with that very possibility, the Victoria's Secret organization resorted to the blunt tool of litigation when it learned from an Army colonel (yes, the syllabus of today's ruling begins with the words "An army colonel"!) of a sexually-oriented store in Kentucky known originally as Victor's Secret and later as Victor's Little Secret. Specifically, Victoria alleged that Victor's use of that name resulted in trademark dilution through tarnishment and blurring.

But enough with the legal gobbledegook -- let's get back to the more interesting facts of the case. Today's unanimous opinion in Moseley v. V. Secret Catalogue, Inc., No. 01-1015 (U.S. Mar. 4, 2003), was written by Justice John Paul Stevens. In a footnote, the opinion explains:
Victoria's Secret stores sell a complete line of lingerie, women's undergarments and nightwear, robes, caftans and kimonos, slippers, sachets, lingerie bags, hanging bags, candles, soaps, cosmetic brushes, atomizers, bath products and fragrances.
By contrast, Victor's Little Secret sells:
novelty action clocks, patches, temporary tattoos, stuffed animals, coffee mugs, leather biker wallets, zippo lighters, diet formula, diet supplements, jigsaw puzzles, whyss, handcufs [sic], hosiery bubble machines, greeting cards, calendars, incense burners, car air fresheners, sunglasses, ball caps, jewelry, candles, lava lamps, blacklights, fiber optic lights, rock and roll prints, lingerie, pagers, candy, adult video tapes, adult novelties, t-shirts, etc.
Call me sizist, but I'm not sure what to think of a sex shop that's heavily into weight loss products. And what's a "hosiery bubble machine," or are we simply missing a comma? And finally, I guess I must be missing the erotic potential of pagers (although I do keep mine set to vibrate, thank you), but if a Victoria's Secret model were at my house, I wouldn't require any paging to get me to return home. (Thanks, as always, to the "Hose Monster Blog" for the images. He's a law student, mind you.)

Well, back to the law for just a second. Today's opinion holds that objective proof of actual injury to the economic value of a famous mark is required to obtain relief under the Federal Trademark Dilution Act. Because the U.S. Court of Appeals for the Sixth Circuit didn't recognize that requirement when ruling in Victoria Secret's favor, the case is being sent back to the trial court for additional proceedings.

On the losing end of today's shut-out is no one other than the lawyer whom Lahlia Dithwick once called Dalter Wellinger. Here's hoping that Dalter's recent op-ed in which he put forth his own nominee to the D.C. Circuit played no role in the outcome. In any event, today's result is simply further proof that the U.S. Supreme Court decides these cases based on the facts and the law rather than based on advocacy skills. (Yes, Professor Lessig, you should stop crucifying yourself.)

2 and 3. Big, Little, and Indian. Today we learn not once but twice that in addition to the Big Tucker Act and the Little Tucker Act is the Indian Tucker Act. Litigious conservative think-tanks are hard at work tonight to find a way to challenge why Native Americans are entitled to their own Tucker Act while the rest of us have but to choose between Little and Big. The first of today's two Indian Tucker Act cases produced a 5-4 ruling, notwithstanding the absence of any Commerce Clause or Eleventh Amendment issues. But the absence of those issues undoubtedly contributed to the restrained tone of Justice Clarence Thomas's dissent in United States v. White Mountain Apache Tribe, No. 01-1067 (U.S. Mar. 4, 2003). Either that or he was sulking about missing out on the majority opinion in today's brutally complex corporate tax case.

Justice David H. Souter wrote the majority opinion, and managed to convince Justice Sandra Day O'Connor to switch over from the dark side to provide the key fifth vote. At issue was whether an Indian tribe could recover from the federal government the costs of renovating dilapidated buildings located on Indian land that became dilapidated while the federal government was using the buildings. The U.S. Court of Appeals for the Federal Circuit had ruled "yes," and today the Supreme Court agreed. The number of Indian rights attorneys who read this blog is regrettably small, causing me to move on rapidly to the day's other Indian Tucker Act case.

In United States v. Navajo Nation, No. 01-1375 (U.S. Mar. 4, 2003), Justices Ruth Bader Ginsburg and Stephen G. Breyer joined the dissenters in the White Mountain case to make up a six-Justice majority that reversed the Federal Circuit's ruling in favor of the Navajo Nation on a claim against the United States involving interference with the tribe's ability to maximize the value of its coal ownership rights. Justice Ginsburg's majority opinion adroitly manages to use a female pronoun when referring to the current Interior Secretary and a male pronoun when referring to a former Interior Secretary whose actions are a focus of today's ruling. Justice Souter dissented, and Justices Stevens and O'Connor joined the dissent. Apparently what the former Secretary of the Interior did to the Indian tribe wasn't nice. But, by a vote of 6-3, it wasn't actionable either.

4. Huh? Proving the possible randomness of law school grades, my grade in corporate tax was much higher than my grade in individual tax, but I only understood the latter. A reader of "How Appealing" once emailed to ask that I report on more tax-related decisions. Well, this counts, if only barely. If you are wondering why I don't report on more tax-related decisions, "Exhibit A" is today's ruling in Boeing Co. v. United States, No. 01-1209 (U.S. Mar. 4, 2003). This case was so very complex that, recognizing idle hands are the devil's tools, Chief Justice William H. Rehnquist assigned the majority opinion to Justice Stevens. The assignment in this type of complex tax case usually goes to Justice Thomas, but he and Justice Antonin Scalia were the dissenters from this ruling, thereby thwarting that possibility. Here's an example of why the decision defies easy understanding:
First, although the emphasized words authorize ratable apportionment of costs that cannot definitely be allocated to some item or class of income, the sentence as a whole does not prohibit ratable apportionment of expenses that could be, but perhaps in fairness should not be, treated as direct costs.
Indeed, the case was so complex that the seven-Justice majority apparently forgot that the decision under review came from the Ninth Circuit, and thus the Supreme Court today affirmed the Ninth Circuit's ruling. Ken Geller argued the case for Boeing in the Supreme Court.

5. A win is a win. Tom Goldstein of "SCOTUSblog" fame won today's fifth and final case by a vote of 9-0, completely expunging from our institutional memory his 9-0 loss earlier this term in United States v. Bean. The case in which Tom achieved today's victory is Clay v. United States, No. 01-1500 (U.S. Mar. 4, 2003). Now I don't want to give the impression that this case was a can't lose proposition, but it's not every day that the party that prevailed in the court of appeals -- here the federal government, represented by the Solicitor General of the United States -- tells the Supreme Court in its briefs that the opposing party -- Tom's client -- deserves to win. The question presented was when does a federal criminal defendant's judgment of conviction become "final" for purposes of seeking postconviction relief? The answer the Supreme Court supplied is that if the defendant does not file a petition for writ of certiorari, the conviction becomes "final" when the time for seeking certiorari expires. Somehow the usually reliable U.S. Court of Appeals for the Seventh Circuit was one of only two federal appellate courts to supply the wrong answer to this question, and today the Supreme Court reversed. Justice Ginsburg wrote the unanimous opinion. Congratulations, Tom, on this excellent victory!

One or more opinions are due to issue tomorrow. Be sure to visit tomorrow night for a wrap-up of the day's events at the Court.
Posted at 22:33 by Howard Bashman



Outnumbered: I pointed out a bit earlier that the U.S. Senate's sharply contentious disagreement over the confirmation of federal appellate court nominees managed to invade the Senate's non-partisan, unanimous denunciation late this afternoon of the Ninth Circuit's recent refusal to rehear en banc the Pledge of Allegiance case. Specifically, Assistant Democratic Leader Senator Harry Reid (D-NV) observed that more judges nominated by President Clinton to the Ninth Circuit joined the dissents from the denial of rehearing en banc than did judges nominated by Republican presidents. And what Senator Reid reports is true, as far as it goes. Six Clinton nominees dissented from the denial of rehearing en banc, while only three Republican nominees dissented. (Senator Reid stated that seven Clinton nominees dissented, but Circuit Judge Johnnie B. Rawlinson doesn't get to be counted twice just because she was the lone judge to join both dissents.)

As a reader who practices law in the Ninth Circuit emailed this afternoon to observe:
But it can also be said that more Clinton appointees voted to deny rehearing en banc than did Republican appointees. These raw numbers don't mean much because there are twice as many active Clinton-appointees on the court than there are Republicans.

By my count, of the active judges on the 9th Circuit, there are 3 Carter, 14 Clinton and 7 Republican appointees. Looks like the Clinton appointees voted 8-6 to deny rehearing; the Republicans voted 4-3 to deny rehearing. (I'm assuming, but can't know for sure, that all judges who voted for rehearing joined a dissent.) Percentage-wise, it's a tie. (Throw in the Carter appointees and the Dems voted 11-6 against rehearing.)

This all tells us what we already know. The Clinton appointees, as a whole, are not all that liberal. But, most importantly, the numbers tell us that a majority of active judges on the Court don't believe the case warrants rehearing en banc. I happen to agree with the results in the case, but frankly I don't think it's the most important issue out there.
Thanks for taking the time to do the math.
Posted at 21:26 by Howard Bashman



In news from Washington State: The Seattle Times goes all out in its coverage today. You can access here an article entitled "State justice will see law from other side." This article reports that "Voters forgive DUI arrests; will panel?" A columnist writes that she was "With Bridge at the party." Here's an account of "Events leading up to Bridge's arrest." And letter writers have been busy writing letters to the editor.

The Seattle Post-Intelligencer reports here that "Bridge will lose driver's license; 90-day suspension is standard penalty for drunken-driving arrests." An editorial that will run in tomorrow's newspaper is entitled "Redemption starts by accepting the consequences." An op-ed is entitled "DUI debacle: Judge not lest ye be judged." And you can access here the "Statement of Justice Bobbe Bridge" published on Sunday.
Posted at 21:12 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "HHS Chief Janet Rehnquist Will Resign" and here an article entitled "Inmate Convicted in Plot to Kill Judge."
Posted at 20:58 by Howard Bashman



As predicted, "Appeals court stays enforcement of its pledge ruling": The Associated Press has a report on this afternoon's Ninth Circuit action.
Posted at 19:00 by Howard Bashman



Miguel A. Estrada's Senate Judiciary Committee hearing transcripts are now available online: You can access them here, together with the written questions that two Senators posed to Estrada and the answers that he supplied.
Posted at 16:37 by Howard Bashman



The full U.S. Senate is now about to denounce the Ninth Circuit's refusal to rehear the Pledge of Allegiance case: Assistant Democratic Leader Senator Harry Reid (D-NV) just pointed out that more judges nominated by President Clinton to the Ninth Circuit joined the dissents from the denial of rehearing en banc than did judges nominated by Republican presidents. Update: The resolution in question has passed the Senate unanimously, 94-0.
Posted at 16:26 by Howard Bashman



Senate Majority Leader Bill Frist (R-TN) has just filed a cloture motion on the Miguel A. Estrada debate: Senator Frist announced that the actual cloture vote will occur this Thursday morning, at a precise time to be announced, and that if the cloture vote fails it will mark "the beginning" of the effort to try to gain sufficient votes to achieve cloture and a vote on the merits of Estrada's nomination to serve on the D.C. Circuit.
Posted at 16:07 by Howard Bashman



"School officials: Let pledge stand for now": Today's edition of The Sacramento Bee contains this report.
Posted at 15:56 by Howard Bashman



Inmate Accused of Plot Vs. McVeigh Judge: The AP offers this report.
Posted at 15:41 by Howard Bashman



The Miguel A. Estrada debate is back in full force in the U.S. Senate: Senator Charles E. Schumer (D-NY) was just debating with Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT), and now Senator Edward M. Kennedy (D-MA) is speaking.
Posted at 15:20 by Howard Bashman



"Mass. High Court Hears Gay Marriage Case": The Associated Press offers this report.
Posted at 15:17 by Howard Bashman



"GOP Forcing Vote to End Judge Filibuster": The AP provides this report.
Posted at 14:52 by Howard Bashman



"Court Hears Florida Gay Adoption Ban Case": The Associated Press offers this report about an appeal argued today in the U.S. Court of Appeals for the Eleventh Circuit.
Posted at 14:49 by Howard Bashman



"Boeing Loses Supreme Court Tax Case": The Associated Press offers this report.
Posted at 12:15 by Howard Bashman



"Pa. Panel Seeks Death Penalty Moratorium": The Associated Press offers this report. You can access the very lengthy final report of the Supreme Court of Pennsylvania's Committee on Racial and Gender Bias in the Justice System, released today, at this link (549-page PDF document).
Posted at 12:06 by Howard Bashman



GOP to file for cloture in Estrada debate: Byron York at National Review Online offers this breaking news.
Posted at 11:48 by Howard Bashman



"Supreme Court Splits Tribal Rights Suits": Gina Holland of The Associated Press offers this report.
Posted at 11:47 by Howard Bashman



Thanks, Denise, for the Blogsticker! You're too kind.
Posted at 11:46 by Howard Bashman



"Under God? Let's see the proof": Conservative commentator Cal Thomas offers these thoughts.
Posted at 11:44 by Howard Bashman



"Sex Shop Wins Victoria's Secret Case": Anne Gearan of The Associated Press has this early report.
Posted at 11:00 by Howard Bashman



Today's crop of U.S. Supreme Court rulings: Victor's Little Secret emerges victorious. You can access the ruling here. You can learn more about this case here (via The St. Petersburg Times) and here (via Dahlia Lithwick).

The Court also released decisions today in Boeing Co. v. United States, Clay v. United States, United States v. Navajo Nation, and United States v. White Mountain Apache Tribe. The result in Clay is a victory for Tom Goldstein of SCOTUSblog.

The Supreme Court is also scheduled to issue one or more opinions tomorrow.
Posted at 10:41 by Howard Bashman



"Top court hearing judge's fight to learn identify of her Internet critic": Today's edition of The Pittsburgh Post-Gazette contains this report.
Posted at 10:07 by Howard Bashman



Byron York's essay from yesterday is now lengthier, and more detailed: You can access York's revised and extended remarks here, in an essay entitled "Given the chance, Democrats ask no questions of Miguel Estrada."
Posted at 09:46 by Howard Bashman



"In Zeus We Trust, Cont.": Yesterday's edition of The Wall Street Journal contained this editorial. And today's WSJ runs an op-ed entitled "Sen. Estrada (R., N.Y.)?" that appears to be a retread of this recent City Journal piece.
Posted at 09:32 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Iraq, Budget May Sideline Estrada Debate" and here an article entitled "Judge to Remain on Supremacist's Case."
Posted at 09:15 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "High Court Weighs Fee Disclosures for Charitable Fund-Raisers" and here that "Liability in Searches Is Debated." And you can access here an article entitled "'Under God' Retained as Stay Is Sought; Despite Monday deadline, educators say they hope students will be allowed to continue saying the traditional pledge."

In USA Today, Joan Biskupic reports here that "Telemarketers are targeted in Supreme Court case" and here that "Case tests Congress' ability to make libraries block porn; Government hopes to revive law that requires Web filters." And a letter to the editor runs under the heading "Estrada is best man for appeals court."

The Boston Globe runs a Bloomberg News article entitled "Court told that 3% for charity isn't charity; Ill. seeks to curb solicitors who keep most for themselves."

The New York Post contains an editorial entitled "Estrada and the Pledge."

And finally for now, The Washington Times reports here that "Malvo judge upholds death-penalty option."
Posted at 08:51 by Howard Bashman



The Tampa Tribune says the war on Iraq may start tonight: It's a good thing no one in Iraq has Internet access, right?
Posted at 08:40 by Howard Bashman



On the agenda (it's Mardi Gras, part two): The U.S. Senate convenes at 9:30 a.m. this morning to resume debate over the nomination of Miguel A. Estrada to serve on the U.S. Court of Appeals for the D.C. Circuit. You can watch the debate live online at this link, via C-SPAN2.

The U.S. Supreme Court will issue one or more opinions at 10 a.m. this morning. As always, a purportedly witty summary of today's ruling(s) will appear online here tonight.

Because it's Mardi Gras, the U.S. Court of Appeals for the Fifth Circuit is closed today. Coincidentally, I am wrapping-up a Brief for Appellant to be filed in the Fifth Circuit that would have been due today, but is due tomorrow because of today's festivities in New Orleans.

Finally, I'm scheduled to have lunch today with one of the contributors to "The Academy" blog. And yesterday, I had the pleasure of lunching across the street from my office with one of my favorite veteran U.S. Supreme Court litigators.
Posted at 08:26 by Howard Bashman



COA cartoon: The blog "Sugar, Mr. Poon?" presents this editorial cartoon that appeared last week in The Philadelphia Inquirer parodying a dissent that accompanied the U.S. Supreme Court's recent certificate of appealability ruling.

The cartoonist, Tony Auth, doesn't depict the Justices in their current seating order, which -- after the Chief Justice -- is by length of service on the Court. (Of course, Chief Justice William H. Rehnquist happens to be the longest serving member of the current Court.) Also, I don't think that the cartoon accurately depicts how the Justices vote to resolve a case. But the image does remind me of this blog's erstwhile motto, "If you believe in telekinesis, raise my hand."
Posted at 08:14 by Howard Bashman



Alco-blogging (it's Mardi Gras, part one): A reader for whom a recent post here at "How Appealing" happened to be unusually helpful has emailed to ask what's my favorite Scotch whisky.
Posted at 08:07 by Howard Bashman



In Tuesday's newspapers: Charles Lane of The Washington Post reports here that "Justices Debate Medicating Mentally Ill Man for Trial." And you can access here an article entitled "Judge Rules Out Cameras at Malvo Trial; Closed-Circuit Allowed For Victims, Others To Follow Proceeding." (Whoever came up with the Malvo trial headline deserves an award for lack of clarity.)

In The New York Times, Linda Greenhouse reports here that "Forcing Mentally Ill on Trial to Take Drugs Is Pondered" and here that "Justices Seem to Lean to Charity Telemarketer." An article about the recent high profile overseas terrorism arrest is entitled "Questioning of Accused Expected to Be Humane, Legal and Aggressive." Finally for now, you can access here an article entitled "Judge in Sniper Case Bars Cameras From Trial."
Posted at 00:10 by Howard Bashman



Monday, March 03, 2003
In news from Saipan: Tomorrow's edition of the Saipan Tribune reports here that "DFW cites lawyer for disturbing bird."
Posted at 22:39 by Howard Bashman



Available online at law.com: Jonathan Ringel reports here that "U.S. Supreme Court Pulled Into Battle Over Who Represents Georgia." You can access here an article entitled "The Ghost of 'Gideon': It's been 40 years since Arnold & Porter fought at the Supreme Court for counsel for the poor. Now the firm is fighting again." Mathew S. Nosanchuk has a commentary entitled "Mooted and Dangerous: The public needs hidden data on gun crimes, even if the Supreme Court won't unlock the files."

From New Jersey comes an article entitled "Tired of Street Crime, Federal Judge Returns to Blank Rome; U.S. District Judge Stephen Orlofsky seeks 'intellectual challenge.'" An article reports that "Florida's Gay-Adoption Ban Goes to 11th Circuit." Finally for now, in news from New York, "Second Circuit Clarifies Earlier Ruling on Review of Habeas; Appealability certificates granted in Eastern District cases are withdrawn."
Posted at 22:24 by Howard Bashman



Say what you will: But when the Democrats controlled the Senate Judiciary Committee, this list showing the status of federal appellate court nominees on the long journey to confirmation was at least updated frequently to reflect current information.
Posted at 22:18 by Howard Bashman



Bashmaniacs: An email that just arrived is so good that I must reprint it in full:
Hi. I admire your blog greatly and thank you for your work keeping folks up-to-date on what's happening in the circuits. I wanted to bring an opinion to your attention that you may not have seen yet (or, at least, I haven't seen posted on your blog yet). Last week Judge Brady on the U.S. District Court for the Middle District of Louisiana issued a preliminary injunction against moving an inmate pursuant to controversial new Bureau of Prison policy dealing with Community Confinement Centers. The opinion is available here.

I saw that you reported on a similar opinion by Judge Kessler on the District Court for the District of Columbia a few weeks ago, and thought you might find this interesting. I would recommend to your attention, particularly, footnote 35 on page 15. It's rare to see a federal judge launch such a broad attack on the executive branch.

Thanks again for the blog. I'm currently clerking on a federal court on the East Coast, and a number of fellow clerks and I call ourselves "Bashmaniacs" as a sign of our enthusiasm for your efforts.
Thanks for the excellent email and for alerting me to the existence of that wonderful new term.
Posted at 22:00 by Howard Bashman



Appellate trivia (Map v. Idaho and Montana): There is not a word on this blog that someone is not thoroughly studying, analyzing, and cogitating over. It took me a little while to get used to that, but it's the burden of having a Web log that people read.

Just yesterday, for example, I linked to a brand new blog of a Harvard Law student, and he promptly shut it down, not wanting a torrent of readers to see what he may have said there. (Of course, his archives still work, thanks to the wonders of Blogger and Blog*Spot. Oh, and by the way, he linked to me before I linked to him. But I digress. Update: Denise Howell urges our newly discovered law student blogger to reconsider.)

Here's another, much more interesting example. On Saturday, in this post, I linked to this map of the United States, tucked away in the recesses of the U.S. Supreme Court's Web site, showing the geographical boundaries of the federal appellate and district courts.

Today, in reaction to that map, I received the following email from a longtime reader who is clerking for a judge on the U.S. Court of Appeals for the Eleventh Circuit:
Thanks for the very interesting color map of the Circuits, which also shows the different districts within the states.

I just thought I'd point out one small inaccuracy in the map. According to 28 U.S.C. 131, "Wyoming and those portions of Yellowstone National Park situated in Montana and Idaho constitute one judicial district" (emphasis added). Correspondingly, sections 92 (Idaho) and 106 (Montana) exclude Yellowstone National Park. The District of Wyoming is, I think, the only district that crosses state lines. You can see the small slivers of land that are moved from the Districts of Idaho and Montana to the District of Wyoming on this map of Yellowstone.

Yellowstone is in the Northwest corner of Wyoming, but the borders of the park don't come to a neat corner the way the political boundary of Wyoming does. Because the District of Wyoming is in the Tenth Circuit rather than the Ninth (see 28 U.S.C. 41), the boundary of the Tenth Circuit doesn't come to a neat corner as represented on the map.

(Of course, this assumes that 28 U.S.C. 41, which lists the composition of the Circuits, refers to the districts in each state, rather than the states themselves. If the latter were the case, small parts of the District of Wyoming would be under Ninth Circuit law, while the rest of the district would be under Tenth Circuit law.)
So, today's appellate trivia question is: Are parts of the States of Idaho and Montana under the geographical jurisdiction of the U.S. Court of Appeals for the Tenth Circuit, or is it possible for the U.S. Court of Appeals for the Ninth Circuit to review the judgment of the U.S. District Court for the District of Wyoming insofar as that judgment pertains to those portions of Idaho and Montana located within Yellowstone National Park? Anyone who wishes to offer an answer -- or, even better, who actually knows the answer -- is invited to email that answer to me by clicking here.
Posted at 21:23 by Howard Bashman



"What's so special about you?" That's what Ninth Circuit Judge Alex Kozinski asked blogger Stuart Buck the other day. Click here to access the rest of the conversation.
Posted at 21:13 by Howard Bashman



On occasion, arriving at the correct answer takes some time: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued an opinion that begins:
No satisfactory excuse can be made for the district court's delay of over twelve years in entering findings of fact and conclusions of law after a bench trial. Having carefully reviewed the record, however, we are convinced that the judge's determinations not only are unassailable on appeal but represent the most plausible analysis of the conflicting expert testimony at the heart of this Federal Tort Claims Act (FTCA) case. The judgment is affirmed.
Choose your own witty repartee: (1) I'd hate to see that district judge's statistical report; or (2) sure the delay in this case was bad, but what's even worse is when a district judge takes twelve years to rule and then simply adopts verbatim a party's proposed findings of fact and conclusions of law. You can access the Fifth Circuit's opinion at this link.
Posted at 21:04 by Howard Bashman



"High Court Hears Charity Fund Drive Case": Anne Gearan of The Associated Press has this report.
Posted at 20:19 by Howard Bashman



"Judge denies motion to declare Va. death penalty unconstitutional": CNN.com offers this report arising from the case against accused teenage DC-area sniper Lee Boyd Malvo.
Posted at 18:28 by Howard Bashman



The New Yorker online offers an interview with Jane Mayer about John Walker Lindh: You can access the interview here. And Malcolm Gladwell addresses why intelligence agencies failed to connect the dots pointing to 9/11.
Posted at 17:26 by Howard Bashman



"Philadelphia Streets, Refined and Less So": Yesterday's edition of The New York Times contained The Sophisticated Traveler Magazine, and that publication included this article describing walking tours through the city where I was born and now work.
Posted at 17:23 by Howard Bashman



"Supreme Court Hears Case on Forced Medication": The New York Times has just posted online this article from Linda Greenhouse. And Reuters offers this report.
Posted at 17:06 by Howard Bashman



"School district to appeal pledge ruling to Supreme Court": The Sacramento Bee offers this breaking news.
Posted at 16:32 by Howard Bashman



Let's not make a deal: Byron York at National Review Online has just posted this essay entitled "Given the chance, Democrats ask no questions of Miguel Estrada."

Meanwhile, from today's White House press briefing:
Q What is the White House doing now to try to break the filibuster on the Miguel Estrada nomination?

MR. FLEISCHER: The communications are continuing with members of Congress. The open offer is for Miguel Estrada to meet with any Democratic senators who have questions. And, interestingly, after the offer was made for Democratic senators to meet with him, hardly any expressed any interest in it. We will continue to talk to those Democrat members of Congress, and I think we will ultimately find out whether or not there are sufficient number of moderates who are so uncomfortable with this that they will give a different message to the Democratic leadership. We certainly hope that's the case, and the President will continue to make the case for somebody he views as a very good man.
You can access the complete press briefing transcript at this link.
Posted at 15:49 by Howard Bashman



"High Court Hears Forced Medication Case": Gina Holland of The Associated Press has this report on today's oral argument. As expected, Justice Antonin Scalia was back on the bench.
Posted at 15:46 by Howard Bashman



D.C. U.S. District Court rules that Brett C. Kimberlin's unlawful denial of press access claim against DOJ and BOP employees must go to trial: Today's opinion explains:
The narrow issue presented to this Court in considering defendants' motion for summary judgment is whether plaintiff has presented sufficient evidence to establish a dispute as to the defendants' role in, and motivation for, the cancellation of plaintiff's interviews with the press and his placement in administrative detention. The Court finds that the factual record presented by the parties is riddled with genuine issues of material fact, precluding entry of summary judgment for defendants.
Why was Kimberlin seeking access to the press? As the opinion later explains:
In late October 1988, in the days leading up to the 1988 presidential election, plaintiff Brett Kimberlin, a federal prison inmate incarcerated at the Federal Correctional Institution at El Reno, Oklahoma, began informing members of the press that he had sold marijuana to then Republican vice-presidential candidate, Dan Quayle, during the 1970s.
You can access the complete ruling at this link.
Posted at 15:36 by Howard Bashman



What's next in the Pledge of Allegiance case? On the morning of Saturday, March 1, 2003, I tried my best to answer that question in a post you can access here.
Posted at 15:18 by Howard Bashman



"Sniper Suspect Trial Won't Be Televised": The Associated Press offers this report.
Posted at 15:16 by Howard Bashman



The March 2003 ABA Journal: The March 2003 edition of The ABA Journal has arrived in the mail, and there I am on page 44 in an article about lawyers who "blawg." Each featured blogger ended up with two photos, and the second of my photos -- a large one that you can't access online -- actually looks just like me. What's the deal with the suit and tie I'm wearing? Let me confess to being a lawyer first and a law blogger second.
Posted at 15:09 by Howard Bashman



"Supreme Court to Weigh Police Liability": Anne Gearan of The Associated Press offers this report.
Posted at 13:59 by Howard Bashman



Pleading guilty need not involve pleading guilty: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued this interesting decision.
Posted at 13:39 by Howard Bashman



Welcome to week four: As the U.S. Senate begins week four of its consideration of the nomination of Miguel A. Estrada to serve on the D.C. Circuit, you can access here an editorial entitled "Filibuster aims to block judge" published in today's edition of The Spectrum of southern Utah. And at the "No Left Turns" blog, Robert Alt discusses an aspect of today's pro-Estrada Washington Post editorial with which Alt disagrees.
Posted at 12:01 by Howard Bashman



Today is "20 questions" day at "How Appealing": Shortly after midnight this morning, I posted online "20 Questions for Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit." Judge O'Scannlain has been in the news a bit recently in connection with his dissent from the denial of rehearing en banc in the Pledge of Allegiance case. You can access my twenty questions, and his twenty answers, either by clicking on this link or by scrolling down the page some.

And now, let me answer some of my own questions:

1. How does "How Appealing" obtain interviewees for the "20 questions for the appellate judge" feature?

Back in early January 2003, when I ran the first blog post announcing this new feature, I offered to interview one appellate judge each month in the sequence that I received emails from appellate judge interviewee volunteers. As of today, I have received a total of six volunteers. Thus, the next appellate judge who volunteers to be interviewed will have his or her interview appear online at "How Appealing" in early August 2003. I am only accepting five more volunteers, and then I will evaluate whether to continue this feature into 2004.

If you are an appellate judge who wishes to volunteer to take part in the "20 questions for the appellate judge" feature, simply email me from your official email address, and you will be assigned the next available month. You will receive your questions from me via email by the middle of the month before your interview is scheduled to run online.

2. I see that the first two interviewees are Reagan nominees to the federal appellate bench. What's up with that?

As explained in my previous answer, I have offered to interview the first eleven appellate judges who volunteer in the order that they volunteer. Several months from now, I will be interviewing a Clinton nominee to the Ninth Circuit, so do not despair. Next month, I will be interviewing someone who serves on the highest court of a southern State, and I look forward to seeing what she will have to say. But if all eleven volunteers had turned out to be Reagan nominees, Clinton nominees, George W. Bush nominees, or Jimmy Carter nominees, you wouldn't hear me complain. And state appellate court judges are of course welcome to volunteer too!
Posted at 11:09 by Howard Bashman



Today's U.S. Supreme Court order list: You can access it online here. The Court today granted review in one case and requested the views of the Solicitor General in another.

The case in which review was granted arises from the Ninth Circuit, and you can access Circuit Judge Alex Kozinski's opinion in that case at this link. Judge Kozinski's opinion begins, "We consider whether and under what circumstances law enforcement officers who execute a search pursuant to a defective warrant enjoy qualified immunity."

At the risk of sounding like a broken record, the case in which the Solicitor General's views are sought also arises from the Ninth Circuit, and you can access Circuit Judge A. Wallace Tashima's opinion in that case here. The question presented in the case is "whether public sidewalks in the City of Sacramento are a service, program, or activity of the City within the meaning of Title II of the Americans with Disabilities Act." The Ninth Circuit answered that question in the affirmative.
Posted at 10:20 by Howard Bashman



"Judicial power trip": Today's edition of The Oregonian contains this pro-filibuster editorial.
Posted at 10:03 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Senators in tug of war over filibuster." Frank J. Murray reports here that "'Friend' briefs set record in Michigan case." And here he reports that "Court ruling ends threat to religious schools' funds." An article reports that "Abortion sides upset at plans for funds." In news from Massachusetts, "Court to hear suit on gay unions."

USA Today contains an article entitled "Pledge appeal may go to Supreme Court; Ban for 9 states set to take effect next week."

The Los Angeles Times reports here that "Some Trials of Juveniles Questioned; Thousands who are prosecuted as adults may not be mentally capable of aiding in their own defense, researchers say."

Finally, in news from Washington State, The Seattle Times reports here that "Bridge won't resign Supreme Court seat." And The Seattle Post-Intelligencer reports here that "Justice admits driving drunk; Bridge apologizes, vows to examine use of alcohol after crash."
Posted at 09:32 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Court Considers Forced Medication Case." In other news, you can access here an article entitled "Supreme Court to Hear Telemarketer Case" and here "Judge to Consider Malvo Pretrial Motions."
Posted at 08:20 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue orders this morning at 10 a.m. and will issue opinions tomorrow and Wednesday. The U.S. Senate will resume consideration of the nomination of Miguel A. Estrada to the U.S. Court of Appeals for the D.C. Circuit at noon today. You can view Senate proceedings live online at this link via C-SPAN2.
Posted at 08:15 by Howard Bashman



20 Questions for Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit: "How Appealing" is very pleased that Circuit Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit has agreed to be the second participant in this Web log's newest feature, "20 Questions for the Appellate Judge."

Judge O'Scannlain joined the Ninth Circuit in September 1986, when he was just shy of the age of 50. He attended college at St. John's and law school at Harvard. His chambers are based in Portland, Oregon, and the Ninth Circuit has its headquarters in San Francisco.

Questions appear below in italics, and Judge O'Scannlain's responses follow in plain text.

1. Among active and senior Ninth Circuit Judges, you have become the leading voice in favor of splitting the court in two. How did you achieve that role, and what in your view are the three most persuasive reasons favoring a split?

The three most persuasive reasons favoring a split are: (1) size, (2) size, and (3) size. Size of the court of appeals, present and future; size of caseload, especially after the bulge of the last two years; and size of population, present and projected. Let me issue the standard disclaimer that, of course, I speak only for myself and not for my court in responding to these questions.

The Ninth Circuit is by far the largest of the circuits, and is more than double the national average with respect to number of court of appeals judges, case filings, population, and geographic area. Our caseload has reached a record 11,421 filings for the 12-month period ending September 30, 2002, an increase of over 20 percent in two years; compare that with an average of 4,796 for all other circuits. (Actually we hit 12,209 filings for calendar year 2002). The next busiest circuit is not even close -- the Fifth Circuit at 8,784 filings in the same period. Our output as a court is similarly enormous. In the same period, over 5,000 cases were terminated on the merits in the Ninth Circuit; compare this to an average of 2,312 for all other circuits. During that time we published 837 precedential opinions; the sheer volume of decisions makes it difficult, for us as judges, just to stay abreast of current developments in our own law, never mind developments in other circuits or in academia. Essentially, we are losing the ability to keep track of our own precedents.

Compare this to my experience when I first came on the court in 1986. Back then, my colleagues and I were producing about 180 dispositions per judge, per year. In other words, we were each responsible for writing about 60 opinions and memorandum decisions, the equivalent of five dispositions a month. But the pressure on individual judges has relentlessly increased since then. By 2002, we averaged 492 cases per judge that year, each responsible for producing about 164 dispositions, at the rate of over 13 opinions and memorandum decisions per month. (Compare that with the Supreme Court of the United States which renders about 80 opinions a year, each justice being responsible for about 10). Somewhere along that progression, I became persuaded that we were heading for a train wreck as a court if we didn't respond to the implications of these numbers.

I don't know whether it is accurate to say I am the "leading voice" but there are many voices, both on the court and outside, who feel that we must restructure the circuit, either into two separate circuits or possibly three.

2. Your views concerning whether to divide the Ninth Circuit have evolved over the nearly seventeen years that you have served on the court, even though the court's total number of authorized active judges has remained at twenty-eight during that period. Explain how and why your views on the issue have changed.

When I first came on the court, some senators from the northwest states were very active in promoting a split of the circuit for very clearly stated political reasons, typically in reaction to specific environmental decisions. This included my own home state senator, Mark Hatfield, with whom I had many discussions. I had to tell my good friend Senator Hatfield that I disagreed with him and opposed a split of our circuit. I could not support the principle that a circuit should be restructured simply because of perceived public dissatisfaction with its jurisprudence.

My views on the issue have, of course, evolved over the years as I became persuaded that we were developing very serious administrative issues generated by the relentless increase in caseload. My views probably crystallized during the time I was pursuing an LLM in Judicial Process at the University of Virginia Law School from 1990-1992. This was a program for appellate judges, which permitted considerable opportunity for research and where, indeed, I wrote my thesis "On Governance of the Federal Judiciary," which, in turn led to much more refined notions about the role of the circuit. While the number of authorized active judges has always been 28 during my tenure, the number of senior judges increased rapidly, occasionally exceeding the number of active judges at a given time. Today, we stand at 45 total judges (senior and active) and shortly, assuming that the President's nominees will be confirmed and an impending vacancy will be promptly filled, we will reach a total of 50 judges on our court. A court of appeals with 50 judges looks, to me, more like a legislature than an appellate judicial body with error correction and law declaring responsibilities.

3. What in your opinion is the single most persuasive argument against dividing the Ninth Circuit, and what is your response to it?

The single most persuasive argument against division, I suppose, is "if it ain't broke, don't fix it." My response is "if it ain't broke yet, it soon will be, so why wait?" We should be proactive in planning for the future restructuring of a circuit that is already over double the average size of all others in population, geographic area, number of court of appeals judges, and, most importantly, appellate caseload. Nevertheless, the most common argument advanced for keeping the Ninth Circuit together has been the necessity for a consistent maritime law for the Pacific Rim and a single law of the West. This is not much of an argument, considering the fact that there are five circuits for the Atlantic and Gulf States. I don't think freighters are colliding more frequently off Cape Cod than they are off the Marin headlands. Nor has the fact that three circuits straddle the Southern states been deleterious to the development of the law of the South.

At bottom, the opposition to the split boils down to a sort of curious devotion to the notion of a single "Jumbo Circuit" for the West. But there's nothing sacred about the Ninth Circuit keeping its same boundaries for over 100 years. In my view, the only legitimate consideration is the optimal size and structure for judges to perform their duties. As other circuits became unwieldy because of size, they were restructured, like the Tenth carved out of the Eighth in 1929, and the Eleventh carved out of the Fifth in 1980. There is no logical reason to oppose the natural evolution of our judicial structure as we grow into a colossus.

4. In my view, at least, there seem to be three plausible proposals to split your court. One is to make California -- home to more than sixty percent of the Ninth Circuit's population and source of approximately sixty percent of the caseload -- its own circuit. The second is to put the States of Arizona, California, and Nevada in one circuit and the remaining States and Territories in the other. Under this second proposal, however, the circuit with California would have twenty active judges, which exceeds the maximum number of authorized active judges -- seventeen -- that you have said is advisable for a federal appellate court. The third proposal, sometimes called the "even split," involves putting Southern California under the jurisdiction of one federal appellate court and Northern California under the jurisdiction of another. Previously, you have expressed your preference for this third option. Do you still prefer the "even split," and how under this option would conflicting rulings that involved California be resolved?

You put your finger on the real dilemma: how to split? The honest answer is there is no ideal solution and it can't be done without adding judges. You have identified three of the four options.

Option 1: California as its own circuit. I was originally inclined to the predominant view of the legal academy that "one cannot have a circuit with less than three states" but I am no longer persuaded. First of all, a "California only" circuit, with its four very busy district courts, has an appellate caseload which would constitute the second largest in the country (8,224 filings), only a shade behind the Fifth Circuit (8,784 filings). Next, California's population now exceeds 34 million people, which would make it, again if it were its own circuit, the most populous circuit in the country. To those who say a one-state circuit can't work, what about the District of Columbia Circuit with only one district court, compared to the State of California with four federal district courts?

Option 2: Arizona, California, Nevada. This is probably the most frequently discussed proposal for the "new Ninth Circuit" and there is no question but that such a circuit would have to exceed 17 judges. The number 17, is, of course, an ideal maximum, which is no longer realistic in my view.

Option 3: Arizona, Southern California and Nevada. This "even split" proposal, came from the Hruska Commission report of 1974, which was quite prescient. If northern California were put with the northwestern states and southern California were put with Nevada, Arizona and the Pacific islands, there would have been two almost exactly equal size circuits in terms of both population and caseload. Circuit equality would essentially still exist today, although the southern portion has enjoyed a faster population growth than the northern. While I still believe this option has a lot of merit and that there would be acceptable devices to solve the intra-California federal law problem, I no longer support it because of one political barrier which I respect. It is quite clear that Senator Dianne Feinstein has very strong reasons to oppose such an approach and I fully respect the wishes of the senior Senator of that state. This proposal is a political nonstarter.

Option 4: Arizona to the Tenth Circuit. You failed to mention a fourth possibility which has been bandied about with increasing vigor in recent years. This would put Arizona with the Tenth Circuit (which has relatively light caseload per judge), make a new Ninth Circuit comprised of California and Nevada, and put the rest into a new Twelfth Circuit headquartered in Seattle or Portland. There would be some technical issues to be resolved regarding pre-realignment law affecting Arizona in its new setting, but again, the legal experts would have various solutions to that issue.

5. In July 2002, during your most recent congressional testimony on splitting the Ninth Circuit, you stated that six other Ninth Circuit judges (two active and four senior) had authorized you to say that they support a circuit split. Your remarks implied, however, that other judges on the court favor a split but are unwilling to express their support publicly. Why, as best you can tell, would some of your colleagues who favor a split be unwilling to express that position publicly?

There are now nine members of my court (including myself) who have permitted their names to be listed as supporting a split: Judges Sneed (California), Beezer (Washington), Hall (California), Trott (Idaho), Fernandez (California), T.G. Nelson (Idaho), Kleinfeld (Alaska), and Tallman (Washington).

The position of chief judge of our circuit for some reason seems to impose upon its occupant an obligation that he or she be the "Defender of the Faith," i.e., staunch opposition to any efforts to "break up our circuit." The fact that there may be pro-split judges and leaners who prefer not yet to be identified publicly may very well reflect a sensitivity to the wishes of chief judges over the years.

I should point out that our chief judge and her administrative staff have done, and continue to do, an admirable job in effectively managing the circuit in what can properly be characterized as extremely challenging circumstances. Managing the Ninth Circuit is a Herculean task, and our chief judge is to be congratulated on a magnificent job. None of us takes any delight in going against the wishes of our chief; but, on this issue, it seems to me hardly much different than expressing an independent view on the merits of a legal issue in a pending case.

6. Why has a split of the Ninth Circuit not yet happened, and when, realistically, do you expect it will happen?

For the reasons I have tried to explain in my earlier answers, a split of the Ninth Circuit is inevitable. Over the years, various proposals have passed one chamber or another. The Senate has twice passed circuit split proposals since I became a member of the court. Congressman Mike Simpson of Idaho has just introduced a bill similar to H.R. 1203 which he sponsored last session and was the subject of House Judiciary hearings last year. If more of my colleagues on the court face up to the underlying need for restructuring, it could happen very promptly, in a design exactly in accordance with the court's wishes. If the court does not officially change its policy on this issue, it is possible that Congress will pass its own split bill or hold the creation of additional judgeships hostage to a serious consideration of restructuring.

7. In April 1998, in your prepared testimony before the Commission on Structural Alternatives for the Federal Courts of Appeals ["the White Commission"], you stated that "When a court grows too large, it is more likely to resemble a legislative body in which strong-willed individuals are prone to developing policy rather than, to paraphrase Chief Justice Marshall, saying what the law is." Can you explain more fully what you mean, and are you intending to suggest that the view an individual judge reaches on the merits of a case may depend on the size of the court on which he or she serves?

Maintaining consistency of appellate law requires an environment in which a reasonably small body of judges has the opportunity to sit together frequently. Interaction enhances understanding of one another's reasoning and decreases the possibility of misinformation and misunderstandings. The White Commission concluded that a court with more than eleven to seventeen judges lacks the ability to render consistent decisions. The Ninth Circuit currently has 45 active and senior judges, and it is soon to be 50. On a court with 50 judges, 19,600 different three-judge panels are possible. Combine this with our huge output of published decisions and maintaining consistency becomes a serious problem. The point is that our size, and our size alone, jeopardizes our decision-making consistency. As the counter-majoritarian branch of our government, precedent is the most important limitation on our judicial discretion. When our precedent is inconsistent, that limitation is lacking, and our decisions can start to resemble those of a legislative rather than judicial body.

8. Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?

The press coverage of the U.S. Court of Appeals for the Ninth Circuit is most welcome, so far as I am concerned. It is true that the coverage has not always been accurate or incisive and frequently tends to be somewhat superficial. Our batting average before the Supreme Court should not, by itself, be an indicator of a dysfunctional court. On the other hand, when the Supreme Court reaches out to take 29 cases in one Term only to reverse 28 of them, perhaps it is telling us something. And, when the Supreme Court takes three of our cases and reverses them, unanimously, without oral argument, on the same day, as it did just a few months ago, I believe it is telling us something. It is reasonable to expect the press to cover such developments as well as our less controversial decisions.

9. The Ninth Circuit is the only federal appellate court to hear and decide cases en banc using panels that consist of fewer than all of the court's active judges. More specifically, the Ninth Circuit uses eleven–judge en banc panels, which would allow a mere six judges to declare what the law of the circuit should be in cases decided en banc. As you know, the White Commission concluded that the Ninth Circuit's limited en banc system is not functioning effectively. Do you agree with that conclusion, why or why not, and what changes to the present system would cause the en banc process to work more effectively?

I agree with the White Commission and I sense an increasing concern within our court about the 11-judge limited en banc device. The principal problem is that the result will always depend on the luck of the draw. There have been quite a number of 6 to 5 or 7 to 4 decisions on important issues which might not necessarily represent the views of the full court. While it is true that we do have the authority to rehear a case with the full court (24 judges at the moment or 28 if we were at full strength), there have only been two times during my tenure when such calls have been made and in neither event did the call receive a majority. I think there is very deep-seated reluctance on the part of our court to sit as a full en banc, notwithstanding the fact that we have a very elegant en banc courtroom in Pasadena with three tiers of benches and 28 chairs. Indeed, we also have a less elegant en banc courtroom with four tiers of benches and 28 chairs in San Francisco.

10. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

I won't identify a living judge but among those that I admire historically are Justice Felix Frankfurter and Judge Learned Hand. I studied Constitutional Law under Professor Paul Freund at Harvard and came through that experience with an enormously high appreciation of the craft of judging as exemplified by Judge Hand and Justice Felix Frankfurter. Apart from Judge Hand's superb craftsmanship, I admire his skepticism with respect to his proper role as an unelected judge in a democratic society, which led to his modest approach to judging, and to his advocacy of judicial restraint. On the Supreme Court, of course, Justice Frankfurter was the leading proponent of judicial self-restraint. I have always adhered to a more restrained notion of the judiciary, as did Justice Frankfurter.

11. How did you come to the attention of President Ronald Reagan in 1986 to fill a vacancy that then existed on the Ninth Circuit, and do you have positive, negative, or mixed memories of your confirmation process?

In light of the current confirmation environment, I feel I am the luckiest member of the entire federal appellate judiciary. President Ronald Reagan called me at home on the morning of August 8, 1986 (when I was still in the shower before leaving for work). The nomination arrived in the Senate on August 11. My hearing took place on September 10 and lasted about 20 minutes, including questions from senators on both sides of the aisle. Senator Hatfield called me at home on the night of September 25 to tell me that I had been confirmed unanimously. The whole process, from presidential nomination to confirmation, took about six weeks. My heart goes out to several of my colleagues, Judges Willy Fletcher, Richard Paez and Marsha Berzon, in particular, for what they had to endure over several years. I don't think, as a lawyer in private practice in a relatively small town, that I could have survived such an extended confirmation process.

As to how I came to the President's attention, I had the privilege of meeting President Reagan and some of his senior advisors on many occasions when I was involved in his presidential campaigns and when I was Oregon Republican chairman from 1983-1986. Indeed, I had recommended someone for the vacancy but after my letter arrived in Washington, I got a call asking me (although I had no previous interest in becoming a judge) to consider the possibility instead.

12. You were born in New York City and attended college at St. John's. What caused you to become a resident of Oregon, and for those of us unfamiliar with Portland, Oregon, would you please recommend a few things that a visitor to the area should do or see?

I met my wife at Harvard Law School. We were married in Maura's home town of Tacoma, Washington a few months after I had graduated in 1963. After practicing for awhile in New York City, I took a vacation with Maura back to her parents' home, during which I talked to law firms in Seattle, Tacoma, and Portland, coming back to New York with offers from all three places. We chose Portland and came out in 1965 and have never looked back and have never regretted our decision. Portland sits almost equidistant between superb year round skiing on Mt. Hood and a delightful sea coast on the Pacific Ocean. We have spent many vacations in the high desert country of Central Oregon around Sisters, especially Black Butte Ranch, which I would highly recommend. I also recommend the spectacular Columbia River Gorge, which one can reach in about 35 to 45 minutes from downtown Portland.

13. Many of your law clerks have gone on to clerk at the U.S. Supreme Court. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates whom you wish were applying but haven't been. Also, are you adhering to the "Law Clerk Hiring Plan" that supposedly has the overwhelming support of federal appellate judges, and why or why not?

Of course, I am proud that eight of my clerks will have gone on to clerk for Justices on the Supreme Court and that others are pursuing successful careers in private law practice, law teaching and public service.

I do adhere to the "law clerk hiring plan" and hope that it will be unanimously observed, although I know that there will be some evaders. I think that judges get a much better sense of the applicants' abilities by waiting the extra year. The most important qualities are the ability to write with clarity and to display very effective legal research skills. I have been blessed with applicants having exceptionally strong academic records from fine national and regional law schools.

14. Is the salary paid to federal appellate judges too low, and if your answer is "yes," what should the salary be or, perhaps less controversially, how would one determine what the proper salary should be?

There would not even be a federal appellate judicial salary issue if Congress would only maintain parity with inflation. If the salary set in the time of President Lyndon Johnson were never reset but only cost of living adjustments added in every year, there would be nothing to complain about today. Indeed, if White House Chief of Staff Don Regan (at the behest of Senator Bob Dole) had not slashed the recommendation of the salary commission from $135,000 down to $95,000 in 1987 and annual COLAs were allowed since then, all would be fine. The problem arises because while Congress routinely allows cost of living adjustments for the general federal work force it very frequently denies it to judges (and to be fair, to themselves as well) which has lead to the calls by the Chief Justice and the Volcker Commission to try to remedy the situation. "Linkage" has been a bane for the judiciary. Congress seems to feel that district judges and members of Congress salaries should always be identical. Former Senator Dole, who strongly enforced that idea when he was Senate Majority and Minority leader has recently publicly changed his mind and now supports the Volcker Commission recommendations and feels that congressional and judicial salaries should no longer be linked.

15. The Ninth Circuit was one of just a few federal appellate courts to participate in a pilot program for televising federal appellate court oral arguments. Did you serve on any panels whose arguments were televised, and if so what was your experience? Also, do you support or oppose the broadcasting of federal appellate court oral arguments, and why?

I do support telecasting of federal appellate court arguments and have indeed participated in several televised three-judge panels and at least one eleven-judge en banc argument. On balance, things went quite well. There is always the concern that either the oralist or a judge may be playing to the camera but on the whole, this is a relatively minor issue. I don't think "Appellate TV" will ever be a ratings threat to "Survivor" or even to "The Practice."

16. As a matter of sound judicial administration, should federal appellate courts be able to prohibit citation in briefs to a category of information -- say, unpublished, non-precedential opinions? And what are your views on the Solicitor General of the United States' proposed amendment to the Federal Rules of Appellate Procedure that would allow parties to cite to unpublished, non-precedential opinions in all federal appellate courts?

I generally subscribe to the views of my colleagues Judges Reinhardt and Kozinski, that we should maintain the distinction between unpublished (nonprecedential) dispositions and published opinions. At the moment, we publish only about 16% of our decisions. The sheer volume of our output has created an enormous task of maintaining consistency. There is no question that, in drafting the language of the disposition, opinions for publication get much more care and attention than unpublished dispositions which, in my mind, justifies the distinction between the two in this less than perfect appellate world.

17. You are of course no stranger to blockbuster rulings. In 1996, in Compassion in Dying v. Washington, 85 F.3d 1440 (9th Cir. 1996) (O'Scannlain, J., dissenting), you dissented from the denial of "full court" en banc to review further an en banc panel's decision that stuck down a Washington state statute outlawing assisted suicide. The U.S. Supreme Court thereafter unanimously reversed the decision at issue in your dissent. In Coalition for Economic Equality v. Wilson, 122 F.3d 692 (9th Cir. 1997), you wrote the decision holding that the California Constitution's prohibition of public race and gender preferences does not violate the Equal Protection Clause of the United States Constitution. What single o'pinion of yours -- majority, concurring, dissenting, or other -- do you find to be the most memorable?

The opinions you cited would be among those that I would recall favorably. I am told that my opinion in Brookfield Communications Inc. v. West Coast Entertainment Corp., 174 F.3d 1036 (9th Cir. 1999), involving the intersection of trademark law and web domain name registrations, has been very widely cited and has appeared in a number of case books involving cyber law.

18. You are the author of a fascinating essay entitled "On Judicial Activism" published in Open Spaces Quarterly in 2000. You wrote there that "judicial activism encourages political interference both in the process of judging and selection of judges. One need look no further than the current battle between the White House and the Senate over judicial nominees for a glimpse of the extent to which the judicial appointments process has become politicized." Truer words may never have been spoken. What are your thoughts about the federal appellate judicial confirmation process in 2003, and what suggestions, if any, do you have concerning how the process could be improved?

Like so many of my colleagues, I am dismayed by the political infighting which has characterized the judicial confirmation process in recent years. The only suggestion I might make, which is probably in vain, is that both the Republicans and the Democrats declare a "truce" and go back to the careful reflection that seems to have prevailed in the confirmation process regardless of party prior to the last fifteen years.

19. I would be remiss if I didn't ask you about your name -- Diarmuid Fionntain O'Scannlain -- which is certainly one of the most distinctive names in the entire federal judiciary. What can you tell us about your name, and do you have any affiliation with a "Journey Through Ireland" Web site accessible online at http://www.oscannlain.com/diarmuid.htm, which I discovered while researching my questions for you?

Diarmuid was the last pagan king of Ireland who reigned about the time of St. Patrick in the Fifth Century. Fionntain is the name of a very pious monk who translated gospels with illuminated writing at the Abbey of Iona in the Irish Sea. I am a Manhattan-born son of Irish immigrants (Dad from Sligo, Mom from Derry), both of whom were strong Gaelic scholars and had the practice of speaking Gaelic at home. Indeed, my first spoken language was Gaelic. While I still have some remnants (hello, thank you, do you speak Gaelic?, prayers, etc.), I largely lost fluency when I started to go to a neighborhood school. The "Journey Through Ireland" website is owned entirely by my brother Conn, who has an Irish travel and touring business. The reference in the URL address to "Diarmuid" (which I didn't know about until now) must be to one of several tours of Ireland which are available to his clients; he has also named tours for my other brothers "Fergus" and "Colm."

20. Other than reading "How Appealing," what do you do for enjoyment and/or relaxation in your spare time?

You will have to ask my wife Maura and my eight children and my seven-plus grandchildren. They keep me busy outside of chambers.
Posted at 00:15 by Howard Bashman



In Monday's newspapers: In The Washington Post, an editorial takes a look at "The layers of nonsense surrounding the fight over Miguel A. Estrada's nomination to the U.S. Court of Appeals for the District of Columbia Circuit." Charles Lane addresses "Will Telemarketer's Claims Ring True?" And this article reports that "Ashcroft Reconsiders Asylum Granted to Abused Guatemalan; New Regulations Could Affect Gender-Based Persecution."

In The Christian Science Monitor, Warren Richey has one article entitled "Forced medication: When does it violate rights? The high court considers the case of a defendant who won't take drugs to stand trial" and another article entitled "Legal limits of solicitation? High Court to decide if 'misleading' telemarketers are covered by free speech."

The New York Times contains an op-ed entitled "Insanity Goes Back on Trial." Adam Liptak reports here that "Study Doubts Competence of Younger Juveniles Charged as Adults." In news from New York State, "Murder Trial May Become Forum on Abortion." Here's an article entitled "Making Sniper Suspect Talk Puts Detective in Spotlight."
Posted at 00:05 by Howard Bashman



03-03-03: Not sure what the significance of today's date is, but it's worth noting nevertheless.
Posted at 00:03 by Howard Bashman



Sunday, March 02, 2003
Senior U.S. District Judge who declared portion of RLUIPA unconstitutional is profiled in today's Roanoke Times: Senior District Judge James C. Turk of the U.S. District Court for the Western District of Virginia recently declared unconstitutional a portion of the Religious Land Use and Institutionalized Persons Act of 2000. Today Judge Turk was the subject of a very interesting profile in The Roanoke Times. Thanks to the reader who forwarded along a link to this article.
Posted at 22:04 by Howard Bashman



"Wash. Justice Apologizes for Alleged DUI": The Associated Press offers this report.
Posted at 20:42 by Howard Bashman



"Not Hispanic enough?" Tomorrow's edition of USA Today contains this op-ed by Anthony Fuentez.
Posted at 20:39 by Howard Bashman



"From humble beginnings to Senate storm: Nominee Miguel Estrada is seen as conservative, driven and an impressive lawyer. His mother says he's not 'the kind of person that stirs controversy.'" Jan Crawford Greenburg has this report in today's edition of The Chicago Tribune.
Posted at 19:48 by Howard Bashman



Some unfortunate news from the State of Washington: A reader sends along a link to this article from today's edition of The Seattle Post-Intelligencer reporting that a Justice on the Supreme Court of Washington State "was arrested on charges of drunken driving and hit-and-run Friday after leaving the scene of an accident."
Posted at 17:44 by Howard Bashman



Another Harvard Law School student blogger: His name is Whitman L. Holt, and he has just declared himself "smartest man on Earth."
Posted at 17:37 by Howard Bashman



"Pledge debate recalls another tradition, another controversy": Today's edition of The Sacramento Bee contains this op-ed by Diana Griego Erwin.
Posted at 16:08 by Howard Bashman



"Terrorism statistics inflated in N.J.": Today's edition of The Philadelphia Inquirer contains this report.
Posted at 16:05 by Howard Bashman



"You Are What You Queue": Today's edition of The New York Times reports here on a common Netflix obsession. Thanks to Netflix, last night my wife and I had the pleasure of watching the documentary "Devil's Playground" (reviews available here and here), about Amish teenagers and the rite of passage known as rumspringa.
Posted at 15:30 by Howard Bashman



Tomorrow is "20 questions" day at "How Appealing": On Monday, March 3, 2003, I will be posting online here the latest installment of "20 questions for the appellate judge." This month's interviewee serves on the U.S. Court of Appeals for the Ninth Circuit, and you won't want to miss the interview. I will post the questions and answers online here at "How Appealing" just after midnight eastern time tonight. Looking ahead, next month's appellate judge interviewee serves on the highest court of a southern State, and it will be interesting to see what she will have to say.
Posted at 14:25 by Howard Bashman



Ceremonial what? Harvard Law School student David Schleicher emails:
I suppose I should start off by noting how much I like your blog and how valuable I think it is. Anything that can turn appellate litigation into regular lunch-time conversation is nothing short of a marvel. That said, I was wondering if you could answer a question for me (or ask your blog audience for help). The Newdow case has revived talk about the greatest misnomer in constitutional doctrine -- "ceremonial deism." Why Deism? Deism is a specific religion, famously adhered to by Thomas Jefferson. In a note to its definition, Webster's revised unabridged dictionary declares that Deism means "belief in natural religion only, or those truths, in doctrine and practice, which man is to discover by the light of reason, independent of any revelation from God. Hence, deism implies infidelity, or a disbelief in the divine origin of the Scriptures." This doesn't seem to be what the Court is talking about at all when it discusses purely formal, ceremonial uses of religion.

So my question is this: Wouldn't "ceremonial theism" be a more accurate term? Theism being the generic term for belief in God (though, interestingly, it has an alternate meaning -- "the morbid condition resulting from the excessive use of tea"). But the alternate usage problem aside, I think this would be an enormous improvement. Do you think a movement to get the Court to note this problem can get started before the Supreme Court hears the Newdow appeal (assuming it does, of course).
Thanks for that very interesting email. More information about deism and Thomas Jefferson is available here and here.
Posted at 14:10 by Howard Bashman



Bravenet hit counter stats for the past week: On Monday, February 24, 2003, "How Appealing" received 9,284 page visits; on Tuesday, February 25, this blog received 8,346 visits; on Wednesday, February 26, this blog received 10,024 visits; on Thursday, February 27, this blog received 8,170 visits; and on Friday, February 28, this blog received 11,124 visits. Thanks for visiting, everyone!
Posted at 14:00 by Howard Bashman



Happy blog birthday to "Ernie the Attorney": Ernie takes a look back, and forward, here.
Posted at 13:05 by Howard Bashman



Dinner with Assistant Attorney General Viet D. Dinh: The author of the "boy named Soo" blog was there Friday night, and he has pictures to prove it.
Posted at 13:00 by Howard Bashman



When divorce equals life behind bars: Today's edition of The Philadelphia Inquirer's Sunday Magazine contains this report.
Posted at 13:00 by Howard Bashman



Rats: "Boomtown" is unquestionably the best television drama that you're probably not watching right now. Last week's edition of Entertainment Weekly magazine gave this NBC drama the magazine's highest rating in a review overflowing with accolades. Today, I'm happy to report, you can watch both a brand new episode of the show and an all-day, eleven-episode "Boomtown" marathon starting at 11 a.m. eastern time on the Bravo network. If you miss "Boomtown," you'll be the one saying "rats."
Posted at 09:00 by Howard Bashman



"Imperial Senate": Today's edition of The Las Vegas Review-Journal contains this editorial about federal judicial confirmations.
Posted at 08:58 by Howard Bashman



In Sunday's newspapers: The New York Times contains an article entitled "New York's Kosher Laws, Answering to a Higher Court." Adam Liptak reports here that "Gay Couple Challenges Florida Ban on Homosexual Adoptions." And in an Editorial Observer, Brent Staples writes that "Americans Have a Cool Debate About a Hot-Button Topic."

The Washington Times reports here that "Democrats' blocking judges moves the bar." You can access here an article entitled "Locals see vote-currying in electoral lawsuit." And Walter Williams has an op-ed entitled "Bake sale of ideas."

The Washington Post today contains an article entitled "Where Spies Come Face to Face With Justice."

Today's edition of The Boston Globe reports here that "SJC to weigh arguments on gay marriage." A related article notes that "Both sides pointing to legacy of John Adams."

The Los Angeles Times reports here that "Bush Moves by Refusing to Budge; Seen as a centrist while governor of Texas, he is testing the limits of consensus as president." An article reports that "Court Rules Against 'Legal Aid' Business." The cover story of The LATimes Magazine is entitled "The Falcon and the Fallout: As Christopher Boyce returns to society, he talks about the damage he did selling secrets to the former Soviet Union and his wish to put 'The Falcon and the Snowman' behind him forever." And an editorial is entitled "Book Snoopers' Open Door: Read a good book lately? Federal agents might want to know."
Posted at 08:30 by Howard Bashman



"Travels in Baghdad, USA": BBC News has this report.
Posted at 08:20 by Howard Bashman



Saturday, March 01, 2003
Law professors write blog posts about yesterday's Pledge of Allegiance ruling developments: You can access Jack Balkin's thoughs here, Jack Bogdanski's thoughts here, and David ("Jack") Wagner's thoughts here.
Posted at 23:51 by Howard Bashman



"Bush's Use of Clout Intensifies Senate Split; GOP's Boldness Riles Democrats Who Think President Uses Hill as Rubber Stamp": Sunday's edition of The Washington Post contains this report.

In other news, yesterday's edition of The Cincinnati Enquirer reported here that "Senate panel approves Ohio justice for 6th Circuit Court of Appeals." The Toledo Blade reported here that "Senate panel OKs court nominees; 3 hopefuls, including Ohioan, clear hurdle for federal judicial posts." Today's edition of The Daily Record of Parsippany, New Jersey contains an article entitled "Court nominee divides Morris Hispanics." Finally for now, Sunday's edition of The Arizona Republic contains an op-ed entitled "No free pass to the bench."
Posted at 23:42 by Howard Bashman



Under what? Here's some other Pledge of Allegiance ruling coverage from today's newspapers. The Sacramento Bee reports here that "Pledge ban ruling is upheld; An appeals court sticks by the controversial decision that bars recitation in public schools." The SacBee also offers this handy compilation of its earlier coverage about the case. The Mercury News reports here that "Judges stick with pledge ban; Appeals Panel Backs June Ruling; Case Probably Headed To High Court." The Tri-Valley Herald reports here that "'Under God' remains under fire; Court again rules Pledge of Allegiance not allowed in schools." And Reuters reports here that "Pledge Ban Set for March 10 in 9 States."
Posted at 23:22 by Howard Bashman



Picture this: Tucked away in the recesses of the U.S. Supreme Court's Web site is this map of the United States showing the various federal appellate court boundaries and also the geographical boundaries of federal district courts in States that have more than one.
Posted at 23:21 by Howard Bashman



Anti-filibuster, anti-confirmation; pro-filibuster, pro-confirmation: Two of the pseudonymous contributors at "The Volokh Conspiracy" come to the defense of these positions, which I described last night as "rather absurd" for a newspaper's editorial board to adopt. You can access those interesting comments here and here.
Posted at 23:16 by Howard Bashman



Asked and answered: "Juan Non-Volokh" asks "Is the Senate filibuster of Abe Fortas a precedent for the filibuster against against D.C. Circuit Court of Appeals nominee Miguel Estrada?" His answer is here.
Posted at 16:28 by Howard Bashman



State of California to ask U.S. Supreme Court to dismiss Eleventh Amendment - Americans with Disabilities Act case: Bob Egelko reports in today's edition of The San Francisco Chronicle that "State drops disability case; Fearing weaker ADA, Medical Board bows to pressure from Davis." You can learn more about the case, which is scheduled to be argued at the U.S. Supreme Court on March 25, 2003, at this link. The Ninth Circuit's ruling in the case is available here, and you can access here a dissent from the denial of rehearing en banc in which four Ninth Circuit judges joined. Thanks to Harvard Law School Assistant Professor Samuel Bagenstos for bringing this newspaper article to my attention.
Posted at 16:20 by Howard Bashman



Access online a transcript of this past Thursday's Miguel A. Estrada debate in the U.S. Senate: Simply follow these instructions. Click here to bring up a page listing Thursday's available Senate transcripts via the Congressional Record Web site. 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 15:49 by Howard Bashman



Tonight on C-SPAN's "America and the Courts": A discussion on "The Future of Affirmative Action in Higher Education," which the South Asian Bar Association sponsored in Washington, DC on February 25, 2003. Participants include: Roger Pilon, Director, Cato Institute, Center for Constitutional Studies; Sameer M. Ashar, Assistant Professor, University of Maryland, School of Law; Curt A. Levey, Director, Center for Individual Rights, Legal and Public Affairs; Neal Katyal, Professor, Georgetown University Law Center; and Brigida Benitez, Member, DC Hispanic Bar Association.
Posted at 15:48 by Howard Bashman



Wow! Be sure to check out the newly redesigned "Bag and Baggage" blog, which may now qualify as the nicest-looking Blog*Spot-hosted blog I've ever seen. Congratulations, Denise!
Posted at 12:13 by Howard Bashman



"Here's What Less Experience Gets You": Law Professor Michael Gerhardt has this op-ed about federal judicial nominations in tomorrow's edition of The Washington Post. And The Daily Barometer of Oregon State University yesterday contained an op-ed entitled "Justice should be blind, not a mystery."
Posted at 12:04 by Howard Bashman



"Hatch Disappointed in 9th Circuit Decision Not to Revisit 'Outrageous' Pledge of Allegiance Ban": The Web site of Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) contains this press release, in which Senator Hatch denounces both the Ninth Circuit and its ruling. (Via Jurist.)
Posted at 11:10 by Howard Bashman



Senior Ninth Circuit Judge Alfred T. Goodwin speaks about yesterday's amended Pledge of Allegiance ruling: David Kravets of The Associated Press has this report.
Posted at 11:04 by Howard Bashman



What's next in the Pledge of Allegiance case? As has been widely reported here and elsewhere, yesterday the U.S. Court of Appeals for the Ninth Circuit entered an order that denied rehearing and rehearing en banc in the Pledge of Allegiance case, amended the three-judge panel's original opinion, and refused to allow the filing of any additional rehearing or rehearing en banc petitions. Let's take a look at the options and deadlines facing the losing parties in the case.

First, it is important to remember that the federal district court's ruling that was before the Ninth Circuit on appeal had dismissed plaintiff Michael A. Newdow's challenge to the constitutionality of the words "under God" in the Pledge of Allegiance. Yesterday's amended Ninth Circuit three-judge panel opinion concludes:
The judgment of dismissal is vacated with respect to Newdow's claim that the school district’s Pledge policy violates the Establishment Clause and the cause is remanded for further proceedings consistent with our holding. Plaintiff is to recover costs on this appeal.

REVERSED AND REMANDED.
Federal Rule of Appellate Procedure 41(b) provides that "The [federal appellate] court's mandate must issue 7 calendar days after the time to file a petition for rehearing expires, or 7 calendar days after entry of an order denying a timely petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, whichever is later. The court may shorten or extend the time." Thus, unless the Ninth Circuit shortens or extends the time, or a party files a motion for a stay of the Ninth Circuit's mandate (an option I will explore in more detail in just a moment), the Ninth Circuit's mandate would issue on Friday, March 7, 2003. Some press reports have said that a Ninth Circuit spokesman indicated that the mandate will issue on Monday, March 10, 2003, so that's quite possible too.

When a federal appellate court issues its mandate, which is simply a formal order causing the court's ruling to take effect, the mandate and resulting control of the case are returned to the trial court, here the U.S. District Court for the Eastern District of California (which has an amazing Web page). When the Ninth Circuit's mandate issues, the Ninth Circuit's ruling takes effect. Thus, if the mandate issues on March 7th or 10th, as of that date the parties will be bound to follow the decision.

Federal Rule of Appellate Procedure 41(d) is entitled "Staying the Mandate," and it provides:
(d) Staying the Mandate.

(1) On Petition for Rehearing or Motion. The timely filing of a petition for panel rehearing, petition for rehearing en banc, or motion for stay of mandate, stays the mandate until disposition of the petition or motion, unless the court orders otherwise.

(2) Pending Petition for Certiorari.
(A) A party may move to stay the mandate pending the filing of a petition for a writ of certiorari in the Supreme Court. The motion must be served on all parties and must show that the certiorari petition would present a substantial question and that there is good cause for a stay.

(B) The stay must not exceed 90 days, unless the period is extended for good cause or unless the party who obtained the stay files a petition for the writ and so notifies the circuit clerk in writing within the period of the stay. In that case, the stay continues until the Supreme Court’s final disposition.

(C) The court may require a bond or other security as a condition to granting or continuing a stay of the mandate.

(D) The court of appeals must issue the mandate immediately when a copy of a Supreme Court order denying the petition for writ of certiorari is filed.
In the Pledge of Allegiance case, it is a certainty that one or more of the losing parties will seek U.S. Supreme Court review. And, because that is so, it is also a certainty that the parties that intend to seek U.S. Supreme Court review will ask the Ninth Circuit to stay issuance of the mandate pending a decision from the Supreme Court as to whether it will agree to hear the case on the merits. Procedurally, a motion for stay of the mandate is submitted to the Ninth Circuit judge who wrote the opinion in question. Ninth Circuit General Order 4.6(c) provides:
Stay or Recall of Mandate

A motion for stay or recall of mandate shall be forwarded to the author of the disposition if a member of the court. If the author is not a member of the court, the motion shall be forwarded to the presiding judge of the panel. The author or presiding judge, as the case may be, shall dispose of the motion.
Here, the author of the disposition is Senior Ninth Circuit Judge Alfred T. Goodwin. Given Judge Goodwin's superfluous decision to stay the three-judge panel's original ruling immediately after its issuance, I anticipate that Judge Goodwin will enter a stay of the Ninth Circuit's mandate pending the filing of cert. petitions in the U.S. Supreme Court. After all, this clearly is a case in which "the certiorari petition would present a substantial question and that there is good cause for a stay." Fed. R. App. P. 41(d).

If, however, Judge Goodwin were to deny a motion for stay of the mandate, the party or parties that lost the motion could then ask U.S. Supreme Court Justice Sandra Day O'Connor, in her role as Circuit Justice for the Ninth Circuit, to stay or recall the Ninth Circuit's mandate.

Finally, the deadline for filing a timely petition for writ of certiorari in the U.S. Supreme Court is ninety days from yesterday. By my calculation, that would put the deadline for filing cert. petitions at Thursday, May 29, 2003. Procedures do exist for asking the Supreme Court to extend that deadline, and my calculation assumes that no extension is granted. If the Ninth Circuit's mandate is stayed and the Supreme Court accepts the case for review, the stay of the mandate continues until the U.S. Supreme Court announces its decision, which of course then controls whether the Ninth Circuit's mandate remains the law or not. In the unlikely event that the U.S. Supreme Court denies review, the Ninth Circuit's mandate would issue immediately once official notification of the denial of review reaches the Ninth Circuit.
Posted at 09:41 by Howard Bashman



Elsewhere in Saturday's newspapers: Former President Bill Clinton has been called for jury duty in a federal criminal case in Manhattan, this article from today's edition of The New York Times reports. And here's an article entitled "Convictions Come and Go, but Jail Remains a Constant."

In The Washington Times, Frank J. Murray reports here that "Pledge dispute heads to justices." And Linda Chavez has an op-ed entitled "Filibuster challenge for GOP."

In The Boston Globe, Lyle Denniston reports here that "US appeals court eases Pledge ruling; Holds position on unconstitutionality of phrase 'under God.'" You can access here an editorial entitled "Bush's secrets." And an op-ed by Caryl Rivers and Rosalind Chait Barnett is entitled "The war against reproductive rights."

In The Los Angeles Times, Henry Weinstein reports here that "Controversial Ruling on Pledge Reaffirmed." Here the newspaper reports that "U.S. Considers Charges for Military Tribunals; Seeking public input, the Pentagon posts a wide range of potential approaches that could be used against detainees in the war on terrorism." An article reports that "INS Ends Life as Separate Agency; Its absorption by Homeland Security raises concerns." A very interesting editorial is entitled "Life-or-Death Testing." And letters to the editor run under the heading "Church-and-State Debate."

Finally for now, Bob Egelko reports in The San Francisco Chronicle that "Federal court stands pat on Pledge of Allegiance ruling; Use of words 'under God' will probably be appealed to the Supreme Court."
Posted at 09:12 by Howard Bashman



Georgia's Governor sues State's Attorney General to determine who controls strategy in pending U.S. Supreme Court case: Today's edition of The Atlanta Journal-Constitution contains this report. (Thanks to the Georgia-based reader who drew this article to my attention.)
Posted at 09:02 by Howard Bashman



In Saturday's newspapers: In The Washington Post, Charles Lane reports here that "Pledge of Allegiance Ruling Is Upheld; 'Under God' Phrase Splits Appeals Court." You can access here an article entitled "U.S. Lists Crimes Subject to Tribunals; Citing Poison May Be Aimed at Iraq." And Theodore M. Shaw has an op-ed entitled "Race Still Matters."

The Los Angeles Times reports here that "Court Upholds Controversial Pledge of Allegiance Ruling; The 9th U.S. Circuit Court of Appeals said it will stick by its ruling that the words "Under God" are unconstitutional. President Bush sought reconsideration."

In The New York Times, Adam Liptak reports here that "Court Lets Stand the Ban on 'God' in Pledge." An article reports that "Court Says Suspect's Admissions in Colombia Can Be Used Here." And you can access here an article entitled "For Lott, Uneasy Role as One of 100 in Senate."

Finally for now, OpinionJournal offers an editorial entitled "The Right to Choose Protest; The First Amendment wins one in court--and Sen. Schumer loses."
Posted at 00:11 by Howard Bashman







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