How Appealing

Tuesday, September 30, 2003
U.S. Supreme Court round-up: Linda Greenhouse of The New York Times reports here that "Justices to Rule on Immunity of States in Bankruptcy Suits." Charles Lane of The Washington Post reports here that "High Court to Hear Appeal Involving Art; Ruling May Affect Other Nazi-Era Cases." And David G. Savage of The Los Angeles Times reports here that "Justices to Hear L.A. Carjacking Case."
Posted at 23:50 by Howard Bashman



Available online at law.com: Tony Mauro reports that "High Court Grants Review in 10 Cases." In related news, Shannon P. Duffy reports that "Supreme Court to Review 3rd Circuit Ruling in Death Row Case." And in other news, Jason Hoppin reports that "9th Circuit Tosses 'Duffield' in Dustbin."
Posted at 23:30 by Howard Bashman



What day is it? This past Friday, I reported in a post entitled "Second Circuit upholds method of calculating compensation used by Special Master of the September 11th Victim Compensation Fund" on a ruling that the Second Circuit issued that afternoon.

This significant ruling has finally received some attention from the popular press. Last night, The Associated Press reported here that "Appeals court upholds power of victims fund special master to set awards." And tonight, CNN.com reports that "Appeals court backs victim fund in 9/11 lawsuit; Panel finds no bias in awarding compensation." What's odd, however, is that The AP's report says the ruling issued yesterday, while CNN's report says the ruling issued today. I don't mind the fact that, in this instance, these major news organizations were several days behind me in spotting this significant ruling. I do find disheartening, however, that each of these news organizations has managed to misrepresent how promptly it has reported on the ruling by inaccurately giving the date on which the decision issued.
Posted at 23:11 by Howard Bashman



Linda Tripp can't overcome the "reporter's privilege": Today the U.S. District Court for the District of Columbia issued this ruling in Linda Tripp's Privacy Act lawsuit against the Department of Defense. This ruling may be relevant to Law Professor Eugene Volokh's discussion here addressing "Could Novak be legally ordered to testify about who leaked the Plame information."
Posted at 23:09 by Howard Bashman



"Law student's job hunt earns Web notoriety": Law student Matthew S. Toll's job search makes the news in Canada. Now if only he were looking to work north of the border. I previously noted his clever effort to find work in a post you can access here.
Posted at 23:04 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Deal Reached on Abortion Procedure Ban"; here "Mich. Bill Would Ban Certain Abortions"; here "Malvo Summoned for Muhammad's Hearing"; here "U.S. to Revoke Alleged Nazi's Citizenship"; and here "Synagogue Bookkeeper Convicted of Fraud."
Posted at 23:00 by Howard Bashman



"Suddenly, prisons full of 'retarded'; A high-court ruling brings a flood of death-row appeals." This past Sunday's edition of The Philadelphia Inquirer contained this report (via "Overlawyered").
Posted at 21:03 by Howard Bashman



"Court overturns $94 million punitive damages award in crane collapse": The Milwaukee Journal-Sentinel has this report on a ruling that the Wisconsin Court of Appeals issued today. This case involved what was apparently the largest personal injury award in Wisconsin history.
Posted at 20:56 by Howard Bashman



"Justice Verniero to Step Down in August": The New York Times this evening has a news update reporting that "Justice Peter G. Verniero of the New Jersey Supreme Court, who came close to impeachment in 2001 in the furor over racial profiling in the state, said today that he would step down next August."
Posted at 19:40 by Howard Bashman



Reuters is reporting: You can access here an article headlined "Supreme Court to Decide Death Row Inmate's Appeal"; here "U.S. Seeks to Implement Call List Despite Court"; and here "Rambus stock up after case not on Supreme Court list."
Posted at 17:34 by Howard Bashman



"48-Hour Internet Outage Plunges Nation Into Productivity": The brand new issue of The Onion contains this report.
Posted at 16:56 by Howard Bashman



"Fla. High Court Sets Aside DNA Deadline": The Associated Press provides this report. Update: You can access today's order of the Supreme Court of Florida at this link.
Posted at 16:37 by Howard Bashman



"San Francisco Jurist Confirmed to Ninth Circuit Bench": The Metropolitan News-Enterprise today has this report.
Posted at 16:26 by Howard Bashman



Access online the Alabama Ten Commandments case petition for writ of certiorari: It's available here, in PDF format.
Posted at 16:11 by Howard Bashman



"Court clerk improves world's rule of law": This past Sunday, The Salt Lake Tribune published this profile of Markus B. Zimmer, who serves as Clerk of Court for the U.S. District Court for the District of Utah.
Posted at 15:35 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Jordan Denied Funds in Lewinsky Probe"; here "FTC Not Adding People to Do-Not-Call List"; and here "N.C. Death-Row Inmate Seeks Clemency."
Posted at 14:48 by Howard Bashman



"Senate Confirms Carlos T. Bea to Serve on Ninth Circuit Court of Appeals": The U.S. Court of Appeals for the Ninth Circuit has issued this press release. One point that I neglected to mention last night when I noted Judge Bea's confirmation is that the Ninth Circuit now only has one vacancy.
Posted at 14:37 by Howard Bashman



"You're on Candid Cellphone! As Camera Phones Proliferate, Health Clubs, Courtrooms, Celebrity Haunts Ban Them." The Wall Street Journal today contains this report (via "Obscure Store").
Posted at 14:24 by Howard Bashman



"Lawyer making trip to court charged with drug possession": Today's edition of The Houston Chronicle reports here that "Houston lawyer Stanley Duane Wilkinson went into court last week to represent a defendant. But he became a defendant himself."
Posted at 14:21 by Howard Bashman



What liberal Ninth Circuit? Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued its long-awaited ruling in EEOC v. Luce, Forward, Hamilton & Scripps. The question presented was:
For the arbitration of employment discrimination disputes, did the U.S. Supreme Court decision in Circuit City v. Adams, 532 U.S. 105 (2001), overrule this court's holding in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), which held that the 1991 amendments to Title VII of the 1964 Civil Rights Act preclude the enforcement of arbitration clauses entered into as a condition of employment with respect to Title VII causes of action?
Today, by a vote of 8-3, the en banc court concluded that Circuit City did not overrule Duffield but Duffield nonetheless was wrongly decided and thus is hereby overruled by the court en banc.

Circuit Judge Stephen Reinhardt was the author of one of two dissenting opinions that accompanied the ruling. Judge Reinhardt's dissent, in which Circuit Judge Harry Pregerson joined, concludes:
Today's decision by this en banc court constitutes a wilful judicial rebuke of Congress's effort to protect the rights of American workers to trial by jury in race and sex discrimination cases. Contrary to the clear will of Congress, my respected colleagues invite employers to discharge (and/or not to hire) any woman, or any African American, Hispanic, Native American, or other minority group member, who has the courage to refuse to surrender his hard won right to confront, and thereby hold liable, his persecutor in the federal courts. After today, we have a little less of a dream. I dissent.
You can access the complete ruling at this link.
Posted at 13:29 by Howard Bashman



Soon to be receiving each other's mail? Yesterday President Bush nominated William J. Haynes II to serve on the U.S. Court of Appeals for the Fourth Circuit. Of course, William J. Haynes II should not be confused with U.S. District Judge William J. Haynes, Jr. of the Middle District of Tennessee.
Posted at 13:29 by Howard Bashman



"Rape victim getting out of jail": The Cincinnati Enquirer provides this news update. Today's edition of that newspaper contained an article headlined "Jailed woman now will testify; Claimed rape but skipped court." An editorial is entitled "Intimidated witnesses: Victim jailed: Accused freed." And columnist Laura Pulfer has an essay entitled "The wrong messenger. Judge: Justice depends on the bravery of victims."
Posted at 13:15 by Howard Bashman



"High Court to Review Pa. Death Row Case": Gina Holland of The Associated Press has this report.
Posted at 12:36 by Howard Bashman



In news from Harvard and Yale: The Yale Daily News today contains an article headlined "Letters detail protracted Yale, military dispute; Papers detail recruiting conflict dating to 1984."

The Harvard Crimson, meanwhile, reports that "Flynt Bashes Feminists, Lauds ACLU in Speech." And Law Professor Alan M. Dershowitz has a letter to the editor that appears under the heading "Plagiarism Accusations Political, Unfounded."
Posted at 12:20 by Howard Bashman



Today's U.S. Supreme Court order list is now available online: You can access it at this link, via The Associated Press.
Posted at 12:05 by Howard Bashman



The D.C. Circuit's Division for the Purpose of Appointing Independent Counsels has some bad news for attorney Vernon A. Jordan, Jr.: Jordan sought reimbursement of $302,719.82 in attorneys' fees. In a ruling you can access here, the court today awarded to him just $1,215.00.
Posted at 11:42 by Howard Bashman



You're out of order: I have some wonderful news to report this morning in connection with this Web log's monthly "20 questions for the appellate judge" feature. The Chief Judge of the U.S. Court of Appeals for the Tenth Circuit, Deanell Reece Tacha, will be the interviewee in January 2004.

For those keeping track, Eleventh Circuit Judge Stanley F. Birch, Jr. will be the October 2003 interviewee, and his interview will appear online here on Tuesday, October 7, 2003, which is one week from today. Senior Eighth Circuit Judge Richard S. Arnold will be the November 2003 interviewee. And, as reported above, Chief Judge Tacha has volunteered to participate in January 2004.

What this all means, of course, is that I'm still looking for a federal or state court appellate judge to volunteer to be the December 2003 interviewee. To volunteer, simply send me an email (a process that you can initiate by clicking here). The December 2003 interviewee will receive from me via email all twenty questions in writing on November 7, 2003, and he or she would need to return via email to me his or her written answers sometime before the first Monday in December.
Posted at 11:20 by Howard Bashman



In news from Hawaii: The Honolulu Advertiser today reports that "Non-Hawaiians back school in lawsuits." And The Associated Press reports here that "Judge Sets Trial for Marcos Plaintiffs."
Posted at 11:20 by Howard Bashman



Not quite yet the end of an era: In response to this post from earlier this morning, someone in-the-know emails:
In response to your question about Emory Widener, he originally announced he would take senior status as of today. He recently sent in a letter modifying the effective date for taking senior status so that it would commence upon the qualification of his successor. I suppose he didn't want there to be a gap between his tenure and that of his successor.
As I reported here last night, President Bush yesterday nominated the General Counsel of the Department of Defense to fill the vacancy that will be created when Judge Widener takes senior status.
Posted at 11:15 by Howard Bashman



The wire services are reporting: James Vicini of Reuters reports here that "High Court to Decide State Bankruptcy Immunity" and here that "Supreme Court to Hear Austria Appeal on Paintings." And Gina Holland of The Associated Press reports here that "Supreme Court to Hear Stolen Art Suit."
Posted at 11:08 by Howard Bashman



The Supreme Court of the United States has today granted review in ten cases: The big news, however, is that the Pledge of Allegiance case is not on the list. Could summary action be on the way soon in that case? Time will tell.

The Court today granted review in No. 02-1593-BedRoc v. USA (scope of mineral reservation in land patent); No. 02-1606-TN Student Assistance v. Hood (does Congress have authority to abrogate state sovereign immunity under bankruptcy clause of U.S. Constitution); No. 02-1657-Scarborough v. Principi (availability of attorneys' fees under Equal Access to Justice Act); No. 02-1684-Yarborough, Alvarado (when is a juvenile deemed to be in custody for purpose of Miranda warnings); No. 02-1809-Hibbs, Dir AZ Dept Revenue v. Winn (interplay between Tax Injunction Act and state tax credits); No. 02-11309-Smith v. Dretke, Dir. TX DCJ (access the Fifth Circuit's ruling below at this link); No. 03-13-Austria v. Altmann (jurisdictional scope of Foreign Sovereign Immunities Act ); No. 02-1541-Iowa v. Tovar (extent of warnings that must be given to pro se defendant before court can accept guilty plea); No. 02-1603-Beard, Sec PA DOC v. Banks (did the Supreme Court's decision in Mills v. Maryland announce a new rule of law not applicable on habeas review); and No. 03-107-USA v. Lara (does a federal statute restore Indian Tribes' sovereign power to prosecute members of other Tribes, so that a federal prosecution following a tribal prosecution for an offense with the same elements is valid under the Double Jeopardy Clause of the Fifth Amendment).

law.com's Tony Mauro previously previewed many of leading candidates for review in an article you can access here.

For those desiring even more details about the cases granted review today, a visit to "SCOTUSblog" is in order.
Posted at 10:00 by Howard Bashman



Available online at Town Hall: Dennis Prager has an essay entitled "Caucasian clubs and race-based cookies." Mona Charen has an essay entitled "Free speech confusion." And Debra Saunders has an essay entitled "Foie Gras work out."
Posted at 09:52 by Howard Bashman



Available at National Review Online: Peter N. Kirsanow, who serves as a member of the U.S. Commission on Civil Rights, today has an essay entitled "Still Unconstitutional: Supreme discrimination." And Professor Peter W. Wood has an essay entitled "Imaginary Friends: How to write a diversity essay."
Posted at 09:48 by Howard Bashman



End of an era: Appellate advocate Roy T. Englert, Jr. emails:
On Tuesday, September 30, Judge Emory Widener of the Fourth Circuit takes senior status. With that action by Judge Widener, there are no longer any active federal circuit judges who were nominated by President Nixon. The only judges nominated by Nixon to federal appellate positions who are still on active (as opposed to senior) duty are Chief Justice Rehnquist, nominated to the Supreme Court by Nixon and elevated to Chief Justice by Reagan; and Justice Stevens, nominated to the Seventh Circuit by Nixon and elevated to the Supreme Court by Ford.

The federal circuit judge who has been serving longest as a federal circuit judge without taking senior status is now Eleventh Circuit Judge Gerald Bard Tjoflat, nominated to the (pre-split) Fifth Circuit by President Ford in 1975. Next most long-tenured as active circuit judges are nine Jimmy Carter appointees (Edwards, Sloviter, King, Martin, Schroeder, Pregerson, Reinhardt, Seymour, and Anderson).
Englert's email goes on to note that those Carter appointees may not be listed in order of appointment.

Interestingly, Judge Widener's last day in regular active service had previously been listed online here as September 30, 2003, but now that document states that the date of his assumption of senior status is "To be determined." Perhaps one of my readers with knowledge of the Fourth Circuit can explain what's up. And speaking of Judge Tjoflat, he participated in this Web log's "20 questions for the appellate judge" feature in August 2003, and you can access his interview at this link.
Posted at 09:39 by Howard Bashman



The decision of the Supreme Court of Michigan suspending a trial judge for smoking pot is now available online: You can access the decision at this link. A concurring opinion begins, "I write in concurrence because of the extraordinary character of the dissent." Thanks much to those readers who have so diligently kept an eye out for the posting of this ruling online.
Posted at 09:29 by Howard Bashman



In news from Mississippi: The Clarion-Ledger today reports here that "The public will get a rare behind-the-scenes glimpse of the state Supreme Court when Mississippi's judicial watchdog convenes Oct. 29 to hear allegations leveled by five justices against fellow Justice Chuck McRae." An editorial is entitled "Supreme Court: Internal squabbles self-defeating." Eric Stringfellow has an essay entitled "McRae's lame-duck term harmful to high court." And click here to view today's editorial cartoon.
Posted at 06:55 by Howard Bashman



"Moore appeals to high court": Today's edition of The Montgomery Advertiser contains this report.
Posted at 06:53 by Howard Bashman



In Tuesday's newspapers: The New York Times reports here that "Appeals Strategy Lies Behind Prosecutors' Decision in Terror Case." In other news, "F.C.C. Chief Will Enforce Phone Curbs." An article reports that "U.S. Charges Islamic Leader Who Met Bush." And an op-ed by Law Professor Ian Ayres is entitled "Dialing for Dollars."

The Washington Post reports here that "Rarely Invoked Statute Could Play a Role; Few, if Any, Have Been Prosecuted Under 1982 Law to Shield Agents' Identities." An article reports on "Another Day of Ups, Downs for Do-Not-Call List." In other news, "Use of Subpoenas to Name File Sharers Criticized." An article reports that "U.S. Charges Activist Over Links to Libya; Muslim Leader Lobbied on Sanctions." An editorial is entitled "The No-Call Catch-22." And a letter to the editor appears under the heading "Punishing Juvenile Offenders."
Posted at 06:30 by Howard Bashman



Monday, September 29, 2003
Coming soon? On Tuesday morning, the Supreme Court of the United States is expected to announce some grants of review from the many, many petitions for writ of certiorari that have accumulated over the summer months. Stay tuned for complete coverage.
Posted at 23:59 by Howard Bashman



"The Oregonian confuses issues on judicial nominations": The Oregonian today published this guest commentary by Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT).
Posted at 23:57 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Amendment key to abortion bill's fate." And Nat Hentoff has an op-ed entitled "Teen-agers and abortion."

The Los Angeles Times reports here that "One Last City Is Scanning for Faces in the Crowd; Virginia Beach, Va., is sticking with its controversial system of surveillance despite indications that it has little effect on crime." In other news, "Law Won't Deter Spam, Experts Say; Critics of a measure signed by Gov. Davis say it may be ineffective against junk e-mail and spur frivolous lawsuits." From Sacramento comes a report that "GOP Stirs Megan's Law Debate; Assembly Republicans want to do more than simply extend it." And in local news, "Accidental Gunshot Tests Culpability; Jury selection begins today for a Dana Point man whose shotgun blast tore off his daughter's forearm and damaged her kidney."

In The Boston Globe, E.J. Graff has an op-ed entitled "California leads on civil unions." And columnist Adrian Walker has a death penalty-related essay entitled "Latest turn on death."
Posted at 23:40 by Howard Bashman



"Judge nominated for Eighth U.S. Circuit Court": The Kansas City Star provides this report.
Posted at 23:36 by Howard Bashman



"Battling God's ouster from government": This article appears today in The Salt Lake Tribune.
Posted at 23:35 by Howard Bashman



"Attorney general charged; 6 misdemeanor charges filed in court": Tuesday's edition of The Pacific Daily News of Guam contains this article.
Posted at 23:34 by Howard Bashman



Judge Justice in the news: The San Antonio Express-News today provides this report.
Posted at 23:15 by Howard Bashman



"Cat blamed for courts power outage": The Chicago Tribune provides this report. Sadly, according to the article, "The cat did not survived [sic]."
Posted at 23:00 by Howard Bashman



"Major challenge to Minnesota campaign laws headed to court": Tuesday's edition of The Minneapolis Star Tribune will contain this report.
Posted at 22:44 by Howard Bashman



"PFAW Foundation and Allies Appeal Secret Arrest Case to Supreme Court; Constitutional and Civil Liberties Groups Ask High Court to Review Justice Department’s Refusal to Release Detainee Information": The group People For the American Way today issued this press release.
Posted at 22:43 by Howard Bashman



"Newspaper at UF takes Earnhardt autopsy photos case to high court": The Associated Press has this report. And the Knight Ridder news service reports that "College newspaper picks up fight for autopsy access."
Posted at 22:42 by Howard Bashman



"Critics Say Frist, Republicans Not Tough Enough": FOXNews yesterday had this report.
Posted at 22:36 by Howard Bashman



"Court cases mirror America's tensions": Michael Kirkland, who covers the U.S. Supreme Court for United Press International, has this look at the upcoming Term.
Posted at 22:34 by Howard Bashman



The cost of taking an appeal in federal court is going way up: In relative terms, at least. Currently a notice of appeal must be accompanied by a filing fee of $105.00. Effective November 1, 2003, the filing fee increases to $255.00. The Fifth Circuit's Web site provides the details here.
Posted at 20:46 by Howard Bashman



Today's Ten Commandments news: The Associated Press reports here that "Moore files Ten Commandments appeal with Supreme Court" and here that "Rally Supports Ten Commandments Display." The Atlanta Journal-Constitution reports here that "Politicians rush to support Ten Commandments rally." The Montgomery Advertiser reports here that "Moore's 'display' starts tour." Finally for now, you can access via this link a copy of the petition for writ of certiorari filed in the U.S. Supreme Court.
Posted at 19:55 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Bush Names Judges for 4th, 8th Circuits" and here an article headlined "Moussaoui Seeks Dismissal of Indictment."
Posted at 19:54 by Howard Bashman



U.S. Senate unanimously confirms Carlos T. Bea to serve on the U.S. Court of Appeals for the Ninth Circuit: You can access the official roll call vote at this link. The vote was 86-0. Judge Bea will be the fourth nominee of George W. Bush to reach the Ninth Circuit, but he won't be the oldest nominee ever commissioned to join a U.S. Court of Appeals.
Posted at 19:13 by Howard Bashman



The White House nominates William J. Haynes II to fill impending Fourth Circuit vacancy: Haynes, who serves as General Counsel for the Department of Defense, was nominated today to fill the vacancy that will arise when Fourth Circuit Judge H. Emory Widener, Jr. takes senior status.
Posted at 18:43 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "Punishment Issue Splits Ashcroft, Judges." In other news, you can access here an article entitled "Bush Signs Do-Not-Call List Into Law"; here "Utah Won't Pursue Chemotherapy for Boy"; here "Louisiana Lowers Drunken Driving Level"; here "N.J. Criminalizes Driving While Tired"; here "Man Charged in Violating Libya Sanctions"; here "Florida Monitors 100 Illegal Immigrants"; and here "Woman Convicted in Murder Blamed on Paxil."
Posted at 17:32 by Howard Bashman



"Does 'under God' do justice to all? Briefs before high court show Americans divided over pledge." Claire Cooper, legal affairs writer for The Sacramento Bee, today has this report.
Posted at 17:25 by Howard Bashman



On remand from U.S. Supreme Court, U.S. Court of Appeals for the Federal Circuit again upholds $50 million punitive damages award: This case was among the cases that the Supreme Court of the United States returned to lower courts for reexamination in light of the High Court's ruling in State Farm Mut. Automobile Ins. Co. v. Campbell (my summary of that ruling is available here). Today a unanimous three-judge panel of the U.S. Court of Appeals for the Federal Circuit issued a decision concluding that the ruling in State Farm required no reduction of the $50 million in punitive damages that the Federal Circuit had previously upheld.
Posted at 17:15 by Howard Bashman



"The Eleventh Circuit appears to have become a locus for pole attachment disputes." No, today's ruling of the U.S. Court of Appeals for the Eleventh Circuit (from which the title of this post quotes) is not related to the constitutional challenge against the Alabama statute prohibiting the distribution of sex toys that was argued before that appellate court last week.
Posted at 17:06 by Howard Bashman



Second Circuit decides Stephenson v. Dow Chemical Co. on remand from U.S. Supreme Court: A further remand to the district court appears to be in order in this case relating to Agent Orange. You can access today's Second Circuit ruling at this link, and the U.S. Supreme Court's decision from June 9, 2003 is accessible here (plus, my coverage of that decision is here).
Posted at 16:54 by Howard Bashman



"N.H. Court Trashes Private Garbage Search": The Associated Press reports here that "The New Hampshire Supreme Court ruled Monday that garbage is private, even when it has been put out near the street for collection. The 4-1 decision runs counter to rulings by the U.S. Supreme Court and high courts in most other states. But the court said New Hampshire's constitution provides a stronger expectation of privacy than the U.S. Constitution." You can access today's ruling of the Supreme Court of New Hampshire at this link.
Posted at 16:50 by Howard Bashman



"View from the Right: The Ninth Circus." SF Gate, the Web site that hosts the content of The San Francisco Chronicle, today offers this essay by Adam Sparks.
Posted at 16:43 by Howard Bashman



The White House nominates Raymond W. Gruender to fill Eighth Circuit vacancy: Gruender, who serves as U.S. Attorney for the Eastern District of Missouri, was nominated today to fill the vacancy created when Eighth Circuit Judge Pasco M. Bowman took senior status on August 1, 2003.
Posted at 16:29 by Howard Bashman



In today's issue of The Harvard Crimson: An article reports that "Dershowitz Accused Of Plagiarism; Law school professor denies he relied on another’s work." In other news, "Panel Brings Law School Deans to Undergrads; Admissions heads spill the beans on how to get accepted." And an editorial is entitled "'Don't Ask,' Do Litigate; HLS should challenge unfair amendment, turning words into action on gay rights."
Posted at 14:44 by Howard Bashman



"Fed directive may clog courts": Today's edition of The Rochester Democrat and Chronicle contains this report.
Posted at 14:39 by Howard Bashman



"FCC Says It Will Enforce Do-Not-Call List": The Associated Press provides this report. You see, the federal government agency that's been enjoined from enforcing the list is the FTC, not the FCC.
Posted at 14:36 by Howard Bashman



This week's Senate Judiciary Committee hearing on judicial nominations will focus entirely on one nominee: The nominee who gets an entire judiciary committee hearing all to herself is Dora L. Irizarry, whom President Bush has nominated to serve on the U.S. District Court for the Eastern District of New York. The hearing is scheduled to begin at 10 a.m. on Wednesday, October 1, 2003. Why is this federal district court nomination receiving this intense level of attention? This article from law.com and this article from The New York Post, both published back in June 2003, may provide at least part of the answer.
Posted at 14:20 by Howard Bashman



"Courting a decision": The Barre-Montpelier Times Argus recently published an editorial that begins, "The decision on whom to choose for a seat on the U.S. Second Circuit Court of Appeals, replacing Fred Parker of Vermont who died in August, is a complicated one this time."
Posted at 14:03 by Howard Bashman



"Bush to sign 'do-not-call' bill": CNN.com provides this report.
Posted at 13:50 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "New Law Passed to Block Concert Suicide" and here an article headlined "Amtrak Asks Court to Halt Planned Walkout."
Posted at 13:38 by Howard Bashman



"Crescat Sententia" has a new address: And the blog is now powered by Movable Type. To inaugurate the new site, enjoy this interview with Election Law Professor and Blogger Rick Hasen.
Posted at 12:16 by Howard Bashman



"Drunk judge fined £800; A district judge has been fined a total of £800 following a drunken argument in a kebab shop." BBC News provides this report.
Posted at 11:49 by Howard Bashman



Can't we all just get along: Yesterday evening, I noted here an Associated Press report from Mississippi that "A judicial review board has launched an inquiry into allegations against a state Supreme Court justice, including claims that he threatened to 'whip' the chief justice and intentionally delayed cases as payback before his term on the court ends."

Today a reader forwards along the link to this recent ruling of the Supreme Court of Mississippi. The ruling contains a concurring opinion in which five justices have joined that states, among other things: "I exhort Presiding Justice McRae to cease making attacks on his fellow Justices and on the Court as a whole." (See page 71 of the 72-page PDF file.) And if this were not enough excitement for one court, back in July 2003 a federal criminal indictment was handed up against another justice then serving on that court. Looking on the bright side, at least one of the justices is not accusing another of trying to run him over with an automobile, an accusation once raised by a now-former justice on the Supreme Court of Pennsylvania.

Back before the Supreme Court of Mississippi's current troubles arose, Mississippi Supreme Court Justice Kay B. Cobb participated in this Web log's "20 questions for the appellate judge" feature. You can access the complete interview, and thereby learn a bit more about that court, via this link.
Posted at 10:55 by Howard Bashman



"Feeding tube case inflames emotions; As the date gets closer for disconnecting Terri Schiavo, testy messages are reaching those associated with the case." The St. Petersburg Times today contains this report.
Posted at 09:48 by Howard Bashman



"Scholarship fight a lesson in resolve; UNC student's battle aids Pacific Islanders": This article appears today in The Denver Post.
Posted at 09:45 by Howard Bashman



"Leaders rally for religion; State Capitol event to support Ten Commandments displays": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 09:38 by Howard Bashman



The law blog "Mellow-Drama" presents "Raising the Bar": It's described as a "collection of the best posts from around the blawg world" and is slated to appear every Monday. You can access the "Mellow-Drama" blog at this link.
Posted at 06:57 by Howard Bashman



In the October 6, 2003 issue of The New Yorker: Pulitzer Prize-winning author Louis Menand -- one of my favorite writers, especially when he is writing about writing -- reviews the fifteenth edition of The Chicago Manual of Style. The final paragraph of the book review shouldn't be missed:
Some people will complain that the new "Chicago Manual" is too long. These people do not understand the nature of style. There is, if not a right way, a best way to do every single thing, down to the proverbial dotting of the "i." Relativism is fine for the big moral questions, where we can never know for sure; but in arbitrary realms like form and usage even small doses of relativism are lethal. The "Manual" is not too long. It is not long enough. It will never be long enough. The perfect manual of style would be like the perfect map of the world: exactly coterminous with its subject, containing a rule for every word of every sentence. We would need an extra universe to accommodate it. It would be worth it.
Of course, the book review also mentions every lawyer's favorite manual of citation, "The Blue Book."

Elsewhere in the issue, Ben McGrath has a "Talk of the Town" essay entitled "A Lawyer Walks Into a Bar."
Posted at 06:45 by Howard Bashman



In Monday's newspapers: The Washington Post reports here that "Sniper Case Probe Reaches 'Crunchtime'; Trial Looms a Year After Killings." In other news, "Trade Group To Abide by No-Calls List." And an editorial is entitled "The Moussaoui Mess."

The New York Times reports here that "A.C.L.U. Challenges Music Industry in Court." And in other news, "Ex-Tyco Chief, Free Spender, Going to Court."

The Christian Science Monitor reports here that "States reconsider drastic court cutbacks; After delaying or even nixing some trials, New Hampshire and Oregon restore funds." An editorial is entitled "Saving Do-Not-Call Lists." And an op-ed by Dennis Jett is entitled "Dirty wars cast shadow on virtues of Patriot Act."
Posted at 06:30 by Howard Bashman



Sunday, September 28, 2003
"High Court to Weigh 'One Nation, Under God' Petition; Among many appeals before the justices looms a battle over the place of religion in America." David G. Savage will have this article in Monday's issue of The Los Angeles Times.
Posted at 23:50 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports here that "Opinions Vary on Ten Commandments Ban; Since the high-publicity ruling ordering a Decalogue's removal from one courthouse, displays in two others have survived challenge." You can access here an article about another unfavorable review-related lawsuit against Consumer Reports; the article is headlined "Protecting a Sharper Image: After staging a comeback, the retailer's founder takes aggressive steps to sustain momentum." A guide to Proposition 54 is accessible here. In other news, "Freedom of Expression Is Tested in 2 Cases at 'the Un-Berkeley.'" And an editorial is entitled "No on Propositions 53 and 54."

Today's edition of The Boston Globe contains an editorial entitled "The politics of death." Relatedly, Jeff Jacoby has an op-ed entitled "Execution saves innocents...," while James Alan Fox has an op-ed entitled "...Foolproof or foolish?"
Posted at 23:32 by Howard Bashman



"Lawmakers brace for high court ruling on gay marriage": This article appears in today's edition of The Berkshire Eagle.
Posted at 23:21 by Howard Bashman



"Ten Commandments tour will end at Supreme Court": Today's issue of The Huntsville Times provides this report.
Posted at 23:20 by Howard Bashman



"Supremes are disarmingly wrong again": So contends Cincinnati Enquirer columnist Peter Bronson in an essay you can access here.
Posted at 23:19 by Howard Bashman



"Life with concealed carry; Minnesota's experience with new gun law has a Missouri ring": This article appears in today's edition of The Kansas City Star.
Posted at 23:17 by Howard Bashman



"A long haul for Enron grand jury": Today The Houston Chronicle contains this report.
Posted at 23:15 by Howard Bashman



"Q&A: After ruling for Hearst, what's next in newspaper fight." A freelance writer hired on a special contract by The Seattle Times to cover events involving that newspaper's joint operating agreement with The Seattle Post-Intelligencer today has this report.
Posted at 23:14 by Howard Bashman



"Legal immigrants with criminal pasts are being detained": The San Diego Union-Tribune today reports here that "At least 4,000 legal immigrants who have been convicted of crimes and completed their sentences are being rounded up and held without bail because of a recent U.S. Supreme Court ruling."
Posted at 23:11 by Howard Bashman



"Lawsuit on profit in Laci slaying; Mother seeks to keep Peterson from benefiting": Today's issue of The San Francisco Chronicle contains this report.
Posted at 23:10 by Howard Bashman



"Castaneda Dispute Reaches State Supreme Court; Anthropologist suing another for defamation": This article appears in today's edition of The Santa Fe New Mexican.
Posted at 23:09 by Howard Bashman



"Peephole case gets national attention; lawyers disagree on motive of publicity": The Midland Reporter-Telegram contains this report today.
Posted at 23:07 by Howard Bashman



"'Enforce federal voting law'": The Saipan Tribune reports here in Monday's edition that "A veteran lawmaker has asked both national Republican and Democratic parties in Washington D.C. to urge the U.S. Attorney General to enforce the provision of two laws that would allow mainlanders in the Commonwealth to vote in U.S. general elections."
Posted at 23:05 by Howard Bashman



"Voting machines taking heat; Critics say touch-screen systems lack a paper trail, among other things." Today's edition of The Sarasota Herald-Tribune contains this report.
Posted at 23:03 by Howard Bashman



"New judge -- bad news for Everglades?" The Orlando Sentinel addresses that question in a report you can access here. And The South Florida Sun-Sentinel reports here that "New 'Glades judge sets hearing."
Posted at 23:02 by Howard Bashman



"Has three-strikes law made state's streets safer? After 10 years on the books, opinion is divided on if it works." Bob Egelko has this article in today's issue of The San Francisco Chronicle.
Posted at 22:59 by Howard Bashman



"S.C. economy could profit from Gullah study; Study suggests taking advantage of cultural tourism possibilities with centers": The State today provides this report.
Posted at 22:58 by Howard Bashman



In news from Utah: The Deseret Morning News today reports here that "ACLU suit in plaza dispute is called harmful" and here that "Plural wives plead case; Make polygamy legal in Utah, Shurtleff is told."
Posted at 19:33 by Howard Bashman



"Judges' phones ring off the hook": Today's edition of The Denver Post contains this article.
Posted at 19:29 by Howard Bashman



"Panel Launches Inquiry Into Miss. Judge": The Associated Press reports here that "A judicial review board has launched an inquiry into allegations against a state Supreme Court justice, including claims that he threatened to 'whip' the chief justice and intentionally delayed cases as payback before his term on the court ends."
Posted at 18:15 by Howard Bashman



"Pledge Case Leads High Court's Long Conference": Tony Mauro has this report. And law.com reports here that "Fetal Rights at Issue in South Carolina Case."

In other news of interest from the U.S. Supreme Court, last Monday the Court asked the State of California to file a brief in opposition to the petition for writ of certiorari in Silveira v. Lockyer, a case that asks the Court to determine whether the Second Amendment guarantees an individual right to bear arms. You can access the Ninth Circuit's ruling in that case at this link, the dissents from the Ninth Circuit's order denying rehearing en banc at this link, and what purports to be the gun owner plaintiffs' cert. petition at this link.

Although the first Monday in October is still over one week away -- and the first oral argument of the new Term isn't until the first Tuesday in October due to a Jewish holiday -- the Court could announce additional cert. grants as early as tomorrow afternoon. You can access the Court's argument calendars for October, November, and December 2003 simply by clicking on the month(s) in which you are interested.
Posted at 16:55 by Howard Bashman



CitizenLink presents an interview with Robert H. Bork: You can access the interview at this link.
Posted at 16:45 by Howard Bashman



"Muhammad, Malvo ties began with Antigua swap; Teen-age sniper suspect's mother gave him to man for forged travel papers": This article appears today in The Baltimore Sun.
Posted at 12:25 by Howard Bashman



"OK for voting machines relieves state officials": The Atlanta Journal-Constitution today has this report.
Posted at 12:20 by Howard Bashman



"Gay marriage stirs conservatives again; Right wing braces for Mass. ruling": This article appears in today's edition of The Boston Globe.
Posted at 10:25 by Howard Bashman



"No more Mr. Nice Federal Prosecutor Guy": The Fort Worth Star-Telegram today contains this op-ed by J.R. Labbe.
Posted at 10:23 by Howard Bashman



"'Guide to clean living' a national Ten Commandments drama": Columnist Jan Jarboe Russell has this essay in today's issue of The San Antonio Express-News.
Posted at 10:21 by Howard Bashman



"No single policy for racial data; Many inconsistencies in how it's gathered; Prop 54 foes say information is still necessary." The Sacramento Bee today contains this report. And John Rosenberg has a blog post entitled "Dramatic New Poll: Minorities Support Prop. 54!"
Posted at 09:36 by Howard Bashman



"News media may withhold gruesome images, but Internet sets them free": This article appears in today's edition of The Pittsburgh Post-Gazette.
Posted at 09:22 by Howard Bashman



In Sunday's newspapers: The New York Times reports here that "States Moving to End Tribes' Tax-Free Sales." An article reports that "If Ole Shep Passes On, This Law Could Help." The Magazine section contains an essay headlined "Subversive Reading." An article about criminal sentencing is headlined "Rethinking the Key Thrown Away." An editorial is entitled "The Right's Grip on the Capitol." And Law Professor George Fisher has an essay headlined "A Practice as Old as Justice Itself."

A front page article in The Washington Post is headlined "Road Leads to Alaska-Size Standoff; It's Hillbilly Heaven vs. Park Service." In the Book World section, a review is entitled "Civil Liberties: Is the war on terror compromising our liberty? Four books sound the alarm." And an op-ed by Rachel Simmons is entitled "Cliques, Clicks, Bullies And Blogs."
Posted at 09:00 by Howard Bashman



"Wife sues to make casino ban husband; She says his bets are ruining family": Today's edition of The Cincinnati Enquirer contains this report.
Posted at 08:44 by Howard Bashman



Saturday, September 27, 2003
"Senate should confirm Bill Pryor to 11th Circuit Court of Appeals": Bob Martin, the editor and publisher of The Montgomery Independent, has written this op-ed. (Thanks to "Southern Appeal" for the pointer.)
Posted at 23:44 by Howard Bashman



"No-call list still in limbo; Third ruling in four days merely adds to confusion": Today's edition of The Denver Post provides this coverage. And The Rocky Mountain News contains an article headlined "No-call on the line: Appeals court prepares to consider issues of privacy vs. free speech."
Posted at 23:40 by Howard Bashman



Elsewhere in Saturday's newspapers: The Washington Times reports here that "FTC eyes Plan B on junk calls." The article happens to include what purports to be the telephone number of the second U.S. District Judge to enjoin the federal "do not call" list. An article reports that "Sniper suspect seeks to quash statements." In business news, "Analysts caution fast-food industry." And in other news, "'Jesus' ban in park spurs suit."

The Los Angeles Times reports here that "Popular Do-Not-Call Law Faces Months of Delays." An article reports that "Prison Camp Interpreter Had Tickets to Syria; Lawyers say airman accused of spying at Guantanamo was only planning a family trip." In other news, "6 Jurists Are Confirmed to Fill Vacancies in State Court of Appeal; The appointees include four women, the largest number elevated at the same time to that bench in state history." An article reports that "Groups on Both Sides Oppose Marijuana Bill." And in other local news, "Law Targets Evidence in Sex Assaults; Victims must be notified by law enforcement agencies if they intend to destroy rape kits before the 10-year statute of limitations runs out."
Posted at 23:25 by Howard Bashman



"Jury awards woman $19.5 million": The Lincoln Journal Star today reports here that "A Lancaster County jury Friday returned what is believed to be the largest-ever monetary award in Nebraska to a Lincoln woman severely injured when the Chevrolet sport-utility vehicle she was a passenger in rolled over."
Posted at 23:24 by Howard Bashman



"Lingle says jails need replacing": This article appears today in The Honolulu Advertiser.
Posted at 23:06 by Howard Bashman



"Murder Appeal Centers On Technology": The Hartford Courant today provides this report.
Posted at 23:01 by Howard Bashman



"UND law clinic can aid clients v. Fargo; Attorney general's opinion affirms school's right to take on 'Ten Commandments' suit": Today's edition of The Grand Forks Herald contains this report.
Posted at 22:56 by Howard Bashman



"Judge who admitted smoking pot at concert hit with six-month suspension": This article appears today in The Detroit Free Press.
Posted at 22:46 by Howard Bashman



"Judges delay smoking ban. Lexington curbs won't take effect Monday; 'status quo' remains until suits heard." The Courier-Journal of Louisville, Kentucky today provides this report. And The Lexington Herald-Leader provides additional coverage here.
Posted at 22:33 by Howard Bashman



In news from Ohio: The Cincinnati Enquirer reports here that "Rape victim jailed; accused freed; Afraid or not, it's her duty to testify, judge says." And The Associated Press reports here that "ACLU sues over executions; Show entire process, civil rights group in Ohio says."
Posted at 22:25 by Howard Bashman



In Saturday's newspapers: In The New York Times, Adam Liptak has a news analysis headlined "No-Call List: Constitutional Doubt on Hot Political Issue." An article reports that "Developer Loses Ruling in Trade Center Insurance Dispute." A profile of one-time appellate superstar Joel I. Klein is headlined "Behind Makeover of City Schools, a Bookish 'Kid From Queens.'" In news from Paris, "Son's Wish to Die, and Mother's Help, Stir French Debate." In local news, "Defense in Seton Hall Case Can Comment Publicly, Judge Rules" and "Restaurant Is Ordered to Pay Ex-Waitresses $3.4 Million." A correction demonstrates that while The NYTimes may not support the confirmation of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit, that newspaper cannot publish his photograph often enough. Today's installment of the "About New York" column is headlined "All Rise in Judgment of the Judge." One editorial is entitled "Attack of the Telemarketers," while another bears the title "The Truth Is Out There, but It's Classified." David Brooks has an op-ed entitled "Lonely Campus Voices" about the supposedly sad plight of conservatives in academia. And a letter to the editor appears under the heading "Ashcroft's Limits on Plea Bargains."

In The Washington Post, Charles Lane reports that "Do-Not-Call Case Spotlights Vagueness of Commercial Speech Law." In related news, "FTC Tries To Save No-Calls Registry; Agency Appeals Judge's Ruling" (and a copy of the appeal and stay papers are available here, via FindLaw). An article reports that "Expense Billing Targeted; Suit Says Accountants Didn't Pass On Rebates." In other news, "Arabic Translator Investigated for Months; Halabi Was Supply Clerk in California and Kuwait Before Guantanamo Duty." In local news, "Defense Wants Muhammad's Statements Barred at Trial." In other local news, "Farmer Found Guilty in Mall Standoff; After Swift Deliberations, N.C. Man Faces Up to 6 Years for Tractor Siege, Bomb Threat." And you can access here an article headlined "In the Spirit of Title IX: U-Md. Makes Cheerleading a Sport."

In The Boston Globe, Lyle Denniston reports that "No-call ruling threatens state list." In local news, "Geoghan ruling sparks anger; Alleged victims protest erasure of conviction." A report from Europe is headlined "Fertile grounds for a lawsuit: Czech man duped into giving sperm." And an article reports that "Ad by prison guards bids for understanding."
Posted at 19:35 by Howard Bashman



"Judge's number found on list": The Boston Globe today reports here that "The telephone number of a federal judge in Denver who blocked a national do-not-call registry this week had been added to the list in July, blocking telemarketers from calling him." Just one more example of a judge who is willing to apply the law neutrally without regard to his own personal or political self-interest.
Posted at 19:32 by Howard Bashman



"Euthanasia debate sweeps world": BBC News provides this report.
Posted at 19:29 by Howard Bashman



"Smoker's damages cut to $10.5 million": Bob Egelko had this article yesterday in The San Francisco Chronicle.
Posted at 19:27 by Howard Bashman



"Former stripper regains custody of son; Appeals court reiterates grandparents' rights": This article appears in today's edition of The Pittsburgh Post-Gazette. And you can access Thursday's ruling of the Superior Court of Pennsylvania, which recognized the primacy of a parent's rights over a competing claim by grandparents seeking custody, at this link.
Posted at 19:25 by Howard Bashman



"Father, son challenge drug policy": Yesterday's issue of The Fairbanks News-Miner contained an article that begins, "A federal judge should order the Fairbanks North Star Borough School District to revise several portions of its drug and alcohol policy that are unconstitutional, a lawyer representing a North Pole student expelled for not taking a urine test last school year argued in court Thursday."
Posted at 19:21 by Howard Bashman



"Klansman, House of Prayer united on Commandments": This article appears in today's issue of The Atlanta Journal-Constitution. And an article in today's issue of The Augusta Chronicle begins, "A rally headed by a south Georgia Ku Klux Klan member and featuring the congregation of a predominantly black Atlanta church drew about 250 people to the Barrow County Courthouse on Friday in support of a controversial Ten Commandments display in the downtown Winder building." You can access here a copy of the complaint that initiated the lawsuit seeking to have that Ten Commandments display removed.
Posted at 19:18 by Howard Bashman



"U.S. Uses Terror Law to Pursue Crimes From Drugs to Swindling": Sunday's edition of The New York Times will contain this report.
Posted at 19:08 by Howard Bashman



"Ruling: Patient names private." The Associated Press today has this report from Montana. You can access Thursday's ruling of the Supreme Court of Montana at this link.
Posted at 19:03 by Howard Bashman



I'm not alone: Benjamin Wittes, an editorial writer for The Washington Post on topics relating to the law, joins me in expressing serious concern about the methodologies employed in the law review article by Sunstein, Schkade, and Ellman, which is available for viewing via this link. I have explained some of the reasons that I find the approach taken in that article to be objectionable in a post you can access here. To see what Wittes has to say on the matter, read his essay entitled "Judges and Politics: Cass Sunstein gets it wrong," which will appear in the October 6, 2003 issue of The Weekly Standard.
Posted at 18:53 by Howard Bashman



Friday, September 26, 2003
Second Circuit upholds method of calculating compensation used by Special Master of the September 11th Victim Compensation Fund: In the second of two September 11th-related appeals decided today (see my report here concerning the decision released earlier today), the U.S. Court of Appeals for the Second Circuit upheld against challenge by relatives of victims the method of calculating compensation used by Special Master Kenneth R. Feinberg. You can access the ruling at this link.
Posted at 18:45 by Howard Bashman



"Appeals Court Smiles on 'Do Not Call' List": Reuters has this report. And you can access today's order of the U.S. Court of Appeals for the Tenth Circuit at this link.
Posted at 18:40 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Ban on Public Smoking in Ky. Halted" and here an article headlined "Farmer Convicted in D.C. Tractor Protest."
Posted at 16:22 by Howard Bashman



Who would have thunk it? A judge's ideology can affect the outcome of cases! On June 11, 2003, The New York Times published an op-ed by David A. Schkade and Cass R. Sunstein entitled "Judging by Where You Sit." The op-ed begins:
Ideology matters when choosing judges -- perhaps too much, as the battles between President Bush and Senate Democrats show. But how much does ideology matter once judges are on the bench?

As it turns out, it matters a lot. We have studied thousands of votes by federal appellate judges, who are randomly assigned to three-judge panels, which then make decisions by majority vote. According to our research, judges appointed by Republican presidents show more conservative voting patterns, while Democratic appointees are more liberal.
When I first noted the publication of this op-ed on June 11th, I wrote: "It will be interesting to see whether the evidence with which they support their opinions stands up to outside scrutiny."

Well, as I noted here earlier this week, the evidence is now available for free download at SSRN. Via this link, you can access a paper written by Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman entitled "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation."

I have no doubt that a judge's ideology can affect the outcome of cases if the judge allows his or her ideology to do so. Regrettably, for reasons that I intend to discuss in detail in the October 2003 installment of my monthly appellate column to be published in The Legal Intelligencer, I am quite underwhelmed by the "statistical evidence" that Sunstein, Schkade, and Ellman have compiled. They treat the political party of the appointing President as a proxy for ideology, they count a vote to "award any relief" as a vote entirely in favor of one side or another on a controversial issue, and they do not compensate for the fact that even in ideologically-charged areas many cases are resolved by application of precedent rather than ideology, or that a disagreement between panel members may reflect ideology on the one hand and adherence to precedent on the other.

A much better experiment would have been for the professors to give all federal appellate judges a moot court type of hypothetical where some of the ideologically-charged issues are governed by precedent and others are not and see whether the judge's own personal or political preferences predicted whether the applicable precedent was adhered to and how the issues not governed by precedent were resolved. That experiment, of course, never will occur for obvious reasons. Yet evidence does exist in the real world of circuit splits involving ideologically-charged issues. In such cases, a rigorously-minded academic could examine the reasons the judges who participated gave for their rulings to see whether the outcomes reached were dictated by the judges' own personal or political preferences or whether those outcomes were based on the proper principles of judging. But instead, to look at compilations of raw data to conclude that Democratic-appointed judges rule in favor of plaintiffs in sexual harassment cases more often than Republican-appointed judges do produces a useless statistic for a whole handful of reasons.

I know that the paper by Sunstein, Schkade, and Ellman has only recently become available online, but I'd be very interested in hearing from others who have read it to see whether they agree or disagree with my reaction to it. Anyone with thoughts about this paper can email them to me by clicking here.
Posted at 15:30 by Howard Bashman



"Ex-Priest Geoghan's Conviction Vacated": The Associated Press reports here that "The Massachusetts Appeals Court vacated the child molestation conviction of former priest John Geoghan, who was killed in prison while his appeal was pending."
Posted at 14:41 by Howard Bashman



And if that's not enough news pertaining to the U.S. Court of Appeals for the Federal Circuit: Today that court issued an order in another case stating, in relevant part: "The court has sua sponte taken this case en banc to reconsider its precedent concerning the drawing of adverse inferences, with respect to willful patent infringement, based on the actions of the party charged with infringement in obtaining legal advice, and withholding that advice from discovery."

Plus, the court's order provides that "Amicus curiae briefs * * * are welcome from bar associations, trade or industry associations, and government entities" addressing "1. When the attorney-client privilege and/or work product privilege is invoked by a defendant in an infringement suit, is it appropriate for the trier of fact to draw an adverse inference with respect to willful infringement? [and] 2. When the defendant has not obtained legal advice, is it appropriate to draw an adverse inference with respect to willful infringement?"
Posted at 12:53 by Howard Bashman



En banc U.S. Court of Appeals for the Federal Circuit decides Festo case on remand from the U.S. Supreme Court: You can access today's lengthy, non-unanimous ruling at this link.
Posted at 12:45 by Howard Bashman



"Hollywood should come calling: The guy deserves his own show." That's what The Recorder says about Ninth Circuit Judge Alex Kozinski following Monday's televised en banc oral argument in the California recall election case. You can access that publication's complete listing of Ninth Circuit-related up and down arrows at this link.
Posted at 12:01 by Howard Bashman



What's worse than telemarketers? People who are angry about telemarketers. Yesterday The Associated Press reported here that "Judge Who Backed Telemarketers Is Deluged." Update: A reader provides this example of an editorial cartoon that appeared earlier this week in The Birmingham News.
Posted at 11:43 by Howard Bashman



BREAKING NEWS -- Second Circuit decides appeal over how much insurance coverage is available to owners of World Trade Center: Today's opinion from the U.S. Court of Appeals for the Second Circuit begins:
This case arises out of the devastating tragedy that occurred at the World Trade Center ("WTC") in lower Manhattan, New York, on the morning of September 11, 2001. At issue in this case is the amount of insurance that is recoverable for the total destruction of the WTC that occurred after the buildings were struck by two fuel-laden aircraft that had been hijacked by terrorists. The appellants are numerous entities that have varying property interests in the WTC, including the Port Authority of New York and New Jersey (the "Port Authority"), which owns the property in fee simple, and Silverstein Properties, Inc. and several related entities ("Silverstein Properties").
Later, the opinion explains that "The broad question presented in this case is whether the events of September 11, 2001 constituted one or two 'occurrences.' The answer will determine whether the Silverstein Parties can recover once, up to $3.5 billion, or twice, up to $7 billion, under the insurance coverage." You can access the complete opinion at this link.
Posted at 11:25 by Howard Bashman



Lesson one for identity thief -- don't pretend to be a convicted sex offender: Today's edition of The New Haven Register reports here that "Clinton man picks wrong person in identity theft." And The Associated Press reports here that "Man Steals ID of Sex Offender."
Posted at 11:16 by Howard Bashman



Divided Supreme Court of Michigan suspends trial judge for six month for smoking marijuana: Today's edition of The Traverse City Record-Eagle contains this report. In the ten seconds that I was able to dedicate to the mission, I was unable to find online the text of the decision that the Supreme Court of Michigan issued. If anyone has better luck than I did, please send along a link.
Posted at 10:53 by Howard Bashman



"Neb. Inmate Loses Appeal for DNA Testing": The Associated Press reports here that "Death row inmate John Lotter lost an appeal Friday seeking DNA tests that he hoped would prove his innocence in the murder that inspired the 1999 movie 'Boys Don't Cry.'" You can access here today's ruling of the Supreme Court of Nebraska.
Posted at 10:44 by Howard Bashman



"Deal on definition prevents abortion fight; Wasserman's language for 'live birth' lets bill pass Assembly, 95-0": This article appears in today's issue of The Milwaukee Journal Sentinel.
Posted at 10:18 by Howard Bashman



"Republicans seek quick confirmation of Sykes; Pre-December OK would allow earlier vote on justice's replacement": Yesterday's edition of The Milwaukee Journal Sentinel contained this report. In related news, The Capital Times reported here that "Sykes successors jockey for court job," while The Monroe Times reported here that "Deininger isn't selected for federal judgeship."
Posted at 10:14 by Howard Bashman



In The Harvard Law Record: The current issue contains articles headlined "Law Review's 'enormous problem'"; "HLS won't join FAIR lawsuit"; "BU prof explains cannabis case"; and "All about Elhague." An editorial is entitled "Inaction speaks louder than words." In op-eds, Jeremy Blachman has an essay entitled "If looks can kill..." and Amanda Goad has an essay entitled "HLS fails to defend non-discrimination policies." Finally, Adam White reviews former D.C. Circuit Judge Robert H. Bork's new book.
Posted at 10:01 by Howard Bashman



"Discipline for Internet threats proves difficult for school; Cyberspeech site key to situation": This article appears in today's issue of The Florida Times-Union.
Posted at 09:41 by Howard Bashman



Some good news for supporters of the Ten Commandments monument in La Crosse, Wisconsin: Today's edition of The La Crosse Tribune contains an article headlined "Ruling not set in stone yet" that begins, "The legal battle over the Ten Commandments monument in Cameron Park took an unexpected turn Wednesday when a federal judge set aside her July 14 ruling that the monument's presence in a city park was unconstitutional and that it had to be removed." You can access the text of Wednesday's ruling of the U.S. District Court for the Western District of Wisconsin at this link.
Posted at 09:30 by Howard Bashman



"Vote on Pickering blocked; Democrat Leahy's move delays committee's vote for a week": This article appears in today's issue of The Clarion-Ledger.
Posted at 06:59 by Howard Bashman



"Hearing delayed for 6th Circuit; Bush nominees moved ahead by Senate committee" The Detroit News today contains this article.
Posted at 06:57 by Howard Bashman



"The Cookie Crumbles: Young Conservatives of Texas 'Affirmative Action Bake Sale' brings national debate to the Hilltop, sparks coast-to-coast media attention." Today's edition of The SMU Daily Campus contains this report. Also in that newspaper, an editorial is entitled "Tough cookie: Affirmative action bakesale proves a half-baked idea," and letters to the editor appear under the heading "Cookies draw responses from many as SMU occupies national spotlight." Update: "The Curmudgeonly Clerk" has lots to say about this matter.
Posted at 06:56 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Call List Is Again Blocked In Court; Order Comes After Congress Votes to Protect Registry." An article reports that "Moussaoui Prosecutors Try to Speed Appeal; U.S. Backs Dismissal of Charges to Challenge Judge's Ruling on Depositions." In local news, "Death Penalty Ineligibility Argued; Muhammad's Attorneys Cite Wording of Va. Terror Law." In other local news, "Farmer's Explosive? A Bug Bomb; At Trial, N.C. Man Blames Misunderstanding for Standoff on Mall." You can access here an article headlined "Indictment Expands 'Va. Jihad' Charges." And in business news, "Under Court Ruling, Seattle To Remain a 2-Paper Town; Judge Rejects Times's Bid to End Pact With Rival."

The New York Times reports here that "Do-Not-Call Listing Remains Up in Air After Day of Twists." An article reports that "In Maneuver, U.S. Will Let Terror Charges Drop." In other news, "Accounting Ordered at Indian Trust Fund." In business news, "Judge Says Seattle Papers Must Stay Linked." In international news, "Facing Death for Adultery, Nigerian Woman Is Acquitted." And in local news, "Inmate Spared Life Sentence in the Stabbing of an Officer."

The Christian Science Monitor reports here that "'Do not call' list fights back; After court stays a federal program to stop unwanted telemarketers, the registry may yet take effect Oct. 1." That article, however, went to press before news issued of yesterday's second federal court injunction blocking the list.

Finally, online at OpinionJournal you can access an editorial entitled "The Grove and Academe: Liberal law schools want to defy federal policy while taking federal money."
Posted at 06:33 by Howard Bashman



Thursday, September 25, 2003
Do state laws exist against masturbation? In response to this blog post of mine from the other day, a reader emails:
The 80-page district court opinion in Williams v. Pryor includes this assertion by plaintiffs: "In the states surveyed, no laws were passed in the nineteenth century (or later) banning or regulating private acts of masturbation. Judge Posner writes that no such law has ever been passed in the United States." Slip op. at 44. Plaintiffs' citation is to Judge Posner's Sex and Reason, 207.

Where two such titans as Posner and Scalia disagree, what can mere mortals think? Perhaps the best solution is to construe Justice Scalia as wishing to preserve the future prospect of anti-onanism legislation? Certainly, in adopting Justice Stevens' Bowers-dissent position that intimacy between married, or even unmarried, couples is protected, Lawrence did not address non-couple sexual behavior.
I appreciate my reader's attempt to square what Judge Posner apparently has written with the language from Justice Scalia's dissent in Lawrence that "State laws against ... masturbation ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding." Lawrence v. Texas, 123 S. Ct. 2472, 2490 (2003) (Scalia, J., dissenting). Justice Scalia can only be understood as saying that laws against masturbation exist now. As I pointed out in the post to which this reader's email is responding, the Alabama law in question cannot be characterized as a law against masturbation because it prohibits the distribution -- but not the use -- of "any device designed or marketed as useful primarily for the stimulation of human genital organs." So, I'm afraid we are no closer to figuring out what existing laws Justice Scalia had in mind.
Posted at 23:19 by Howard Bashman



From the Supreme Court of Indiana, rulings on Medicaid coverage for abortions and dog bites postman: Marcia Oddi of "The Indiana Law Blog" has the details here.
Posted at 23:06 by Howard Bashman



In news from Mississippi: The Clarion-Ledger reported here today that "Musgrove endorses Pickering in letter" and here that "Guirola would be first Hispanic on federal bench in Mississippi." The Hattiesburg American reported here that "Pickering pleased hearing is likely" and here that "Guirola picked for federal bench; Judge may be first Hispanic on state's highest federal court." Later today, however, The Associated Press reported here that "Senate panel delays action on Pickering 5th Circuit nomination."
Posted at 22:34 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Gov't Ordered to Account for Indian Money"; here "Man Tied to al-Qaida Wants Plea Withdrawn"; and here "Fla. Judge Delays Flag-Flying Home Sale."
Posted at 22:28 by Howard Bashman



This evening the U.S. Senate unanimously confirmed Michael W. Mosman to serve as U.S. District Judge for the District of Oregon: You can access the roll call vote at this link. For a short time back in May, it seemed that Mosman's nomination might prove controversial.
Posted at 20:51 by Howard Bashman



"Ala. Justice Moore to Get Nov. 12 Trial": The Associated Press provides this report.
Posted at 20:41 by Howard Bashman



BREAKING NEWS -- Take that, Congress! Reuters has breaking news that "Second Federal Judge Blocks 'No-Call' List." You can access today's decision of the U.S. District Court for the District of Colorado at this link. Today's decision strikes down the "do not call" list as unconstitutional under the First Amendment, a decision that Congress probably will not be able to override in the manner that it has so rapidly sought to do with respect to yesterday's ruling from Oklahoma.

Update: Reuters now has an updated report bearing the headline "Congress OKs, Judge Knocks Down Do-Not-Call List."
Posted at 19:13 by Howard Bashman



"U.S. Seeks Dismissal of Moussaoui Case": The Associated Press reports here that "Prosecutors have asked a judge to dismiss all charges against terrorism suspect Zacarias Moussaoui, but say they made the extraordinary request only to hasten an appeal challenging his right to question al-Qaida prisoners." You can access the federal government's partially redacted filing at this link.
Posted at 17:27 by Howard Bashman



"Any" means "all" and, coincidentally, "all" means "all" too: Today a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued a unanimous opinion by Circuit Judge Ed Carnes that begins, "This is another arbitration dispute in which the parties are litigating whether or not they should be litigating."
Posted at 17:12 by Howard Bashman



"The Pied Sniper: Was Lee Boyd Malvo brainwashed into a killing machine?" Dahlia Lithwick has this essay just posted online at Slate.
Posted at 16:58 by Howard Bashman



Yikes indeed! "Plainsman" and "D" may now be blogging separately, but that doesn't mean they can't continue to converse (about events yesterday at "How Appealing," no less), as their posts here and here demonstrate.
Posted at 16:26 by Howard Bashman



The U.S. District Court for the District of Columbia has issued its ruling on the merits in the so-called Indian Trust litigation: You can access the trial court's structural injunction at this link and two lengthy opinions issued today here and here. Background information about the case can be accessed here and here.
Posted at 15:26 by Howard Bashman



To have and to hold:
The question presented by this appeal is whether U.S. currency is "tangible" or "intangible" personal property within the meaning of an Indiana statute that places some of the property of a bankrupt or other judgment debtor beyond the reach of his creditors.
Seventh Circuit Judge Richard A. Posner today delivered an opinion that begins with the above-quoted sentence, and you can be sure the opinion makes for quite an entertaining read in the course of reaching a most pragmatic result.
Posted at 14:28 by Howard Bashman



"Who was the oldest person ever commissioned to serve as a judge on a U.S. Court of Appeals?" Answering the question raised in my post from this morning may require additional information. Giles S. Rich joined the U.S. Court of Appeals for the Federal Circuit at the age of 78, but that occurred simply because he was a judge on the U.S. Court of Customs and Patent Appeals, and in 1982 its judges all joined the Federal Circuit. Before joining the Federal Circuit, judges serving on the U.S. Court of Customs and Patent Appeals were already Article III judges (details available here), and Judge Rich's Federal Circuit biography does not indicate that he was re-commissioned in 1982 (although, to complicate matters, his CCPA biography indicates that Judge Rich was re-commissioned). You can learn more about the amazing Judge Rich in this obituary.

Someone at the University of Chicago Law School has emailed to note that John Francis Kilkenny was commissioned to join the Ninth Circuit just one month shy of his 68th birthday. If for some reason Judge Rich doesn't qualify in response to my question, then Judge Kilkenny is currently in the lead.

Update: Charles Breckenridge Faris was commissioned to join the Eighth Circuit at the age of 70.
Posted at 14:07 by Howard Bashman



"The rocky, windswept Pribilof Islands were one of the reasons that the United States bought Alaska from Russia in 1867." Speaking of the Ninth Circuit, be sure not to miss this decision involving Alaska that a unanimous three-judge panel of that court issued today. The decision contains an interesting recital of a portion of Alaska's history, and Ninth Circuit's lone Alaska resident judge wasn't even on the panel.
Posted at 13:38 by Howard Bashman



Simply adjust for caseload: Gregg Easterbrook has a post entitled "If the Ninth Circuit had jurisdiction over Florida, Ralph Nader would be President today" at his blog on The New Republic's Web site. In the blog post, Easterbrook writes: "Though the Ninth Circuit is often damned as too liberal and criticized for being overturned often by the Supremes, the Ninth is by far the largest circuit handling the largest caseload; adjust for caseload, and the Ninth's reversal rate differs little from other circuits."

Relatedly, someone who identifies himself as a law clerk to a Ninth Circuit judge emails:
The Ninth Circuit handles something like twelve thousand cases a year. I don't know how many of those cases resulted in petitions for cert to the Supreme Court (nearly 8000 cases were filed with the Court in 2001), but of all the petitions filed in cases out of the Ninth Circuit, only twenty-four cases were accepted by the Supreme Court. Of those, only eighteen were reversed.

It is a fair guess that at least 1000 of those petitions were from the Ninth Circuit, using ratios of the total number of appeals in courts of appeals versus the number in the Ninth Circuit. Therefore, in about 1000 of those cases, the Court determined that there was no need to re-examine the decision. You could manipulate those numbers to say that the Ninth Circuit actually has a reversal rate of only 2.4%. Not bad when you look at that way, right.

My research was only cursory, but a more in depth analysis, I am sure, would bear this out with accuracy.
Several other readers have also sent along emails expressing thoughts similar to those set forth in this law clerk's email. You can access statistics showing the various circuits' caseloads as of the end of 2002 here and here.
Posted at 13:31 by Howard Bashman



It's permissible to say "God" but not "Jesus": The Seattle Post-Intelligencer reports here today that "Rejection of inscribed brick leads to lawsuit."

Update: Of course, this news reminds me of the ruling of the U.S. Court of Appeals for the Tenth Circuit that I reported on here in June 2002 under the heading "Tenth Circuit allows Columbine High School to ban 'God is Love' tiles."
Posted at 11:44 by Howard Bashman



One for the record books? A reader emails to note that Ninth Circuit nominee Carlos T. Bea, according to Judge Bea's resume found on the U.S. Department of Justice's judicial nominations Web site, is now 69 years old. The reader asks whether Judge Bea will be the oldest person ever confirmed to a U.S. Court of Appeals. Now I don't believe that anyone should ever contend that someone is too young or too old to be a judge, because age is just a number and it's experience that counts.

Nevertheless, the Federal Judicial Center's database deems it a noteworthy record that "The youngest judge appointed to a U.S. court of appeals was William Howard Taft, who was 34 when he was commissioned a judge of the Sixth Circuit court of appeals on March 17, 1892." No comparable record, however, is given for the person who was the oldest judge ever commissioned to serve on a U.S. Court of Appeals. So, today's appellate brain teaser is "Who was the oldest person ever commissioned to serve as a judge on a U.S. Court of Appeals?"

Update: A reporter for The Legal Intelligencer emails to bring to my attention H. Lee Sarokin, who joined the Third Circuit at the age of 66. Although off topic, some may recall that Judge Sarokin's departure from the Third Circuit a couple of years thereafter created something of a stir.
Posted at 11:24 by Howard Bashman



U.S. Supreme Court news and commentary: The Hill reports here that "Democrats pin hopes on high court in redistricting; Pennsylvania case could determine how far parties can go in gerrymandering."

And available online at law.com, you can access here an article headlined "Secrecy Appealed: Detained after terror attacks, Algerian-born man asks U.S. Supreme Court to review sealing of his case." And Law Professor Douglas Laycock has an essay entitled "Implementing the Michigan Cases in Texas."
Posted at 10:52 by Howard Bashman



In the news: Thanks so much to those Boston-area readers who so very kindly mailed copies of the article from Saturday's edition of The Boston Globe in which I was quoted. For readers who live or work in or near Los Angeles, today is the day that The Los Angeles Daily Journal -- a newspaper targeted at lawyers -- contains an article that mentions "How Appealing." Unfortunately, that publication's contents are not freely available online, but someone has already kindly emailed the text of the article to me.
Posted at 10:41 by Howard Bashman



The Senate Judiciary Committee has voted in favor of the nomination of Carlos T. Bea to join the U.S. Court of Appeals for the Ninth Circuit: The vote was unanimous, 19-0. When Bea joins the Ninth Circuit following a favorable vote from the full U.S. Senate, he will become the fourth nominee of President George W. Bush to join that court.
Posted at 10:18 by Howard Bashman



Legacy law clerks, day two: My post from yesterday seeking a list of law clerks who have become judicial colleagues of the judges for whom they clerked has been updated extensively with answers received yesterday from readers of this blog. Today's updates will appear here, starting with Eleventh Circuit Judge Joel F. Dubina, who clerked for Judge Robert E. Varner on the U.S. District Court for the Middle District of Alabama and who later served as Judge Varner's colleague on that district court before Judge Dubina joined the Eleventh Circuit.

Update: Judge Andre M. Davis of the U.S. District Court for the District of Maryland clerked for Judge Frank A. Kaufman of that same court, on which those two men later served together as colleagues for nearly two years. Kent A. Jordan clerked for James L. Latchum on the U.S. District Court for the District of Delaware. Fifth Circuit Judge Will Garwood clerked for Fifth Circuit Judge John R. Brown years before they served together as colleagues on that court.
Posted at 10:14 by Howard Bashman



"Patent Politics: A legal challenge to the Internet Explorer browser prompts rivals to set aside their differences with Microsoft." c|net News.Com today contains this report.
Posted at 10:06 by Howard Bashman



There's already news from this morning's Senate Judiciary Committee business meeting: Committee Chairman Orrin G. Hatch (R-UT) has just announced that the only federal appellate court nominee who will be receiving a vote in the committee today is Ninth Circuit nominee Carlos T. Bea. Both Fifth Circuit nominee Charles W. Pickering, Sr. and Sixth Circuit nominee Henry W. Saad are being held over, and according to Senator Hatch, only Judge Pickering is guaranteed a vote at the next business meeting.
Posted at 10:00 by Howard Bashman



Today's Senate Judiciary Committee business meeting has just gotten underway: The meeting, which I have previewed here, should be quite interesting. You can view the agenda here. And you can listen online to a live audio feed at this link.
Posted at 09:52 by Howard Bashman



"SMU halts race-based bake sale; Anti-affirmative action group used ethnicity, gender to set prices": Today's edition of The Dallas Morning News contains this report. The SMU Daily Campus, that university's student newspaper, so far appears to contain no coverage of this news.
Posted at 09:44 by Howard Bashman



"California spam law may face court challenge": Declan McCullagh of c|net News.Com has this report.
Posted at 09:43 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "Lawyers for 9/11 Defendant Seek Dismissal of His Indictment." An article reports that "Gay Marriages Are Still Far From Approval by Albany." In other news, "Army Chaplain in Detention Sought to Teach About Islam." In business news, "No-Call List Dealt Setback in Court Ruling" and "2 Holocaust Survivors to Sue Group Set Up to Collect Insurance." From Europe comes news that "A German Court Accepts Teacher's Head Scarf." An in sports, "The Case for Clarett."

The Washington Post reports here that "Defense Calls for Dismissal of Sept. 11 Case." In other news, "Guantanamo Security Probe Widens; Members of Air Force, Navy Under Suspicion." An article reports that "Do-Not-Call List Blocked By Court; FTC Overstepped Role, Judge Says." In news from California, "Recall Finds Loopholes In Campaign Finance Law; Money Flowing for Davis, Candidates." In other news from California, "Calif. Gets Strictest Spam Law in U.S.; Governor Signs Law Placing Curbs on E-Mail, Permitting Consumer Lawsuits." From Seattle comes a report that "Veteran Indicted on Sex Charges; Man Is First Charged Under Protect Law's Provision on Tourism." An article reports that "German Teacher Wins Right To Wear Scarf; Court Allows Muslim Covering in Schools." An editorial is entitled "Mr. Butler and the Law." And columnist Michael Wilbon has an essay entitled "For Clarett, It's a Bad Move."

The Christian Science Monitor contains an article headlined "Fairness and felons: A push to enfranchise prisoners; A controversial movement to expand rights to prisoners and ex-cons could enlarge - and shift - the electorate." And you can access here an article headlined "Zen and the art of law enforcement; A Buddhist seminar for Wisconsin police raises consciousness - and stirs an old debate."
Posted at 06:35 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Commandments Moved From Mont. Courthouse"; here "Texas University Shuts Down Bake Sale"; and here "Fatal Pa. No-Knock Search Trial Begins."
Posted at 06:32 by Howard Bashman



Wednesday, September 24, 2003
Another perspective on yesterday's Eleventh Circuit oral argument concerning the constitutionality of Alabama's law banning the distribution of sex toys: Silly me, gloating over the fact that one "How Appealing" reader was present for oral arguments yesterday before the U.S. Court of Appeals for the Eleventh Circuit in Montgomery, Alabama when in fact a whole bunch of "How Appealing" readers were present.

Yesterday's seemingly one-sided account of the oral argument concerning the constitutionality of Alabama's law banning the distribution of sex toys was written by a correspondent who admitted in that description to having left the courtroom before the attorney for the State of Alabama finished his initial presentation to the court. Today's summary of yesterday's oral argument comes from someone who observed the entire event from start to finish. Indeed, the following email is from Nathan A. Forrester, Solicitor General for the State of Alabama:
Let me start by saying that your blog is the homepage for a number of us here who do appellate work for the State of Alabama. It is an amazing resource and I constantly marvel at how you are able to keep it up and maintain a law practice at the same time.

I attended yesterday's OA for Williams v. Pryor. The attorney whom your "correspondent" unjustly belittled as "Deputy S.G. somebody" was Scott Rouse, our deputy SG for civil cases. He is one of our best appellate advocates and performed much better than your "correspondent" snidely implied in his misleadingly one-sided report. Scott was asked by the Court to take questions well beyond the time he had allotted for his opening (probably 15 minutes over), and he stood in there gamely and graciously as the panel battered with him from all sides with unanswerable questions about what the Alabama legislature could possibly have been thinking when it enacted this particular piece of legislation.

What your correspondent omits to mention was the equally bruising treatment that the panel gave Mark Lopez, the ACLU lawyer representing the plaintiffs. Mr. Lopez was also held over about 10-15 minutes and was also peppered with questions about just how far the "fundamental right" to sexual privacy that he was advocating should extend. Judge Barkett was clearly on his side, but Judges Birch and Hill were as skeptical about his arguments as they were about the wisdom of the Alabama sex toys statute. Mr. Lopez spent a lot of time singing the praises of Lawrence v. Texas but precious little time anchoring his discussion of Lawrence in the case at hand. He never gave Judges Birch and Hill a comforting answer to their repeated concerns that the "fundamental right" he was advocating had no logical terminus in the use of sex toys, or the sale of sex toys, or autoeroticism, or what have you. He was pointedly asked at least twice why the right he advocated would not extend to prostitution, incest, pedophilia, adultery, and so forth (the same question that Senator Santorum and Attorney General Pryor were excoriated for asking). The only response he managed, albeit with much righteous indignation, was that "no respectable advocate" would seriously contend that the right to sexual privacy should extend to activities like "adult-child love-making." Judge Hill dryly responded that, these days, not everyone who appeared in court could be assumed to be respectable.

Your "correspondent" is 180 degrees wrong in saying that the State had "no good answer" to Judge Birch's question: "how do you get around Eisenstadt, which extended Griswold to a law that (like yours) merely prohibited sale rather than possession?" In five minutes of rebuttal, Scott primarily addressed that very question. He pointed out that Eisenstadt was dealing with what had already been recognized as a fundamental right in Griswold -- the use of contraception. Here, it is an open question whether the use of sexual devices is a fundamental right. To answer that question, the panel would have to engage in a Glucksberg-style analysis of whether the right in question was "deeply rooted," and plaintiffs had supplied very little in the way of record evidence to bear their burden on that issue. Judges Birch and Hill seemed impressed by this analysis; Judge Barkett was uncharacteristically subdued.

Bottom line, Judges Birch and Hill seemed to regard both the statute in question and the proposed constitutional right with considerable skepticism. Only Judge Barkett gave clear indication that she would vote to strike down the statute. I would not be surprised if the panel votes to uphold the statute by a 2-1 vote, though I would not be surprised if they vote to strike it down either. All salacious aspects aside, it's a close and interesting case.

P.S. The "high school" students that your "correspondent" mentions as being in the audience at the OA were actually college students from a political science class at nearby Huntingdon College in Montgomery.
I sincerely thank Alabama's Solicitor General for taking the time to send along this detailed description of yesterday's oral argument.
Posted at 23:30 by Howard Bashman



Additional coverage of yesterday's en banc Ninth Circuit decision allowing California's recall election to occur as originally scheduled: The Los Angeles Times today reports here that "Court Restores Oct. 7 Recall Vote; ACLU Plans No Appeal; GOP Anxiety Over Dual Candidates Grows." Also therein, Henry Weinstein reports that "Court Sees Delay as Too Disruptive; Ruling upholding the Oct. 7 vote notes that vast resources have been invested in the recall effort already and many absentee ballots cast." And an editorial is entitled "Good ... Now Just Vote No."

In The San Francisco Chronicle, Bob Egelko provides this coverage of yesterday's ruling. The Sacramento Bee reports here that "It's final: Recall vote to be Oct. 7; ACLU won't appeal ruling to high court." In The San Jose Mercury News, Howard Mintz has an article entitled "Recall Revived: No Postponement, Federal Court Says." In The Boston Globe, Anne E. Kornblut and Lyle Denniston report that "Oct. 7 set for Calif. recall vote." And The Washington Times reports here that "Court affirms Oct. 7 California recall election."

In The Recorder, Jason Hoppin has an article headlined "Recall Redemption." And Jeff Chorney has an article headlined "In the Hot Seat: Remaining calm was key for deputy AG who argued state's recall case before the 9th Circuit." The Metropolitan News-Enterprise reports here that "En Banc Ninth Circuit Panel Unanimously Reinstates Oct. 7 Recall Vote; ACLU Says It Will Not Appeal." And even The Harvard Crimson provides coverage, in an article headlined "Court Rules Calif. Recall Can Proceed."

Finally, Law Professor Lawrence Solum, at his "Legal Theory Blog," takes a close look at the substance of yesterday's ruling and concludes that "the rule of law prevailed."
Posted at 23:01 by Howard Bashman



Was today's Wall Street Journal editorial too harsh toward the Ninth Circuit? My post from this morning certainly has touched off some interesting responses, from both Ninth Circuit Judge Michael Daly Hawkins (access his comments here) and Washington, DC attorney Miguel A. Estrada (access his comments here). Additional reader commentary follows.

Someone at the University of Oregon Law School emails:
Regarding Judge Hawkins's email, the four circuits with a 100% reversal rate all had three cases or fewer taken by the Supreme Court. Two of those circuits had only 1 case taken up by the Supreme Court. In contrast, the Ninth Circuit had 24 cases taken by the Supreme Court, 18 of which were reversed. The following links provide the numbers and a little perspective.
Someone with an email address at the D.C. Circuit writes:
Part of the reason that the 74% number of reversal rate is so high is that the inclusion of the 9th Circuit's high number of reversal decisions inflates that number. I think it would be in the low 60s otherwise. Thus the true comparison is 75% to the low 60 percents. Still not a huge difference however.
With all due respect for the brilliance that is required to earn one a D.C. Circuit email address, Judge Hawkins's email explained that the Ninth Circuit's reversal rate was 75 percent while the overall reversal rate was 74 percent. As one would expect from those two numbers, if you remove the Ninth Circuit's numbers from the calculation, the overall reversal rate becomes 73 percent, and not a percentage in the "low 60s."

Another longtime reader emails:
The data that M. Estrada was suggesting be compiled, regarding summary reversal rates for various circuits including the Ninth, have actually been compiled and discussed a couple of years ago -- and by one of your (and my) favorite authors, no less. See (immediately) Richard A. Posner, Is the Ninth Circuit Too Large: A Statistical Study of Judicial Quality, 29 J. Legal Stud. 711 (2000). (I believe the article is reprinted in Posner's book FRONTIERS OF LEGAL THEORY, but I don't have a copy handy.)
I am also reminded of the following email that I received (and originally posted here) in response to my April 2003 monthly appellate column entitled "When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How":
I must disagree with one point you made in your article on splitting the 9th Circuit: the 9th Circuit's size does not contribute to the extremity of its decisions. It is a mathematical fact that if you hold the percentage of extreme judges on a court constant, the probability of randomly selecting at least two extreme judges on a panel of three judges increases as the number of judges on the court increases. For example, on a court of 10 judges, three of which are extreme (30%), the chance of selecting a panel of three that includes at least two extreme judges is 18.3%. By contrast, on a court of 20 judges, six of which are extreme (30%), the chance of selecting a panel of three that includes at least two extreme judges is 20.2%. Although a 2% increase may not seem like much, when you multiply it over the hundreds of panels selected by the Ninth Circuit every year, it makes a difference.
Those interested in this comment can read the full post here and learn the identity of its author and my reaction to it.

Update: Here's a direct link to the Wall Street Journal editorial that kicked-off this coversation this morning (link via Rick Hasen's "Election Law" blog.
Posted at 22:40 by Howard Bashman



The Associated Press is reporting: My nomination for headline of the day goes to an article entitled "Court Urged to Let States Kill Inmates." In lieu of that option, an article reports that "Alabama Lawmakers OK Inmate Release."

In other news, you can access here an article headlined "Moussaoui Lawyers Argue for Dismissal"; here "Judge Upholds $115M Verdict Vs. Rudolph"; here "Man Indicted in Seattle Under Protect Act"; here "Texas Senate Approves Redistricting Plan"; here "Probe Into Breaches at Guantanamo Expands"; here "Accused Guantanamo Spy Hails From Mich."; here "Implicated Cadet Became an Army Sergeant"; here "Guards in Court Over Calif. Prison Rape"; and here "Judge to Pick Venue for Ship Blast Claims."
Posted at 22:25 by Howard Bashman



Senator whose decision to leave Republican party caused Senate Judiciary Committee to reject Charles W. Pickering, Sr. now says he supports Pickering's confirmation: I'll leave it up to readers to decide for themselves what's the best word or phrase to describe the news attributed to U.S. Senator Jim Jeffords (I-VT) in this post by Byron York at "The Corner."
Posted at 22:03 by Howard Bashman



On deck for tonight: Another first-hand report on yesterday's Eleventh Circuit oral argument concerning the constitutionality of Alabama's law prohibiting the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs" from an observer of the oral argument who, unlike my earlier correspondent, actually sat through the entire oral argument.
Posted at 20:51 by Howard Bashman



"Bill Pryor, the Man in the Middle": Christianity Today magazine has posted online an interview with Eleventh Circuit nominee William H. Pryor, Jr. It's a must read. Thanks to Stuart Buck for the pointer.
Posted at 19:04 by Howard Bashman



In response to the post immediately below: Miguel A. Estrada emails:
Judge Hawkins makes several fair points. Has anyone ever looked at a slightly different question, viz., over a ten-year span or so, which circuit gets summarily reversed most often? I would take summary action as a better indicator of "lawlessness" that needs "slapping down," since by hypothesis such reversals are warranted only when the court of appeals clearly disregarded controlling law. (Still, it would be a nice methodological question whether you would discount such numbers by the relative sizes of the caseloads for various circuits; insofar as the issue is "obviousness," I would think not, but I could see arguments the other way).
Interesting point.
Posted at 18:44 by Howard Bashman



Don't let facts get in the way of your disdain for the Ninth Circuit, part two: Ninth Circuit Judge Michael Daly Hawkins emails, in connection with this earlier post in which I quoted from an editorial that The Wall Street Journal published today:
The actual numbers are available for the rate at which the Supreme Court "slapped down" the lower courts in the last Term. The average reversal rate was 74%. The rate for the Ninth Circuit was 75% (same as the Sixth); four circuits had 100% reversal rates (Second, Fourth, Fifth & Tenth); and state supreme courts were reversed 81% of the time. In Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003), the Ninth Circuit was affirmed unanimously on an employment law issue where four other circuits had gone the other way.
Thanks much for sending that along.
Posted at 16:41 by Howard Bashman



Even in prison, Shiite Muslims don't get along with Sunni Muslims: Brand new Second Circuit Judge Richard C. Wesley issued this opinion today on behalf of a unanimous three-judge panel.
Posted at 15:37 by Howard Bashman



"Judicial Conference Seeks Restoration of Judges' Sentencing Authority": The Administrative Office of the U.S. Courts issued this press release yesterday.
Posted at 14:22 by Howard Bashman



Law clerks who have become judicial colleagues of the judges for whom they clerked: Now that the fun involving California's recall election has subsided for the time being and we continue to await a ruling from the Supreme Judicial Court of Massachusetts concerning whether to allow gay marriage, there's time to focus on possibly more mundane yet still quite interesting questions, such as trying to identify those law clerks who have gone on to become judicial colleagues of the judges for whom they clerked.

Now, of course, many judicial law clerks have gone on to become judges, and many of those have become judges on the very court at which they clerked. What I am seeking to identify, however, are those law clerks who have gone on to serve on the same court on which the judge for whom they clerked was still serving.

Here is one example with which I am familiar, and one example that could soon come to be. Samuel A. Alito, Jr. clerked for Third Circuit Judge Leonard I. Garth, and today both are colleagues on the Third Circuit. Supreme Court of Wisconsin Justice Diane S. Sykes, according to news reports that I linked to here yesterday, will soon be nominated to serve on the U.S. Court of Appeals for the Seventh Circuit. Now serving on the Seventh Circuit is Terence T. Evans, for whom Justice Sykes clerked while Judge Evans was a federal district judge.

If you have any other examples of this phenomenon, please let me know via email.

Update: Eighth Circuit Judge William J. Riley clerked for his current colleague Senior Circuit Judge Donald P. Lay. On the Ninth Circuit, Alex Kozinski served together with the judge for whom he clerked, Anthony M. Kennedy, before one of them was promoted to the U.S. Supreme Court. Also from the Ninth Circuit, Marsha S. Berzon clerked for James R. Browning, and Richard R. Clifton clerked for Herbert Y.C. Choy. On the Sixth Circuit, Eric L. Clay clerked for then-U.S. District Judge Damon J. Keith. On the U.S. District Court for the Southern District of New York, Laura Taylor Swain clerked for Constance Baker Motley. On the D.C. Circuit, Douglas H. Ginsburg clerked for Carl E. McGowan, and they later served together as judges on that court for a little over one year. Back to the Southern District of New York, where Shira A. Scheindlin clerked for Charles L. Brieant, Jr. Another entry from the Ninth Circuit: Cynthia Holcomb Hall clerked for Richard H. Chambers on that court. On the U.S. District Court for the Middle District of Pennsylvania, now-Chief Judge Thomas I. Vanaskie clerked for now-Senior Judge William J. Nealon.
Posted at 13:40 by Howard Bashman



Work around: As many people have noticed, Blog*Spot's archives for blog postings from this month and several other months in the recent past aren't working. Blogger's status page notes the problem and promises that the problem will be solved soon.

In the meantime, a solution is available. If you wish to link directly to a new post on a Blog*Spot-hosted site, simply take the direct link to the post and eliminate all the text that exists between the slash that follows the ".com" and the "#" symbol. Thus, to link directly to the post immediately below this, one would provide a link that consisted of the following:

http://appellateblog.blogspot.com/#106442419645917820.

This solution will work so long as the post to which you are linking remains on the main page of the site to which you are linking.

Using this method, I have been able to restore direct links to each of my "20 questions for the appellate judge" interviews, because the full text of all previous interviews can be found on the main page of that blog.
Posted at 13:35 by Howard Bashman



Do call: Yesterday's ruling of the U.S. District Court for the Western District of Oklahoma blocking the national "do not call" list is accessible here, via FindLaw. Additionally, you can access a report on the ruling from The Associated Press at this link.
Posted at 13:23 by Howard Bashman



"Agreement forces driver in fatal crash to visit grave of her victim": Today's edition of The Pittsburgh Post-Gazette contains this report.
Posted at 12:32 by Howard Bashman



"Ohio Court Says Woman Didn't Break Order": The Associated Press is reporting that "A woman who invited her ex-husband into her home for a party and became involved in a fight with him did not violate a protective order prohibiting him from contacting her, the Ohio Supreme Court ruled Wednesday." You can access today's ruling of the Supreme Court of Ohio at this link. This case previously received national attention when Adam Liptak wrote about it in The New York Times.
Posted at 12:01 by Howard Bashman



"U.S. Court Blocks Anti-Telemarketing List": Reuters provides this news (link has been updated to a more detailed report).
Posted at 11:50 by Howard Bashman



"Judges Group at Odds with Ashcroft on Sentences": James Vicini of Reuters yesterday had this report. And law.com reports here that "Federal Judges Attack Sentencing Restrictions; Judicial Conference calls for repeal of Feeney Amendment."
Posted at 11:27 by Howard Bashman



Don't let facts get in the way of your disdain for the Ninth Circuit: Today's edition of The Wall Street Journal contains an editorial entitled "Ninth Circuit slapdown." The editorial, whose contents are available online only to subscribers, states in relevant part:
Lost too [now that the en banc Ninth Circuit has allowed California's recall election to occur on its original schedule] is an excellent opportunity for the Supreme Court to continue its public tutorial on Ninth Circuit shenanigans and the modern liberal judicial mind. We console ourselves with the thought that there will be other educational opportunities, starting with the Ninth Circuit's ban on the Pledge of Allegiance, which the Supremes will hear this term.
While chances are favorable that the U.S. Supreme Court will agree to hear the Pledge cases, in fact no decision has yet been made, and those cases remain pending as of today before the Court on petition for writ of certiorari. Thus, when the WSJ's editorial writers say that the Supreme Court "will hear" the Pledge case in the upcoming Term, they are jumping the gun just a little bit.

Those who do look at the U.S. Supreme Court's docket entries should be sure to note several recent filings that presumably pertain to the issue that journalist Tony Mauro recently wrote about here.
Posted at 11:14 by Howard Bashman



"Ohio Supreme Court Upholds Concealed Carry Ban": The Ohio News Network offers this report, which begins: "The state's ban on the concealed carry of weapons is constitutional. In a 5-2 ruling issued Wednesday morning, the Supreme Court of Ohio ruled that the state's ban does not infringe on the right to bear arms guaranteed by the Ohio Constitution. The ruling keeps Ohio from joining 44 other states that allow citizens to carry hidden guns. Ohio has had some kind of ban on concealed weapons since 1859."

You can access the ruling of the Supreme Court of Ohio at this link. And Clayton Cramer comments on the ruling here.
Posted at 10:44 by Howard Bashman



Attention journalists: Daniel W. Drezner, assistant professor of political science at the University of Chicago, is co-authoring a paper on the power and politics of Web logs, and Dan would like to hear from journalists willing to provide confidential answers to five straightforward questions that Dan has posted here. I don't ask much of the many journalists who read "How Appealing," but I do ask that you consider participating in Dan's survey.
Posted at 10:36 by Howard Bashman



Readers of The Los Angeles Daily Journal: One of these days, and perhaps even today, The Los Angeles Daily Journal -- a newspaper targeted at lawyers -- will be publishing an article that mentions "How Appealing." Because that newspaper's content is not freely available on the Web, I'd be much appreciative if readers with access to the publication would let me know when the article appears.
Posted at 10:29 by Howard Bashman



Onan he arbarian: A reader who is in the midst of a judicial clerkship in New Mexico emailed yesterday:
Reading today's (excellent) posting on oral arguments in the Eleventh Circuit over Alabama's attempt to ban the distribution of sex toys not only left me howling, but answered the burning question in my mind (and I'm sure others') as to what on earth Justice Scalia was talking about in Lawrence when he warned that:

"State laws against ... masturbation ... are likewise sustainable only in light of Bowers' validation of laws based on moral choices. Every single one of these laws is called into question by today's decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding." Lawrence v. Texas, 123 S. Ct. 2472, 2490 (2003) (Scalia, J., dissenting).

"What laws against masturbation?" I have naively wondered for the past several months. Now I know.
Thanks so very much for the interesting email and your kind words.

Technically speaking, the Alabama law merely bans the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs" but doesn't, as best as I can tell, ban the possession of such devices by the end-user. So, the laws against masturbation that Justice Scalia had in mind remain to be determined, although perhaps he or his law clerks will send along via email a definitive list.

Maybe the answer is tucked away in the federal district court's opinion that invalidated the Alabama law at issue in the appeal argued yesterday before the Eleventh Circuit. If not, at least you'll find in that opinion the quotation: "In effect, doctors inherited the task of producing orgasm in women because it was a job nobody else wanted."
Posted at 10:11 by Howard Bashman



Ironic? In this opinion that the U.S. Court of Appeals for the Sixth Circuit issued today, that court relies on several unpublished Sixth Circuit opinions in ruling against West Publishing Corporation on most of the issues raised on appeal.
Posted at 10:05 by Howard Bashman



Pickering, Bea, Saad: On the agenda for the mark-up at tomorrow morning's executive business meeting of the Senate Judiciary Committee are Fifth Circuit nominee Charles W. Pickering, Sr., Sixth Circuit nominee Henry W. Saad, and Ninth Circuit nominee Carlos T. Bea. Pickering and Saad are both possible targets of filibusters, and Pickering and Bea are both a bit older than the average age of federal appellate court judicial nominees.
Posted at 09:59 by Howard Bashman



"Crematory trial costs escalate; Marsh pleads poverty, wants new venue": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 09:52 by Howard Bashman



Klan can rally in Barrow County, Georgia in support of Ten Commandments: The Athens Banner-Herald today provides this report. And The Associated Press offers this coverage.
Posted at 09:51 by Howard Bashman



"Univision foes challenge FCC ruling": TheDeal.com reports here today that "Activists are poised to ask a federal appeals court to overturn a Federal Communications Commission order allowing Univision Communications Inc. to buy Hispanic Broadcasting Corp."
Posted at 09:46 by Howard Bashman



Available at National Review Online: Law Professor Douglas W. Kmiec has an essay entitled "Law, Resurrected! A victory for law and restraint." And speaking of the Ninth Circuit, Andrew J. and Judith S. Kleinfeld have an essay entitled "Freedom for Iraq? Iraqis' choice."
Posted at 09:32 by Howard Bashman



"'Demons' name lands school in court": The Associated Press has this report from Alabama.
Posted at 06:59 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "U.S. Appeals Court Puts Recall in California Back on Schedule." In other news, Linda Greenhouse reports that "The 27 judges who make policy for the federal courts voted unanimously [yesterday] to ask Congress to repeal a new law that curbs judges' discretion over criminal sentences and subjects judges who issue more lenient sentences to special scrutiny." Adam Liptak and Eric Lichtblau report that "New Plea Bargain Limits Could Swamp Courts, Experts Say." In sports, "Clarett Is Suing to Enter N.F.L. Draft." An article reports that "Airman Is Charged as Spy for Syria at Guantanamo Camp." In business news, "California Is Set to Ban Spam"; "First Wave of Suits Hits Mutual Fund Companies"; and "Judge Allows Antitrust Case Against Seed Producers." In local news, "Effort to Void Transit Fare Increase Dies in Court." And a letter to the editor from Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) appears under the heading "Judicial Nominees."

The Washington Post reports here that "Court Reinstates California Recall for Oct. 7." In related news, "Calif. Potential For Errors Noted; Number of Candidates in Recall Vote Is Challenge for Most Balloting Systems." In other news, "Governor Aims to Reinstate Massachusetts' Death Penalty; Romney Assembles Panel to Help Create Proposal." An article reports that "Translator Accused of Spying; U.S. Airman Worked With Guantanamo Detainees." In local news, "Muhammad Targeted Ex-Wife, Say Prosecutors; Judge Won't Allow Evidence on Threats." An article reports that "Lawsuit Criticizes Secret Service; Anti-Bush Protesters Are Kept at Bay, Advocacy Groups Say." In sports, "Clarett Will Take His Case To Court; 19-Year-Old Sues NFL Over Eligibility." And an editorial is entitled "Recalled."

The Christian Science Monitor reports here that "Court ruling clears way for pivotal debate; As Ninth Circuit panel affirms Oct. 7 vote, Schwarzenegger faces rivals on TV." You can access here an article headlined "Ashcroft's lightning- rod role: The attorney general's newest order seeks 'most serious' charges against the accused." And Law Professor Vincent Martin Bonventre has an op-ed entitled "Judicial politics? What's new?"
Posted at 06:35 by Howard Bashman



"Justices in for the long haul": William O'Rourke had this essay in Sunday's issue of The Chicago Sun-Times.
Posted at 06:33 by Howard Bashman



"Panel expected to OK Pickering; Bush nominee for court of appeals could face filibuster on Senate floor": Today's edition of The Clarion-Ledger contains this report. Elsewhere, The Washington Times today reports that "Senate GOP to revive Pickering nomination." Yesterday, The Hill reported here that "GOP sees 'obstruction' of Bush nominees as 2004 campaign issue."
Posted at 06:30 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "GOP Senators to Fight for Pickering"; here "Fla. Sugar Growers Win Ouster of Judge"; here "More Legal Hurdles Could Arise in Calif."; here "Judge Nixes Ex-Wife Motive in Sniper Case"; here "Airman at Guantanamo Faces Spying Charges"; here "U.S. Freezes Terror Suspects' Assets"; here "States Join in Building Terror Database"; here "Study: States End Ex-Felons Voting Bans"; here "California to Enact Tough Anti-Spam Law"; and here "Texas Senate Gives Tentative OK for Map."
Posted at 06:15 by Howard Bashman



Tuesday, September 23, 2003
Coverage from PBS and NPR of today's ruling by an eleven-judge Ninth Circuit en banc panel to allow the recall election to occur as originally scheduled: This evening's episode of The NewsHour with Jim Lehrer contained an interview with New York Times reporter Dean Murphy about today's ruling and its consequences. You can listen to that interview at this link (Real Player required). And this evening's episode of "All Things Considered" contained this report on today's ruling.
Posted at 20:44 by Howard Bashman



"Judge William Hoeveler disqualified from presiding over Everglades clean-up case": The Miami Herald provides this report. And The South Florida Sun-Sentinel reports here that "U.S. judge in Everglades cleanup case ousted." You can access the decision and order reassigning the case via this link.
Posted at 17:15 by Howard Bashman



Law Professor Laurence H. Tribe reacts to today's loss in the Ninth Circuit: The blog "Waddling Thunder," written by a Harvard Law student, has the details here.
Posted at 17:13 by Howard Bashman



Reno, in Kansas, backs removal of Alabama monument: The Associated Press has this report.
Posted at 17:10 by Howard Bashman



From the September 24, 2003 issue of The Onion:
Church, State Joyfully Reunite After 230-Year Trial Separation

WASHINGTON, DC—Following a two-and-a-quarter-century-long trial separation, Church and State reunited in the U.S. Department of Justice press room Monday. "Even through all the bad times, I knew there had to be a way to get these two old friends back together," Attorney General John Ashcroft said. "With a little counseling and faith-based intervention, I knew Church and State would work it out. It was meant to be." Effective Oct. 15, prayer will be mandatory in public schools and congressional sessions will open with Holy Communion.
You can access the entire brand new issue online here.
Posted at 16:38 by Howard Bashman



California Supreme Court Justice Janice Rogers Brown receives lukewarm rating from the American Bar Association: A majority has rated her as "qualified" to serve on the U.S. Court of Appeals for the D.C. Circuit, while a minority has rated her as "not qualified." You can access the rating at this link (see page 4 of the PDF document). Of course, Miguel A. Estrada could not get confirmed with a unanimously "well qualified" rating -- the ABA's highest -- so who knows for sure what will happen here. But opponents of Justice Brown's nomination will now have one more arrow in their quiver.
Posted at 16:29 by Howard Bashman



A report on today's Eleventh Circuit oral argument concerning the legality of Alabama's law prohibiting the distribution of sex toys: Today a three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit heard oral argument in an appeal in which the State of Alabama, the losing party in the trial court, is seeking to have the appellate court reinstate a law prohibiting the distribution of "any device designed or marketed as useful primarily for the stimulation of human genital organs."

You can access here the trial court's opinion, and you can access here my preview of today's oral argument, which includes the names of the judges on the appellate panel.

Lately it seems that an appellate courtroom that lacks a "How Appealing" reader is a rare occurrence, and today is no different. Via email, the following report from a courtroom observer entirely unconnected with this case has arrived:
The state (Deputy S.G. somebody, with Attorney General Pryor nowhere to be seen) argued first. Though he had saved 5 or so minutes out of his 15 for rebuttal, his 10 minute opening was going strong at about 30 minutes when I finally had had enough.

Senior Judge Hill was funny as hell, and rather forceful in the view that this was an absurd law. Choice paraphrases of what he said:

"What exactly is it that you're trying to protect Alabamians from? What's the horror here?" "Next thing you know, you'll be banning bathing suits, and then on to burkas." "When I was young, condom packages said 'for medical use only.' Could a vendor lawfully sell these devices if they had a label that said 'only for the treatment of psychological needs within a marriage relationship'?"

Judge Hill also said that he thought the only interest that was sought to be served by this legislation was the desire of its sponsors to proudly tell some of their constituents that they voted for it. The attorney arguing for Alabama couldn't even bring himself to disagree very forcefully with that assessment.

The State argued that this law was directed against only the "prurient" use of vibrators. Judges Barkett and Hill wanted to know what "prurient" meant in this context. Judge Barkett suggested that it merely meant "pleasurable", Judge Hill suggested "fun," and the State went with "recreational." Who knew that recreation was ipso facto prurient, or that things could be banned on the grounds that they were fun?

Judge Barkett read lengthy passages from Lawrence v. Texas, challenging the state for some reason why the same reasoning wouldn't apply. Wasn't quite clear what the state's answer was -- seemed mostly to be the assertion that this law imposes criminal penalties only on the seller, not the user. But Judge Birch said words to the effect of, even if I wanted to agree with you on that, how do you get around Eisenstadt, which extended Griswold to a law that (like yours) merely prohibited sale rather than possession? The State had no good answer to that question.

Judge Birch was -- either as a Socratic exercise, or not -- suggesting that the State's legitimate interest was in keeping people from the horrible sight of people selling sex (toys) for profit -- the view being that it was the sight of this going on in public, with the motive of filthy lucre, that was the problem. Judge Barkett neatly parried that with an inquiry into the law's exceptions for those who need the devices for medical, psychological, academic, etc., reasons -- given those exceptions, some people will be able to buy, and so the public is still going to be subjected to the same harm that Judge Birch suggests this statute will avoid.

The State also relied on what I call the Brookstone defense, which was something like, "if you want to buy such a device, just buy one of the readily available things that is marketed for other purposes but easily adaptable to stimulation of the genitals." Somehow or another, in the State's view, this saves the constitutionality of the statute.

The courtroom, by the way, was full of high school students. Don't know if they knew what was on the docket and came on purpose in connection with some class, or if they just luckily stumbled in to a day full of cases that involved child porn, vibrators, and a high school principal seeking qualified immunity despite having severely beaten a student with a metal walking stick for no good reason.
Thanks much to my correspondent for this very interesting description of today's oral argument.
Posted at 16:05 by Howard Bashman



Divided Fourth Circuit panel resolves challenge to North Carolina's election and campaign finance laws: You can access today's ruling by a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit at this link.
Posted at 15:46 by Howard Bashman



Tomorrow's Senate Judiciary Committee hearing for judicial nominees has been postponed: Notice of the postponement is available here. Claude A. Allen, a controversial nominee to fill a Fourth Circuit vacancy, was among the nominees scheduled to testify at tomorrow's hearing.
Posted at 15:37 by Howard Bashman



Salon.com looks at "the potential for serious flaws in electronic voting systems": Farhad Manjoo today has this report.
Posted at 15:34 by Howard Bashman



Suspended Ohio State running back sues National Football League over eligibility rule: Reuters has this report, while The Associated Press reports on this news here. You can access a copy of the complaint filed today in the U.S. District Court for the Southern District of New York at this link.
Posted at 15:18 by Howard Bashman



End of the line indeed: Election Law Professor Rick Hasen reprints a press release from the ACLU stating that it will not be seeking review of today's en banc Ninth Circuit ruling from the U.S. Supreme Court.
Posted at 15:09 by Howard Bashman



"Ruling That Delayed California Recall Vote Is Overturned": The New York Times provides this news update.
Posted at 15:05 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Ky. Atty. General Candidates Have Baggage"; here "Mass. Governor Seeks Death Penalty Bill"; here "U.S. Investigates Air Force Enlisted Man"; and here "Innocent Plea in Ga. Corpse Dumping Case."
Posted at 14:33 by Howard Bashman



"The Silveira Threat: How long will the Second Amendment live?" Dave Kopel has this essay today at National Review Online.
Posted at 14:21 by Howard Bashman



In news pertaining to the U.S. Court of Appeals for the Seventh Circuit: The Milwaukee Journal Sentinel today is reporting that "Sykes is Bush's pick for U.S. appeals court; Her nomination would open seat on state's highest court." Thanks to a Wisconsin-based reader for drawing this news to my attention.
Posted at 14:01 by Howard Bashman



"Broadcast from court may herald a trend": I wouldn't count on it, but that's the headline of this article published in today's edition of The Sacramento Bee.

As I wrote in my monthly appellate column entitled "Appellate Court Web Sites: Some Are Excellent, But Many Others Could Easily Be Improved," originally published in February 2002:
Both the Seventh and Eighth Circuits, at their Web sites, provide access to the full text of appellate briefs filed with the court and to audiotapes of appellate oral arguments. An employee of the Eighth Circuit has told me that approximately 1,000 users listen online to that court's oral arguments each month. The U.S. Supreme Court makes written transcripts of its oral arguments available online, and the Supreme Court of Florida provides live and archived video access to its oral arguments.
It would be wonderful if more federal and state appellate courts began to provide online access to audiotapes of oral arguments.
Posted at 13:59 by Howard Bashman



"9th Circuit gives green light to Oct. 7 election": Bob Egelko of The San Francisco Chronicle has this update. The Los Angeles Times reports here that "U.S. Court Reverses Recall Postponement." And The Sacramento Bee reports here that "Oct. 7 election on schedule after judges' ruling."
Posted at 13:50 by Howard Bashman



Election Law Professor Rick Hasen offers his analysis of today's en banc Ninth Circuit ruling: You can access Rick's thoughts at this link. And Law Professor Larry Solum provides his views here.
Posted at 13:42 by Howard Bashman



"Appeals court unanimously reinstates Oct. 7 recall vote date, citing California constitution": David Kravets of The Associated Press has this early report. And Reuters reports here that "Court Clears Way for California Oct. 7 Recall Vote."
Posted at 12:48 by Howard Bashman



For those who cannot access the Ninth Circuit's en banc ruling via the Ninth Circuit's Web site: Try this link to the opinion, provided by FindLaw.
Posted at 12:43 by Howard Bashman



Welcome to the end of the line, seekers of a postponement of California's recall election: Whatever else one may wish to say about today's en banc Ninth Circuit ruling, the decision is written in a way that makes U.S. Supreme Court review extraordinarily unlikely. That doesn't mean that the plaintiffs won't ask for such review, but only that they are not at all likely to obtain it.
Posted at 12:38 by Howard Bashman



BREAKING NEWS -- En banc Ninth Circuit panel affirms district court ruling, refuses to delay upcoming California recall election: You can access today's ruling, which just issued seconds ago, at this link. The ruling is unanimous, and was issued per curiam, which means that no judge is specifically credited with authorship of the ruling. Although the en banc ruling is very short -- just eleven pages in length -- those who so desire can access a court-issued summary of the ruling here.
Posted at 11:59 by Howard Bashman



"Establishment and Disestablishment at the Founding, Part I: Establishment of Religion." Establishment clause expert Michael W. McConnell, recently confirmed to the U.S. Court of Appeals for the Tenth Circuit, has the final version of this draft article in the April 2003 issue of the William and Mary Law Review. Thanks much to the reader who so kindly forwarded along the copy of this article that arrived in today's mail.

William and Mary, by the way, appears to have been hit very hard by Hurricane Isabel. A link to the law school's Web site currently takes one to a hurricane-related page entitled "Emergency Information Center."
Posted at 11:33 by Howard Bashman



"Courts take on too many political issues": Tony Mauro today has this op-ed in USA Today.
Posted at 10:44 by Howard Bashman



"1973 plaintiff seeks reversal of abortion law": The Atlanta Journal-Constitution today has this report about the woman once known as "Mary Doe."
Posted at 10:35 by Howard Bashman



Law Professor Michael Froomkin now has a blog: You can access "Discourse.net" at this link.
Posted at 10:30 by Howard Bashman



While we await this morning's ruling from an eleven-judge en banc panel of the Ninth Circuit concerning whether California's recall election will be postponed: At precisely what time will the Ninth Circuit issue its ruling "this morning"? Presumably sometime between now and 3 p.m eastern, noon pacific time. The Ninth Circuit typically issues new decisions at 1:30 p.m. eastern time, 10:30 a.m. pacific time, but I have a feeling that today's ruling will be released just as soon as possible (which may or may not be before, at, or after the usual opinion issuance time).

In the meantime, you can listen here (Real Player required) to very interesting coverage of yesterday's oral argument from yesterday's edition of the PBS program NewsHour with Jim Lehrer. Law Professors Pamela S. Karlan and Douglas W. Kmiec both provided extensive commentary about the oral argument. And today, National Public Radio's "Morning Edition" provided this coverage of yesterday's en banc oral argument.
Posted at 10:05 by Howard Bashman



"9th Circuit panel grills recall rivals; Ruling to come today on whether Oct. 7 vote is a go or no-go." Claire Cooper, legal affairs writer for The Sacramento Bee, has this report. And Howard Mintz, writing in The San Jose Mercury News, provides this coverage of yesterday's en banc oral argument.
Posted at 10:00 by Howard Bashman



Dick's: Today brings news of a change at the very top of my law firm.
Posted at 09:27 by Howard Bashman



In other coverage of yesterday's Ninth Circuit en banc oral argument: In The San Francisco Chronicle, Bob Egelko has an article headlined "Court's tough questions; Ruling expected today on whether to delay recall election, two ballot measures."

And in The Los Angeles Times, Henry Weinstein and Maura Dolan report that "Court Sharply Challenges Recall Delay; Legal experts say the federal appeals judges appear headed toward restoring the Oct. 7 election date. A ruling is expected today." A separate article reports that "Spotlight Is on Accuracy of Vote Tally; Punch-card machines are again at the center of debate, but election officials argue that no system of counting votes is infallible." You can access here an article headlined "Outside a Sedate Courtroom, Scripted Chaos on the Street; In what has become a routine spectacle, candidates, advocates and oddballs compete for the media's attention in San Francisco." And excerpts from yesterday's oral argument are available under the heading "Lawyers, Judges Spar in Lively Debate."
Posted at 06:55 by Howard Bashman



In Tuesday's newspapers: In The New York Times, Adam Liptak has a news analysis headlined "A Questioning Gap" that looks at yesterday's en banc Ninth Circuit oral argument in the California recall election case. In other news, "Ashcroft Limiting Prosecutors' Use of Plea Bargains." An article asks "Where Did Dewey File Those Law Books?" From Boston comes an article headlined "Push in Massachusetts for a Death Penalty." In news from Albany, New York, "In Death Penalty Appeal, Judges Focus on Broad Questions." In business news, "American Express to Seek Banks as Card Partners." And an editorial is entitled "Rearguing the Recall."

The Washington Post reports here that "Ashcroft Issues Tougher Prosecutorial Guidelines." From Amsterdam comes news that "Gay Marriage Becomes Routine for Dutch; Two Years After Enacting Law, Up to 8 Percent of Weddings Are Same-Sex Unions." An article reports that "Patriot Act Used In 16-Year-Old Deportation Case; Administration Revives 1987 Effort." And in other news, "Jury Hears Farmer's Warning in Standoff; Park Police Acted Cautiously After Threat to Detonate a Bomb."
Posted at 06:40 by Howard Bashman



"Judges expected to make recall decision Tuesday; At issue: Whether to hold vote in October or March." CNN.com provides this report.
Posted at 06:35 by Howard Bashman



New record (outside of the last week in June): Yesterday "How Appealing" received more than 19,600 page views, setting a new record for anytime other than during the last week in June, when the U.S. Supreme Court traditionally hands down its most newsworthy rulings. Today promises to be another high traffic day, as the Ninth Circuit will issue its en banc decision concerning whether California's recall election can occur on schedule and the Eleventh Circuit will hear oral argument in a case challenging the constitutionality of an Alabama law prohibiting the distribution of sex toys (my preview of this oral argument is available here).
Posted at 00:00 by Howard Bashman



Monday, September 22, 2003
Day two of "Liberty in the balance": Today is day two of the "Liberty in the balance" series of articles being published in The Sacramento Bee. Today's lead article appears under the headline "Librarians step up: They prepare for 'knock on the door.'" And in related coverage, "Libraries were focus of dubious Cold War probe."
Posted at 23:52 by Howard Bashman



A big antitrust win for Big Tobacco: Today the U.S. Court of Appeals for the Eleventh Circuit issued this decision.
Posted at 23:50 by Howard Bashman



Readers comment on today's en banc Ninth Circuit oral argument in the case seeking to delay California's recall election: As I have noted below, the Ninth Circuit announced this evening that it will be issuing its decision in this case tomorrow morning. Presumably that means a ruling will issue sometime before 3 p.m. eastern time, noon pacific time. And now, on with the reader commentary.

A former law clerk to a Ninth Circuit judge emails:
First, thanks for your great coverage of this whole circus -- screwy rulings are bad for democracy (because they leave most citizens with anger, confusion or despair, or some combination of all three!), but they are great for us law geeks.

As a former 9th Circuit clerk (for the deceased Judge Charles Wiggins), I'm more than tired of being embarrassed by the Court -- the panel decision was shamelessly and transparently partisan and poorly-reasoned. But having just watched the argument on C-SPAN, I'm confident that the 9th Circuit will put this nonsense quickly to rest, thereby giving the Supremes the easy option to pass (which I am confident they will do). I see a vote of at least 9-2 (and maybe 11-0) to vacate the injunction at least with respect to the recall. There may be some dissenters on the initiatives, though frankly I think much of that discussion was really a search for a bone to throw to the challengers.

I expect we'll have a ruling this afternoon or tomorrow morning latest, with either a brief opinion or an opinion to follow.

If I'm right re the result, this will not mean the 9th Circuit has redeemed itself (remember, the Court's six most baldly partisan judges -- Reinhardt, Pregerson, Wardlaw, Berzon, Thomas and Fletcher -- were not on the en banc panel) -- it only means that fair-minded judges operating under the scrutiny of public attention and with a healthy concern for reputation will occasionally do the right thing.
A lawyer who recently argued a case before a Ninth Circuit panel that included Circuit Judge Alex Kozinski writes:
I argued a case before a panel which included Judge Kozinski in early July. He gave my opponent, a deputy attorney general, a very hard time, asking questions similar to the "what if a county decided to count every other vote." The AG had trouble with his questions, and tried to evade them without success. An observer would've thought she was in big trouble.

Three weeks later, the court issued a two sentence per curiam affirmance, with no mention of the serious problems addressed at argument.
Law Professor Eugene Volokh, who clerked for Judge Kozinski, expresses some similar thoughts here.

Additional blog commentary can be had here from "Fritz Feds," here from "Right on the Left Beach"; and here from "Legal Theory Blog."
Posted at 23:30 by Howard Bashman



Available online at law.com: Jason Hoppin has an article headlined "9th Circuit to Cast Its Votes; 11-judge panel likely to restore Oct. 7 date for recall, but plan for propositions less clear." In other news, "Ashcroft's 'Get Tough' Memo Discourages Plea Bargains." (You can access the memo here, via FindLaw.) In news from Florida, "Access to Government Employees' E-Mails Restricted." An article reports that "Real Estate Turf War Lands at Georgia High Court." And from New Jersey comes word that "Presumption of Access Doesn't Apply to Discovery."
Posted at 23:21 by Howard Bashman



"Appeals Court Weighs California Punch-Card Issue": This article will appear on the front page of Tuesday's edition of The Washington Post.
Posted at 23:20 by Howard Bashman



"Recall Supporters Confident After Appeals Court Hearing": Tuesday's edition of The New York Times will contain this report.
Posted at 22:13 by Howard Bashman



BREAKING NEWS -- The Ninth Circuit has announced that it will be issuing its en banc ruling in the California recall election case tomorrow morning: This news via a trusted friend in the media, who has received notification via telephone from the Ninth Circuit Clerk's Office. Update: And now the news is confirmed here by The Associated Press, which wasn't my source for this post.
Posted at 21:03 by Howard Bashman



"Federal appeals court judges, lawyers discuss punch-card ballots": Claire Cooper, legal affairs writer for The Sacramento Bee, provides this report.
Posted at 20:44 by Howard Bashman



Election Law Professor Rick Hasen offers his thoughts on today's en banc Ninth Circuit oral argument: You can access Rick's analysis at this link.
Posted at 20:42 by Howard Bashman



"Center Ring at the 9th Circus: Things get even weirder in the California recall litigation." Slate has just posted online this essay by Dahlia Lithwick.
Posted at 19:55 by Howard Bashman



Later tonight, I'll reprint some reader comments on today's Ninth Circuit en banc oral argument: Thanks to those many readers who have already emailed; others who wish to email on this topic can do so via this link.
Posted at 19:24 by Howard Bashman



C-SPAN is providing an on-demand video feed of this afternoon's Ninth Circuit en banc oral argument: The only drawback is that the video feed starts moments into Laurence H. Tribe's oral argument on behalf of the plaintiffs/appellants. To view the oral argument, simply click here (Real Audio required).

The Ninth Circuit itself, meanwhile, provides an audio file (Windows Media Player required) of this afternoon's argument, but instead of streaming across the Web, you'll need to download the file first before it will play.
Posted at 19:17 by Howard Bashman



"Court Considers Oct. 7 California Recall Date": Reuters now offers this revised report and this photo in which you can see most of the Ninth Circuit judges on today's eleven-judge en banc panel. Additional photos from this afternoon's oral argument are available via this link.
Posted at 19:10 by Howard Bashman



Apparently the phrase "Ninth Circus" isn't used only by conservatives: Marisa Lagos and Henry Weinstein of The Los Angeles Times have this report on this afternoon's oral argument. Their article notes that "There were a few light moments during the contentious hour-long hearing: at the end, [ACLU attorney] Rosenbaum slipped and called the court a 'circus,' instead of a circuit court, which drew laughs from the bench."
Posted at 18:50 by Howard Bashman



"How a patent suit by a technological David brought a Goliath judgment": Today's edition of The Seattle Times contains this report.
Posted at 17:32 by Howard Bashman



The wire services are reporting: In very early reports filed just after the conclusion of this afternoon's en banc Ninth Circuit oral argument, David Kravets of The Associated Press provides this coverage, and Reuters offers this coverage.
Posted at 17:26 by Howard Bashman



Today's en banc Ninth Circuit oral argument in the case seeking to postpone California's recall election has concluded: As I had expected, it's impossible to predict how the panel will rule, but certainly the plaintiffs' case was not received as warmly as it was received before the original three-judge panel. Circuit Judge Alex Kozinski posed difficult questions for both sides, and he expressed the view that the plaintiffs had a better argument under Section 2 of the Voting Rights Act than they have under the equal protection clause. A better argument, however, does not necessarily equal a winning argument, even assuming that other judges share Judge Kozinski's view on this point. Any readers who wish to share their thoughts about this afternoon's oral argument are invited to do so via email.
Posted at 17:11 by Howard Bashman



"Meet hanging chad's close relatives, scribbled oval and hacked touch screen": Judge Kozinski's line of questioning directed to the second lawyer for the plaintiffs about the error rates inherent in other voting methods that the plaintiffs say they prefer reminds me of this recent post of mine, which was cited in Ted Costa's brief in support of rehearing en banc.
Posted at 16:25 by Howard Bashman



"A Day in Court: A panel of the 9th Circuit meets today to decide the fate of recall. Could the most liberal court in the land side against the ACLU?" Bill Whalen has this essay today online at The Weekly Standard.
Posted at 16:14 by Howard Bashman



The oral argument is underway on C-SPAN: Scroll down two posts below this one for the links. "If the trial judge got the law right, I wouldn't be here," says Law Professor Laurence H. Tribe on behalf of the parties seeking to postpone the recall election. Judges O'Scannlain and Kozinski are the first Ninth Circuit judges to tangle with Professor Tribe.
Posted at 16:01 by Howard Bashman



Get your California recall election appellate documents here: The U.S. Court of Appeals for the Ninth Circuit, perhaps regretting its decision to post links to all recall election-related document on the main page of that court's Web site now that the number of such documents has grown exponentially, has moved links to all recall election-related documents to this internal page.
Posted at 15:20 by Howard Bashman



Viewing tips for today's en banc Ninth Circuit oral argument in the case seeking to postpone California's recall election: In just about an hour and a half from now -- at 4 p.m. eastern time, 1 p.m. pacific time -- an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit will begin hearing oral argument in the case seeking to postpone California's recall election. C-SPAN will be televising the oral argument live, and you can access the live feed here via Real Player and here via Windows Media Player.

The Ninth Circuit's chief judge will be seated in the middle of the eleven judges, and the more senior of her colleagues will sit closest to her and the more junior of her colleagues will be seated farthest away. Seniority for this purpose is determined by how long a judge has served on the Ninth Circuit. The Ninth Circuit has granted a total of one hour for oral argument, and that one hour is divided evenly between the parties seeking a postponement, and opposing a postponement, of the recall election.

Expect the questioning to be fast-paced and intense. Thirty minutes does not give eleven judges much time for questioning, nor does it give the attorney much time for answering. Typically, those judges who believe that the law does not mandate postponement of the election will actively question the attorney seeking a postponement, and the judges who favor a postponement will actively question the attorneys opposing a postponement. It will be interesting to see how active in the questioning the judges in the middle, whose votes either side will need to prevail, will be. I expect that it may be difficult to predict how the en banc panel will rule based on the questioning from the judges, because it is doubtful that six or more judges will reveal through their questioning that they are leaning in favor of the same party. Keep in mind, however, that appellate judges often use questions at oral argument as a way to communicate their views or insights to the other judges on the panel.

Law Professor Laurence H. Tribe, who is expected to take the podium first and provide the argument in favor of the parties seeking a postponement of the recall election, can expect to receive some very tough questioning during his presentation from the more conservative members of the eleven-judge panel. I cannot now predict who among the more liberal judges on the panel will try to take the lead in asking hard questions of the lawyers who will be arguing in opposition to any delay of the election. We shall see soon enough.
Posted at 14:30 by Howard Bashman



"Supreme Court no longer creates dread": Detroit News columnist Deb Price today offers these thoughts.

Relatedly, The Detroit Free Press today contains an op-ed by Dawson Bell entitled "Marriage Amendment? Please, don't mention it." And on a different topic altogether, Freep columnist Brian Dickerson today has an op-ed entitled "Justice knows Fieger's not the problem."
Posted at 12:55 by Howard Bashman



Recall proponent Ted Costa will receive ten minutes of argument time before the Ninth Circuit en banc panel today: And California's Secretary of State will have the rest of the thirty minutes provided to lawyers for the parties that wish for the recall election to occur as originally scheduled. Thanks to Law Professor Rick Hasen for the news.
Posted at 12:41 by Howard Bashman



Law Professor Eugene Volokh considers further the rule prohibiting judges from commenting to the press on the merits of pending cases: You can access his latest commentary at this link. I began this conversation in a post you can access here.
Posted at 12:36 by Howard Bashman



What are the odds? According to a reader who has done the math, the odds that any three individuals in a group of twenty-two people would not be randomly selected among the first ten names to be drawn out of a hat containing all twenty-two names is one in seven, or 14.29 percent. Thus, if ten of the eleven judges on today's Ninth Circuit en banc panel had been randomly selected, those are the odds that none of the judges on the original three-judge panel would have been selected to serve on the en banc panel.

Of course, as I explained in this earlier posting, there's a very strong possibility that some of the judges serving on today's eleven-judge en banc panel were selected under the Ninth Circuit's internal rule providing that any active judges who were not randomly selected to serve on an eleven-judge en banc panel three consecutive times will automatically be placed onto the very next eleven-judge en banc panel that is selected. And if that indeed is what happened, then there would have been an even greater likelihood that the three judges on the original panel would not be selected to serve on the eleven-judge en banc panel.
Posted at 12:13 by Howard Bashman



"Muslim chaplain's arrest prompts U.S. probe; U.S. official: Captain had classified Guantanamo Bay documents." CNN.com provides this report.
Posted at 11:55 by Howard Bashman



There's no end to the interesting topics to be argued before federal appellate courts this week: Later today, of course, an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument concerning whether California's recall election should be postponed. My preview of that oral argument is accessible here.

Tomorrow, in Montgomery, Alabama, the U.S. Court of Appeals for the Eleventh Circuit will hear oral argument in a case challenging the constitutionality of Alabama's ban on the distribution of sex toys. My preview of that oral argument is accessible here.
Posted at 11:24 by Howard Bashman



Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in the case to postpone California's recall election: You can access my comprehensive preview of today's oral argument at this link.

In today's issue of The Los Angeles Times, Henry Weinstein reports that "Various Legal, Political Factors Can Sway Court; Public opinion and ideology play roles as judges decide a case. Many observers think 9th Circuit will restore Oct. 7 as election date." The LATimes also contains an essay by George Skelton entitled "Make No Mistake -- Sloppy Errors Shake Faith in Court's Judgment."

In The San Francisco Chronicle, Bob Egelko reports further on the eleven-judge panel assigned to hear today's oral argument.

CNN.com reports that "Court readies for California recall appeal; Poll finds less support for ousting Davis." CNN.com also presents an Associated Press article headlined "Judges reviewing recall have handled high-profile cases before."

Finally, the September 29, 2003 issue of The New Yorker contains an article by Hendrik Hertzberg entitled "Strongman: Arnold Schwarzenegger and California’s recall race."

Update: USA Today reports here that "Legal scholars see Oct. 7 Calif. recall election; Delay likely to be reversed, they say" and here that "Officials hoping money, effort won't be wasted." The Associated Press reports here that "Court Set for California Recall Rehearing." Law Professor Neal Katyal has an essay at FindLaw entitled "Why the Eleven-Judge Ninth Circuit Panel Should Affirm The Original Panel Decision to Postpone the California Recall." [To make matters more confusing, the essay's byline says it was written by Mei Lin Kwan-Gett.] Finally, OpinionJournal readers respond to Law Professor Laurence H. Tribe's recent op-ed defending the now-vacated three-judge panel ruling from the Ninth Circuit that ordered the postponement of California's recall election.
Posted at 06:35 by Howard Bashman



"Case reflects great need for, rewards of free legal service; Center City firm's pro bono work frees Louisiana man on death row." This article appeared in yesterday's edition of The Philadelphia Inquirer.
Posted at 06:25 by Howard Bashman



In Monday's newspapers: The New York Times reports here that "Head of Group Backing Right to Abortion to Step Down." In local news, "Appeal Brings New Focus on Death Penalty Law." In business news, "F.C.C. Chief Talks of Frustration and Surprise." And editorials are entitled "Patriot Act, Part II" and "Illegal Guns and Liability."

The Christian Science Monitor reports here that "Canada's conservatives shift right; Ontario's Tories hope to capitalize on a backlash against liberal court rulings before an Oct. 2 election."

At OpinionJournal, Dorothy Rabinowitz has an essay entitled "A Demon for Our Times: Why the left hates John Ashcroft."

Finally for now, The Washington Post reports here that "After Historic Flight, Wrights Went to Court."
Posted at 06:15 by Howard Bashman



Sunday, September 21, 2003
"Justice Criticizes Mandatory Sentences": The Associated Press has this report on remarks that U.S. Supreme Court Justice Stephen G. Breyer delivered today.
Posted at 22:11 by Howard Bashman



"California recall on the docket: the two sides' legal arguments; Monday's televised hearing will explore Bush v. Gore and the potential for setting a precedent." Monday's edition of The Christian Science Monitor will contain this article by Warren Richey.
Posted at 20:41 by Howard Bashman



"Witnesses recant testimony, but death row appeal stymied": This article appears today in The Atlanta Journal-Constitution. And the newspaper provides additional background material here.
Posted at 18:20 by Howard Bashman



A look ahead to tomorrow afternoon's Ninth Circuit en banc oral argument in the case seeking to postpone California's recall election: Tomorrow afternoon at 1 p.m. pacific time, 4 p.m. eastern time, the U.S. Court of Appeals for the Ninth Circuit will hold an en banc oral argument in San Francisco in the case in which the plaintiffs are seeking to postpone California's recall election. C-SPAN is planning to broadcast the oral argument live (see here and here for more details), and tomorrow I will attempt to provide a direct link to the broadcast feed.

In advance of the oral argument, the Ninth Circuit's Web site provides, ironically on the left side of the page, links to PDF files that contain the text of the parties original appellate briefs and briefs filed in connection with whether the case should be taken en banc. Here is a direct link to the trial court's opinion refusing to postpone the recall election, which the en banc panel will now be reviewing directly, and here is a link to the three-judge panel's decision that ruled a postponement of the election was justified and necessary. The three-judge panel's opinion is currently a nullity as a result of the order granting rehearing en banc, but that opinion no doubt will provide quite a helpful head start to any of the judges on the en banc panel who believe the original three-judge panel reached the correct result.

The Ninth Circuit has announced the names of the eleven judges who have been selected to decide the case en banc. You can access more information about these judges here, here, here, and here via my earlier posts at "How Appealing." Also definitely worth a look are this chart from The Recorder containing photos and descriptions of each of the eleven judges and this article from The Los Angeles Times (a newspaper that apparently thinks that Judge Kleinfeld looks exactly like Judge Gould).

Skipping ahead now to the actual oral argument itself, because the three-judge panel's ruling in favor of those seeking to postpone the recall election has been rendered a nullity, the parties have been returned to the position they were in before the three-judge panel issued its ruling. Thus, at the oral argument tomorrow, the first attorney to speak will be the lawyer for the plaintiffs/appellants, who are seeking to postpone the election. The Recorder is reporting that Harvard Law Professor Laurence H. Tribe is expected to argue on the plaintiffs' behalf. He is about as experienced of an appellate lawyer as there is, and he has literally written the book on federal constitutional law. Of course, that doesn't mean that he always wins, and in fact he was one of the losing lawyers in Bush v. Gore. Tribe last week had this op-ed about the California recall election case online at OpinionJournal. The Ninth Circuit is giving each side thirty minutes of oral argument time, but much of that time will consist of questions from, and answers to, the judges on the en banc panel. The lawyer for the plaintiffs is likely to reserve some amount of the thirty minutes for rebuttal, which will occur after the other side has delivered its entire argument. After the plaintiffs' attorney relinquishes the podium for the first time, the lawyers for the California Secretary of State and for recall proponent Ted Costa will make their presentations and answer the panel's questions. Then the plaintiffs' attorney gets whatever rebuttal time was reserved.

After the oral argument has concluded, the eleven-judge panel retires to a private conference room where the judges discuss the case and provide their tentative votes on how the case should be decided. The most senior judge in the majority gets to assign the authorship of the majority opinion to himself or herself or to some other willing judge in the majority. Judges in dissent then decide tentatively whether they will write their own dissents or join the dissent that another judge will be writing. Normally, dissenting judges have the luxury of seeing the majority opinion before beginning to write the dissent, but given the extraordinary press of time involved here, I wouldn't be surprised if some of these judges have drafts all but written before heading into the courtroom tomorrow to participate in the oral argument. You see, while on many federal appellate courts the judges do not engage in detailed discussions of cases that have been taken en banc until after the oral argument has occurred, on the Ninth Circuit the judges do discuss the merits of the case, often in great detail, in deciding whether to take a case en banc. Thus, when Ninth Circuit Judge Harry Pregerson is quoted as saying that this eleven-judge panel will reverse the original three-judge ruling in which Judge Pregerson participated (see here and here for details), he may have a very reliable basis on which to make such a prediction.

By tomorrow evening, the eleven judges on the Ninth Circuit's en banc panel will have a very good idea of what their ruling will be, and several of them will then be hard at work writing the opinions that ultimately will issue explaining the result and expressing the basis for any dissents. It is impossible to predict how quickly the court will issue its ruling -- these judges rarely face time pressures this great, and while this case is not the most difficult case ever, it also is not the easiest -- but most people in-the-know expect that a ruling will issue by the end of the week.

I plan to watch tomorrow's en banc oral argument online via C-SPAN just like many of you, and I will undoubtedly have more to say about this case before, during, and after the oral argument.
Posted at 17:40 by Howard Bashman



"Ninth-Circuited": Yesterday The Weekly Standard posted online this editorial by Terry Eastland (via "PrestoPundit.com").
Posted at 17:08 by Howard Bashman



California Supreme Court Justice, and D.C. Circuit nominee, Janice Rogers Brown "openly supports a return to the era of Lochner v. New York"? Tim Dowling, one of the co-authors of an op-ed published Friday in The Washington Post containing that assertion, emailed on Friday to let me know that "If anyone is interested in reading the speeches by Justice Brown discussed in the op-ed, they are available at this link." Thanks, Tim, for sending along that information.
Posted at 14:19 by Howard Bashman



"Election date hinges on 'Votomatic' ruling": This article appears in today's edition of The Imperial Valley Press.
Posted at 13:51 by Howard Bashman



"Callahan settles in as federal appeals court judge": Yesterday's issue of The Lodi News-Sentinel contained this report about one of the Ninth Circuit's newest judges.
Posted at 13:47 by Howard Bashman



Twenty-two years ago today, the U.S. Senate confirmed the nomination of Sandra Day O'Connor to serve on the U.S. Supreme Court: Details here.
Posted at 13:37 by Howard Bashman



"This Guy's Gone Wild: His racy flicks earned him a mint--and a world of legal woe." The September 29, 2003 issue of Newsweek will contain this article.
Posted at 13:32 by Howard Bashman



Don't count on it: Today's edition of The San Francisco Chronicle contains an op-ed by Vicki Haddock entitled "Countdown: There's no way to ensure that every ballot counts every time." And in The Oakland Tribune, Ian Hoffman has an op-ed entitled "Is March or October the lesser evil?"
Posted at 09:58 by Howard Bashman



"Liberty in the balance": Beginning today and continuing over the next several days, The Sacramento Bee will be publishing a series of articles addressing "how the crackdown on terrorism has come into conflict with the civil liberties that set America apart." In today's issue of that newspaper, you can access here an article headlined "Security collides with civil liberties; Debate intensifies over war on terrorism"; here an article headlined "History's shadow"; and here an article headlined "In the spotlight: Why were we on no-fly list? Jan Adams and Rebecca Gordon, Bay Area anti-war activists."
Posted at 09:54 by Howard Bashman



In Sunday's newspapers: The New York Times reports here that "Army Cleric Who Ministered to Detainees Is Arrested." Adam Liptak reports from Florida that "A Murder Case Becomes a Tangled Tale." Liptak today also reviews several children's books about ballet. In news from California, "Twists and Turns of Recall Leave Voters Fatigued." In local news, "Prosecutors Seek Fewer Executions, Signaling New Wariness." An obituary bears the headline "Theodore R. Kupferman, 83, Ex-Congressman and Judge, Is Dead." And Adam Cohen has an "Editorial Observer" column entitled "What the Monkeys Can Teach Humans About Making America Fairer."

The Washington Times reports here that "Military confirms Muslim chaplain had secret papers." In other news, "Court bans religious gifts to classmates." And Thomas Sowell has an op-ed entitled "Risky business."

The Boston Globe reports here that "US Army chaplain held in spy probe; Muslim based in Guantanamo." In somewhat related news, "Foreign detainees' plight often ignored, speakers say; Forum speakers cite injustice in war on terrorism." And in news from Harvard, "Law dean's goal is a revolution."

The Washington Post reports here that "Muslim Army Chaplain Is Held in Investigation; Imam Had Secret Data on Cuba Detainees." The Magazine section contains an item headlined "Backlight: Thurgood Marshall on Steps of Supreme Court, 1958." And former FBI Director William S. Sessions has an op-ed entitled "DNA Tests Can Free the Innocent. How Can We Ignore That?"

The Los Angeles Times contains an op-ed by Edward Lazarus entitled "Politicized Courts: They're a Time-Honored Tradition"; an op-ed by Amy Wilentz entitled "Machine Politics: If we're designing a new voting device, shouldn't it have a cup holder?"; and an op-ed by Peter H. King entitled "Putting Off the Inevitable, for Now." A book review by John W. Dean is entitled "Liberties disappearing before our eyes." And an editorial cartoon from the other day about how the Ninth Circuit is regarded at the U.S. Supreme Court has triggered letters to the editor defending the Ninth Circuit's record.
Posted at 09:20 by Howard Bashman



"Eatery Joins Battle With 'The Bulge'; Obesity Lawsuits Spur Dessert Protest": Yesterday's issue of The Washington Post contained this report.
Posted at 09:14 by Howard Bashman



"Suit asks: Who will pay for stillborn? Reservist and wife file lawsuit against government, insurer in death benefit denial." This article appears in today's edition of The Indianapolis Star.
Posted at 08:13 by Howard Bashman



Dewey Decimal system sues New York City's Library Hotel: The Associated Press has this report. Fortunately, no one quoted in the article says "This will be one for the books."
Posted at 08:11 by Howard Bashman



Saturday, September 20, 2003
"Somos Estupidos, We Are Stupid": Raoul Lowery Contreras had this essay posted online Thursday at CalNews.com addressing the three-judge Ninth Circuit panel's decision to postpone California's recall election.
Posted at 23:55 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Judge: La. Can't Ban Foreigners From Bar Exam" and here an article headlined "Law Schools Sue Defense Dept. Over Policy."
Posted at 19:58 by Howard Bashman



On the radio: How many readers of "How Appealing" reside in the Los Angeles area and listen to a particular talk radio show on a Friday afternoon? Apparently a whole bunch, because a handful of readers have emailed to say, in the words of one of them, "Just thought you might like to know that your blog was mentioned extensively on the John & Ken radio show yesterday here in Los Angeles, on KFI 640 AM, in reference to the 9th Circuit stuff." Thanks to all who took the time to send this news along via email.
Posted at 19:44 by Howard Bashman



Ten Commandments news: From Alabama, The Birmingham News reports here today that "Deadline extended in Moore case." From Wyoming, The Associated Press reports here that "Casper residents seek removal of Commandments from park." And from Ohio, The AP reports that "Motion aims to defend commandments."
Posted at 19:38 by Howard Bashman



"The Problem Isn't the Punch Cards. It's the People." This article will appear in the Week in Review section of The New York Times tomorrow.
Posted at 19:31 by Howard Bashman



"Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation." A paper bearing that title, written by Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman, is now available for download at SSRN. (Thanks to the "Legal Theory Blog" for the pointer.)
Posted at 16:29 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Ashcroft Takes Offensive Against Critics"; here "Texas Executes White Man for Killing Black"; and here "Army Islamic Chaplain Detained in Probe."
Posted at 15:38 by Howard Bashman



"Texas family sues over 'under God' reference in pledge": The Associated Press has this report from Abilene.
Posted at 13:50 by Howard Bashman



"Club for Caucasians stirs up Oakley; High school student surprised her idea turned into 'big deal'": This article appears in today's edition of The San Francisco Chronicle. No word yet on whether members of the club will walk around asking one another "Are you my Caucasian?" Readers interested in this subject may also enjoy my post from December 23, 2002 observing that, under United States law, people from the Country of India are Caucasians.
Posted at 10:20 by Howard Bashman



Coverage of yesterday's developments in the Ninth Circuit California recall election case from here and there: In The Boston Globe, Lyle Denniston and Anne E. Kornblut report that "Court will reconsider delay of Calif. recall." [This article mentions me, and if any of my Boston area readers would be so kind as to send along the clipping from the actual newspaper, I'd be most appreciative.]

The Los Angeles Times, in addition to the article I have already commented on below, reports here that "Larger Panel Draws From Conservative Side of Court; Of the 11-member bench considering the recall vote only two jurists are considered liberals. The rest are closer to right-of-center." [Update: An astute reader notices how much Judge Kleinfeld seems to resemble Judge Gould in the photos accompanying this LATimes article. That's bound to happen when Judge Gould's photo is used for both of them.] In The San Francisco Chronicle, Bob Egelko reports that "Court to review recall ruling; Makeup of 11-judge panel suggests Oct. 7 election likely to be approved." Egelko also describes the backgrounds and philosophies of the eleven judges who are on the en banc panel.

The Sacramento Bee reports here that "11-judge panel will reconsider recall delay." The Copley News Service reports that "Court orders Monday hearing." The Washington Post reports here that "Court Will Reconsider Decision on Calif. Recall; 9th Circuit's Move to Review Panel Ruling Revives Possibility That Oct. 7 Voting Will Occur as Scheduled." And The Atlanta Journal-Constitution reports here that "Court to rethink Calif. recall ruling."
Posted at 10:04 by Howard Bashman



In other news from California: The Associated Press reports here that "Davis signs law giving domestic partners most marriage rights." The San Francisco Chronicle reports here that "Davis signs bill giving partners rights; Alimony, property settlement issues covered in legislation" and here that "Gay couples redefining love that's now legal; They say new law gives them responsibilities as well as rights." The Sacramento Bee reports here that "Davis signs expansion of gay partner rights." And The Los Angeles Times reports here that "Domestic Partners Law Expands Gay Rights; Davis signs a bill that grants family and financial protections -- and responsibilities -- to registered couples."
Posted at 09:53 by Howard Bashman



"Suit charges Hispanic churches are 'false Catholics'; Atlanta Archdiocese seeks injunction, warns of confusion": Today's edition of The Atlanta Journal-Constitution contains this report.
Posted at 09:52 by Howard Bashman



Ninth Circuit Judge Harry Pregerson predicts en banc panel will allow recall election to proceed as originally scheduled: The fun never ends in the Ninth Circuit, as Circuit Judge Harry Pregerson -- one of the three judges on the original panel that unanimously ruled that the recall election should be postponed -- has publicly spoken out about the case to a reporter from The Los Angeles Times even while the case remains pending before the court on which Judge Pregerson serves.

An article by Henry Weinstein published in today's edition of The LATimes under the headline "Court to Reconsider Delay of Recall Vote; A panel of 11 appellate jurists will hear arguments Monday; Some experts expect the original decision to be overturned" reports:
The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

"You know who's on the panel, right? Do you think it's going to have much of a chance of surviving? I wouldn't bet on it," Judge Harry Pregerson said in an interview.

* * * * *

"Judge Paez, Judge Thomas and I — we did the right thing," Pregerson said. "We're there to protect people's rights under the equal protection clause of the Constitution, no matter who's involved, and a lot of people don't like it. That's their problem, not mine."
It is extraordinarily unusual for a judge to speak to the press about the merits of a matter currently pending before his court. Indeed, whichever party loses before the eleven-judge en banc panel could ask for rehearing en banc before all twenty-three non-recused judges on the Ninth Circuit, and Judge Pregerson is in that group. On the other hand, this is not the first time that Judge Pregerson has behaved in a manner quite different from the way that every other federal appellate judge would behave, as my Los Angeles Times op-ed published on June 1, 2003 explains.

Update: Don't simply take my word for it -- this document posted on the Ninth Circuit's own Web site states that "Due to codes of ethics restrictions, judges are unable to discuss the merits of the case."

Second update: Attorney William J. Dyer of Texas comments "I'm almost speechless that Judge Pregerson isn't." See also the comments from Law Professor Eugene Volokh and "Ernie the Attorney."
Posted at 09:24 by Howard Bashman



Friday, September 19, 2003
And speaking of mentions: Thanks to Mickey Kaus and Daniel Weintraub for their mentions of this Web log today.
Posted at 23:43 by Howard Bashman



From Saturday's edition of The New York Times: An article reports that "Court Will Revisit Decision to Delay Vote in California." And Adam Liptak has an article headlined "Experts Say Court Panel Is Less Likely to Delay California Vote." Don't miss the fourth and fifth paragraphs of Liptak's article, which happen to mention me.
Posted at 23:41 by Howard Bashman



C-SPAN will broadcast live Monday's Ninth Circuit en banc oral argument: The ambiguity in the court's earlier order (which I mentioned here) has been resolved by a document entitled "Court of Appeals Guidelines for Press Coverage of Southwest Voter Registration Education Project v. Shelley."

The document begins: "SAN FRANCISCO – An en banc court of 11 judges of the United States Court of Appeals for the Ninth Circuit will hear Southwest Voter Registration Education Project v. Shelley (#03-56498) at 1 p.m. Monday, September 22, 2003, at the courthouse at Seventh and Mission Streets. Due to the large influx of press and general public expected to appear at the courthouse to hear the oral arguments, the court has made special arrangements for admission. The proceedings will be carried live by C-SPAN television network. Due to the limited size of the courtroom, it is expected that many members of the general public will have to be turned away. The public is encouraged to watch the hearings on television or the Internet."
Posted at 23:38 by Howard Bashman



Know your Ninth Circuit en banc panel judges: Two of the eleven Ninth Circuit judges who will decide the California recall election case have taken part in this Web log's "20 questions for the appellate judge" feature. From my interview with Circuit Judge Diarmuid F. O'Scannlain (my questions are in italics, and his answers follow in plain text):
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.
And from my interview with Circuit Judge Andrew J. Kleinfeld:
4. In a letter that you submitted in May 1998, you endorsed a division of the Ninth Circuit that would place the States of Alaska, Idaho, Montana, Oregon, and Washington into a new Twelfth Circuit. Do you continue today to view that proposed split as the best possible division, if not what proposed split do you favor today, and please explain the reasons for your answer.

I continue to strongly favor a split of the Ninth Circuit. The most important reason why is purely administrative, that the circuit is just too big for effective appellate decision making.

As to the details of how the split is done, I don't think it matters all that much. Placing just about any combination of states in the Twelfth Circuit, and apart from California, would improve the quality of justice in both by making both the Ninth and the new circuit smaller. When the Eighth Circuit was split into the Eighth and Tenth Circuits, and the Fifth Circuit was split into the Fifth and Eleventh Circuits, the people in all of those new circuits benefitted from a more coherent and predictable decision-making process.

I agree with the conclusion of the Commission headed by Justice Byron White (and two-thirds of the appellate and district judges that they surveyed) that the Ninth Circuit has far too many judges for an optimally functioning appellate court. Currently, we have twenty-eight seats for active judges on this court, and forty-six judges on the court counting those who have taken senior status (almost all senior judges still participate quite substantially).

Our court is much too big for us to read all of each other's decisions and it's too big for us to sit together to rehear a case en banc. There are well over 3,000 combinations of judges, not including senior and visiting judges, so a pair of active judges on the court can go 3 or 4 years without sitting with each other on a regular panel. Our "limited en banc" consists of 11 judges out of 28. If you have a majority of 6 judges in those cases (as we often do), then a "majority" that is less than one-fourth of the whole court purports to be acting for the full court in rehearing our most important and controversial cases.

* * * * *

15. Of the many opinions that you have written since joining the Ninth Circuit in 1991, what single opinion -- unanimous, majority, concurring, dissenting, or other -- do you find to be the most memorable?

An especially important opinion for me was a short dissent I wrote in our court's "right to die" case, Compassion in Dying, which was later reversed by the Supreme Court. In my view, liberty and democracy are the two most important aspects of our form of government, and the Constitution sets up what the boundaries are between majoritarian control over individual choices and individual protection from majoritarian governance. There is an unfortunate tendency among people who don't think about it too deeply to think that if something is very important, then it must be a matter of constitutional law. That implies that if something is very important, power is transferred from the majoritarian institutions to the courts. "The Founding Fathers did not establish the United States as a democratic republic so that elected officials would decide trivia, while all great questions would be decided by the judiciary." Compassion in Dying v. State of Washington, 79 F.3d 790, 858 (9th Cir. 1996).

I have also been particularly interested in working out the application to changing times of our unchanging constitutional protection of freedom of speech and freedom of religion, as in Finley v. National Endowment for the Arts, 100 F.3d 671 (9th Cir. 1996), K.D.M. v. Reedsport School District, 196 F.3d 1046 (9th Cir. 1999), Ex rel Lavine, 279 F.3d 719 (9th Cir. 2002), and others. Another case of considerable interest involved protecting families from unconstitutional searches and seizures by social workers as well as by police. Calabretta v. Floyd, 189 F.3d 808 (9th Cir. 1999).

It's also hard to beat relatively trivial cases that gave me the opportunity to plant in the law procedural determinations that increase fairness and reduce arbitrariness. For example, I took a lot of satisfaction in the holding in Carmen v. San Francisco Unified School Dist., 237 F.3d 1026 (9th Cir. 2001), that in order to prevent a summary judgment, a respondent has to include the evidence or a reference to it in the opposition papers, instead of rescuing the case on appeal with some document buried hundreds of pages earlier in the file that neither the judge nor the movant were alerted to.

16. Public outcry in reaction to judicial decisions is no longer a seldom-seen occurrence. Two examples are the annual protests that accompany the anniversary of the U.S. Supreme Court's ruling that recognized a constitutional right to abortion and the protests that followed the Ninth Circuit's recent Pledge of Allegiance ruling written by Senior Circuit Judge Alfred T. Goodwin, whose decision to take senior status opened up the Ninth Circuit seat that you now hold. What weight, if any, should an appellate court judge give to the general public's actual or expected reaction to a ruling under consideration or reconsideration?

The value of having life tenure is that we can reject the general public's expected reaction when the law requires rejection, instead of following public sentiment as we would usually have to do were we elected legislators rather than judges. But that doesn't mean that public reaction, both actual and expected, should be ignored. When the law leads me to a conclusion that I know would cause public concern or outcry (if the reporters picked it up, which they usually don't), then I check my work carefully. Of course, I check my work carefully anyway, but I would have to say I check it more carefully to see whether the law really compels the conclusion, if I know that most laypeople would think that the conclusion was idiotic. When most people think something, it's often right -- but not always. If the law compels a result, that's the way it is, and being able to reach that result without being beholden to public opinion is what life tenure is good for. Nevertheless, I do not think judges ought to affect disdain for public opinion.

17. How do you define the term "judicial activism," and is it ever proper for a federal appellate judge to consider his or her personal preference as to the outcome of a case (other than the preference to decide the case correctly in accordance with the law) in deciding how to rule?

I don't use the term "judicial activism" myself, because I am uncomfortable with the imprecision of its definition.

We are bound to determine whether the law compels a result, whether it is consistent with the judges' preferences or not, and when the law does compel a result, a judge is obligated to apply it. For example, if someone is in litigation against a union and you're reviewing a summary judgment, you don't decide the case based on being pro-union or anti-union. You decide whether the summary judgment papers establish that there were no genuine issues of material fact and that the appellee was entitled to judgment as a matter of law.

As judges, we are just as bound by the law as everybody else in society. The people are entitled, except where they are barred by constitutional limitations, to make the law through democratic processes, and they are entitled to have us follow it. As I wrote in Compassion in Dying, this is a democratic republic, and the people are entitled to have their elected legislators and executives, not us, make policy judgments. If we don't like the laws and regulations, we can vote for the other guy, just like other citizens. To my mind, the judge who simply decides upon the outcome he or she prefers rather than deciding upon an intellectually honest application of the law, is himself or herself an outlaw. "The courts must declare the sense of the law; and if they should be disposed to exercise Will instead of Judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body." The Federalist No. 78 (Alexander Hamilton). Also, there just isn't the satisfaction of a craft performed well, if we substitute our policy preferences for the law. Judging like that is just an exercise in despotism, rather than the intriguing, difficult and satisfying craft that an honest judge practices.
You can access my complete interviews with these (and many other) appellate judges at this link (scroll down the page as necessary because the perma-links to some of the interviews aren't currently functioning).
Posted at 23:06 by Howard Bashman



"Full Court to Reconsider Calif. Recall Delay": This evening's edition of NPR's "All Things Considered" had this report (Real Player required).
Posted at 22:52 by Howard Bashman



The Associated Press is reporting: An article headlined "Peltier Seeks Hearing for '75 FBI Murders" reports on an oral argument that occurred before the U.S. Court of Appeals for the Tenth Circuit today. And in other news, "Man Jailed in Obscene Journal Case Freed."
Posted at 22:48 by Howard Bashman



"Recall Replay: Liberals in short supply as en banc panel takes up recall." Jason Hoppin and Jeff Chorney will have this report in Monday's edition of The Recorder. The article states that "Harvard Law School professor Laurence Tribe, who represented Al Gore in Bush v. Gore, is tentatively scheduled to argue the case for the ACLU." Accompanying the article is this very helpful chart providing photographs and jurisprudential descriptions of each of the eleven judges who will be a part of the Ninth Circuit's en banc panel.
Posted at 22:43 by Howard Bashman



Difference in strategy between those seeking to keep the recall election on schedule: The "California Insider" Web log by Sacramento Bee Columnist Daniel Weintraub reports here that "Recall sponsor Ted Costa's lawyers have just filed a motion with the court asking to split the allotted 30 minutes of time with the attorney general, who is representing Secretary of State Kevin Shelley." Costa is represented by some very highly qualified attorneys (see the front page of his brief in support of rehearing), and, according to Weintraub's description, Costa has presented persuasive reasons why his lawyers should have time to address the en banc court.
Posted at 20:53 by Howard Bashman



"Court Grants Ala. Chief Justice More Time": The Associated Press reports here that "A judicial court gave the state's chief justice an extra week to answer a misconduct charge based on his defiance of an order to move his Ten Commandments monument from the state judicial building rotunda." That's much less of a delay than had been sought; yesterday the AP reported here that "Moore's lawyers asked the State Court of the Judiciary to hold off ethics proceedings until after the U.S. Supreme Court rules on Moore's appeal of a federal ruling in which he was ordered to remove the monument."
Posted at 19:48 by Howard Bashman



Peculiar yet surprisingly effective: The first petition for rehearing en banc to cite both "How Appealing" and "The Volokh Conspiracy" (details here) also became the first such petition as to which rehearing en banc was granted.
Posted at 19:36 by Howard Bashman



On the verge: "How Appealing" may be on the verge of announcing its first "20 questions for the appellate judge" participant from the U.S. Court of Appeals for the Tenth Circuit.
Posted at 19:28 by Howard Bashman



"Commandments' defender to speak at forum": The South Florida Sun-Sentinel today contains this report.
Posted at 19:25 by Howard Bashman



U.S. Supreme Court Justice Ruth Bader Ginsburg spent yesterday in Idaho: Today's edition of The Spokesman-Review contains an article headlined "U.S. courts reflecting world, Ginsburg says" that begins, "Touching on terrorism, the death penalty and sodomy law in a talk at the University of Idaho on Thursday, Supreme Court Justice Ruth Bader Ginsburg gave a glimpse of the past year in the nation's highest court." And The Daily Evergreen has a report on Justice Ginsburg's visit that you can access here.
Posted at 19:23 by Howard Bashman



Ninth Circuit Judge Alex Kozinski is no stranger to Bush v. Gore: He managed to cite the decision in a rather clever way in this opinion issued in May 2001.
Posted at 19:17 by Howard Bashman



Eleven-judge en banc Ninth Circuit panel has voted to allow C-SPAN to televise Monday's oral argument concerning whether California's recall election should be postponed: You can access today's order, entered at the direction of a majority of the judges on the en banc court, at this link. The oral argument is scheduled to begin at 4 p.m. eastern time, 1 p.m. pacific time, on Monday and to last approximately one hour. Update: Maybe I'm being especially dense, but from the language of the order I cannot tell whether permission has been given to broadcast the oral argument live or simply to record the argument and broadcast it at some later time. Time will tell.
Posted at 18:56 by Howard Bashman



"Legal Showdown Looms on Calif. Recall Vote": Reuters has this report.
Posted at 18:12 by Howard Bashman



If you read no other appellate court opinion issued today: Do not miss this opinion issued today by Eleventh Circuit Judge Ed Carnes on behalf of a unanimous three judge panel. The opinion begins, "Like the brute Mongo in Mel Brooks's 1974 comedy classic Blazing Saddles, Roberto Duran once knocked out a horse with a single punch." Indeed, given how much I've enjoyed reading so very many of Judge Carnes's recent opinions, he now holds a spot on the rather short list of federal appellate judges whose opinions I try to read from cover-to-cover when they issue.
Posted at 16:59 by Howard Bashman



Some former Ninth Circuit law clerks lend their insights: One emails:
As a former Ninth Circuit clerk, and an appellate lawyer who follows that Court closely, I agree with your assessment of the panel. It is a right-leaning panel, by Ninth Circuit standards, and it may well save the Supreme Court from having to make a difficult decision on whether to intervene. The proponents of the recall were lucky, but they were also aided by the fact that three left-leaning judges were recused.

To add another thought, while judicial vote counting is hardly a precise science, it seems likely that some of the "right-leaning moderates" voted to take the case en banc. Even if you assumed that all ten active conservative appointees (including Tallman) voted for en banc, they would still need two more to comprise a majority. The vote to take the case en banc therefore likely required two folks like Rawlinson, Gould, or Silverman, who will be the swing votes on Monday's panel.

The only exception to this imprecise science would be if some left-leaning judges adopted the viewpoint, criticized by Judge Reinhardt in his concurrence to the denial of rehearing in the pledge case, that the case would be en banc-worthy because of its importance, even if the panel got it right. In my experience, few judges actually vote on that basis, and given the Court's need to expedite this decision, I tend to doubt that judges comfortable with the panel result would have voted for en banc.
Another writes:
As a former clerk for Judge Thomas, I find this en banc draw fascinating. Kozinski and Thomas have sparred in the past, and while they respect each other, I think Kozinski will seize an opportunity to overturn a significant opinion like this one -- and I think we all know now that Judge Thomas probably wrote it.

Assuming Schroeder votes to stick with the panel opinion, Kozinski will be the senior member of a reversing majority so he'll have the chance to write it. We all know Kozinski likes the spotlight and he'll jump at the opportunity to write the opinion, have his face in the national spotlight, and once again be the pride of the Republican party. I will guarantee you that he sees this as an opportunity to get his name back in the ring for a potential Supreme Court slot. I think he just may find a way to get it done.

Kleinfeld and O'Scannlain will vote with Kozinski for sure. And I think Kozinski can get Graber, Tallman, and Rawlinson to go with him. That's the six he needs.

If Kozinski pulls it off, he'll be the most well known appellate judge in the country for a short while, and if Bush gets re-elected, there will probably be at least two, maybe three openings on the Court during the next term and Kozinski will be an obvious choice for an easy confirmation (especially since Bush won't have Estrada to put on the Court).

Call me a conspiracy theorist, but I think this really could happen.
Another beauty of this panel is that even if the result is 6-5 to let the recall occur on October 7th as originally scheduled, the six would presumably consist of an equal number of Democratic and Republican nominees, preventing critics from arguing that the decision was simply another example of partisan politics at work in the judiciary, which was the criticism most often aimed at the U.S. Supreme Court's ruling in Bush v. Gore. And, of course, such a ruling by the en banc Ninth Circuit would take the U.S. Supreme Court off the hook from having to review this case, whereas the original three-judge panel's ruling seemed to dare the Supreme Court to get involved.
Posted at 16:40 by Howard Bashman



"Court to Reconsider Calif. Recall Delay": David Kravets of The Associated Press has this report. Bob Egelko of The San Francisco Chronicle reports here that "Plans for Oct. 7 recall vote get new life; Federal appeals court orders new hearing by 11-judge panel." And The Los Angeles Times offers an update headlined "Appeals Court to Reconsider Recall Postponement."
Posted at 16:10 by Howard Bashman



How can I say that the eleven-judge en banc panel that will rehear the California recall election case is "conservative" when eight of the judges were nominated by Democratic Presidents? Two points. First, I'm using the term "conservative" relative to the composition of the typical en banc panel one sees from the Ninth Circuit. Second, three of the court's smartest and most conservative judges are on the panel, while none of the leading liberal voices from the court are on the panel. Also, Judge Tallman, while a Clinton nominee, was actually selected by a Republican Senator as part of a deal to get someone else's nomination approved. Judge Rawlinson, also a Clinton nominee, regularly votes with the Ninth Circuit's more conservative judges. And Judges Silverman, Graber, McKeown, and Gould are viewed as moderates by and large. [Update: A reporter who regularly covers the Ninth Circuit has emailed to say that Judges Silverman and Gould are "conservative-moderate" and that "the recall proponents just hit a home run."]

Perhaps Judge Kozinski sums it up best in this paragraph from an article that appeared in USA Today back in February 2003:
Four of President Clinton's 14 appointees to the 9th Circuit have turned out to be "really excellent, conservative jurists," says Kozinski, who was appointed by President Reagan, a Republican. After Congress expanded the court by 10 seats in 1978 and President Carter, a Democrat, filled them, "the court was dominated by liberals," Kozinski says. "But now it's really quite balanced. Any notion that there is a conservative wing or a liberal wing or a consensus or an embattled minority on one side, I think is total hokum."
You can access the complete article at this link.
Posted at 15:24 by Howard Bashman



MORE BREAKING NEWS -- Time set for Ninth Circuit's rehearing en banc, and eleven judges assigned to en banc panel are announced: According to a reliable source, reargument en banc will occur next Monday at 1:00 p.m. local time in San Francisco, and each side will receive thirty minutes for oral argument. The eleven-judge panel will consist of Chief Judge Schroeder and Circuit Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman, and Rawlinson. This is about as conservative of an en banc panel as one is likely to see from the Ninth Circuit, and it is also noteworthy that none of the members of the original three-judge panel that issued the decision to postpone California's recall election was selected to serve on the en banc panel. [Update: The order announcing the panel's composition is available here.]

Two of these eleven judges -- Diarmuid F. O'Scannlain and Andrew J. Kleinfeld -- have participated in this Web log's "20 questions for the appellate judge" feature, and you can access their interviews via this link (simply scroll down the page because the perma-links directly to the interviews aren't currently working).
Posted at 14:58 by Howard Bashman



BREAKING NEWS -- Ninth Circuit grants rehearing en banc in California recall election case: Here's the news alert that The Associated Press has issued.

Let me emphasize once again that the most important piece of information that will become available next is the identities of the eleven judges who will be on the en banc panel. Until that information is available, it will be too soon to celebrate no mater which side of this dispute you favor. On the other hand, this development is a blow to those who wished to see the recall election postponed, because they got exactly what they wanted from the three-judge panel, and now that decision has been rendered a nullity.

You can access the order granting rehearing en banc at this link. It turns out that Judge Marsha S. Berzon was recused too. Thus, rehearing en banc received the votes of at least twelve of the court's twenty-three non-recused active judges.

Which Ninth Circuit judges could be selected to serve on the eleven-judge en banc panel? Chief Judge Mary M. Schroeder will be presiding over the en banc panel, as the chief judge does in every case in which she is not recused. The remaining ten judges will be selected from these twenty-two: Harry Pregerson (a member of the original three-judge panel); Alex Kozinski; Diarmuid F. O'Scannlain; Stephen Trott; Pamela Ann Rymer; Thomas G. Nelson; Andrew J. Kleinfeld; Michael Daly Hawkins; A. Wallace Tashima; Sidney R. Thomas (a member of the original three-judge panel); Barry G. Silverman; Susan P. Graber; M. Margaret McKeown; William A. Fletcher; Raymond C. Fisher; Ronald M. Gould; Richard A. Paez (a member of the original three-judge panel); Richard C. Tallman; Johnnie B. Rawlinson; Richard R. Clifton; Jay S. Bybee; and Consuelo M. Callahan.
Posted at 14:07 by Howard Bashman



"State will appeal ruling on blanket primary": Washington State officials are apparently none too happy with the Ninth Circuit's other voting-related decision from this past Monday, The Associated Press reports here.
Posted at 13:50 by Howard Bashman



The plot thickens: The Ninth Circuit's Clerk's Office has just posted to that court's Web site the opinions issued today. Still no sign, however, of any order concerning whether the court will grant rehearing en banc in the case where a three-judge panel postponed California's recall election.
Posted at 13:28 by Howard Bashman



Law student Matthew S. Toll's job search results in a posting at The Smoking Gun Web site: When someone forwarded a copy of this to me the other day, I thought it was clever. Apparently not everyone agrees. My question is when will The Smoking Gun site post the sushi memo? (Yes, I have a copy of that memo, but many other interested people don't.)
Posted at 13:02 by Howard Bashman



"High court upholds ruling against father; Parental rights papers not translated for dad": The Houston Chronicle reports here today that "A badly fractured Texas Supreme Court on Thursday upheld the termination of a Honduran immigrant's parental rights in a case that dissenting justices said was 'about the Texas legal system's treatment of people who do not speak English.'"

You can access yesterday's ruling by the Supreme Court of Texas via this link to In the Interest of L.M.I. and J.A.I., minor children. The dissent by Justice Nathan L. Hecht is especially worthy of note.
Posted at 12:09 by Howard Bashman



In news pertaining to the impending Seventh Circuit vacancy: Today's edition of The Milwaukee Journal Sentinel reports here that "Kohl, Feingold back panel's recommendations for U.S. appeals court." The vacancy to be filled belongs to Seventh Circuit Judge John L. Coffey -- one of the Seventh Circuit's more conservative judges -- who has announced plans to take senior status once a replacement is confirmed. Update: See also this related article from The Capital Times of Madison, Wisconsin.
Posted at 11:02 by Howard Bashman



"Too 'sexy' for Ivy League: Librarian sues Harvard for race, gender bias." Today's edition of The Boston Herald contains this report.

In other news and commentary from Harvard, The Crimson today reports here that "Outsiders To Review Tenures at HLS" and here that "Mass. Supreme Court Dismisses Tenure Case." And an editorial is entitled "Affirming Affirmative Action: The Supreme Court justly upheld critical mass, should have done the same for points."
Posted at 10:47 by Howard Bashman



Those who support Brett M. Kavanaugh's nomination to the D.C. Circuit shouldn't unjustifiably demean the qualifications of previous nominees to that court: Stuart Buck makes the argument here in a post that's must reading for followers of the Nation's so-called "second highest court."
Posted at 10:32 by Howard Bashman



"Zero Reassurance: The crucial snooping powers that have never been used." Jacob Sullum has this essay online today at Reason.
Posted at 10:27 by Howard Bashman



Anticipating the Ninth Circuit's decision on whether to grant rehearing en banc of the three-judge panel's ruling that postponed California's recall election: Sometime today, the U.S. Court of Appeals for the Ninth Circuit is expected to announce whether a majority of that court's non-recused active judges has voted to rehear en banc the case in which a three-judge panel of that court issued a ruling on Monday postponing California's recall election. The Ninth Circuit typically posts such orders to the opinion page of its Web site at 1:30 p.m eastern time / 10:30 a.m. pacific time each day, but this order conceivably could issue at any time.

As I have previously noted, two of the twenty-six active judges on the Ninth Circuit are recused from this case, requiring that thirteen of the remaining twenty-four judges votes in favor of rehearing en banc for it to be granted.

An order granting rehearing en banc is typically a simple, one-page document stating that rehearing en banc has been granted on the vote of a majority of the court's non-recused active judges and that the three-judge panel's decision is, as a result, rendered a nullity. After rehearing en banc is granted, an eleven-judge panel is assembled using the procedure I previously described here. Presumably, given the importance of this case, that eleven-judge panel will want to hear oral argument. Yet given concerns about timing -- as of next Tuesday the originally-scheduled date for the recall election will be just two weeks away -- the oral argument will need to be held right away. And, because the Ninth Circuit traditionally discloses the composition of the eleven-judge en banc panel one week in advance of oral argument, if rehearing en banc is granted I'd expect the names of the eleven judges selected to rehear the case to be disclosed just as soon as they have been selected.

If rehearing en banc is denied, that too can be accomplished by a simple one paragraph order. Nevertheless, in a controversial case such as this, it is very likely that some or all of the judges who voted for rehearing en banc will wish to have their dissent from its denial noted. Such dissenting judges can issue an opinion explaining why they disagree with the denial of rehearing en banc, join a dissenting colleague's opinion, or simply note their disagreement without explanation.

If rehearing en banc is granted, the Ninth Circuit will not disclose how any of the twenty-four judges voted on the question. Rather, all that we will know is that at least thirteen of them voted "yes." If rehearing en banc is denied, the Ninth Circuit similarly will not release the actual vote tally (although if twelve judges note their dissent, we will know that the outcome was 12-12, which in fact is what "Edward Boyd" is predicting). But a judge who votes in favor of rehearing en banc is under no obligation to disclose to the public how he or she voted if rehearing en banc is denied. Indeed, the Ninth Circuit has a tradition of keeping the actual vote tally on whether to grant rehearing en banc a secret.

Finally, if rehearing en banc is denied, the losing parties can seek discretionary review of the three-judge panel's ruling from the U.S. Supreme Court. On the other hand, if rehearing en banc is granted, the time for seeking U.S. Supreme Court review will not begin to run until after the en banc court issues its ruling.
Posted at 09:05 by Howard Bashman



In Friday's newspapers: The New York Times reports here that "Married Gay Canadian Couple Barred From U.S." [You can access additional coverage of this news in this earlier post of mine.] In other news, "Government Says It Has Yet to Use New Power to Check Library Records." An article reports that "Families Call for Release of 9/11 Materials." And an editorial is entitled "A Deceptive Abortion Ban."

The Washington Post reports here that "Patriot Monitoring Claims Dismissed; Government Has Not Tracked Bookstore or Library Activity, Ashcroft Says." In other news, "Complaint Against Judge Is Dismissed." An editorial entitled "Legal but Wrong" calls on Virginia's legislature to abolish the death penalty for murders committed before the age of eighteen. And columnist E.J. Dionne Jr. has an op-ed entitled "Judicial Payback."

Finally for now, The Christian Science Monitor reports here that "Delay leaves recall campaigns in awkward limbo."
Posted at 08:49 by Howard Bashman



Washington Post editorial cartoonist Tom Toles imagines a U.S. Supreme Court ruling on whether California's recall election should be postponed: You can access here his cartoon published today.
Posted at 08:45 by Howard Bashman



"One arguably 'appellate' effect of Isabel": A longtime reader emails:
Howard, for what it's worth... One arguably "appellate" effect of Isabel: I'm attending the annual meeting of the Federal Bar Association in Northern Virginia. We were scheduled for what would have been an interesting and enjoyable reception last evening at the Supreme Court with a promised appearance by Chief Justice Rehnquist. Not surprisingly, it was cancelled. Instead, we gathered in the hotel ballroom for karaoke and drinks (most, including me, ordered hurricanes). No chief justice. Just a bunch of rummed-up lawyers who think they have singing voices.
You can learn more about the Federal Bar Association here and more about its annual meeting here.
Posted at 08:39 by Howard Bashman



On the agenda: The sun is beginning to rise here in suburban Philadelphia, and the effects of Hurricane Isabel have left the area. Thankfully, we survived the high winds and heavy rain having lost only a few branches from the very large tree on the front lawn. The value of bringing work home when bad weather threatens -- which thankfully I thought to do when I left work yesterday evening -- is demonstrated once again, as my son's school is closed today due to last night's bad weather.

In appellate news, today the U.S. Court of Appeals for the Ninth Circuit is expected to announce whether it will grant rehearing en banc to reconsider a three-judge panel's decision to postpone California's recall election. Stay tuned to "How Appealing" throughout the day for more details and full coverage of any decision on rehearing en banc.
Posted at 06:56 by Howard Bashman



"Judicial Throwback": The Washington Post this morning contains an op-ed by Douglas T. Kendall and Timothy J. Dowling that begins, "The Bush administration's decision to nominate Janice Rogers Brown to the nation's second most important court, the U.S. Court of Appeals for the D.C. Circuit, raises a seemingly paradoxical question: Where is the conservative outrage?"
Posted at 06:55 by Howard Bashman



Today's FindLaw columnist: Law Professor Vikram David Amar has an essay entitled "The Ruling Postponing the California Recall Election: Why It Is Questionable, and Why It Was Not Compelled by Bush v. Gore."
Posted at 06:45 by Howard Bashman



"Schumer's shameful assault on Law and reality": Adam White had this essay in yesterday's issue of The Harvard Law Record. Additionally, Adam's blog offers some related photos, including "Schumer's law-school yearbook photo (Class of '74)."
Posted at 06:43 by Howard Bashman



"The Law's Conscience: How Judge Harry Pregerson of California's 9th Circuit, rules with his heart instead of his head." Hugh Hewitt today has this essay online at The Weekly Standard.
Posted at 06:39 by Howard Bashman



"At center of recall fray, a maverick court; The Ninth Circuit Court of Appeals has often upset status quo with liberal rulings." Warren Richey has this report in Friday's issue of The Christian Science Monitor. I find Warren's reporting to be consistently first-rate, but I have a minor disagreement with a passage from the article that is the subject of this blog post.

Warren writes, "In the 'one nation, under God' case, the full appeals court reconsidered the initial ruling of a three-judge panel of the Ninth Circuit. To the surprise of many conservative analysts, the court upheld the earlier ruling. The Supreme Court is now considering whether to include that case in its upcoming term."

In actuality, the full Ninth Circuit neither "reconsidered" nor "upheld" the three-judge panel's decision in the Pledge of Allegiance case; rather, the full Ninth Circuit merely denied rehearing en banc. The denial of rehearing en banc is not an expression of the full court's views on the merits of any case. Thus, the article would have been much more accurate if it said that "In the 'one nation, under God' case, the full appeals court considered whether to rehear the initial ruling of a three-judge panel before an even larger panel of the Ninth Circuit. To the surprise of many conservative analysts, the court denied rehearing, allowing its earlier ruling to stand."
Posted at 00:08 by Howard Bashman



Election Law Professor Rick Hasen receives the "Third Degree": No, I'm not referring to the treatment Rick's been receiving lately from highly-paid blogger Mickey Kaus. Rather, I'm referring to this interview with Rick that appeared in yesterday's issue of the Los Angeles City Beat.
Posted at 00:07 by Howard Bashman



Thursday, September 18, 2003
Harvard Law School is popular, and nevertheless student life remains a priority: The Harvard Crimson today reported here that "Record Number of Applicants Vie for Law School Spots" and here that "Law School Dean Says Student Life a Priority."
Posted at 23:58 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Recall ruling seen as challenge." In other news, "Ban nears on partial-birth abortion." An article reports that "Three GOP senators back marriage amendment." You can access here an article headlined "Ashcroft to release data on FBI use of Patriot Act." An op-ed by Donald Lambro is entitled "Benched election." And Marc Levin has an op-ed entitled "The California dilemma."

The Los Angeles Times reports here that "Bill to Seek Voters' Racial Data Signed; Minority organizations back the law; county election officials oppose it. People will be able to volunteer information when they register." In news from Virginia, "Capital Case Not Ruled Out; Judge says teenage sniper suspect can face death penalty despite treaties banning juvenile executions." An article reports that "Man Claims Role in SUV Firebombings; A self-described member of the Earth Liberation Front says he took part in Hummer vandalism." In somewhat related news, "Activists Take Ducks From Foie Gras Shed; Birds were destined to be killed to provide a culinary delicacy. Business owner is outraged." An article reports that "Oakland Jittery as Police Trial Drags On." An op-ed by Shelby Steele is entitled "Race Card Is the Sign of a Losing Hand; Opposition to Proposition 54 promotes a 'victim' culture." And letters to the editor appear under the heading "Questioning the Recall and the Court's Ruling."

USA Today reports here that "Lawyers make their cases in battle over recall vote." And a related item is entitled "Legal maneuvers."

The Boston Globe reports here that "Selection of jury pool set to begin for Sampson." At issue is whether the defendant should receive the death penalty. And in unrelated news, "Seeing race bias, judge tosses evidence."
Posted at 23:14 by Howard Bashman



"As Judges Ponder Recall Decision, California Candidates Continue Stumping": Friday's edition of The New York Times will contain this report.
Posted at 23:12 by Howard Bashman



"Both Camps Complaining About Recall Delay": The Associated Press reports here that "Putting himself at odds with the NAACP and other minority interest groups, Democratic Lt. Gov. Cruz Bustamante said Thursday that the Oct. 7 election should not have been postponed."
Posted at 23:01 by Howard Bashman



Even if you attend Harvard Law School, it still helps to look good when interviewing for a job: Having recently bathed probably won't hurt either. Jeremy Blachman has the details here.

For people who interview with my law firm, it's probably okay to say that you enjoy "How Appealing," but not a good move to exclaim "Ohmigod, I can't believe I'm speaking with someone who actually knows Howard Bashman!" Potential stalkers tend to get weeded out early in the process. On the other hand, the other day I had the good fortune to have lunch with someone who was very interested in practicing appellate law and who is currently clerking for a U.S. District Judge in Philadelphia. Toward the end of the lunch, I figured that I'd mention this blog in passing, and it turned out that the law clerk had never heard of it. Two observations. First, that was a refreshingly humbling experience for me (although I made the law clerk promise that he would recruit a whole bunch of new readers immediately on his return to chambers). And second, it proves my point that people who should be aware of this blog but aren't actually do exist.

In an almost totally unrelated occurrence, I received an email tonight from a reporter for a highly regarded legal newspaper in California who is writing an article about Web logs that have been cited in appellate briefs. It's happened at least once, so it must be newsworthy. My goal is to make sure that this reporter's article also mentions the Web log that got mentioned by a judge at a federal appellate court oral argument.
Posted at 22:40 by Howard Bashman



Fourth Circuit nominee Claude A. Allen scheduled to receive Senate Judiciary Committee hearing next Wednesday: You can view the announcement at this link. Allen's nomination may be viewed as controversial to some because he's an African American who happens to be conservative and because he's been nominated to fill a vacancy that some claim "belongs to" Maryland. A longtime reader of "How Appealing" who resides in Australia was kind enough to draw news of this hearing to my attention via email.
Posted at 22:16 by Howard Bashman



"Gay married couple denied entry by U.S. customs": Canadian Television offers this report. CBC News reports that "Canadian gay couple barred from U.S." The Associated Press reports here that "Same-Sex Couple Hits Snag at U.S. Border." And United Press International reports here that "Canadian gay couple barred from U.S."
Posted at 19:32 by Howard Bashman



President Bush nominates "Antiterrorism Coordinator" for Southern District of New York judgeship: Details here, here, and here (in an article that identifies the nominee as the lead prosecutor in the federal government's criminal case against Zacarias Moussaoui).
Posted at 19:26 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Suspended Ala. Justice Seeks Court Delay" and here an article headlined "Judge in 'Roadless' Case Cleared."
Posted at 18:55 by Howard Bashman



Eleventh Circuit nominee William H. Pryor, Jr. speaks about "Christian Duty and the Rule of Law": The blog "Southern Appeal" has the details and significant excerpts from the speech here (you may need to scroll down several posts, as the perma-link isn't working at the moment).
Posted at 18:51 by Howard Bashman



Ninth Circuit will announce tomorrow whether it will grant rehearing en banc in the California recall election case: See this news update from The Los Angeles Times.
Posted at 16:45 by Howard Bashman



"Piled-high yard is his political protest, Seminole man tells court": Today's Orlando Sentinel contains this report, which begins "Alan Davis on Wednesday claimed his First Amendment right to fill his yard with everything from airplane parts to scrap metal because it is part of a political protest against Seminole County." This news update, however, demonstrates that the jury just wasn't buying it.
Posted at 16:35 by Howard Bashman



"Caucasian Club meets resistance": This article appeared in yesterday's edition of The Contra Costa Times.
Posted at 16:29 by Howard Bashman



Yay! This afternoon the Atlanta Braves clinched first place in the National League East, courtesy of a win by the Philadelphia Phillies over the Florida Marlins.
Posted at 16:00 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Ashcroft: FBI to Reveal Patriot Act Data"; here "U.S.: System Blocked Some Gun Purchases"; here "Mich. County Votes to Recall Prosecutor"; here "Recall a Powerful Tool for Revenge"; here "Man Charged With Exposing Lover to HIV"; here "Lawmaker Wants 'French' Back in Fries"; here "Pa. Court Rules on Common-Law Unions"; and here "No Charges to Be Filed in Mine Accident."
Posted at 15:26 by Howard Bashman



"Medical pot pitch: right to ease pain; Court hears new case for legal marijuana." In today's edition of The San Francisco Chronicle, Bob Egelko has this report on yesterday's Ninth Circuit oral argument.
Posted at 15:22 by Howard Bashman



Bring back the fava beans? The "California Insider" blog that The Sacramento Bee operates contains a post from yesterday afternoon that reads:
Don't look now Could the March election be postponed, too? This case, set to be heard Oct. 8 by the 9th Circuit court, challenges the use of electronic voting machines that do not provide a verifiable paper trail. It was filed by a Libertarian activist and has nothing to do with the recall. But there it is.
For the source of my fava bean reference, see page six of the three-judge Ninth Circuit panel's ruling that postponed California's recall election.
Posted at 15:06 by Howard Bashman



Ninth Circuit rehearing en banc update in the case that postponed California's recall election: I am advised by someone who knows a reporter or two that "The CA9 spokesman is telling reporters that the court clerk does not expect that they will issue an order today."

I'm reluctant to draw any inferences from this limited information, especially since there are twenty-four judges eligible to vote on whether to grant rehearing en banc, and the Ninth Circuit wouldn't act to grant or deny rehearing en banc until each of those judges has a fair opportunity to decide how he or she will vote. Nevertheless, I would imagine that most of the judges on the court could have decided whether rehearing en banc should be granted based simply on the three-judge panel's controversial ruling.

It's much easier to hand down a simple one paragraph order granting rehearing en banc (and such an order is never accompanied by any dissent) than it would be to hand down an order denying rehearing en banc, especially since those judges who disagreed with the denial would certainly want to attach dissents for the benefit of the U.S. Supreme Court Justices and law clerks who will be reviewing the case immediately thereafter.
Posted at 14:28 by Howard Bashman



"Appeal court hears Medical pot cases": The Santa Cruz Sentinel reports here today that "Attorneys for the Santa Cruz-based Wo/Men’s Alliance for Medical Marijuana were in court Wednesday asking a U.S. 9th Circuit Appeals panel to overturn a lower-court ruling denying the group the return of its pot."
Posted at 12:56 by Howard Bashman



Kids today: The Cincinnati Enquirer reports here that "Like most college students, Tori Traficante wanted to make a little money - and she did, police say, with a computer and printer."
Posted at 12:52 by Howard Bashman



"Bush rips treatment of judicial nominees": Yesterday's edition of The Fort Worth Star-Telegram contained this report. In related news, The Corpus Christi Caller-Times yesterday contained a report from The Associated Press headlined "Bush meets with reporters for roundtable discussion."
Posted at 12:47 by Howard Bashman



Learn something new every day: Judicial law clerks are to blame. Roger Clegg writes online at "The Corner" that "The activist approach to judging is much more reliant on and influenced by twentysomething students fresh out of the academy than the interpretivist approach, for which the judge's main job is simply to read the Constitution or statute and see if something is in there or not." Thanks to the "Greedy Clerks Board" for the pointer.
Posted at 11:25 by Howard Bashman



"Why don't the courts just vote for us? Being denied the right to vote despite state statutes." Attorney Robert N. Hochman has this op-ed in today's edition of The Chicago Tribune.
Posted at 11:14 by Howard Bashman



Possible solution to the judicial confirmation morass: BBC News reports here that "Monkeys show sense of justice." Plus, they can't be expected to give their opinions on the most controversial issues of the day. More details are available here via an article from Nature magazine entitled "Monkeys strike for justice; Capuchin umbrage suggests sense of fairness extends beyond humans." Finally, an abstract of the study's findings is accessible at this link.
Posted at 11:02 by Howard Bashman



Federal judges confirmed: Newsday reports here that "Senate Confirms 4 Federal Judges." The Birmingham News reports here that "Proctor newest federal judge." And The Associated Press reports here that "While Bill Pryor's bid for a federal appeals court job remains hung up in the Senate, district court nominees in Alabama continue to enjoy a far smoother ride."
Posted at 09:55 by Howard Bashman



This morning's Ten Commandments news: The Des Moines Register reports here today that "State court rejects gift of Ten Commandments; A group of Christians plans to rally today in support of the display of historic documents." And The Associated Press reports here from Des Moines that "Christian group to rally for Ten Commandments."

In news from Georgia, The Gainesville Times reports here that "Commandments case close to trial."

Finally, The Birmingham News reports here today that "Plans made for second monument." And The Montgomery Advertiser reports here today that "Moore's attorneys to fight suspension."
Posted at 09:40 by Howard Bashman



The Arab Judicial Forum in Bahrain has concluded: Thus, U.S. Supreme Court Justice Sandra Day O'Connor and the other federal judges in attendance (more information is available here) are presumably on their way back home, weather permitting.

The U.S. State Department has two reports on the conclusion of the Forum; you can access here a report entitled "O'Connor Stresses Importance of Judicial Training, Ethical Standards; Calls them keys to building effective judiciary systems" and here a report entitled "Justice O'Connor Says U.S. Will Help Train Judges in Arab Countries; Supreme Court Justice speaks to media at Arab Judicial Forum in Bahrain."

The Gulf Daily News of Bahrain, meanwhile, reports here that "US to assist Arab law reform programme" and here that "Training plan for judges backed."
Posted at 09:39 by Howard Bashman



Hurricane Isabel takes aim at central Pennsylvania: James Carville is quoted as saying that Pennsylvania consists of Philadelphia in the east, Pittsburgh in the west, and Alabama in between. If that's so, then Hurricane Isabel has the Alabama portion of Pennsylvania directly in its sights if maps forecasting the hurricane's path are to be believed. The good news for people who live near me is that the worst part of the storm, if it sticks to this projected path, will miss us by 100 to 200 miles, although I'm sure we will feel most of the storm's effects nevertheless. But, as things now stand, I'll be reporting to the office soon, because I've got a Third Circuit brief due today and an anticipated Ninth Circuit rehearing en banc order in the California recall election case to report on here at "How Appealing."
Posted at 06:55 by Howard Bashman



In Thursday's newspapers: In The New York Times, Adam Liptak has an article headlined "Reappearing in Court, Sides in Recall Ruling Press Their Cases." An article reports that "Senate Makes a Curb on Abortion Likely." In business news, "I.R.S. Pursues Accounting Firm in Crackdown on Tax Shelters." And everyone's favorite op-ed columnist, Maureen Dowd, has an essay entitled "Gray in the Pink."

The Christian Science Monitor reports here on "How anger over Florida recount still roils politics; The 2004 presidential race and the California recall have both felt the fallout."

At OpinionJournal, Harvard Law Professor Laurence H. Tribe has an op-ed entitled "The Ninth Circuit Got It Right; It's wrong to hold an election if some voters will be disfranchised." Tribe is serving as one of the lawyers challenging California's electoral system, so it would be more than just a bit surprising if he publicly expressed some other view.

The Washington Post reports here that "D.C. Area Shutting Down for Storm; Schools, Transit And Government Bow to Isabel." In other news, "'Real John Malvo' Is Emerging, Lawyers Say; Suspect Appears More Communicative." An article reports that "Parents of Murdered Boy Seek $70 Million From State; Ex-Prisoner Freed Early And Untreated, Suit Says." An editorial is entitled "Why Juries Acquit." And columnist George F. Will has an op-ed entitled "A Cure for California . . ."
Posted at 06:45 by Howard Bashman



Soon to be over 2 million served! From the department of amazing if useless statistics, sometime this morning "How Appealing" will experience its 2 millionth page view since May 7, 2002 according to this blog's Bravenet hit counter. Thanks for visiting, everyone!
Posted at 06:35 by Howard Bashman



"Court May Reconsider Calif. Recall Delay": David Kravets of The Associated Press has this report.
Posted at 06:30 by Howard Bashman



Today's FindLaw commentator: Edward Lazarus has an essay entitled "The Federal Appellate Decision Delaying the Recall: Bush v. Gore's Tragedy Repeats Itself as California's Farce."
Posted at 06:25 by Howard Bashman



Wednesday, September 17, 2003
"No namby-pamby judge with an obsession with the ostensible voting rights of welfare mothers is going to prevent a millionaire Republican operative from achieving his dream of unseating the elected governor of our largest state." Neal Pollack gets to the essence of things in a post you can access here.
Posted at 23:47 by Howard Bashman



"Medical Marijuana and the Powers of Congress": Law Professor Lawrence Solum attended today's Ninth Circuit oral argument, and he offers this thorough report.
Posted at 23:36 by Howard Bashman



A look ahead to Thursday's newspapers: The New York Times on Thursday will contain an article headlined "In California, Legal Moves and Lap-Dancing, Too." And The Los Angeles Times on Thursday will report here that "L.A. Election Chief Urges Court Not to Delay Recall" and here that "California Delay Deepens Already Bitter National Gulf."
Posted at 23:32 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "9th Circuit Fires Up Conservatives Again; The ruling on the recall election may provide more ammunition for Republican efforts in Congress to split up the appeals court." A related op-ed by Peter H. King is entitled "A Good Decision ... Unless It Isn't." In other news, "Senate Rejects Media Changes; But the vote for an effort to block relaxed FCC rules on ownership is probably symbolic." An article reports that "New Curbs on Strip Clubs OKd; Council sends ordinance to mayor, who says he'll sign it. Adult business owners vow to fight on." From Washington, DC comes news that "Founding Documents Back on Better Display Than Ever." From Denver comes word of a "Slip in Bryant Case." And letters to the editor appear under the heading "Ruling a 'Judicial Hijacking' or Worthy Delay?"

In The Boston Globe, Lyle Denniston reports that "Full panel may review California recall ballot; Appeals court delays postponement order and asks new briefs." In other news, "Trust-fund ruling overturned." And an op-ed by Thomas E. Mann is entitled "Clarity needed on campaign law."

The Washington Times reports here that "9th Circuit might review panel's decision on recall." In other news, "Canada rejects bid to keep old marriage law." And an op-ed by U.S. Representative Mario Diaz-Balart (R-FL) is entitled "Post-Estrada ramifications."

USA Today reports here that "Appeals court might take another look at recall ruling; Judges will vote on whether to reconsider case." You can access here an essay entitled "Recall ruling is fun, but that doesn't make it political." And an editorial is entitled "A spur for election reform."
Posted at 23:00 by Howard Bashman



"Lawyers Want Court To Consider Medical Marijuana; Four Clubs Say Pot Constitutional": NBC11 provides this report on an oral argument that occurred today before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 22:57 by Howard Bashman



You heard it here first: The Associated Press is reporting that "Court Rules Against Visa, MasterCard." And Reuters has an article headlined "Antitrust Ruling Upheld Against Visa, MC."
Posted at 22:41 by Howard Bashman



"Federal Government To Close Thursday; No Decision Yet About Friday": The Washington Post provides this local news.
Posted at 22:28 by Howard Bashman



"Recall proponents ask appeals court to reinstate Oct. 7 election": David Kravets of The Associated Press has this report.
Posted at 22:27 by Howard Bashman



"Ethnic, religious alliance backs gay-marriage ban": Thursday's edition of The San Francisco Chronicle will contain this front page article.
Posted at 22:22 by Howard Bashman



Significant development in the Pledge of Allegiance case from the Ninth Circuit pending before the U.S. Supreme Court on petition for writ of certiorari: Tony Mauro reports here at law.com that "Dad Who Mounted Pledge Challenge Gets Partial Custody." The article begins, "Michael Newdow has regained partial legal custody of his daughter, likely boosting the chances that the U.S. Supreme Court will take up his controversial First Amendment challenge to the words 'under God' in the Pledge of Allegiance."
Posted at 22:09 by Howard Bashman



Abolishing a form of marriage: Today an en banc panel of the Commonwealth Court of Pennsylvania, one of Pennsylvania's two intermediate appellate courts, issued a decision abolishing common law marriage. Thanks to "Benefitsblog" for the pointer.
Posted at 20:54 by Howard Bashman



"Defense of Marriage": U.S. Senator John Cornyn (R-TX) today issued this letter.
Posted at 20:02 by Howard Bashman



"Fun With Bush v. Gore: The 9th Circuit moons the Supreme Court." Dahlia Lithwick has this essay recently posted online at Slate. As an added bonus, her essay is accompanied by a sidebar.
Posted at 19:57 by Howard Bashman



It's true: Both "The Volokh Conspiracy" and "How Appealing" are cited as authority in the Brief of Appellee Ted Costa in Support of En Banc Review filed today in the California recall election case pending before the Ninth Circuit. That brief is accessible here; to view the cite in question, see footnote five on page 15 of the brief (which happens to be page 19 of the 24-page PDF file).
Posted at 18:56 by Howard Bashman



Rehearing en banc-related filings are beginning to appear on the Ninth Circuit's Web site: Filings relating to whether the Ninth Circuit should rehear en banc the case in which a three-judge panel ordered the postponement of California's recall election are beginning to be posted to the Ninth Circuit's Web site. This filing by former California Secretary of State Bill Jones struck me as especially interesting, but the others are pretty good too.
Posted at 17:33 by Howard Bashman



"Rewire this Circuit": Harvard Law Professor Einer Elhauge has this to say about the ruling the Ninth Circuit issued Monday postponing California's recall election.
Posted at 17:18 by Howard Bashman



U.S. Court of Appeals for the Second Circuit affirms finding of antitrust violations against Visa and MasterCard: The trial court had ruled that Visa U.S.A. and MasterCard violated the Sherman Act by enforcing an exclusionary rule that barred their member banks from issuing Amex or Discover cards. You can access today's appellate ruling at this link.
Posted at 16:52 by Howard Bashman



It's three hours earlier in California: The deadline for the parties in the California recall election appeal to file briefs addressing whether the U.S. Court of Appeals for the Ninth Circuit should grant rehearing en banc is about half an hour away. I'm reliably advised that all of that court's judges are in San Francisco this week for meetings and to hear other en banc oral arguments. So, don't be surprised if we learn this evening east coast time whether the Ninth Circuit has decided to grant rehearing en banc in the recall election case. The decision whether to grant rehearing en banc doesn't need to be made or announced so quickly, but there's no reason why it can't or won't be.
Posted at 16:34 by Howard Bashman



"City says scouts' use of land is in jeopardy; The group's exclusion of gays and atheists is at issue. It has its local headquarters on city property." The Philadelphia Inquirer today contains this report.
Posted at 16:24 by Howard Bashman



Jeremy Blachman is funny: You may already know that, but if you don't, you can access here his take on the "The Standard First Day of Class Speech" at Harvard Law School and here his Harvard Law Record column about on-campus interviewing with law firms.
Posted at 16:12 by Howard Bashman



Friends of the Kangaroo Rat v. California Department of Corrections: The California Court of Appeal, Fifth District, released this opinion for publication yesterday.
Posted at 15:52 by Howard Bashman



"Judge Rules Va. Can Execute Juveniles": The Associated Press reports here that "International laws and treaties do not prohibit Virginia from executing juveniles, a judge ruled Wednesday in the case against teenage sniper suspect Lee Boyd Malvo."
Posted at 15:16 by Howard Bashman



"Recall May Get Second Hearing; Federal appeals court seeks arguments on whether it should reconsider delaying the election. The case would go to a larger panel." This article appears in today's edition of The Los Angeles Times. And an editorial is entitled "Cure Worse Than Disease: Delaying the recall until the March primary election could disenfranchise more voters than holding it in October."

The L.A. Daily News reported here yesterday that "Most-liberal appeals court used to reversals." Finally for now, historian Sean Wilentz of Princeton University has an essay online at The American Prospect entitled "Boomerang Effect: Bush v. Gore comes back to haunt Republicans in California's recall."
Posted at 15:12 by Howard Bashman



"Court scrutinizes P2P subpoena process": Declan McCullagh of c|net News.Com has this report on an oral argument that occurred yesterday in the U.S. Court of Appeals for the D.C. Circuit.
Posted at 15:05 by Howard Bashman



Like a hurricane: A reader emails:
The "Originalism and Statutory Construction" program scheduled for September 19th in Washington, DC will be rescheduled due to Hurricane Isabel. Since you are basically the appellate equivalent of CNN, it would be nice if you could mention something about the rescheduling.
And in other hurricane-related news, unofficial word has reached me that the headquarters of the U.S. Court of Appeals for the Fourth Circuit very likely will be closed tomorrow. (This post's heading based on the title of a song by Neil Young.)
Posted at 14:39 by Howard Bashman



The Ninth Circuit has some good news for lawyer charged with making threats in interstate commerce: You can access Circuit Judge Alex Kozinski's opinion for a unanimous three-judge panel at this link.
Posted at 13:58 by Howard Bashman



Ninth Circuit holds that Department of Homeland Security cannot send back home any aliens from Somalia: Today's opinion begins, "The question we must answer is whether the United States can remove aliens to Somalia, a country that does not have a functioning government to accept them." By a vote of 2-1, the Ninth Circuit says "no."
Posted at 13:32 by Howard Bashman



News from Kansas in a case the U.S. Supreme Court sent back for reconsideration in the aftermath of ruling that prohibited making consensual homosexual sodomy a crime: The Associated Press reports here that Kansas "Atty. Gen. Phill Kline said Monday if the state lost a sodomy case currently before a state appeals court, Kansas marriage laws and laws against sex with children would be nullified." According to the article, the case involves a male defendant sentenced to serve more than seventeen years in prison for engaging in sexual relations at the age of eighteen with a fourteen-year-old boy, whereas "had he or the other teen been female, a prosecutor would have had the option of filing the lesser charge of unlawful sexual relations, for which his maximum sentence would have been one year and three months in prison."
Posted at 12:53 by Howard Bashman



"Supreme Court May Pass on This One: Legal experts say a number of reasons exist for the justices to avoid hearing California case, including the divisive Florida experience." David G. Savage and Henry Weinstein have this article in today's edition of The Los Angeles Times.
Posted at 12:31 by Howard Bashman



Online at Town Hall: Debra Saunders has an essay entitled "It's not about the punch cards," and Robert Novak has an essay entitled "Terminating the Terminator."
Posted at 12:29 by Howard Bashman



"Bryant Accuser's Name Mistakenly Posted": The Associated Press reports here that "The name of Kobe Bryant's accuser was mistakenly posted on a state court Web site Tuesday as part of a legal filing in the case. A subpoena showing the 19-year-old woman's name and address was up for about an hour before court staffers reposted it with her personal information blacked out."
Posted at 12:00 by Howard Bashman



Everything you need to know about whether the Ninth Circuit will grant rehearing en banc to reconsider whether California's recall election should be postponed: Yesterday the U.S. Court of Appeals for the Ninth Circuit entered an order directing the parties to the California recall election case to file papers later today addressing whether the Ninth Circuit should grant rehearing en banc in that case.

Also yesterday, the Ninth Circuit issued a separate order noting that two of its twenty-six active judges are recused from participating in the case. As a result, only twenty-four active Ninth Circuit judges qualify to vote on whether to grant rehearing en banc, and under the Ninth Circuit's own rules, a total of thirteen votes in favor are needed for rehearing en banc to be granted.

If rehearing en banc is granted, the three-judge panel's decision postponing the recall election is withdrawn, and an eleven-judge en banc panel consisting of the Ninth Circuit's chief judge and ten other "randomly selected" active judges will consider anew whether the trial court's decision refusing to delay California's recall election should be affirmed, reversed, or disposed of in some other manner.

Federal Rule of Appellate Procedure 35(a), entitled "When Hearing or Rehearing En Banc May Be Ordered," provides the general standards that govern whether a federal appellate court will grant rehearing en banc. The rule provides:
A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or

(2) the proceeding involves a question of exceptional importance.
As the language of the rule suggests, federal appellate judges possess extraordinarily wide discretion concerning whether to grant rehearing en banc. Presumably, if the Ninth Circuit decides to grant rehearing en banc, it will do so because "the proceeding involves a question of exceptional importance." You can access a list of nearly all of the cases in which the Ninth Circuit has recently granted rehearing en banc, together with a list of the questions presented in those cases, at this link.

As I wrote a while back in my monthly appellate column published in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers:
Appeals are heard en banc in the U.S. Courts of Appeals only on rare occasions. In the twelve-month period ending September 30, 2000, the twelve regional federal courts of appeals decided 27,516 appeals on the merits after briefing or oral argument, and only 73 of those appeals were decided en banc. Appeals heard "en banc" are considered by the full membership of a court (or, in the Ninth Circuit, by an eleven-judge panel), rather than by a panel consisting of three judges.

Despite their rarity, en banc sessions play a critical role in the federal appellate process. The ruling of a three-judge U.S. Court of Appeals panel binds all subsequent panels in a given circuit until overturned by the Supreme Court of the United States or by the appellate court sitting en banc. As the Supreme Court has explained, "the in banc court is normally reserved for questions of exceptional importance, or to secure or maintain uniformity of decision within the circuit." Moody v. Albemarle Paper Co., 417 U.S. 622, 626 (1974) (per curiam). En banc courts "are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit." United States v. American-Foreign S.S. Corp., 363 U.S. 685, 689 (1960). In Moody, the Supreme Court described en banc courts as having "exceptional power to determine the major doctrinal trends of the future for a particular circuit." 417 U.S. at 626.
Just because a case is important or controversial does not guarantee that the Ninth Circuit will rehear the case en banc. Perhaps the best example of this point is the Ninth Circuit's denial of rehearing en banc earlier this year in the case in which a three-judge panel had declared unconstitutional the words "under God" in the Pledge of Allegiance. In an opinion concurring in the denial of rehearing en banc in that case, Ninth Circuit Judge Stephen Reinhardt criticized several of his colleagues who had voted in favor of rehearing en banc for doing so simply based on the "importance" of the question presented. On the other hand, the Ninth Circuit's judges once promised that their court would consider granting rehearing en banc more frequently in order to deal with purported inconsistencies in that court's rulings, and that promise was part of an effort to respond to those who had been calling for the division of the Ninth Circuit into two or more smaller federal appellate courts. That promise, however, did not silence calls for splitting up the Ninth Circuit.

Let me now explain why I've been using "scare quotes" when writing that any eleven-judge en banc panel would consist of the Ninth Circuit's chief judge and ten other "randomly selected" non-recused active judges. You see, the Ninth Circuit has an internal rule that any active judges who are not randomly selected to serve on an eleven-judge en banc panel three consecutive times will automatically be placed onto the very next eleven-judge en banc panel that is selected. Accordingly, the twenty-four Ninth Circuit judges entitled to vote on whether to grant rehearing en banc in the California recall election case should be able to determine which judges are guaranteed a seat on the eleven-judge panel and also how many remaining seats will be filled by random selection. Those of us in the general public cannot now figure out which Ninth Circuit judges are guaranteed a seat on the eleven-judge panel if this case goes en banc, however, because the Ninth Circuit has not publicly released which judges were selected to serve on the eleven-judge panel that will decide a case that went en banc earlier this month. Sometimes up to half of the eleven seats are filled by judges who haven't been randomly selected to serve on the past three en banc panels, and if I were a judge on the Ninth Circuit, I'd want to know which judges were guaranteed seats on the eleven-judge panel before deciding whether to grant rehearing en banc.

The bottom line, however, is that it is impossible for those judges on the Ninth Circuit to know in advance the exact composition of the entire eleven-judge panel, and the Ninth Circuit decides many en banc cases by a 6-5 margin. It would be perfectly reasonable for a Ninth Circuit judge who was opposed to the three-judge panel's postponement of the recall election to vote to deny rehearing en banc if he or she believed either that the result of en banc review would be the same as the panel's result or that granting en banc review would unnecessarily delay a ruling from the U.S. Supreme Court that was certain to allow California's recall election to go forward according to the original schedule.

Finally, let me observe that three Ninth Circuit judges -- Michael Daly Hawkins, Andrew J. Kleinfeld, and Diarmuid F. O'Scannlain -- have participated in my Web log's "20 questions for the appellate judge" feature, and you can learn much more about these three judges (none of whom was on the original three-judge panel, but each of whom has a chance at being on an eleven-judge en banc panel) here at my "20 questions" archive.
Posted at 10:39 by Howard Bashman



The Ninth Circuit on drugs: No, I'm not stating that the Ninth Circuit is on drugs. Rather, today a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit will hear oral argument in another challenge to the federal government's policy concerning the use of medical marijuana. Law Professor Randy E. Barnett offers some more details here. Even more details about this case supposedly are available at this link, although my law firm's Web filter prevents me from confirming that myself, as the filter states that "The Websense category 'Abused Drugs' is filtered." Arrgh!
Posted at 10:19 by Howard Bashman



In praise of the Ninth Circuit: Whether you agree or disagree with the Ninth Circuit's recent ruling that postponed California's recall election, all should be able to agree that the Ninth Circuit deserves praise for making so much information pertaining to that case -- including appellate briefs, orders, the oral argument audio, and of course the district court and Ninth Circuit rulings -- readily available from the front page of that court's Web site.
Posted at 10:14 by Howard Bashman



"9th Circuit a mix of ideologies": The Sacramento Bee today contains this report. And Bob Egelko of The San Francisco Chronicle reports here today that "Court invites recall appeal; Election backer and secretary of state to ask today for full review."
Posted at 09:57 by Howard Bashman



Ten Commandments news: Reuters reports here that "Alabama Judge Offers Ten Commandments to Congress." And The Atlanta Journal-Constitution reports here that "Suit seeks to force Barrow to remove Commandments."
Posted at 09:43 by Howard Bashman



On the agenda: The Senate Judiciary Committee at 10 a.m. this morning is scheduled to hold a confirmation hearing at which Michigan-based Sixth Circuit nominee David W. McKeague will testify. McKeague currently serves as a judge on the U.S. District Court for the Western District of Michigan. If all works as planned, you should be able to view the hearing via a live Webcast at this link.

Update: The hearing has been canceled! The Associated Press reports here that "The nomination hearing for a federal judge from Michigan was canceled Tuesday, and Republicans and Democrats gave different reasons for the change."
Posted at 09:29 by Howard Bashman



"Justice O'Connor Stresses Importance of Effective Judicial Systems; Discusses role of independent judiciary at press availability in Bahrain": The U.S. State Department has issued this report, which includes the transcript of an interview with U.S. Supreme Court Justice Sandra Day O'Connor.
Posted at 07:03 by Howard Bashman



In Wednesday's newspapers: The New York Times reports here that "California Moves to Appeal Delay of Vote on Recall." In related news, Adam Liptak has an article headlined "From a Court, a Most Unusual Request." In business news, "F.C.C. Plan to Ease Curbs on Big Media Hits Senate Snag." An article reports that "In Court, Verizon Challenges Music Industry's Subpoenas." In other news, "Canadian Legislators Narrowly Reject Move Against Gay Unions." In local news, "Judicial Politics as Usual in Brooklyn, and Nearly a Brawl." Bruce Ackerman has an op-ed entitled "The Vote Must Go On." Columnist William Safire has an op-ed entitled "The Senate Says No." And letters to the editor appear under the headings "The Recall Ruling: Those Chads, Again" and "Ashcroft vs. Librarians."

The Washington Post reports here that "Appeals Court Might Review Postponement Of Calif. Recall." In related news, "Critics Argue 9th Circuit's Leanings." An article reports that "Cheney Seeking Supreme Court Review of Energy Panel Case." In other news, "Canada's Parliament Endorses Gay Marriage; Narrow Defeat of Motion on Traditional Matrimony Underscores National Divide." In local news, you can access here an article headlined "Malvo Seeks Data on DNA Tests Of Evidence" and here an article headlined "Trial Opens Today For Tractor Driver In D.C. Standoff; Farmer Rebuffed in Attempt to Call High-Profile Witnesses to Testify." An editorial is entitled "It Isn't Florida." Harold Meyerson has an op-ed entitled "Testing Bush v. Gore." And columnist David S. Broder has an op-ed entitled "Endangered Suffrage."
Posted at 06:45 by Howard Bashman



Available online at law.com: Jason Hoppin and Jeff Chorney report that "Fog Over Recall Case Lifts, a Bit; 9th Circuit's call for briefs seen as sign court plans to rehear case en banc." An article about a case pending before the U.S. Court of Appeals for the Sixth Circuit is headlined "Taking On a Judge, and the Bar; Court rules an applicant can sue over rejection for remarks made years ago." And from the Second Circuit comes a report that "Warning Not Needed for Self-Representation."
Posted at 06:40 by Howard Bashman



Today's FindLaw columnists: Michael C. Dorf has an essay entitled "The Supreme Court's Extraordinary Campaign Finance Reform Oral Argument." And Barton Aronson has an essay entitled "Do Police Need A Warrant In Order To Use Global Positioning System Technology? A Recent Washington Court Said Yes, But It's Wrong."
Posted at 06:30 by Howard Bashman



Tuesday, September 16, 2003
Elsewhere in Tuesday's newspapers: In USA Today, Joan Biskupic reports that "Calif. ruling hangs on chads of 'Bush vs. Gore'; 9th Circuit uses the Supreme Court decision on 2000 election to unprecedented extent." And in other news, "Patriot Act at heart of Ashcroft's influence; Attorney general takes heat from both political parties."

In The Boston Globe, Lyle Denniston reports that "Court delays California recall vote; Punch cards crux of issue; appeals vowed." And in other news, "SJC debates a tort lawyer's plea."

The Washington Times contains an op-ed by Bruce Fein entitled "Campaign finance reform myths."

The Los Angeles Times reports here that "Suspect in Firebombing at Hummer Dealership Released; Police say they lack evidence to charge the activist but they are still investigating." An editorial is entitled "Making a Bad Recall Worse." Former Los Angeles Mayor Richard Riordan has an op-ed entitled "Political Bias Drives Justices' Delay of Recall." Law Professor Erwin Chemerinsky has an op-ed entitled "An Act of Courage; 9th Circuit ruling guards the precious right of voter equality." And letters to the editor appear under the heading "Recall Postponed Over Punch-Card Machines."
Posted at 23:33 by Howard Bashman



News in Brief from The Onion: You can access here newsbriefs entitled "Revised Patriot Act Will Make It Illegal To Read Patriot Act" and "Supreme Court Gets Free Box Of Shoes After Mentioning Nike In Ruling."
Posted at 23:30 by Howard Bashman



"20 questions for the appellate judge" update: Today I dispatched my questions for October's participant in this Web log's monthly feature "20 questions for the appellate judge." October's interviewee will be Eleventh Circuit Judge Stanley F. Birch, Jr., and his interview will appear online here early in the first full week of October. Looking ahead, November's interviewee will be Senior Eighth Circuit Judge Richard S. Arnold. December's interviewee has yet to come forward, and thus any federal or state appellate court judge who wishes to be December's interviewee can achieve that distinction by being the first to send me an email volunteering to participate. (And if you're not the first to respond, I'll happily offer you the next available month's interview.)
Posted at 22:51 by Howard Bashman



A case so complicated that the Fourth Circuit wouldn't be making good use of its resources to grant rehearing en banc, and yet so important that the U.S. Supreme Court should grant review: That's what Fourth Circuit Judge Paul V. Niemeyer argues in a rather unusual opinion "in explanation of not requesting a poll on the petition for rehearing en banc." You can access the Fourth Circuit's earlier three-judge panel ruling in the case at this link.

Circuit Judge J. Michael Luttig, meanwhile, issued an opinion concurring in the denial of rehearing in which he wrote: "It is not ours to assess the consequences of various interpretations of a statute and then select that interpretation that we deem to yield the most palatable results, even if it is increasingly common, if not commonplace, to so proceed." I guess he's not a big fan of the so-called "pragmatic" approach to judging advocated by Seventh Circuit Judge Richard A. Posner.
Posted at 22:32 by Howard Bashman



"At issue on appeal is whether the 'work product' of a non-testifying trial consultant in this case is privileged and subject to only limited discovery." So begins an opinion that a three-judge panel of the U.S. Court of Appeals for the Third Circuit issued today. The opinion describes the consultant in question as "expert in trial strategy and deposition preparation." Presumably that means the consultant worked with witnesses to teach them how to be as effective as possible when testifying in favor of the party that hired the consultant.
Posted at 22:24 by Howard Bashman



"The judge thus is playing U.S. Attorney. It is no doubt a position that he could fill with distinction, but it is occupied by another person." Seventh Circuit Judge Richard A. Posner issued a fascinating opinion today on behalf of a unanimous three-judge panel in which the Seventh Circuit granted mandamus to overturn a trial court's order that refused to dismiss a criminal charge at the behest of the federal government and instead appointed a private lawyer to prosecute the charge in place of the U.S. Attorney's Office. Anyone interested in criminal law and / or constitutional separation of powers issues should be sure to give this opinion a look. An added bonus -- the opinion is only seven pages long.
Posted at 22:09 by Howard Bashman



Ninth Circuit Judge Kim McLane Wardlaw joins her colleague Stephen Reinhardt in being recused from the case to postpone California's recall election: Late today, the Ninth Circuit posted this order online. As a result, there are twenty-four non-recused active judges eligible to participate in the vote whether to grant rehearing en banc, and thirteen votes in favor are needed for rehearing en banc to be granted. You can access a list of all Ninth Circuit judges at this link.
Posted at 20:59 by Howard Bashman



In Wednesday's edition of The Christian Science Monitor: Warren Richey and Linda Feldmann have an article headlined "Again, courts take electoral driver's seat." A related article is headlined "Ripples of a recall delay; California awaits an appeal of the court ruling. Any scenario may boost Gray Davis." Finally, you can access here an editorial entitled "Recalling Gore v. Bush."
Posted at 19:56 by Howard Bashman



"Illinois Court Slashes Philip Morris Bond": Reuters offers this news. And The Associated Press reports here that "Ill. High Court Lowers Philip Morris Bond."
Posted at 18:45 by Howard Bashman



"ACLU files suit on Barrow courthouse Ten Commandments": The Associated Press provides this report. And Reuters reports here that "ACLU Sues Over Ten Commandments Display in Georgia." Finally, from Montgomery, Alabama comes a report that "Moore proposes moving commandments monument to U.S. Capitol."
Posted at 17:02 by Howard Bashman



Today's Ninth Circuit order setting a deadline of tomorrow for any requests for en banc rehearing is now available online: You can access it here.
Posted at 16:35 by Howard Bashman



"Fed judges in stocks; Rulings on bench, portfolios conflict": Yesterday's issue of The New York Daily News contained this report.
Posted at 16:24 by Howard Bashman



"More States May See Election Challenges": The Associated Press has this report.
Posted at 16:17 by Howard Bashman



Divided Third Circuit panel refuses to transfer challenge to FCC's media ownership rules to the D.C. Circuit: I had a feeling that this case would be too attractive to give away. Chief Judge Anthony J. Scirica dissented. You can access the entire ruling, which includes the dissent, at this link.
Posted at 16:06 by Howard Bashman



"Saad defends record on sexual harassment, whistleblower cases": The Associated Press has this report. In a veiled reference to the recent FOX News v. Al Franken litigation, Judge Saad is quoted as stating that "I have been a fair and balanced judge who keeps an open mind on all matters."
Posted at 16:01 by Howard Bashman



"It ain't so." Reuters reports here that "A clerk at the 9th Circuit said the judges had voted to hold an en banc hearing of 11 judges to reconsider the case and had asked for lawyers to file briefs on the issue." Based on the information available to me, Reuters is incorrect in stating that the Ninth Circuit has already granted rehearing en banc of yesterday's ruling that postponed California's recall election.

Rather, what has actually happened is that at least one Ninth Circuit judge has asked for an order to be entered that requires the parties in the case to file briefs addressing whether rehearing en banc should be granted. In order for rehearing en banc to be granted, thirteen of the twenty-five non-recused Ninth Circuit judges will need to vote in favor of it. If rehearing en banc is granted, then yesterday's decision is vacated and thus no longer exists. The case would then be reargued before eleven "randomly selected" active Ninth Circuit judges [actually ten "randomly selected" judges plus the Ninth Circuit's Chief Judge], who would then decide the appeal. That eleven judge en banc panel could reach precisely the same result as the original three-judge panel, it could affirm the trial court's order refusing to stay the recall election, or it could reach some other outcome.

In any event, if rehearing en banc is granted, the decision that results from the eleven-judge panel would then be subject to rehearing en banc before all twenty-five active judges (something the Ninth Circuit has never done and is unlikely ever to do) and / or could be the subject of a petition for writ of certiorari in the U.S. Supreme Court. If rehearing en banc is denied, then the losing parties' final remedy will be to seek certiorari from the U.S. Supreme Court.
Posted at 15:42 by Howard Bashman



Ninth Circuit asks parties in recall election case to file briefs addressing whether that court should grant rehearing en banc: That's what Law Professor Rick Hasen is reporting in a post you can access here. I went online to look at the Ninth Circuit's electronic docket for confirmation, but there's no sign of any official docket entry yet. [Update: Rick has now posted the text of the Ninth Circuit's order, and I too have received an electronic copy of that order from a reader.]

Fortunately, my review of the docket proved worthwhile in another respect. Yesterday's Ninth Circuit ruling was issued as a "per curiam" opinion, but the docket seems to disclose which of the three judges on the panel wrote the decision. The docket entry in question states:
9/15/03 FILED OPINION: REVERSED In considering all the relevant factors, we conclude that the district court erred as a matter of law in denying the preliminary injunction with respect to the vote on Propositions 53 and 54 and the gubernatorial recall. Therefore, we reverse the order of the district court. The Secretary of State is enjoined from conducting an election on any issue on October 7, 2003. In view of the pendency of the election, we direct the Clerk of Court to issue the mandate forthwith, but stay our order for seven (7) days to allow the parties to seek further relief from this decision, if they so desire. ( Terminated on the Merits after Oral Hearing; Reversed; Written, Signed, Published. Harry PREGERSON; Sidney R. THOMAS, author; Richard A. PAEZ. ) FILED AND ENTERED JUDGMENT. [03-56498] (ru)
So, according to the docket at least, it was Circuit Judge Sidney R. Thomas who wrote yesterday's opinion.

A recent former law clerk on the U.S. Court of Appeals for the D.C. Circuit asks what causes me to assert that recused judges are omitted from the total number of active judges from which a majority is needed to take a case en banc. The best evidence of my view is in the form of order that the Ninth Circuit uses when granting rehearing en banc. (Also, see the language of Ninth Circuit General Order 5.5(d).)
Posted at 14:56 by Howard Bashman



California's Secretary of State to announce response to yesterday's Ninth Circuit ruling at press conference scheduled for 5 p.m. eastern time: The Los Angeles Times provides this report.
Posted at 14:42 by Howard Bashman



"Echoes of Bush v. Gore in ruling; Appeals court throws Supreme Court's Florida decision back in its face": The Oakland Tribune contains this report. The Sacramento Bee reports here that "Ruling may put Bush v. Gore back in spotlight; The high court could end up revisiting its 2000 reasoning." The San Francisco Chronicle reports here that "Legal battle echoes Bush vs. Gore in 2000." And Yale Law Professor Jack M. Balkin has a post entitled "The Return of Bush v. Gore."
Posted at 14:39 by Howard Bashman



"Judge: I can be impartial." This article appears in today's issue of The Cincinnati Post.
Posted at 14:29 by Howard Bashman



"Blanket primary is struck down; Appeals court says state's system violates political parties' rights": Today's edition of The Seattle Post-Intelligencer contains this report. And The Olympian reports here that "Court rejects state's primary: Tradition of unaffiliated voting looks doomed; parties pleased."
Posted at 14:27 by Howard Bashman



What law? The Vancouver Sun reports here today that "B.C.'s pot law doesn't exist, judge rules."
Posted at 14:23 by Howard Bashman



"What sicko dreamed up the idea of putting last meals on the internet?" The blog "Bureaucrat by Day" asks the question.
Posted at 14:02 by Howard Bashman



"Senate Votes to Block New Media Rules": The Associated Press has this report. And Reuters reports here that "Senate Defies Bush, Overturns FCC Ruling." You can access the official roll call vote tally at this link.
Posted at 13:59 by Howard Bashman



In search of three more aphorisms: The Associated Press is reporting from Utah that "Group wants 7 Aphorisms displayed with 10 Commandments." As this post of mine from July 19, 2002 reminds me, the Summum faith has already experienced success in this effort.
Posted at 13:58 by Howard Bashman



Health Maintenance Organizations cannot recover damages from tobacco companies, divided Eighth Circuit panel holds: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
Posted at 12:00 by Howard Bashman



Second Circuit to Harvard Law Professor Alan M. Dershowitz -- "You might benefit from a visit to your law school's library": Footnote seven found on page 13 of this ruling that the U.S. Court of Appeals for the Second Circuit issued yesterday is worth a look.
Posted at 11:05 by Howard Bashman



"Versus Gore": With all the talk in the media about the U.S. Supreme Court's ruling in Bush v. Gore, I figured I'd provide a link to the decision in case anyone wished to see what it actually says. Of course, if you'd rather read about punitive damages, chances are you'd prefer the Court's decision in BMW of North America, Inc. v. Gore.
Posted at 11:01 by Howard Bashman



In news from Canada: "Same-sex vote today."
Posted at 10:57 by Howard Bashman



"N.C. Judge Who Sent Ethnic Jokes Through E-Mail Resigns; 60-Year-Old Sent E-Mails To Lawyers, Business Leaders, Other Judges": The Associated Press provides this news.
Posted at 10:56 by Howard Bashman



"Toledo judge referees nation's war on terror": This report appears in today's issue of The Toledo Blade.
Posted at 10:29 by Howard Bashman



"UNF's free-speech zone debated; Area may violate First Amendment": Today's edition of The Florida Times-Union contains this report.
Posted at 10:09 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Evidence Allowed Against Cleric's Lawyer" and here an article headlined "Judge Tosses Falun Gong Suit Against Zemin."
Posted at 10:08 by Howard Bashman



Tom Goldstein's on the case: "SCOTUSblog" reports here that "We've been retained to assist the prevailing parties in the Ninth Circuit's California recall decision as Supreme Court counsel."
Posted at 10:04 by Howard Bashman



"Bahrain's Justice Minister Opens Arab Judicial Forum in Manama; U.S. Supreme Court's O'Connor highlights need for judicial independence": The State Department has issued this press release. (Via "JURIST's Paper Chase.")
Posted at 10:02 by Howard Bashman



The problems that can arise when liberals marry liberals: An eagle-eyed long-time reader of "How Appealing" who recently wrapped-up a clerkship on everyone's favorite West coast-based federal appellate court emails:
You said somewhere you couldn't see where a majority in favor of en banc would come from. One tidbit that might change that: I saw in my Washington Post this morning a photo of a news conference with plaintiffs' counsel from the ACLU, including Ramona Ripston, executive director of the ACLU of Southern California -- and wife of Judge Stephen Reinhardt.

As you know, in the event of a recusal, the threshold for en banc drops from 14 votes to 13.
Right now, the Ninth Circuit has twenty-six judges in regular active service, and if none are recused, it takes fourteen votes in favor of rehearing en banc in order for it to be granted. But, if one of the twenty-six is recused, it would only take thirteen of the remaining twenty-five votes for the case to be taken en banc. Nevertheless, the question at the end of the day is whether six judges on the "randomly selected" eleven-judge en banc panel would agree that a stay of the recall election is necessary. I still think that the stay is likely to survive a request for en banc review from the Ninth Circuit, but the recusal of Circuit Judge Stephen Reinhardt (if indeed he chooses to recuse) could be a significant development.

Update: Another reader who works as a law professor at one of the Nation's most highly-regarded schools emails:
For what it's worth, as a former law clerk of his my understanding is that Judge Reinhardt always recuses himself from cases brought by the Southern California ACLU.


Second update: Someone even more in-the-know emails: "Judge Reinhardt maintains a standing list of recusals w/ the clerk's office. The ACLU of Southern California is one of the entities listed on it."
Posted at 09:51 by Howard Bashman



Available at National Review Online: Andrew Peyton Thomas has an essay entitled "Split Decision: Time to break up the Ninth Circuit"; Robert Alt has an essay entitled "Bottom of the Ninth: Federal court reclaims its title"; and Sheri Annis has an essay entitled "The Race Goes On: Don’t stop thinking about October 7."
Posted at 09:34 by Howard Bashman



Apparently Justice Sandra Day O'Connor picked a perfect time to visit Bahrain: CNN.com reports here that "The forecast ferocity of Hurricane Isabel prompted Congress to consider leaving Washington early, spurred the U.S. military to deploy some of its ships and aircraft, and had residents from North Carolina to Maryland closely monitoring the latest weather reports." You can learn all about how Justice O'Connor's trip to Bahrain is going via news reports that I have collected at this link. "How Appealing" continues to provide the most extensive coverage of Justice O'Connor's journey to the Persian Gulf on official government business of any United States-based news source.
Posted at 06:58 by Howard Bashman



In Tuesday's edition of The Washington Post: An article reports that "Recall Delay Has Calif. Voters Feeling Queasy." In related news, "Enthusiasm Wanes For Election Changes; Bush, Hill Slow on Funds, Commission." And in business news, "Senate Vote Could Kill FCC's New Media Rules."
Posted at 06:52 by Howard Bashman



Wishful thinking? A reader emails:
As someone who recently clerked on the Ninth Circuit for one of Harry Pregerson's best friends, and before that wrote an Elections Law paper on the remedies in Bush v. Gore, I can pretend to have a little insight into the decision to postpone the recall. I submit that it may be a heaven-sent opportunity for the Supreme Court to quell partisan anger, repair its reputation and legitimacy, and let the recall proceed, all at the same time.

The Bush v. Gore decision was petitioned, taken on cert., briefed, argued, and rushed out in the span of three or four days. No doubt it suffered somewhat for eloquence and exactitude. That -- along with the 5-4 split on remedies and the incredibly partisan and vitally important factual situation -- is part of why it has been a sitting duck for bitter, widespread attacks by the legal clerisy ever since. The Ninth Circuit's opinion, applying the slovenly, jury-rigged decision in Bush v. Gore literally, is therefore a godsend for the entire Supreme Court. Here's what they can do:

(1) the Court can quickly issue an order extending the Ninth Circuit's 7-day stay of its decision indefinitely, pending a forthcoming reversal. It hardly matters what the vote split is, as long as it isn't 5-4 like last time. (Hopefully the order doesn't feature a hasty and questionable concurrence like last time either.)

(2) the Court can then take a page from the contemptible New Jersey Supreme Court in the Torricelli affair (but this time with honest warrant to do so), and take its sweet, long time -- perhaps even till after the recall vote itself -- to carefully craft various opinions explaining its decision to reverse. A 9-0 judgment is a distinct possibility, but hopefully the judgment will be at least 7-2 in favor of reversal, even if not all 7 agree on the grounds. The majority (plurality?) can patiently explain what it would like everyone to believe that it would have said in Bush v. Gore had there only been more time to clarify. Concurrences in the judgment could vent about the unwisdom of the original judgment while simultaneously explaining why the Ninth Circuit's act would itself lead to absurd consequences. Perhaps a few dead-ender dissenters could insist that Bush v. Gore is a stain not so easily blotted from the books and must now be taken at its word. Regardless, the opinions are then released to explain on the merits why the Supreme Court permitted the recall to go forward.

Institutionally, at least, this scenario is a win-win for everybody (except for those who still want Gore to be president). Bush v. Gore gets a leisurely, narrower, more bulletproof rewrite. Everyone can finally know for sure how Breyer and Souter really felt about the equal protection merits. The Nation's law professors will be partly mollified and have more meat to argue about. And the popular legitimacy of the Court will be greatly healed, to the personal benefit of all the Justice of all stripes and the institutional benefit of the Nation -- because all most non-lawyers are going to read is the headlines, and all the headlines will say is simply that the Supreme Court has revisited Bush v. Gore and the vote was not 5-4 this time, but 7-2, or 8-1, or 9-0.

Regardless of the merits of the original decision, arguably it's past high time for oil on the roiling waters. The Supremes should bless the Niners for this opportunity to heal the country -- if I've counted the votes right.
Another reader emails:
Let me say as a former precinct captain in California (how many of your readers can make THAT claim -- but then again your readership is so vast there are probably a few) I found punchcards technology portable, reliable, and easy to set up. They were an affordable option for my rural county. I was responsible for picking up all the polling place equipment and materials, setting them up at my precinct, and supervising my volunteers. I could easily put together the voting booth myself, leaving the really important assignment (coffee, pastries, and sandwiches) to the incredibly nice retired people working with me. Could I have coped successfully with the higher tech equipment deemed "more reliable"? What will happen when this stuff hits the streets - literally - when dropped by accident? I don't know.
Thanks to everyone who emailed to comment on yesterday's big news.
Posted at 06:37 by Howard Bashman



Monday, September 15, 2003
"Meatpacker wants U.S. justices to overturn E. coli suit ruling": Tomorrow's edition of The Milwaukee Journal Sentinel will contain this report.
Posted at 23:40 by Howard Bashman



"Equal Rights Under the Law: An amendment prohibiting same-sex marriage would be a hateful attack on gay rights." Today's edition of The Harvard Crimson contains this editorial.
Posted at 23:34 by Howard Bashman



"Court Rules AIDS Patient Can Sue Over Housing": Reuters has this other news from the Ninth Circuit today.
Posted at 23:24 by Howard Bashman



"Bush v. Gore Outlives Its Limited Warranty for Use in California": Adam Liptak has this article with a rather funny headline in tomorrow's edition of The New York Times. That newspaper also reports here that "California's Vote Delayed by Court Over Punch Cards" and here that "New Twist Brings Anger from Right." And an editorial is entitled "Delaying the California Recall."

The Washington Post reports here that "California Recall Postponed By Federal Appeals Panel; Court Says Use Of Punch-Card Balloting Unfair." And Charles Lane reports on "One More Round For Bush v. Gore."

In The Los Angeles Times, Henry Weinstein reports that "Appeals Court Postpones California Recall Election." And in The San Francisco Chronicle, Bob Egelko has an article headlined "Recall monkey wrench: Campaigns in turmoil after vote delayed -- appeal to U.S. Supreme Court likely."

The Associated Press reports here that "Court in Recall Case Known for Controversy" and here that "Californians React to Recall Postponement"; and offers here an article headlined "California Recall and the Supreme Court."

The Knight Ridder Newspapers report that "Federal appeals court blocks California recall election." The Contra Costa Times reports here that "9th Circuit again a target for conservatives' ire." And Jason Hoppin of The Recorder has an article entitled "9th Circuit Slams the Brakes on Recall."
Posted at 22:57 by Howard Bashman



A question to the U.S. Supreme Court experts in the audience: Rule 13 provides in pertinent part:
Review on Certiorari: Time for Petitioning

1. Unless otherwise provided by law, a petition for a writ of certiorari to review a judgment in any case, civil or criminal, entered by a state court of last resort or a United States court of appeals (including the United States Court of Appeals for the Armed Forces) is timely when it is filed with the Clerk of this Court within 90 days after entry of the judgment. A petition for a writ of certiorari seeking review of a judgment of a lower state court that is subject to discretionary review by the state court of last resort is timely when it is filed with the Clerk within 90 days after entry of the order denying discretionary review.

2. The Clerk will not file any petition for a writ of certiorari that is jurisdictionally out of time. See, e.g., 28 U.S.C. sec. 2101(c).

3. The time to file a petition for a writ of certiorari runs from the date of entry of the judgment or order sought to be reviewed, and not from the issuance date of the mandate (or its equivalent under local practice). But if a petition for rehearing is timely filed in the lower court by any party, the time to file the petition for a writ of certiorari for all parties (whether or not they requested rehearing or joined in the petition for rehearing) runs from the date of the denial of the petition for rehearing or, if the petition for rehearing is granted, the subsequent entry of judgment.
The Ninth Circuit filed its judgment in the recall election case today. Assume that the California Secretary of State files a timely petition for rehearing in the Ninth Circuit but Ted Costa immediately thereafter files a petition for writ of certiorari in the U.S. Supreme Court. Will the Supreme Court consider Costa's petition, or will it be dismissed as prematurely filed?
Posted at 22:45 by Howard Bashman



"Ashcroft Rips Anti-Patriot Act 'Hysteria'": The Associated Press offers this report.
Posted at 22:29 by Howard Bashman



"Appeals court strikes down state's blanket-primary system": The Ninth Circuit today actually declared invalid the manners in which two States conduct their elections. The Seattle Times has this report on the decision that's understandably received a bit less coverage.
Posted at 22:28 by Howard Bashman



Ten Commandments news from Georgia: Tomorrow's edition of The Augusta Chronicle will report here that "Commandments display draws suit from ACLU."
Posted at 22:25 by Howard Bashman



See Justice Sandra Day O'Connor in Bahrain: Simply take a close look at the photograph that accompanies an article headlined "Cherie praises rights record" in Tuesday's edition of The Gulf Daily News. In related news, you can access here an article headlined "Legal revamp is demanded"; here "Activists meet legal experts"; here "March leads to stand-off"; and here "Iraq plans judicial body." An article headlined "Food courts to open at airport," notwithstanding its deceptively ambiguous title, appears unrelated to the Arab Judicial Forum.
Posted at 22:12 by Howard Bashman



"Appeals court blocks Oct. 7 recall election": Bob Egelko of The San Francisco Chronicle has this report. Coverage of the news from this evening's episode of the PBS program NewsHour with Jim Lehrer is available here. NPR's "All Things Considered" tonight had several segments on the Ninth Circuit's ruling, and you can listen to them via this link. And Law Professor Rick Hasen offers his preliminary views at this link, with a several-hundred-page law review article certain to follow.
Posted at 20:52 by Howard Bashman



"TV and the Supreme Court: Broadcasters want access, but will they deliver serious coverage?" The September / October 2003 issue of the Columbia Journalism Review contains this report.
Posted at 20:01 by Howard Bashman



"Calif. Recall Case May Involve High Court": Anne Gearan of The Associated Press has this report.
Posted at 19:12 by Howard Bashman



"Iran Ordered to Pay $400M to Bomb Victims": The Associated Press today has this report about a ruling that the U.S. District Court for the District of Columbia issued last week.
Posted at 17:47 by Howard Bashman



How does the Internet work? This decision that the U.S. Court of Appeals for the Federal Circuit issued today examines the answer to that question in the course of considering whether patents belonging to Akamai Technologies, Inc. are valid.
Posted at 17:38 by Howard Bashman



If email is any indication: Readers appear much more interested in the "sushi memo" than in coverage of the Ninth Circuit's ruling postponing California's recall election. On the other hand, a reporter from National Public Radio just called, and he was much more interested in the recall election and understanding how all this wacky appellate procedure stuff works.
Posted at 17:12 by Howard Bashman



"Washington's 'Blanket' Primary Rejected": The Associated Press provides this report about another noteworthy voting-related ruling that the Ninth Circuit issued today.
Posted at 16:25 by Howard Bashman



Say what? A reader emails and not only forwards the infamous "sushi memo" but also points out this glaring inaccuracy contained in the essay by Arnold Steinberg just posted at National Review Online:
But this three-judge panel decision has a good chance of being overruled by the full Ninth Circuit by as early as Tuesday or Wednesday. Remember, a panel from this court threw out the infamous flag opinion, and that embarrassing decision was quickly overruled by the full Ninth Circuit.
In fact, the full Ninth Circuit denied rehearing en banc in the Pledge of Allegiance case, and you can access the order denying rehearing en banc in the Pledge case at this link.
Posted at 16:21 by Howard Bashman



Meet hanging chad's close relatives, scribbled oval and hacked touch screen: A reader from Los Angeles emails:
The reasoning given for the delay, the use of an old voting method, is not well-reasoned. A new method, essentially the use of mark-sense technology, is "new" but is less accurate than the old system. Even though Florida gave the punch card ballot a bad name, it is much easier for a card reader to determine whether there is a hole through a card than to sense whether a circle has been sufficiently filled with ink. Even including "chad" and all his friends, there are fewer possible variations, each with a much lower probability of occurrence with punched cards, than the possible variations of almost, but not quite, filling a circle with ink. The "new" method is planned for use in the November election. Word on the ground is that with the "new" method "we're going to make Florida look good."
And another reader has emailed this link to a recent op-ed in The San Diego Union-Tribune entitled "The chad you know versus the hacker you don't."
Posted at 15:58 by Howard Bashman



"Bush v. Gore Redux? The recall gets recalled." National Review Online has just posted this essay by Arnold Steinberg.
Posted at 15:50 by Howard Bashman



"Appeals court postpones Oct. 7 recall vote": The Sacramento Bee contains this report. The Los Angeles Times reports here that "Appeals Court Blocks Oct. 7 Recall." The Washington Post reports here that "Court Delays California Recall Vote; 9th Circuit Allows One Week for Appeal to Supreme Court." And Reuters reports here that "U.S. Appeals Court Halts Oct. 7 Calif. Recall Vote." You can access today's ruling by the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 15:30 by Howard Bashman



Divided First Circuit panel holds that family of deceased veteran brought federal Tort Claims Act suit too late after veteran had been surreptitiously murdered by a nurse at a VA Hospital: You can access today's very interesting ruling at this link. You can learn much more about the underlying crime, and about the stress that a federal trial judge undergoes in a death penalty case, in a fascinating essay that you can access here.
Posted at 15:16 by Howard Bashman



And while they're at it: A different three-judge panel of the Ninth Circuit today issued a ruling that struck down Washington State's practice of holding a "blanket primary." The opinion begins:
The State of Washington conducts a "blanket" primary, in which voters choose candidates without being restricted to candidates of any particular party. The Democratic, Republican and Libertarian Parties all challenged the law, claiming that it unconstitutionally restrains their supporters' freedom of association. They are correct.

We recognize that Washington voters are long accustomed to a blanket primary and acknowledge that this form of primary has gained a certain popularity among many of the voters. Nonetheless, these reasons cannot withstand the constitutional challenge presented here. The legal landscape has changed, and our decision is compelled by the Supreme Court's landmark decision in California Democratic Party v. Jones.
You can access the complete ruling at this link.
Posted at 14:47 by Howard Bashman



What's the bottom line? If today's ruling of the U.S. Court of Appeals for the Ninth Circuit postponing California's recall election withstands scrutiny from the U.S. Supreme Court, the recall election will occur on March 2, 2004 instead of on October 7, 2003 as currently scheduled. And because the Ninth Circuit's ruling entirely cancels the October 7th election, the two propositions also scheduled to have been voted on then would not be voted on until March 2, 2004.

The parties that lost today before a three-judge Ninth Circuit panel could also ask the Ninth Circuit to rehear the case before an eleven-judge panel, but obtaining a rehearing en banc would require the affirmative vote of a majority of all non-recused active judges currently serving on the Ninth Circuit. I just don't see the existence of sufficient votes in favor of rehearing en banc, although it would be interesting to read any dissents that issued from an order that denied rehearing en banc.
Posted at 14:27 by Howard Bashman



The Ninth Circuit has issued a helpful summary of its ruling today staying California's recall election: You can access the summary at this link.
Posted at 14:10 by Howard Bashman



"Appeals Court Delays Calif. Recall Vote": David Kravets of The Associated Press has this early report on today's big news from the Ninth Circuit. And while I'm calling this "big news," I don't mean that the news comes as any surprise; it doesn't.
Posted at 13:52 by Howard Bashman



BREAKING NEWS: "The [California] Secretary of State is enjoined from conducting an election on any issue on October 7, 2003." So a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit has ruled today in a per curiam opinion that you can access here. I had a feeling that Justice Sandra Day O'Connor, the U.S. Supreme Court Justice assigned to field emergency applications from the Ninth Circuit, had picked an auspicious time to visit Bahrain.
Posted at 13:42 by Howard Bashman



Alabama's appeal from a ruling striking down that State's ban on the distribution of sex toys to be argued next week before the U.S. Court of Appeals for the Eleventh Circuit: The oral argument is scheduled to occur on Tuesday, September 23, 2003 in Montgomery, Alabama, and a reader advises me that the panel will consist of Circuit Judges Stanley F. Birch, Jr. and Rosemary Barkett and Senior Circuit Judge James C. Hill. The district court's ruling that is the subject of this appeal issued on October 10, 2002, and you can access my coverage of that ruling at this link. In 1999 this case gave rise to an earlier appeal, and you can access here the Eleventh Circuit's ruling on that earlier appeal.
Posted at 13:08 by Howard Bashman



Ten Commandments in the news: The Hannibal Courier-Post today contains an article headlined "Could Missouri have Ten Commandments problem?" The Daily Local of West Chester, Pennsylvania reports today that "Plaque decision pleases many." The Augusta Chronicle reports here that "Commandments stay in court." An editorial in The News-Press, a southwest Florida-based newspaper, is entitled "Polk puts religion in context." And a letter to the editor of The Sarasota Herald-Tribune is entitled "Support the Ten Commandments Defense Act."
Posted at 10:22 by Howard Bashman



Sixth Circuit Judge Jeffrey S. Sutton issues his first published opinion: By his own admission, the opinion is not "pathmarking," but it certainly represents a good, solid effort. And it's nice and short, too, and it contains not a single footnote.
Posted at 09:43 by Howard Bashman



"Campaign Finance Reform: What The Court Should Do." Stuart Taylor Jr. has this essay in the current issue of National Journal.
Posted at 09:42 by Howard Bashman



"Some High Court Modesty Is in Order": Law Professor Richard L. Hasen, whose "Election Law" blog you can access here, has this op-ed in today's edition of The Los Angeles Times.
Posted at 09:40 by Howard Bashman



"Controversial 9th Circuit to judge recall": Today's edition of The Washington Times reports here that "The fate of the California recall election is in the hands of what is considered the most liberal and controversial federal court in the United States, leaving experts to wonder if the already chaotic election will be postponed, adding to the confusion."
Posted at 06:50 by Howard Bashman



In Monday's newspapers: The New York Times today contains an article headlined "Crossroads for Online Wine Sales." And Adam Cohen has an "Editorial Observer" column entitled "Buying a High-Priced Upgrade on the Political Back-Scratching Circuit."

The Christian Science Monitor contains an op-ed by Jonathan Zimmerman entitled "'Who would Jesus tax?' Don't confuse religion in politics with the right wing - think of the abolitionist, labor, and civil rights movements."

And online at OpinionJournal, Robert L. Bartley has an op-ed entitled "Angry Democrats: Florida and Beyond; Why is the left so mad?"
Posted at 06:36 by Howard Bashman



"Married with Children? The Impact of Lawrence v. Texas on Child Custody, Visitation, and Adoption." FindLaw columnist Joanne Mariner today has this essay.
Posted at 06:23 by Howard Bashman



"Church-state dispute hits home; Suit over Ten Commandments at Texas Capitol may reach Supreme Court": The Houston Chronicle today contains this report. And in related news, "Alabama judge brings cause to city; Top jurist pledges to take monument issue to the nation." Of course, when thinking about Church vs. State issues involving Texas, one should not forget the so-called "Pagan Panther" monument.
Posted at 06:18 by Howard Bashman



"Nation's filter for judges working": Yesterday's edition of The Oregonian contained this editorial. Today at The Weekly Standard, Terry Eastland has an essay entitled "The Filibuster Party: The Democrats' devotion to the filibuster could hurt their electoral chances, and damage the judicial nomination process."
Posted at 06:14 by Howard Bashman



"Races of killer, victim made for rare execution": For the first time since reinstating the death penalty some twenty-one years ago, Texas last week executed a white person convicted of killing a black person, this article from The Associated Press reports. As always, information about the inmate's last meal request is available here.
Posted at 06:11 by Howard Bashman



In news of Justice Sandra Day O'Connor's trip to Bahrain: The Gulf Daily News reports here that "Law experts to speak at forum" and here that "Rights group to seek US judge's help."
Posted at 06:06 by Howard Bashman



Sunday, September 14, 2003
"Justice Scalia is told off particularly severely": Today's issue of The Sunday Book Review in The New York Times contains a review of Seventh Circuit Judge Richard A. Posner's new book, "Law, Pragmatism, and Democracy." As I previously noted here, the review states that in Judge Posner's book, "Justice Scalia is told off particularly severely for political ineptitude." What precisely might that mean? Harvard Law student Adam White has all the details at this link.
Posted at 23:57 by Howard Bashman



"Cap on Suits Vs. Doctors Is Approved in Texas Vote": Monday's edition of The New York Times will contain this report. I have collected plenty more coverage of Saturday's vote here and here.
Posted at 23:43 by Howard Bashman



In Sunday's newspapers: In The Boston Globe, Lyle Denniston reports that "Embattled Scouts struggle to maintain funding, ideology." An article reports that "Fewer library records kept as Patriot Act raises privacy fears." And in other news, "Students tune out industry lawsuits."

In The Los Angeles Times, David G. Savage and Richard B. Schmitt report that "Administration Calls for Unprecedented Subpoena Powers; Bush's proposal to bypass grand juries to fight terrorism is likely to meet with resistance." In related news, "Charity's Fate Seen as Test of Wider War on Terror; U.S. accuses an Islamic foundation of ties to Hamas. FBI errors may spark a legal challenge." You can access here an article headlined "How Big Tobacco Got Its Way in California; In a little-noticed action, state legislators and Gov. Davis have adopted two laws that soften legal blows to the industry." An article from The Associated Press is headlined "Recasting the Definition of Family; Policymakers are extending greater legal recognition, support to same-sex couples, single parents, unmarried heterosexuals." In other news, "U.S., State Clash Over Environment; Bush administration challenges to tough regulations underscore a philosophical split on how to deal with a range of pollution problems." From Texas comes a report that "Courthouse Work Opens Doors on Painful Past." In local news, "Firebombing Suspect's Home Searched." An article reports that "Palo Alto Man to Get Payment for Prison Time; Last-minute action by the Legislature clears the way for him to start over, after being wrongly held for 12 years." You can access here an article headlined "New Evidence Tussle in Skakel Case; The convicted Kennedy cousin's team claims to have fresh material, and prosecutors want a look." Law Professor Alan Dershowitz has an op-ed entitled "They've Fallen Off the Top 10 List; Read closely: The Ten Commandments reflect a primitive worldview." And John H. Bunzel has an op-ed entitled "God Help the Democrats."

In The New York Times, Adam Liptak reports that "The Music Industry Reveals Its Carrots and Sticks." You can access here an article headlined "Putting the Corporation in the Dock." An article reports that "Pregnant Workers Filing More Complaints of Bias." In other news, "9/11 Fraud Cases Involve Money Meant for Businesses." An article reports that "Canadian Indians Challenge Fish Farms in Court." The challenge is in court; the fish farms are not. And you can access here an article headlined "Using the Gavel to Strike at Terror."

The Washington Times contains an AP article reporting that "Judge ponders anonymity of teens in college suit."

The Washington Post contains an op-ed by Akhil Reed Amar entitled "Who's on Third? After the Veep, Redraw the Line." And columnist Richard Morin has an op-ed entitled "A Law Of Unintended Consequences."
Posted at 22:30 by Howard Bashman



"A troubling ruling": This editorial published yesterday shows that The Orlando Sentinel did not agree with the Supreme Court of Florida's recent ruling that allows public employees to exempt personal emails from public disclosure under certain circumstances.
Posted at 22:28 by Howard Bashman



"Justice too large to be a 1-man show": Adam B. Kushner had this op-ed last week in The Orlando Sentinel.
Posted at 22:24 by Howard Bashman



Robert H. Bork promotes his new book: If you missed the video of his recent speech shown today on C-SPAN2's "Book TV" program, you can access the transcript online here.
Posted at 22:22 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Anti-Terror Laws Capture Common Criminals" and here an article entitled "Dumb and Dumber: Robbers Foil Themselves."
Posted at 22:19 by Howard Bashman



"Legal experts to meet in Bahrain": The Gulf Daily News, which calls itself "the voice of Bahrain," had this report a while back. The meeting, which I described in detail in this earlier post, gets underway tomorrow. U.S. Supreme Court Justice Sandra Day O'Connor and several U.S. Court of Appeals and District Court judges are scheduled to be present for the event. You can be sure that I'll be scouring the Web for news of what's taking place there.
Posted at 20:57 by Howard Bashman



Will leaving Blogger and Blog*Spot cause him to be less curmudgeonly? Only time will tell. "The Curmudgeonly Clerk" has a new, Movable Type-powered blog, which you can access here.
Posted at 14:50 by Howard Bashman



"Bush Seeks to Expand Access to Private Data": This article about the so-called "Patriot Act II" appears in today's edition of The New York Times.
Posted at 12:15 by Howard Bashman



At least no U.S. Supreme Court Justice risks being bonked on the head: The Associated Press reports here from Philadelphia that "Liberty Bell move will go ever so carefully. It's cracked enough; officials are nervous." The article of course mentions Justice Sandra Day O'Connor's terrifying experience during her recent visit to Philadelphia.
Posted at 10:14 by Howard Bashman



Tests of Sandra Day O'Connor U.S. Courthouse in Phoenix reveal no sign of Legionnaires' disease bacteria: Friday's issue of The Arizona Republic contained this good news.
Posted at 10:10 by Howard Bashman



"Tropical Battle of Race, Rights Divides Islanders; Lawsuits Challenge Health Care, Housing and Educational Services Limited to Native Hawaiians": This article appears in today's edition of The Washington Post.
Posted at 09:26 by Howard Bashman



Lightweight: The Associated Press reports here that "A lightweight model of suspended Chief Justice Roy Moore's Ten Commandments monument will tour six states on its way to the U.S. Supreme Court steps."
Posted at 09:14 by Howard Bashman



"Church limits spark debate in Lauraville; Ban on new institutions strives for commercial redevelopment of area; 'You can't cut God off'; City law may violate recent federal protections": This article appears today in The Baltimore Sun.
Posted at 09:07 by Howard Bashman



Columnist opposes the concept of breast-baring women: Eric Edwards, who writes a column for The Orlando Sentinel known as "The Single Guy," on Friday had a column that begins: "There is a meaty issue that has weighed on my mind lately. It all started when 10 women filed a federal lawsuit against Brevard County, claiming that their 14th Amendment rights were being violated. Ever since, I have only been able to think about one thing: breasts."
Posted at 09:02 by Howard Bashman



"Texans Vote to Limit Lawsuit Awards": The Associated Press has this report. The Houston Chronicle reports here that "Texans pass Prop. 12 in statewide election." The Dallas Morning News reports here that "Prop 12 approved by narrow margin; Millions of dollars spent by backers, opponents of caps on noneconomic damages." The Fort Worth Star-Telegram reports here that "Voters OK lawsuit limits." And The Austin American-Statesman reports here that "Limits on damages narrowly approved; Voters OK Proposition 12, all other amendments to Texas Constitution." You can access more information on this subject via my post from last night.
Posted at 08:34 by Howard Bashman



Saturday, September 13, 2003
"The defenestration camp may have erected a cathedral of the mind": Recent Harvard Law graduate Garrett Moritz takes a look at federal judges and their sometimes oversized vocabularies.
Posted at 23:56 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times reports here that "Nike Settles Lawsuit Over Labor Claims; The company will pay $1.5 million in a case that used California law to contest the firm's statements." An article reports that "Lawmaker's Army Leave Under Scrutiny; The Pentagon is investigating the propriety of a state senator's return from a Cuba base for a Missouri gun law vote." In other news, "Man Held in SUV Firebombings; Pomona commune dweller allegedly seen on surveillance tape before attack." In local news, "City faces costly, lengthy appeal; The city is asking an appellate court to review decisions judge made in police case." An article reports that "Bryant Is Seeking Closed Hearing; Accuser's attorneys use previous argument by defense to support the position that she shouldn't have to testify." In business news, "Sour Apples Between Beatles, iTunes; Computer maker's online music store triggers lawsuit by the band's licensing firm." And an editorial entitled "Ashcroft's Errant Hammer" begins, "The gumshoes of the Justice Department must love Tommy Chong, the aging comedian/actor who until recently had a business making expensive blown-glass bongs."

The Washington Post reports here that "California Battles Over Racial Identification; Oct. 7 Ballot Includes Proposition 54, Controversial Bid for 'Color-Blind' Society." And you can access here an article headlined "Texans Vote On Limiting Malpractice Payments; Change to Constitution Would Apply Broadly."

The New York Times reports here that "Hue and Cry Replaces Yawns in Vote on Texas Constitution." And in local news, "Differing Views Are Voiced by City on Gun Lawsuits"; "Computer Use Limited for Accused Hacker Free on Bond"; and "Ruling Voids Spending Caps in New Jersey's Primary Races."
Posted at 23:36 by Howard Bashman



William J. Dyer ponders yesterday's redistricting ruling by a three-judge court in Texas: You can access his musings at this link.
Posted at 23:26 by Howard Bashman



Proposed constitutional amendment in Texas to limit some lawsuit awards is currently headed toward passage, but additional votes remain to be counted: The Associated Press reports here that "Texas voters backed a proposition to allow limits on some civil lawsuit awards in an election Saturday to decide 22 constitutional amendments, according to early returns." You can track the election returns at this link via the Texas Secretary of State's Web site. And you can access here the text of the amendment in question.
Posted at 23:12 by Howard Bashman



The address for "How Appealing" is now easier than ever to remember: You can now access this blog simply by directing your Web browser either to www.appellateblog.com or to appellateblog.com. Both addresses will cause you to end up here, and both addresses are easier to remember than the long and difficult-to-remember address at which this blog actually resides.
Posted at 23:05 by Howard Bashman



"Subject: Sushi Options." The "Gawker" blog has this report for those who are wondering what life can be like in a big New York City-based law firm. If anyone has a copy of the referenced memo, feel free to send it along. (Thanks to the no-longer-blogging Sam Heldman for the pointer.)
Posted at 22:50 by Howard Bashman



"Anti-gay comments spark debate at IU; Economics professor says on school Web site gays, lesbians aren't suited for certain jobs": The Indianapolis Star today contains this report concerning a matter that Law Professor Eugene Volokh has been addressing for a while now (start here and scroll down).
Posted at 21:00 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Texas Democrats Vow Supreme Court Fight" and here an article entitled "Pa. Court Upholds Woman's Conviction."
Posted at 19:37 by Howard Bashman



"Judge's e-mail creates fallout": Today's edition of The News and Record of Greensboro, North Carolina contains this report. And The Associated Press reports here that "N.C. Judge Expects to Be Asked to Resign."
Posted at 19:34 by Howard Bashman



"Commandments plaque will stay put in Chesco": The fight over a Ten Commandments plaque in a suburb of Philadelphia has ended in a victory for supporters of the plaque, today's issue of The Philadelphia Inquirer reports here. And The Associated Press reports here that "Groups Won't Press Pa. Commandments Case."
Posted at 19:31 by Howard Bashman



"Democrats Find Some Traction on Capitol Hill": Today's edition of The New York Times contains this article, which observes that "Last week, their long-running filibuster forced an appeals court nominee, Miguel Estrada, to withdraw." The word "caused" would have probably been more accurate than "forced."
Posted at 19:25 by Howard Bashman



"'Law, Pragmatism, and Democracy': The Legal Theory of No Legal Theory." Alan Ryan, the warden of New College and a professor of politics at the University of Oxford, has this review of Seventh Circuit Judge Richard A. Posner's new book in tomorrow's issue of The Sunday Book Review in The New York Times. Ryan's review begins:
Richard A. Posner is an extraordinary person. If he did not exist, it would be hard to believe that he could. He is a judge on the United States Court of Appeals for the Seventh Circuit in Chicago, and -- one would think -- a busy man. But he writes on almost every legal issue of the day, from Bush v. Gore to Roe v. Wade. He has published ''Public Intellectuals'' and a biography of Benjamin Cardozo. Thirty years ago, his book ''The Economic Analysis of Law'' began a revolution in legal theory whose effects are still being digested. Ten years ago, ''Sex and Reason'' scandalized just about everyone by coolly and rationally analyzing the way the law should treat sex and its consequences. Posner keeps up a rate of production of polemical essays on politics, law and moral philosophy that would do credit to an entire law school. He writes with a flair that puts most journalists to shame and a depth of knowledge that puts most professors to shame.
And here are two additional, admittedly random quotes from the review: "Posner's premise is that there is no such thing as legal reasoning"; and "Justice Scalia is told off particularly severely for political ineptitude." You can access the entire review of Judge Posner's newest book at this link.
Posted at 13:37 by Howard Bashman



"The Persuit [sic] of Steven Hatfill": Tomorrow's issue of The Washington Post Magazine contains this cover story. I wonder if the misspelling of "pursuit" made it into the printed version. Update: A reader emails, "Since you asked, no, the typo is not repeated in the printed version." Second update: The Post has fixed the typo in the online version of the article.
Posted at 11:16 by Howard Bashman



Atheist does not believe Justice Antonin Scalia should participate in Pledge of Allegiance case: Gina Holland of The Associated Press reports here that Michael Newdow has filed a motion that seeks Justice Antonin Scalia's recusal from the Pledge of Allegiance case now pending on petition for writ of certiorari before the Supreme Court of the United States. Ms. Holland was one of just a very few journalists who covered the speech that Justice Scalia delivered in January 2003 in Fredericksburg, Virginia that gives rise to the recusal motion. The Free Lance-Star also had a reporter present, and you can access that coverage here. In response to Justice Scalia's speech, The Free Lance-Star later published an op-ed entitled "Are atheists, agnostics, non-Christians part of Scalia's America?" Justice Scalia's remarks caused the organization Americans United for Separation of Church and State to issue a press release calling for his recusal in all church-state cases. Tony Mauro, who covers the Court for American Lawyer Media, notes here (second item) that prayers for Justice Scalia's recusal are unlikely to be granted.
Posted at 11:08 by Howard Bashman



"Nike Move Ends Case Over Firms' Free Speech": Adam Liptak has this report in today's issue of The New York Times. The Washington Post reports here that "Nike Settles With Activist In False-Advertising Case." Bob Egelko reports here in today's edition of The San Francisco Chronicle that "Nike settles suit for $1.5 million; Shoe giant accused of lying about workers' treatment." The Oregonian reports here that "Nike settles free speech case for $1.5 million" and offers an editorial entitled "Free speech loses a round." Finally, The San Jose Business Journal offers an article headlined "Law professor: Nike settlement leaves corporate speech unresolved"
Posted at 10:44 by Howard Bashman



He told: The Associated Press reports here that "Court reinstates gay doctor's case against Air Force." Bob Egelko of The San Francisco Chronicle reports here that "Court ruling allows gay S.F. psychiatrist to sue Air Force for bias; In turn, military can seek repayment for medical education." And Jason Hoppin of The Recorder reports here that "9th Circuit Sides With Gay Ex-Serviceman." You can access yesterday's decision of the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 10:34 by Howard Bashman



"Malpractice cap highlights today's voting": Today's edition of The Houston Chronicle contains this report.
Posted at 10:27 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Justice Pushes for Looser Subpoena Rules" and here an article entitled "Man Nabbed in Fires at Calif. SUV Stores."
Posted at 10:26 by Howard Bashman



Was stipulated one-year suspension of public defender for having sexual relations in jail with client accused in three murders too lenient or too harsh? Only time will tell. The Associated Press reports here that "Suspension Nixed for Lawyer in Sex Case." The Seattle Times reports here that "Court rejects proposed punishment for public defender." And The Seattle Post-Intelligencer reports here that "Justices reject lawyer's disciplinary suspension."
Posted at 10:15 by Howard Bashman



Friday, September 12, 2003
Apple vs. Apple, redux: Today's edition of The San Francisco Chronicle reports here that "Beatles sue Apple over iTunes." (And also see this article, via Denise Howell.)
Posted at 23:52 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Lawyer Seeks to Bar Sniper Case Witness"; here "U.S. Brief Asks That Ashcroft Not Testify"; here "U.S. Seeks Death Penalty for Suspect"; and here "Military to Investigate Mo. Lawmaker."
Posted at 23:45 by Howard Bashman



"Nike Settles Lawsuit for $1.5 Million": The Los Angeles Times offers this news update. You can access here an essay expressing regret over Nike's decision to settle.
Posted at 23:42 by Howard Bashman



In today's issue of The Los Angeles Times: An article reports that "Missourians Given Leave to Carry Guns; Legislators override veto of concealed-weapon permits after a senator is granted time off from his Army post in Cuba for a last-minute vote." In other news, "Tiny Dog Takes Bigger Bite Out of Taco Bell." An article reports that "Inmate Freed After Winning Parole Battle; Court rules in favor of a man who served 30 years for murder and was slated to be released in 1994, only to be denied in prison board reversal." And you can access here an article headlined "Civil Litigants Face a Round of Fee Hikes; Some lawyers fear that the levies, aimed at helping close a court funding gap, will deny low-income people access to legal redress."
Posted at 23:35 by Howard Bashman



"Workers' private e-mail is just that; The Florida Supreme Court makes its ruling after the St. Petersburg Times sued Clearwater for city employees' messages written at work." Today's edition of The St. Petersburg Times contains this report. You can access the ruling in question here.
Posted at 23:32 by Howard Bashman



The Orlando Sentinel is reporting: You can access here an article entitled "Some worry about return to 'separate but equal' days"; here "Critics blast push to extend powers of '01 Patriot Act"; here "Prisoners file suit to stop use of gases"; and here "Parents gain time for woman."
Posted at 23:27 by Howard Bashman



Perhaps The Associated Press should visit the Eleventh Circuit's Web site more frequently: An article entitled "Christian Group May Sue Fla. Over Ad" asserts that this decision was "made public Friday." In fact, I can attest, the decision was posted to the Eleventh Circuit's Web site on Tuesday.
Posted at 21:11 by Howard Bashman



"Nut reaches Downing Street": It's difficult to improve on the headline of this BBC News article. In other coverage, Reuters reports here that "Monkey Nut Nudger Reaches End of a Hard Road." And The Associated Press reports here that "Man 'nose' how to grab attention."
Posted at 19:36 by Howard Bashman



"Order Removing 'Condescending,' 'Sarcastic' Jurist From Bay Area Court Left Standing by Justices": Fortunately for those who prefer their judges to be condescending and sarcastic, the order that is the subject of this report published in The Metropolitan News-Enterprise only applies to a state court judge in California.
Posted at 19:26 by Howard Bashman



"Federal panel rejects Democrats' lawsuit": The Fort Worth Star-Telegram has this report. The Austin American-Statesman reports here that "Judges toss Democrats' lawsuit; Federal panel rules Voting Rights Act doesn't extend to Texas Senate, clears way for redistricting battle to resume." And The Associated Press reports here that "Federal panel rejects Texas Democrats' redistricting lawsuit."
Posted at 19:24 by Howard Bashman



One down, one to go: The Birmingham News reports here today that "Court may cut justices by 2 to save money, chief says." The "chief" referenced in the headline is Acting Chief Justice J. Gorman Houston, Jr. of the Supreme Court of Alabama.
Posted at 19:20 by Howard Bashman



Ten Commandments: The Atlanta Journal-Constitution reports here that "Barrow deadline passes; ACLU has threatened to sue over Ten Commandments." The Gwinnett Daily Post reports here that "Hundreds rally in Barrow in support of Commandments." The Athens Banner-Herald contains an article headlined "Keep plaque, ralliers cry; Hundreds vent at ACLU." And The Red and Black reports here that "Ten Commandments spark local controversy."

The Orlando Sentinel reports here that "Enthusiastic crowd greets monument." And The Ledger reports here that "Foundation Rock Unveiled In Administration Building; Most people at ceremony see no controversy in 7-foot-tall monument."

The Crimson White reports here from Alabama that "Riley includes Ten Commandments as part of historical display in Capitol." And from Utah, The Salt Lake Tribune contains an article headlined "Officials: We shalt not move tablet."
Posted at 17:35 by Howard Bashman



"Originalism and Statutory Construction": On September 19, 2003, the American Constitution Society will be holding a luncheon program by that title in Washington, DC featuring several distinguished participants. You can learn all the details at this link.
Posted at 17:16 by Howard Bashman



"Breyer Says U.S. Could Learn From Israel": The Associated Press provides this report.
Posted at 17:14 by Howard Bashman



Texas redistricting suit dismissed by three-judge panel of U.S. District Court for the Southern District of Texas: [Update: The court's memorandum and order are now available at this link.] The relevant docket entry states:
MEMORANDUM AND ORDER granting [10-1] motion to dismiss. We also DIMISS claims under 42 U.S.C. 1983, insofar as Plaintiffs claim that the State's decision to consider redistricting legislation and the failure to adhere to the "2/3rd Rule" violate the First, Fourteenth and Fifteenth Amendments to the United States Constitution. We also withhold ruling on Plaintiffs' motion to file a first amended complaint. The purpose of the amendment is to add a Count V, complaining of threats to arrest the Plaintiffs and also to require that they pay a monetary sanction for their failure to appear at earlier special sessions. As discussed at the hearing on September 11, 2003, the arrest issue likely will become moot. Indeed, the Plaintiffs' fear of being coerced to apper at a legislative session is shifting to a fear of being prevented from appearing. For reasons discussed at the hearing, neither the facts nor the law on the issue of threatened monetary sanctions are sufficiently developed at this point to permit an informed decision. Moreover, it is possible that future developments could also moot this issue. Entered. Parties notified. (signed by U.S. Circuit Judge Patrick E. Higginbotham, Chief U.S. District Judge George P. Kazen, and U.S. District Judge Lee H. Rosenthal)
You can access the docket entries at this link.
Posted at 16:40 by Howard Bashman



Just call it the Twelfth Circuit: This article published today in The Detroit News probably wouldn't be worthy of mention given how similar it is to an article recently published in The Cincinnati Enquirer, which I linked to a while back. But a graphic accompanying today's article is interesting on several grounds (particularly when it identifies the D.C. Circuit as the Twelfth Circuit and then completely fails to mention the Thirteenth Circuit).
Posted at 16:32 by Howard Bashman



"The Judiciary Committee thought it could stall the nomination, and it was right." That quote comes from an interview with Harvard Law School's new Dean, Elena Kagan, published in yesterday's issue of The Harvard Law Record. And Dean Kagan was of course referring to the nomination that she received from President Clinton to serve on the U.S. Court of Appeals for the D.C. Circuit.
Posted at 16:23 by Howard Bashman



"Judge Bork: Judicial Activism Is Going Global." FOXNews.com offers this report.
Posted at 15:49 by Howard Bashman



Greetings from Bahrain: The Web site of the U.S. Embassy in Manama, Kingdom of Bahrain focuses extensively on the "Arab Judicial Forum 2003: Judicial Systems In the 21st Century" taking place in Bahrain from September 15 to 17, 2003. U.S. Supreme Court Justice Sandra Day O'Connor, Second Circuit Chief Judge John M. Walker, Jr., Senior Ninth Circuit Judge J. Clifford Wallace, Tenth Circuit Judge Robert H. Henry, and two U.S. District Judges will be a part of the USA delegation.

You can access a fact sheet here; the agenda here; logistical information for participants here; and bios for the entire USA delegation here. Those who read Arabic might also wish to check out this page.

It will be interesting to see how much press coverage the Arab Judicial Forum will be receiving next week here in the United States. By the way, through the miracle of the Internet, one doesn't have to travel to Bahrain to visit its international airport.
Posted at 15:02 by Howard Bashman



D'oh! Today's issue of The Pittsburgh Tribune-Review contains an article headlined "Inmate gets lesson on mail etiquette." And The Associated Press reports here that "Man's Plans for Alibi Foiled by Mail."
Posted at 14:21 by Howard Bashman



Another fascinating ruling from the Seventh Circuit arising from the Ford Motor Company and Bridgestone / Firestone North American Tire litigation: Should claims filed by or on behalf of Venezuelan or Colombian nationals killed or injured allegedly as a result of defective tires be heard by courts in the United States? Today the U.S. Court of Appeals for the Seventh Circuit issued its long-awaited explanation for why the appellate court refused late last year either to grant mandamus dismissing the cases in favor of suits that could be filed in the countries where these plaintiffs are from or to order the district court to certify the questions presented for interlocutory appeal by permission.
Posted at 13:38 by Howard Bashman



Rehearing en banc denied: You can access online at this link yesterday's order of the U.S. Court of Appeals for the D.C. Circuit denying rehearing en banc in the case known as In re: Richard B. Cheney, Vice President of the United States. I have no idea whose handwriting appears on the copy of the order that FindLaw has posted.
Posted at 13:38 by Howard Bashman



In news from Missouri: The St. Louis Post-Dispatch reports here that "Abortion waiting period will become law as Senate votes to override veto"; here that "Missouri will allow hidden weapons"; and here that "Military made rare exception to grant leave for foe of veto." And The Kansas City Star reports here that "Missouri overrides Holden vetoes; Way cleared for concealed guns" and here that "Democrats take issue with senator's military leave of absence in veto override vote."

In other news, The Post-Dispatch reports here that "State can't ban Klan from trash pickup program, judge rules." You can access the ruling of the U.S. District Court for the Eastern District of Missouri at this link.
Posted at 13:33 by Howard Bashman



In news from Texas: The Houston Chronicle reports here today that "Panel may rule today on redistricting suits." And The Dallas Morning News reports here that "Panel reluctant to intervene in remap battle; Judges hear Democrats' suit alleging violation of Voting Rights Act."
Posted at 12:40 by Howard Bashman



"Corporation Law and Economics": That's the title of UCLA Law Professor Stephen Bainbridge's new blog, which you can visit at this link. Coincidentally, Stephen was born in Doylestown, Pennsylvania, which isn't too far away from where I reside.
Posted at 12:24 by Howard Bashman



"The same lawyer should represent both sides on appeal": That unquestionably extreme proposition won The California Lawyer magazine's "Extreme Advocacy Contest," officiated by Ninth Circuit Judge Alex Kozinski. And no, the U.S. Supreme Court isn't available to reverse the Ninth on this one. Denise Howell provides all the details and relevant links here.
Posted at 12:19 by Howard Bashman



"Nike Settles Commercial Free Speech Case": The Associated Press has this report. Reuters reports here that "Nike settles free-speech case over labor claims." And Nike has issued a press release entitled "Nike, Inc. and Kasky Announce Settlement of Kasky v. Nike First Amendment Case."

On June 26, 2003, the U.S. Supreme Court issued an order dismissing the case as one in which certiorari had been improvidently granted.
Posted at 11:42 by Howard Bashman



"Felon Gets Second Shot On Gun Sentence: 2nd Circuit Joins Minority in Split Over Felon-in-Possession Charges." Today's installment of The ABA Journal eReport bears this headline. I previously reported on this ruling in a post entitled "Not every court qualifies as 'any court.'"

The eReport also contains an article headlined "Predictive Justice: Missouri Says U.S. Supreme Court Would Reject Execution of Juveniles." I previously had a lengthy write-up of this ruling.
Posted at 11:42 by Howard Bashman



"Doubts cast on Oct. 7 vote; Federal judges question using punch-card machines in the state's special election." The Sacramento Bee today offers this coverage. And Howard Mintz of The San Jose Mercury News also provides coverage of yesterday's Ninth Circuit oral argument, writing that "The legality of holding California's recall election on Oct. 7 may be hanging by a chad."

As I mentioned here last night, the Ninth Circuit's Web site allows you to download the audio of yesterday's oral argument and form your own opinions about what occurred.
Posted at 11:31 by Howard Bashman



"Blogging the Recall": Cynthia L. Webb of washingtonpost.com writes here that "The California gubernatorial recall election -- the messiest and most entertaining political news story of the year -- is providing yet another boost for the online journal phenomenon commonly known as 'blogging.'"
Posted at 11:21 by Howard Bashman



"Courthouse cleanup find a reel surprise; Print of pornographic movie 'Deep Throat' discovered": The Times Union of Albany, New York yesterday published this report (via "Obscure Store").
Posted at 10:30 by Howard Bashman



"Tiny dog costs Taco Bell more": The Detroit Free Press today contains this news.
Posted at 10:27 by Howard Bashman



"Mother settles suit alleging son's suicide followed police threat": The Associated Press reports here from Minersville, Pennsylvania that "The mother of a high school football player who committed suicide has settled a lawsuit alleging that police were responsible because they threatened to tell his family he was gay." In 2000, this matter produced a ruling from the U.S. Court of Appeals for the Third Circuit.
Posted at 10:20 by Howard Bashman



"Some public e-mails are private, court rules": The Orlando Sentinel reports here today that "In a sweeping decision that critics said will open the door to government waste and abuse, the Florida Supreme Court ruled Thursday that not all e-mails stored in government computers are public." You can access yesterday's ruling by the Supreme Court of Florida at this link.
Posted at 10:11 by Howard Bashman



"Actor Tommy Chong gets nine months for selling pot pipes": U.S. District Judge Arthur J. Schwab, who worked at my law firm before joining the judiciary, imposed the sentence. The Pittsburgh Post-Gazette contains this report.
Posted at 10:07 by Howard Bashman



"Bill of Rights a nasty obstacle in war on terrorism": Columnist Tony Norman has this essay in today's edition of The Pittsburgh Post-Gazette.
Posted at 10:02 by Howard Bashman



"Stay lifted; killer is put to death. Two high courts decline to spare the life of Henry Lee Hunt, and Gov. Mike Easley refuses to grant clemency." Today's edition of The Raleigh News and Observer contains this report.
Posted at 09:56 by Howard Bashman



"Court hints recall could be postponed; Using punch cards would be accepting unacceptable: judge." Bob Egelko has this article in today's edition of The San Francisco Chronicle.
Posted at 07:07 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Judges Fear Calif. Poll Problems; U.S. Panel Questions Officials About Punch-Card Voting." An article reports that "Energy Task Force Appeal Refused; U.S. Court Rebuffs White House Bid to Avoid Releasing Files." In other news, "Malvo's Attorneys Plan Mental Health Testimony; Defense to Use Evidence to Argue Against Execution if Teenage Sniper Suspect Is Convicted." In other local news, "Va. Terror Network Suspect Denied Bail; U.S. Judge Cites Evidence of Business Ties." And an editorial is entitled "Mr. Pollard's Plea."

The Christian Science Monitor reports here that "Texas vote tests a new tactic to curb jury awards; The strategy: Change the state constitution to make a cap on medical-malpractice damages stick." And Warren Richey and Linda Feldmann have a lengthy article headlined "Has post-9/11 dragnet gone too far? As White House pushes to expand domestic terror laws, critics worry limits on civil liberties will become permanent."

The New York Times reports here that "High Tuition Debts and Low Pay Drain Public Interest Law." An article reports that "Senate Debates Repeal of F.C.C. Media Ownership Rules." In local news, "Prosecutor Will Retry Man Freed by DNA in L.I. Rape-Murder." An editorial is entitled "Suing Music Downloaders." Brent Staples has an "Editorial Observer" essay entitled "When Racial Discrimination Is Not Just Black and White." And letters to the editor appear under the headings "The Anniversary and the Patriot Act" and "For President: My (Foreign-Born) Child."
Posted at 06:57 by Howard Bashman



"Dead Wrong or Right On? Should The Supreme Court Uphold the Ninth Circuit's Reversal of 122 Death Sentences Imposed by Judges, Not Juries?" Elaine Cassel has this essay online at FindLaw.
Posted at 06:53 by Howard Bashman



Thursday, September 11, 2003
Elsewhere in Thursday's newspapers: In The Washington Times, Frank J. Murray reports that "Appeals court upholds 'perp walks.'"

The Los Angeles Times reports here that "Court Refuses Luster Case; The convicted rapist's attorney now plans to ask the U.S. Supreme Court to overturn a ruling that blocks his appeal rights." In other news, "Prop. 54 Backers to Air Ads; The radio spots starting today take a swipe at Bustamante's donations to proposition foes and say he supports 'race preferences.'" An article reports that "Bush Wants to 'Untie' Laws to Fight Terror; The president's push for added powers comes amid a growing debate over the Patriot Act." In other news, "New Trial Is Granted in 1985 Killing; An appellate court panel says Harold Hall was denied due process by authorities' use of his dubious confession and a jailhouse informant." And you can access here an article entitled "D.A. Opposes Defense Subpoena; Prosecutors in the Bryant case argue that the accuser's presence at a preliminary hearing would result in 'anxiety and intimidation.'"

The Boston Globe reports here that "Bush seeks 3 new laws on terror; Focuses on bail, search powers, death penalty." And in other news, "Family settles suit against AAA, driver."
Posted at 23:10 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "N.C. Execution Back on Schedule"; here "Fed Panel Hears Texas Redistricting Case"; here "Texas Officials Remove 'Colored' Signs"; and here "Bill of Rights Copy to Be Returned."
Posted at 22:39 by Howard Bashman



"Judges Grill State on Use of Punchcard Ballot": Henry Weinstein of The Los Angeles Times provides this report on today's Ninth Circuit oral argument. And Jason Hoppin of The Recorder reports here that "9th Circuit May Put Brakes on Recall Election." The Ninth Circuit has made the audio of today's oral argument available for download via this link.
Posted at 22:32 by Howard Bashman



"Could it be ... Satan!!" The Associated Press is reporting from Iowa that "The United Methodist Church has asked the U.S. Supreme Court to review an Iowa ruling that a church member can sue over a warning that 'the spirit of Satan' was at work in her congregation."
Posted at 22:18 by Howard Bashman



"A Guide to the Patriot Act, Part 4: Should you be scared of the Patriot Act?" Dahlia Lithwick and Julia Turner present the final installment of their four-part series, just posted online at Slate. I haven't read any of the series -- someone who has should let me know via email whether reading these items proved worthwhile.
Posted at 21:06 by Howard Bashman



What's the difference between eleven and twelve jurors? If you guessed "a criminal conviction that survives review on appeal," you are correct. See this ruling that a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued today.
Posted at 20:06 by Howard Bashman



For want of an adequate record on appeal, a party loses successive appeals: A unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued this opinion by Circuit Judge Frank H. Easterbrook today.
Posted at 20:04 by Howard Bashman



"Appeals Court Won't Rehear Cheney Case": The Associated Press provides this report.
Posted at 17:44 by Howard Bashman



Decalogue blog: Could controversies over public display of the Ten Commandments be raging in both Barrow, Georgia and Bartow, Florida? Indeed, causing at least one law blogger to be even more confused than usual.

With respect to Barrow, The Atlanta Journal-Constitution reports here that "Barrow gearing for Ten Commandments fight" and here that "Crowd rallies for Barrow Ten Commandments display." The Athens Banner-Herald reports here that "ACLU to Barrow: Move Commandments. Group issues Friday deadline; rally today." And The Gwinnett Daily Post reports here that "God’s law rally set for today."

Moving south to Bartow, The Orlando Sentinel reports here that "Monumental debut may ignite church-state debate." And The Ledger reports here that "Monument Ready for Public; Veterans criticize use of flags to cover Foundation Rock."

But why should States located within the jurisdiction of the U.S. Court of Appeals for the Eleventh Circuit have all the fun? Apparently they shouldn't, because from Utah comes a report that "Pl. Grove to fight lawsuit against monument." In news from West Chester, Pennsylvania, "Saga over Ten Commandments may not be finished." An article reports that "Arkansas Judge Modifies Ten Commandments Display" -- his own. And from La Crosse, Wisconsin comes word that "Ten Commandments debate draws respectful crowd."

Meanwhile, at FindLaw, Law Professor Marci Hamilton today has an essay entitled "The Ten Commandments and American Law: Why Some Christians' Claims to Legal Hegemony Are Not Consistent with the Historical Record."
Posted at 17:41 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Sniper Case Prosecutors Hold Back Details"; here "Veto [Override] in Missouri Allows Concealed Weapons"; here "Ruling Delayed on Woman's Feeding Tube"; and here "Sniper Pursuer Reveals Emotions in Book."
Posted at 17:25 by Howard Bashman



A look at the other extreme of campaign finance: Today a three-judge panel of the U.S. Court of Appeals for the Third Circuit affirmed in relevant part a Pennsylvania-based federal district court's injunction that prevents the Commonwealth of Pennsylvania from requiring all candidates for office, including indigent ones, to pay a filing fee in order to have their names placed on the ballot. You can access today's very interesting decision at this link.
Posted at 17:16 by Howard Bashman



After the U.S. Supreme Court recognized the right to engage in consensual homosexual sodomy, lower court challenges to laws prohibiting such conduct became so anticlimactic: At least that would seem to be the thrust of this ruling that a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit issued today in a case known as John Doe v. William H. Pryor, Jr.
Posted at 17:01 by Howard Bashman



"'We Shall Prevail': Victory is the debt we owe to those who died two years ago." Solicitor General Theodore B. Olson today has these remarks online at OpinionJournal. Below Olson's remarks, the Web page states: "Mr. Olson is solicitor general of the United States. His wife, Barbara, was among the murdered passengers of American Airlines Flight 77, which hit the Pentagon two years ago today. He delivered these remarks this morning at the U.S. Department of Justice."
Posted at 16:38 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge Denies Iraq Funds for 9/11 Victims"; here "Inmate Indicted in Abusive Priest Slaying"; here "Court Rules in Prisons' Favor on Meals" (and the opinion is available online); here "Judge: Fla. Group Can Foreclose on Man"; and here "FBI Clears 8 Egyptians Held After 9/11."
Posted at 15:46 by Howard Bashman



"Panel Hears Case on Halting Calif. Recall": The Associated Press provides this report on today's Ninth Circuit oral argument.

Based on these reports (see post immediately below for a link to another report on the argument), it appears that the Ninth Circuit is poised to stay California's recall election and that the U.S. Supreme Court should start becoming familiar with this dispute because the case will be heading to Washington, DC in the very near future (perhaps just in time to coincide with Justice Sandra Day O'Connor's trip to Bahrain).
Posted at 15:09 by Howard Bashman



Law Professor Rick Hasen has posted his report on today's Ninth Circuit oral argument in the punch-card appeal seeking to delay California's recall election: You can access Rick's post describing today's oral argument here. You can access other resources pertaining to the case (such as the parties' briefs and the trial court's ruling) at this link.
Posted at 14:53 by Howard Bashman



Another Sixth Circuit nominee from Michigan scheduled for a hearing before the Senate Judiciary Committee: The agenda for the Senate Judiciary Committee's hearing scheduled to occur on Wednesday, September 17, 2003, at 10:00 a.m. has become available online, and it shows Sixth Circuit nominee David W. McKeague as among the candidates for the judiciary to be questioned at the hearing. McKeague currently serves as a judge on the U.S. District Court for the Western District of Michigan. Whether any of these Michigan-based Sixth Circuit nominees will ever be confirmed by the U.S. Senate over the objections of both of Michigan's Senators remains to be seen.
Posted at 14:20 by Howard Bashman



"The 9th Circuit Court May Stand Unjustly Accused": Law Professor Vikram David Amar has this op-ed in today's edition of The Los Angeles Times. Interesting use of the word "may" by the headline writer for the op-ed page.
Posted at 14:05 by Howard Bashman



Divided Ninth Circuit panel upholds Montana campaign finance reform initiative: The majority opinion that a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit issued today begins:
In 1994, Montana voters passed various campaign finance reform measures contained in a ballot proposition known as Initiative 118. At issue in this case are two of the provisions contained in that initiative. The first lowers the maximum dollar amount both political action committees and individuals may contribute to a political candidate; the second limits the aggregate dollar amount a candidate may receive from all PACs combined. Plaintiffs-appellants brought suit to invalidate some of the measures in Initiative 118, claiming they unduly burdened protected speech and associational rights. After a four-day bench trial, the district court made numerous factual findings and struck down portions of Initiative 118 not at issue here. As to the two provisions challenged on appeal, the district judge upheld them as sufficiently tailored to achieving Montana's important interest in preventing corruption and the appearance of corruption in Montana politics.

We affirm.
You can access the complete ruling at this link. The appeal was argued March 7, 2002.

Update: An email from someone in-the-know states:
Not that it is terribly important, but the note at the bottom of your post implies that the panel was less than diligent in issuing the opinion.

That's not entirely true. An opinion was originally submitted on September 24, 2002. Montana Right to Life v. Eddleman, 306 F.3d 874 (9th Cir. 2002). In January, the panel withdrew the opinion. Montana Right to Life v. Eddleman, 315 F.3d 1143 (9th Cir. 2003). Following the Supreme Court's decision in Beaumont, the parties were invited to file supplemental briefing and the new opinion followed.
Aha, I thought this case was vaguely familiar. Often times the caption of the revised opinion will reflect this procedural history, but today's opinion does not.
Posted at 13:48 by Howard Bashman



"Appeals court cuts award due to ruling": The Oregonian reports here today that "Under orders from the U.S. Supreme Court, the Oregon Court of Appeals on Wednesday slashed a $22.5 million punitive damage award against a pharmaceutical company to $3.5 million." You can access yesterday's ruling of the Oregon Court of Appeals at this link.

As the reader who emailed to bring this development to my attention observed:
The Oregon Court of Appeals yesterday decided one of the State Farm GVRs. In Bocci v. Key Pharmaceuticals, Inc., the court remitted a $22.5 million punitive award to $3.5 million. I suspect many practitioners will find this interesting; there has been a lot of interest in the State Farm GVRs, and especially the Oregon ones, because Oregon has resisted federal guidance on punitive damages.
Why might someone say that about Oregon? Here's one explanation. You can read my write-up of the U.S. Supreme Court's ruling back in April 2003 in State Farm Mut. Automobile Ins. Co. v. Campbell at this link.
Posted at 12:13 by Howard Bashman



Thou shalt not collide an automobile into the wife of suspended Alabama Chief Justice Roy S. Moore: The Associated Press reports here that "Wife of suspended chief justice awarded $270,000."
Posted at 10:40 by Howard Bashman



"Lawyers from out of state get access: A requirement that they have an in-state office to practice in N.J. was lifted. Phila. lawyers are happy." The Philadelphia Inquirer today contains this report.
Posted at 10:36 by Howard Bashman



And in other news from Texas: An article headlined "Ex-justice, lawmaker spar on Proposition 12; Recent mail-out adds fuel to rivalry," found in today's issue of The Houston Chronicle, begins: "For weeks, they have been cross-state rivals who battled over Proposition 12, the proposed state constitutional amendment that would limit medical malpractice lawsuits." This article provides links to plenty of additional coverage of the battle over Proposition 12 in Texas.

The Beaumont Enterprise reports here that "Former U.S. Attorney Bradford found dead." And The Associated Press reports here that "Apparent suicide of ex-U.S. attorney baffles associates."
Posted at 10:19 by Howard Bashman



"Hearings ordered for 10 on death row": The Houston Chronicle reports here today that "The Texas Court of Criminal Appeals on Wednesday gave 10 death row inmates -- including six from Harris County -- the opportunity to avoid execution by proving to a trial court that they are mentally retarded."
Posted at 10:16 by Howard Bashman



"Ironic punishment for ex-officer: He put probationer's head in toilet; now he'll clean them." Today's edition of The Houston Chronicle reports here that "Justice may be blind, but sometimes she is also flush with irony."
Posted at 10:13 by Howard Bashman



"Miguel Estrada -- Next stop Supreme Court": Emmett Tyrrell has this essay online at Town Hall.
Posted at 09:51 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Max Factor Heir Can't Appeal Convictions" and here an article entitled "Mo. Reporting Law Ruled Unconstitutional."
Posted at 09:41 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "President Urging Wider U.S. Powers in Terrorism Law." A related article asserts that "Counterterror Proposals Are a Hard Sell." In other news, "Families of Victims File to Meet a Legal Deadline." An article reports that "Case That Crawled Through Courts Returns to Go." And in local news, "Judge Rules Against Giuliani Plan on Sex Shops" and "Prosecutors Ask Skakel Lawyers for New Data on 1975 Murder."

The Washington Post reports here that "Judge Allows Prosecutors' Psychiatrist to Evaluate Muhammad." And an editorial is entitled "Patriot (Act) Games."

Finally for now, The Christian Science Monitor contains an article headlined "Inside prison, outside the law; John Geoghan's murder raises troubling issues of inmate 'justice' - and society's indifference."
Posted at 06:45 by Howard Bashman



On the agenda: Today at 8:30 a.m. pacific time, the U.S. Court of Appeals for the Ninth Circuit is scheduled to hear oral argument in a case alleging that the use of punch-card voting in some California localities in the upcoming recall election will violate both the U.S. Constitution and the federal Voting Rights Act. You can learn more about the case at this link. The trial court's decision that is the subject of the appeal can be viewed here. Also available online are the brief of the parties taking the appeal, briefs of the parties opposing the appeal (here and here), and a letter that the parties taking the appeal recently submitted to draw new authority to the Ninth Circuit's attention.
Posted at 06:35 by Howard Bashman



In remembrance: Through the front pages of newspapers and through the touching words of Susan Konig first published on Memorial Day 2002.
Posted at 00:00 by Howard Bashman



Wednesday, September 10, 2003
In Wednesday's newspapers: The Los Angeles Times reports here that "U.S. Judges to Hear Suit on Delaying Election; Appellate panel will weigh arguments that punch-card machines are unconstitutional, possibly Gov. Davis' last chance to put off vote." An article reports that "FCC's Powell Takes Aim at His Critics; Meanwhile, 'Howard Stern' is allowed to give exclusive air time to Schwarzenegger." In news from New York, "Ruling Opens Way for 9/11 Survivors and Victims to Sue." In recall election-related news, "Proposal Would Increase Threshold for Recall, but Not for This Election." An article reports that "Attorneys for Bryant Subpoena His Accuser; They seek the Colorado woman's presence at the preliminary hearing on Oct. 9, but prosecutors might ask the court to block the move." In other news, "Luster Victim Asks for Millions; The attorney for the second woman to sue the convicted rapist calls his conduct 'beyond outrageous.' The defense disputes financial losses." From San Francisco comes a report that "Law on HIV Infection Little Used; As a victim finds, state's tough standard means few who knowingly pass the virus are prosecuted." In local news, "City orders appeal of police case; Next stop is Court of Appeals after city loses final bid for a new trial in sexual-harassment case." In related news, "Lawyers Seek $2.7 Million in Fees From Glendale." In other local news, "Bus Hijacker Convicted of Capital Murder." An op-ed by Fred von Lohmann is entitled "'Amnesty' for Music File Sharing Is a Sham." And a letter to the editor appears under the heading "Gathering Racial Information Benefits All."

The New York Times reports here that "Judge's Ruling Opens Door for More Families to Sue Airlines and Port Authority." You can access here an article headlined "A New Bid to Get Off New Jersey's Death Row." And an editorial is entitled "Straight Talk on Judicial Nominees."

The Washington Post reports here that "Moussaoui Judge Rejects U.S. Offer; Defendant Wants Access to Detainees." A front page article reports that "9/11 Families Slow to Seek Compensation; Some Weigh Lawsuits; Others Can't Face Task." In other news, "Malvo Prosecutors Want Mental Health Reports." And you can access here an article headlined "RIAA's Lawsuits Meet Surprised Targets; Single Mother in Calif., 12-Year-Old Girl in N.Y. Among Defendants."

The Christian Science Monitor contains an editorial entitled "Money Politics on Trial; High court should uphold new campaign-finance law."

The Boston Globe reports here that "Sampson admits guilt, puts fate in jury's hands." An article reports that "Ashcroft visit sparks protest." In other news, "Lawyers for AAA fault slain woman, kin in her death." An article reports that "Black officer's racial bias suit is thrown out." And you can access here an article headlined "Attorney general loses home in Watertown fire."
Posted at 23:30 by Howard Bashman



The written transcript of the U.S. Supreme Court's oral argument Monday in the BCRA / McCain-Feingold case is now available online: You can access the transcript here (213-page PDF document).
Posted at 23:11 by Howard Bashman



"Bush Appeals Court Nominee Estrada Concedes Defeat After Fillibuster": The Harvard Crimson finally gets around to reporting this news. Next up for Estrada -- becoming the Dean of the Harvard Law School. [Note to Harvard Crimson headline writers: "filibuster" contains only one L.]
Posted at 23:09 by Howard Bashman



"Group asks UHS for abortion rebate; Choose Life at Yale College says students should be able to claim a $1 rebate from Yale": Today's edition of The Yale Daily News contains this report.
Posted at 22:53 by Howard Bashman



Available online at law.com: An article bearing tomorrow's date is headlined "Make-or-Break Moment for Physicians' Class Action; Federal appeals panel hears arguments today on whether suit by 700,000 physicians can go on in Miami court." In other news, "2nd Circuit Upholds Perp Walk Video." Finally, an article reports that "Insurers Sue Over 9/11 Attacks."
Posted at 22:41 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Justice Dept. Defies Judge on Moussaoui"; here "Rumsfeld: Military Trials to Be Delayed"; here "Bush Urges More Police Powers Vs. Terror"; here "Insurers Sue Terror Groups for 9/11"; here "Ohio Supreme Court agrees to hear lawsuit over matchbook ads"; here "Bryant prosecutor details evidence, including photos of injuries to accuser"; here "Conn. Killer Seeks Death Sentence Tossed"; here "Man Charged for Shipping Himself As Cargo"; here "Citizenship of Alleged Nazi May Be Revoked"; and here "Convicted Double Killer Executed in Texas."

In news from the U.S. Supreme Court, Gina Holland reports that "Bush administration urging Supreme Court to require state help for theology degrees," while Anne Gearan reports that "Bush administration asks for high court's help in trade dispute."
Posted at 22:20 by Howard Bashman



Caption this photo: "Hello Dalai."
Posted at 22:17 by Howard Bashman



"A Viable Solution: Why it makes sense to permit abortions and punish those who kill fetuses." Jeffrey Rosen has this essay online at Legal Affairs.

Also online at Legal Affairs, Eugene Volokh tries his hand at fiction. One added benefit: no footnotes.
Posted at 20:22 by Howard Bashman



"A Guide to the Patriot Act, Part 3: Should you be scared of the Patriot Act?" Dahlia Lithwick and Julia Turner have this essay, which Slate has just posted online.
Posted at 20:17 by Howard Bashman



The Solicitor General's amicus brief in support of the respondent in Locke v. Davey is now available online: This case presents the following question:
Whether a State may deprive an otherwise eligible student of scholarship funds made available to high school graduates based on academic achievement, financial need, and enrollment at an accredited post-secondary school, solely because the student elects to major in theology taught from a religious perspective.
You can access the amicus brief, which was filed earlier this month, at this link. (Thanks to Chris Green for the pointer.) You can learn more about this case here, here, and here.
Posted at 19:46 by Howard Bashman



BCRA trivia: Marty of SCOTUSblog poses a BCRA-related trivia question:
Unless the Court somehow manages to issue its judgment in the campaign finance cases in the next 25 days -- very unlikely, seeing as how the Chief Justice announced from the bench on Monday that the Court will stand in recess until the beginning of the October 2004 Term on October 6th -- we'll have the rare occurrence of the Court issuing a judgment in a case that was argued the previous Term, (presumably) without having been reargued in the opinion Term. Does anyone know of any historical precedents for this since the October Term was established (I believe in 1916)?
He emails to me, "Perhaps someone in your vast readership will know if there's an answer!" Well, we shall see.

Update: Chris Green offers Myers v. United States, 272 U.S. 52 (1926), which appears to have been reargued April 13 and 14, 1925 and decided Oct. 25, 1926. That looks like it may qualify, but Marty will be the final judge (it's his trivia question, after all).
Posted at 18:40 by Howard Bashman



"Court Side: Democrats should learn from the Estrada episode and brace themselves for more." Nan Aron has this essay online at The American Prospect. I have in my possession about a zillion other links to recent Estrada-related editorials and op-eds, and I reserve the right to post them later this week if the spirit so moves me.
Posted at 17:22 by Howard Bashman



Today's FindLaw columnists: Sherry F. Colb has an essay entitled "Is Capital Punishment Too Harsh for Rapists? A Louisiana Jury Sentences a Child's Rapist to Death." And Christopher Geidner, a law student whose blog you can access here, has an essay entitled "Queer Eyes for the States' Rights Guy: The Legal Issues Raised by the Proposed Federal Marriage Amendment to the Constitution."
Posted at 16:59 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Man Who Lived in Arizona Cave Expelled"; here "AAA Settles With Family of Murder Victim"; and here "Former U.S. Attorney Found Dead in Texas."
Posted at 16:46 by Howard Bashman



Required reading: At the risk of directing more traffic to the Eighth Circuit Web site's audio servers than those servers can handle, let me note my delight with the substance of an email that arrived this afternoon:
In case you had not heard, you were invoked by the Honorable Roger L. Wollman during oral arguments on Monday (re: your Aug. 21st post on "Any other litigant might be embarrassed, but in litigation the government never blushes."). The case was Advanta USA v. Elaine Chao (03-1438) and you can listen to all 8th Circuit oral arguments online via that court's web page and the "Case Information" link.
For those who wish to listen, the mention of "How Appealing" occurs at 28 minutes and 30 second into the argument, when one of the judges on the panel begins a question by stating (if I heard it correctly), "Do you read Howard Bashman's column 'How Appealing' each morning? It's where I get all my law."

Sadly, the federal government's attorney (who received quite a pummeling from the panel) was forced to admit for all to hear that he doesn't read this blog. And that same lawyer also never has visited a corn field.

While the distinction of being the first appellate judge to mention "How Appealing" at an oral argument appears to have been claimed, the distinction of being the first judge to mention "How Appealing" in a published appellate decision remains available.
Posted at 16:31 by Howard Bashman



"We submit that the panel's remand order fails to show sufficient respect for the Supreme Court." Today the attorneys for Ben Chavez are filing in the U.S. Court of Appeals for the Ninth Circuit a petition for rehearing en banc of the Ninth Circuit's very short per curiam order entered in late July on remand from the U.S. Supreme Court's ruling in Chavez v. Martinez. You can access here my coverage of the Ninth Circuit's order on remand and here my coverage of the U.S. Supreme Court's ruling in late May 2003.
Posted at 15:55 by Howard Bashman



"Court Gives Indiana Lt. Governor Power": The Associated Press provides this report from Indianapolis. And The Indianapolis Star reports here that "Justices transfer power to Kernan." Today's order of the Supreme Court of Indiana can be accessed here. And more thorough coverage of what's happening in Indiana can be had via "The Indiana Law Blog" and "Cooped Up."
Posted at 15:23 by Howard Bashman



"Corporate Political Speech, Political Extortion, and the Competition for Corporate Charters": Law Professor Robert H. Sitkoff emails:
Some reports [on Monday's BCRA U.S. Supreme Court oral argument] indicate that the Court's decision in Austin v. Michigan Chamber of Commerce might now be vulnerable. And it should be--neither the shareholder protection nor the "massive wealth" arguments hold up.
Indeed, Professor Sitkoff has written an article on this very subject that's been published in the University of Chicago Law Review. You can access the article online at SSRN via this link.
Posted at 15:08 by Howard Bashman



"Cato vs. DOJ, Round 2": Timothy Lynch, who directs Cato Institute's Project on Criminal Justice, today has this reply to an essay from Barbara Comstock, who serves as the director of public affairs at the U.S. Department of Justice and who was responding to Lynch's original essay about Attorney General John Ashcroft's speaking tour in defense of the Patriot Act.
Posted at 14:48 by Howard Bashman



"Congress uses scalpel to cut up Patriot Act; Bills would repeal parts of anti-terror law, but Bush threatens vetoes": Bob Egelko has this detailed article in today's issue of The San Francisco Chronicle.
Posted at 14:41 by Howard Bashman



"Barbie deemed a threat to morality by Saudi Arabia's religious police": The Associated Press provides this report.
Posted at 14:39 by Howard Bashman



"A clause only wine drinkers can love?" Columnist Brian Dickerson has this essay in today's issue of The Detroit Free Press. The clause in question, of course, is the Commerce Clause of the United States Constitution.
Posted at 14:36 by Howard Bashman



"Suspect in rape of J.D.S. arrested": Today's edition of The Orlando Sentinel reports here that "Orlando police Tuesday arrested the 75-year-old husband of a group-home caretaker on charges that he raped a severely retarded woman whose case sparked a national debate on fetal rights."
Posted at 14:29 by Howard Bashman



"Manson's creepy, but his gyrating was no assault": Columnist Joe Soucheray has this essay in today's issue of The St. Paul Pioneer Press.
Posted at 14:21 by Howard Bashman



"FCC Says Howard Stern Show Is News Program": The Associated Press offers an article that begins: "When you think about news shows, what comes to mind? There's 'Meet the Press.' And 'Face the Nation.' And now, Howard Stern's radio show. That's right. The Federal Communications Commission ruled Tuesday that Stern's raunchy radio program is a 'bona fide news interview' program." Reuters, meanwhile, reports that "FCC says shock jock Stern qualifies as newsman." You can access the FCC's ruling here.
Posted at 14:05 by Howard Bashman



The Ninth Circuit resolves whether the U.S. Congress may, pursuant to the Commerce Clause, prohibit the intrastate possession of child pornography: And federal prosecutors in the western United States breathe a sigh of relief, as a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today ruled that the federal law making the possession of child pornography a crime is not facially unconstitutional. Of course, a short while ago the Ninth Circuit issued a controversial decision holding that the statute in question was unconstitutional as applied, and today's ruling spends much time distinguishing that recent ruling.
Posted at 13:48 by Howard Bashman



Erotic dancing and alcohol: The majority opinion issued by a divided three-judge panel of the U.S. Court of Appeals for the Ninth Circuit in a case on review from the U.S. District Court for the District of Nevada begins:
We must decide whether the First Amendment is implicated by the suspension of an establishment's erotic dancing license for violations of a city's alcohol licensing laws.
You can access the complete decision at this link.
Posted at 13:39 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge Won't Close Sniper Hearing"; here "Catholic Leaders Opposed to Gay Marriage"; and here "Ex-Head of Islamic Charity Pleads Guilty."
Posted at 13:37 by Howard Bashman



Back at it: This morning's appellate oral argument seemed to go quite well, and thereafter I had a nice lunch with my client's family. Today was my first appellate oral argument before Pennsylvania Superior Court Judge Robert A. Graci, and it confirmed my view that talented appellate advocates are likely to make talented appellate judges.
Posted at 13:25 by Howard Bashman



Money talks: Tom Toles has a McCain-Feingold-related editorial cartoon in today's issue of The Washington Post.
Posted at 08:56 by Howard Bashman



Ten Commandments, round two: The Birmingham News reports here this morning that "Commandments plaque put on display by Riley." And in other news from that State, The Associated Press reports here that "Alabama Voters Reject Massive Tax Hike."
Posted at 06:20 by Howard Bashman



On the agenda: I will be in court presenting an appellate oral argument this morning in a case I recently mentioned here. Regular programming is scheduled to resume thereafter.
Posted at 06:15 by Howard Bashman



Tuesday, September 09, 2003
Available online at law.com: From Florida comes news that "Tobacco Appeal Judge Challenged on Residency." And an article reports that "Sept. 11-Related Suits Against Airlines Allowed to Proceed."
Posted at 23:36 by Howard Bashman



Elsewhere in Tuesday's newspapers: The Los Angeles Times reports here that "Capital Is on Edge as Court Tackles Campaign Finance." In other news, "Bryant Might Not Have a Preliminary Hearing; Prosecutor's failure to file a motion puts proceedings on Oct. 9 in jeopardy. Judge bans cameras on that day." An article reports that "New York City Opens Public High School for Gays and Lesbians; Backers say it will keep targets of harassment safer, but detractors see preferential treatment." And Law Professor Jonathan Turley has an op-ed entitled "Enervated by Enlibrators: Can environmentalists and the EPA nominee come to terms?"

The Washington Times reports here that "Malvo attorney known for persuasion." In other news, "IG report criticizes detainee treatment." An editorial critical of the U.S. Court of Appeals for the Third Circuit is entitled "Judicial meddling." And Bruce Fein has an op-ed entitled "Judicial confirmation sabotage."

The Boston Globe reports here that "Hearings to be held for Sampson murder trial." And an editorial is entitled "Ashcroft's dragnet."

USA Today contains an editorial entitled "Money talks." And "How Appealing" reader Tony Mauro has an op-ed entitled "Put Constitution on $1 bill -- or just First Amendment?"
Posted at 23:14 by Howard Bashman



"FBI Discontinues Witness Protection Parade": The brand new issue of The Onion contains this report.
Posted at 22:37 by Howard Bashman



"Foes of site-blocking law win a round": Declan McCullagh has this report at c|net News.Com. You can learn more about the lawsuit in question, filed today in the U.S. District Court for the Eastern District of Pennsylvania, via this link.
Posted at 22:31 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Former pharmacist's sentencing 'unfair,' lawyer says"; here "Judge in North Carolina stays man's execution, citing use of drug during executions"; here "Judge wants to know whether government will defy her order again"; here "Two years after attacks, future of Moussaoui, other captives' cases uncertain"; here "State halts notices forcing child porn blocks after suit filed"; here "Music industry settles copyright lawsuit against 12-year-old girl"; and here "Music downloading suits could drive backlash against embattled industry."
Posted at 20:53 by Howard Bashman



"A Guide to the Patriot Act, Part 2: Should you be scared of the Patriot Act?" Dahlia Lithwick and Julia Turner have this essay just posted online at Slate.
Posted at 19:15 by Howard Bashman



"All That Glitters is not Feingold": The audio of Dahlia Lithwick's interview today on WNYC Radio's "The Brian Lehrer Show" is now available online. You can listen here (32 minutes and 50 seconds; Real Player required).

And fans of NPR's Nina Totenberg can listen here to her report from today's "Morning Edition" (7 minutes and 49 seconds; Real Player required).
Posted at 16:46 by Howard Bashman



"Guns, abortion will be hot topics at special veto session": Yesterday's edition of The Kansas City Star contained this report.
Posted at 16:34 by Howard Bashman



"Marilyn Manson prevails in lawsuit filed by guard at Minneapolis concert": Today's edition of The Star Tribune contains this report.
Posted at 16:27 by Howard Bashman



Online symposium concerning University of Michigan racial preferences in student admissions cases: You can access it here at Jurist.
Posted at 16:25 by Howard Bashman



You listen here: The Campaign Legal Center offers an enviable set of links to the audio of yesterday's U.S. Supreme Court oral argument in the McCain-Feingold / BCRA case. You can access audio not only of both the morning and afternoon sessions, but the site also offers links to specific attorneys' arguments and to various other highlights. You can access all the many audio links from this Web page.
Posted at 16:09 by Howard Bashman



"Ala. Governor Unveils Commandments Plaque": The Associated Press has this report. In a related development, The Birmingham News today reports that "Moore opposes commandments plan; Says proposed display would 'deny the greatness of God.'" And The B'ham News also contains an editorial entitled "Ought to be a law: Commandments efforts consume too much energy."
Posted at 15:40 by Howard Bashman



Walking the walk: Today the U.S. Court of Appeals for the Second Circuit issued an opinion that resolves whether Westchester County, New York violated the Fourth Amendment rights of an arrestee by videotaping him post-arrest, choreographing his arrest to facilitate videotaping, distributing the videotape to the media, and advising the media of his impending "perp walk" to the courthouse for arraignment. In a word, the Second Circuit answered "no."
Posted at 15:34 by Howard Bashman



No taking: Today the U.S. Court of Appeals for the Federal Circuit affirmed in relevant part the ruling of the U.S. Court of Federal Claims that the federal government did not engage in a compensable taking with respect to single hull oil tankers when it adopted a law requiring all oil tankers operating in the United States to have double hulls. You can access today's ruling at this link.
Posted at 15:29 by Howard Bashman



"Protests Mar Opening of Expanded Harvey Milk School": Today's edition of The New York Times contained this report. And The San Francisco Chronicle today reports that "Gay kids get own school; Harvey Milk High opens in New York."
Posted at 14:56 by Howard Bashman



"Hey, Goober: Let's bid adieu to these risible words." C.W. Nevius had this quite funny column in Sunday's edition of The San Francisco Chronicle.
Posted at 14:51 by Howard Bashman



"Court hears redistricting arguments; Colo. case may affect other states": Today's edition of The Denver Post reports here that "Opponents in a congressional redistricting battle squared off before the Colorado Supreme Court on Monday in a historic case that could affect how Colorado and other states decide political boundaries in the future."
Posted at 13:39 by Howard Bashman



"Judge Won't Dismiss Sept. 11 Cases Versus Airlines": Reuters offers this report, which is accompanied by one of the many distressing photographs from that tragic day.
Posted at 13:39 by Howard Bashman



In Tuesday's newspapers: The Washington Post today contains a news analysis headlined "For Court, Campaign Money Is a Moving Target." A related editorial is entitled "Reform's Day in Court." An article reports that "Music Industry Sues Online Song Swappers; Trade Group Says First Batch of Lawsuits Targets 261 Major Offenders." From Denver comes a report that "Texans Back Colo. Democrats in Redistricting Case." In other news, "Damages Awarded In Beirut Bombing; Judge Says Iran Backed '83 Attack." From New York City comes an article headlined "Responding To a Need, Or to Fear? Criticism Greets School for Gay Youth." In local news, you can access here an article headlined "Bomb-Dog Trainer Sentenced For Fraud; Md. Man Supplied Government With Ineffective Canines" and here an article headlined "Gang Trial's Judge May Ban Testimony of Dead Woman." Columnist Art Buchwald has an essay entitled "Read Two Tablets and Call Me in the Morning." And a letter to the editor appears under the heading "Unbalancing the Bench."

The New York Times reports here that "261 Lawsuits Filed on Internet Music Sharing." In other news, "A Theory of the Moxley Killing Was Delayed, a Kennedy Says." In local news, "Request by Stewart Lawyers Is Rejected" and "Anthrax Note Not a Threat, Judge Rules." And Clyde Haberman's NYC column is entitled "Sticks, Stones and Words, Meet the .357."

At OpinionJournal, Senator John Cornyn (R-TX) has an essay entitled "A Republic, if We Can Keep It: Amend the Constitution so a terrorist attack can't cripple Congress." And Andy Kessler has an essay entitled "The Music Industry Needs Hackers Not Lawyers: Scaring customers isn't a good long term business strategy."
Posted at 13:04 by Howard Bashman



"Judge Allows 9/11 Suits Against Airlines": The Associated Press has this report. The opinion does not yet seem to be available online. Update: You can access the opinion online at this link. Thanks to the reader who tracked this down.
Posted at 12:26 by Howard Bashman



"Take two tablets: Courts struggle over where to draw the line between Church and State." The September 2003 installment of my monthly appellate column, published yesterday in The Legal Intelligencer, is now available online at this link.
Posted at 12:20 by Howard Bashman



Dahlia Lithwick on the radio: Live, right now. She is discussing yesterday's U.S. Supreme Court oral argument with Brian Lehrer on WNYC radio. You can listen live using the links on the right-hand column of this Web page. Thanks to a reader from New York City for drawing this to my attention. Update: At 11:40 a.m. eastern time, the radio interview of Dahlia Lithwick concluded.
Posted at 11:29 by Howard Bashman



"Federal Court Orders Shippensburg University Not To Enforce 'Unconstitutional' Speech Code": The organization Foundation for Individual Rights in Education has issued this press release. And you can access last Thursday's ruling of the U.S. District Court for the Middle District of Pennsylvania at this link.
Posted at 11:11 by Howard Bashman



"Marilyn Manson wins case, security guard loses": Yesterday's edition of The St. Paul Pioneer Press contained this report. If an appeal is taken, it would be heard by the U.S. Court of Appeals for the Eighth Circuit.
Posted at 10:37 by Howard Bashman



Which Laurence Gold were you expecting? The blog "Life, Law, Libido" has a post about one of the funnier moments from yesterday's BCRA oral argument before the U.S. Supreme Court.
Posted at 10:30 by Howard Bashman



How you can help: Many of the court opinions, newspaper articles, and opinion columns that are mentioned at "How Appealing" come to my attention in emails from readers of this Web log. I am most appreciative of such tips and pointers, which arrive from across the globe. Nevertheless, the only way you can be assured that something you believe I should know about in fact comes to my attention is to email me yourself. My address for blog-related email is appellateblog@hotmail.com.

Another way that you can ensure the continued success of "How Appealing" is to recommend this Web site to others. Could there in fact be some lawyer, judge, law professor, law student, judicial law clerk, or other person who might enjoy reading this blog but has never heard of it? Most assuredly the answer is "yes." So, please feel free to recommend this blog to friends, family members, colleagues, etc. And links from other Web sites, and mentions in the press, are also always welcome. As this blog has become more and more popular, many have observed, it has become more and more interesting. Here's hoping that both trends continue in the right direction.
Posted at 10:23 by Howard Bashman



Happy to be bringing you less email: Somewhere between 500 and 1000 people have signed-up to receive my monthly appellate column via email each month. Beginning this month, however, that service is no longer being offered. Instead, each month I will continue to post online at this Web log a link to my brand new column when it is published on my law firm's Web site, which typically happens a day or two after it appears in print in The Legal Intelligencer, Philadelphia's daily newspaper for lawyers. Past months' installments of the column will continue to be available here (and I'm hoping that links to my July and August 2003 columns will be added to that page very soon). And maybe someday, my column will be published more widely than only in Philadelphia -- say by all of the regional law.com affiliated newspapers, or by a publication that is national in scope. One can always hope.
Posted at 10:07 by Howard Bashman



"Estrada Quits": Last Friday on the FOX News program "Special Report with Brit Hume," guest host Tony Snow interviewed Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) on the subject of Miguel A. Estrada's decision to abandon his D.C. Circuit nomination. You can access a transcript at this link.
Posted at 09:43 by Howard Bashman



"The Judges Wars: What Role Should Ideology Play in Senate Confirmations?" Today at noon in Washington, DC, The Federalist Society will be holding a debate on this subject. You can access many more details here. The panel appears to be quite fair and balanced.
Posted at 09:40 by Howard Bashman



"Polk hopes footing solid on Commandments rock": Today's edition of The Orlando Sentinel reports here that "Polk County will wade into the fractious national debate over the placement of religious symbols in public places Wednesday when it installs a 7-foot granite monument etched with the Ten Commandments and other historical documents in the county administration building's rotunda." Like Alabama, Florida is under the jurisdiction of the U.S. Court of Appeals for the Eleventh Circuit, whose recent Ten Commandments-related ruling you can access here.
Posted at 09:29 by Howard Bashman



Available online at The Hill: An article reports that "Senate GOP retreats from all-night filibuster plans." In other news, "Complex ruling likely on campaign finance." And you can access here a BCRA oral argument-related political cartoon.
Posted at 09:24 by Howard Bashman



"Mt. Vernon police: 'Sickening' abduction plot foiled." The Journal News of Westchester, New York today reports that "City detectives and FBI agents say they've foiled a sinister plot by a 25-year-old city man to abduct a Connecticut judge and blackmail him into releasing the suspect's brother, who is serving 36 years in prison for a 1992 murder."
Posted at 09:16 by Howard Bashman



"The Borking of Miguel Estrada": Paul Greenberg has this essay online today at Town Hall.
Posted at 09:08 by Howard Bashman



"Inmate falls into custody": The Atlanta Journal-Constitution reports here today that "An inmate who evidently decided to run rather than take his chances in court Monday unexpectedly crashed through a ceiling tile into a judge's chambers."
Posted at 07:00 by Howard Bashman



"Toss out terrorism charges, Al-Arian asks federal judge": Today's edition of The St. Petersburg Times contains this report.
Posted at 06:59 by Howard Bashman



Coverage of yesterday's U.S. Supreme Court campaign finance reform oral argument from here and there: In The Boston Globe, Lyle Denniston reports that "Campaign finance divides justices; Court hears debate on constitutionality." The Globe also reports here that "Bush camp, GOP square off in court; National committee blasts campaign law" and contains an op-ed by Marie Cocco entitled "The big loophole in campaign financing."

In The Los Angeles Times, David G. Savage reports that "Justices Take Up Funding of Campaigns." The Chicago Tribune's Jan Crawford Greenburg reports that "Campaign-finance reform hits judicial grill." In The Washington Times, Frank J. Murray reports that "High Court weighs McCain-Feingold." USA Today reports here that "Campaign-cash case goes to court; Justices appear split in unusual session."

The Arizona Republic reports here that "Court tackles big-money law; McCain, foes square off on campaign funding." The Milwaukee Journal Sentinel contains an article headlined "No hints on campaign law; Justices don't tip hand after 4 hours of debate on McCain-Feingold." The Louisville Courier-Journal reports here that "Backers, foes argue campaign finance law; Supreme Court ruling expected late this year." The Seattle Post-Intelligencer reports here that "Campaign law gets its day in court." The Knight Ridder News Service reports that "Close decision anticipated on campaign law." The Pittsburgh Post-Gazette reports here that "U.S. Supreme Court hears challenges to campaign finance law" and here that "Campaign finance reform law so far has aided GOP."

Finally for now, The New York Times provides these extensive written excerpts from yesterday's oral argument.
Posted at 06:34 by Howard Bashman



Monday, September 08, 2003
Can brother Frank be far behind? Via "InstaPundit," I see that Gregg Easterbrook now has a blog online at The New Republic's Web site. So far, Gregg has managed to keep his penchant for scantily clad women limited to his ESPN.com column.
Posted at 23:40 by Howard Bashman



You can be the champion of equal rights for gays, and yet opera reviewers still won't know your first name: This review from today's edition of The Baltimore Sun managed to misspell the names of two of the three U.S. Supreme Court Justices who appeared on stage at the opera on Saturday night. To access photos of the event, please visit this earlier post.
Posted at 23:34 by Howard Bashman



Elsewhere in today's newspapers: The Los Angeles Times today contains an article headlined "Issues of privacy in Bryant case; The latest legal battle could put the spotlight on federal rules protecting patients' medical records." And in other news, "Suits Could Clarify File-Sharing Rules; A slew of cases expected to be filed by the music industry will test how copyright law applies to individuals online."

Finally for now, The Boston Globe offers an article headlined "Justice, with a little jazz; To offset acoustical quirk, CDs now play from bench."
Posted at 23:28 by Howard Bashman



"Parallel Bars: New York's Harvey Milk School, which opens today, is the latest example of a troublesome trend toward 'separate but equal' treatment for gays." Steve Sanders has this essay online today at The American Prospect.
Posted at 23:07 by Howard Bashman



Oyez provides a link to the audio of the first two hours of today's BCRA oral argument in the U.S. Supreme Court: You can access the audio via this Web page.
Posted at 23:05 by Howard Bashman



Available online at law.com: Tony Mauro reports that "High Court Hears Arguments on Campaign Finance Law." In news from the Second Circuit, you can access here an article headlined "Federal Porn Statute Stands Despite Commerce Clause" and here an article headlined "2nd Circuit Clarifies Boundaries of Alien Tort Claims Act." In other news, "Cuba Trips, Cigars Sink Bar Applicant; N.J. Supreme Court scoffs at civil disobedience claim, noting penchant for lying."

Online at Legal Times (free registration required), an article asks "Can Firm Avoid Blame in Girl's Death? Jury to weigh if ex-Cooley lawyer was talking to client on cell phone at time of accident." And Randolph J. May has an essay entitled "Checkmate in the Judges Game? For democracy's sake, President Bush should threaten a recess appointment, or two."
Posted at 22:49 by Howard Bashman



Coverage of today's U.S. Supreme Court oral argument from NewsHour with Jim Lehrer on PBS: "During an unusual late-summer session, the Supreme Court heard a challenge to campaign finance laws that were put into place in 2002. Jeffrey Brown discusses the case and arguments with Jan Crawford Greenburg, Supreme Court reporter for The Chicago Tribune." [Dare I observe, based on the still photographs that accompany the segment transcript, that Ms. Greenburg is a hottie? Which, of course, is much better than being a grottie. Plus, her coverage of the Supreme Court (click here to access today's installment) is quite wonderful too.]
Posted at 22:29 by Howard Bashman



You can't spell "Slaughterhouse" without "laughter": A reader who attended today's U.S. Supreme Court oral argument emails:
It turns out that the Chief Justice introduced the consolidated cases as follows: "We will hear argument now in the Bipartisan Campaign Reform Act cases." This was consistent with the Supreme Court's website and its orders in the cases; the Chief Justice did not say the Court would hear argument in McConnell, et al. v. FEC, et al. Last fall, much was made about the race to the district court; I distinctly remember an editorial called "Vanity Plate" criticizing Senator McConnell (unfairly, I believe) for seeking to have his name attached to this (perhaps historic) litigation. The NRA beat Senator McConnell by a few minutes and filed the first complaint. Apparently, however, the parties reached some sort of agreement, because the cases were consolidated (pursuant to an unopposed motion) under Senator McConnell's name. The agreement may have been for naught, as it turns out these cases may go the way of the Slaughterhouse Cases (with respect to their title, at least). I think McConnell v. FEC has a much better ring to it, but we shall see.

I'd be happy to comment ad nauseam on my reactions to the argument -- an argument that went extremely well for the plaintiffs, in my view -- but I don't want to burden your e-mail or blog with thoughts that may merely be repetitive of conventional news accounts.
Thanks much for sending along these interesting observations.
Posted at 22:25 by Howard Bashman



"Supreme Court Urged to Scuttle Campaign Law": David G. Savage has this article online at the Web site of The Los Angeles Times. And a related article is entitled "Politicians Brace for Ruling; Republicans, Democrats expect major impact on 2004 elections from high court decision on campaign finance."
Posted at 22:14 by Howard Bashman



"Justices Hear Vigorous Attacks on New Campaign Finance Law": Linda Greenhouse of The New York Times provides this coverage. And Robin Toner has an article entitled "As Justices Listen, Insiders Watch for Clues." Toner's article mentions a point that one of my correspondents raised with me via email earlier today: "Mr. Olson contributed to the insiders' atmosphere of the proceedings today when he inadvertently referred to Mr. Starr as Justice Starr; Mr. Starr was considered a potential nominee to the Supreme Court before his role leading the Whitewater investigation, which became bitterly partisan. Realizing his gaffe when the room erupted in nervous laughter, Mr. Olson leaned over and said to Mr. Starr, 'I guess you'll have to wait.'"
Posted at 22:12 by Howard Bashman



"Hush Money: The Supreme Court hears campaign-finance reform. All day." Dahlia Lithwick has this report online at Slate. In it, she writes: "lunch features three women simultaneously operating breast pumps in the Employee Restroom on the first floor of the court. I just thought the chief justice would like to know that."
Posted at 22:04 by Howard Bashman



Access online the Colorado trial court's order denying "expanded media coverage" of Kobe Bryant's preliminary hearing: It's available online here, via FindLaw. I'll have to try to keep in mind when the preliminary hearing takes place that the media wanted to provide even more coverage than the huge amount that's sure to occur.
Posted at 20:57 by Howard Bashman



"Supreme Court Hears Campaign Finance Case": James Vicini of Reuters provides this wrap-up.
Posted at 19:33 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Supreme Court Weighs Campaign Finance Law." In related news, "Summer Sessions Rare for Supreme Court." And you can access here "Campaign Finance Quotes."
Posted at 19:32 by Howard Bashman



"Justices Hear Arguments on Campaign Finance Law": NPR's Nina Totenberg wraps-up today's U.S. Supreme Court campaign finance oral argument. You can listen online here (Real Player required).
Posted at 18:26 by Howard Bashman



Other wrap-ups of today's U.S. Supreme Court oral argument: Charles Lane of The Washington Post reports here that "High Court Hears Arguments in Dispute on Campaign Law." The New York Times reports here that "High Court Hears Arguments on Campaign Finance Law." And United Press International reports here that "Divided court hears 'soft' money ban case."
Posted at 17:17 by Howard Bashman



Election Law Professor Rick Hasen is now blogging his analysis of this afternoon's U.S. Supreme Court oral argument session in the campaign finance reform case: You can access his post here.
Posted at 16:29 by Howard Bashman



"Camp Delta inmates will talk for burgers; Prison: The incentive program to gain information from terrorism suspects is just part of life at the Guantanamo camp." Yesterday's issue of The Baltimore Sun contained this report.
Posted at 16:25 by Howard Bashman



In news from New Jersey: The Star-Ledger today reports that "Death penalty prominent on justices' docket; Newest member could determine direction of court in Poritz's final three years."
Posted at 16:18 by Howard Bashman



Any moment now, C-SPAN will begin broadcasting the audiotape of today's U.S. Supreme Court oral argument in the campaign finance case: You can listen online via this link. C-SPAN will also replay the audio beginning at 8 p.m. and midnight. Update: Is the audio playback a bit slower than real time, or just too heavy on the bass? Later: Whatever the audio problem was, everything now seems to be working fine.
Posted at 15:46 by Howard Bashman



"Supreme Court Weighs Campaign Finance Law": Anne Gearan of The Associated Press provides this update on today's oral argument.
Posted at 15:41 by Howard Bashman



"Md. Begins Issuing 'Choose Life' Tags; State Is One of 8 With Antiabortion Slogan": Last Friday's edition of The Washington Post contained this report. On Saturday, I posted here that "Motor vehicle owners can't 'Choose Life' in California." Today's issue of The Sacramento Bee contains an article headlined "License plates' content limited; Being selective on private nonprofits is unconstitutional, a federal judge rules." You can access last Friday's ruling of the U.S. District Court for the Eastern District of California at this link.
Posted at 14:44 by Howard Bashman



"High Court Hears Arguments in Dispute on Campaign Law": Charles Lane of The Washington Post has this report on this morning's BCRA oral argument.
Posted at 14:35 by Howard Bashman



Ninth Circuit holds unconstitutional Idaho's method of allowing direct legislation through ballot initiatives: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit affirmed a federal district court's ruling that had declared unconstitutional Idaho's method of allowing direct legislation through ballot initiatives. Circuit Judge Stephen Reinhardt's opinion begins:
Idaho permits direct legislation through ballot initiatives. In order to appear on the ballot, an initiative must meet several conditions; one is that signatures in support of the initiative must be collected from six percent of the qualified voters in each of at least half of the state's counties. Because Idaho's counties vary widely in population, this geographic distribution requirement favors residents of sparsely populated areas over residents of more densely populated areas in their respective efforts to participate in the process of qualifying initiatives for the ballot. The district court held that this unequal treatment violates the Equal Protection Clause of the Fourteenth Amendment. We affirm.
You can access the complete ruling at this link.
Posted at 13:38 by Howard Bashman



Magazine or alcoholic beverage? It's both! An opinion that Seventh Circuit Judge Richard A. Posner issued on behalf of a unanimous three-judge panel today contains the following language in its final paragraph:
In any event an interpretation of an insurance policy is not rendered doubtful, bringing the interpretive principle that Mayorga invokes into play, just because a snippet of contractual language taken out of context provides literal support to the insured's position. That way madness lies. Suppose you order a Cosmopolitan in a bar, and the bartender gives you a copy of the woman's magazine and insists that you pay for it; can he appeal to literal meaning to defeat your contention that it is not what you agreed to?
You can access the entire opinion at this link. (This post's title inspired by a fake ad from an ancient episode of Saturday Night Live.)
Posted at 13:33 by Howard Bashman



Alabama church vs. state battle heads to church in Georgia: The Times of Gainesville, Georgia today reports here that "Suspended judge shares message" and here that "Judge welcomed warmly at Gainesville church." And today's edition of The Atlanta Journal-Constitution reports here that "Alabama justice addresses church in Buckhead." Finally, The Charlotte Observer today contains an op-ed by Law Professor Arnold H. Loewy entitled "Ten Commandments, one controversy, many lessons; With misplaced loyalties, Alabama's chief justice cheapens sacred symbol."
Posted at 13:11 by Howard Bashman



"Gay Couples Pushing for Marriages Say They Want Legal Rights": Today's edition of The Ledger of Lakeland, Florida contains this report. On a related note, today's issue of The Fort Worth Star-Telegram contains an editorial entitled "Constitutional basics."
Posted at 13:08 by Howard Bashman



Election Law Professor Rick Hasen reports on this morning's U.S. Supreme Court oral argument in the campaign finance reform case: You can access his thorough report on this morning's session at this link.
Posted at 12:40 by Howard Bashman



Election law-related news from Colorado: The Denver Post reports here today that "Colo. justices set to consider GOP's remap; Case today being eyed nationally." And The Boulder Daily Camera reports here that "Map lands in high court; Dems, GOP debate new redistricting lines today" and provides this redistricting chronology.
Posted at 12:34 by Howard Bashman



With apologies to Rick Hasen, you can't beat Gina Holland of The Associated Press: Ms. Holland reports here on the first part of this morning's BCRA oral argument before the U.S. Supreme Court. Update: Gina Holland has another update, dated 11:55 a.m.
Posted at 11:42 by Howard Bashman



"A Guide to the Patriot Act, Part 1: Should you be scared of the Patriot Act?" Dahlia Lithwick and Julia Turner have this essay, just posted online at Slate. Perhaps we'll be hearing from Dahlia again a little later today with her views on today's campaign finance oral argument before the U.S. Supreme Court.
Posted at 11:38 by Howard Bashman



"Justices to Hear Arguments on Campaign Finance Reform": In honor of today's four-hour U.S. Supreme Court oral argument, NPR's Nina Totenberg provides an eight minute and forty-one second preview of the cases now being argued. You can access her audio report from today's Morning Edition at this link (Real Player required).
Posted at 10:28 by Howard Bashman



Prison life too similar to nursery rhyme for comfort: Today's issue of The Atlanta Journal-Constitution contains an article headlined "Spiders behind bars; Female inmates say danger being ignored." Indeed, not only do they "say" it, but according to the article the situation has led to a lawsuit in federal court.
Posted at 10:18 by Howard Bashman



"1991 Civil Rights Act Has Hurt Its Intended Beneficiaries": Today's issue of National Journal contains this essay by Stuart Taylor Jr.
Posted at 10:05 by Howard Bashman



"Restore the balance": David J. Porter, a shareholder in my law firm's Pittsburgh office who chairs that city's chapter of The Federalist Society, had this op-ed about the federal judicial nomination and confirmation process in yesterday's issue of The Tribune-Review.
Posted at 09:41 by Howard Bashman



"District absolved in teasing suit; Disabled boy's rights not violated, court rules": Today's edition of The Seattle Post-Intelligencer contains this report about a recent Ninth Circuit ruling.
Posted at 09:37 by Howard Bashman



Final preview of this morning's campaign finance oral argument in the U.S. Supreme Court: Gina Holland of The Associated Press reports here that "Supreme Court back to work in unusual session." Lyle Denniston of The Boston Globe reports here that "Court to gauge McCain-Feingold law; Justices to probe 'soft money' issue." The Sacramento Bee reports here that "Supreme Court revisits money's role in politics." The Courier-Journal of Louisville, Kentucky reports here that "High court hears pivotal case on election finances." The Portland Press Herald of Maine reports here that "Justices to take on campaign finance reform measure." CNN.com reports that "Justices to examine campaign finance reform." Reuters reports here that "Supreme Court to Hear Campaign Finance Law Case." United Press International reports here that "Supreme Court takes up campaign law." And in a somewhat related article, The Philadelphia Inquirer reports here that "Arizona's election coffers offer even money for all."
Posted at 09:17 by Howard Bashman



"Washington Opera opens on light note; 'Fledermaus' has supreme moments": The Baltimore Sun today contains a review that begins, "A couple of tangos. A few bars of You Light Up My Life. The pas de deux from a 1930s Russian ballet. References to Martha Stewart, same-sex civil unions and The Wizard of Oz. And a cameo appearance by three Supremes - Justices Ruth Bader Ginsberg, Arthur Kennedy and Stephen Breyer. Let's just say it wasn't just another performance of Johann Strauss' Die Fledermaus." Arthur Kennedy? Not quite. And Justice "Ginsberg" actually spells her last name with a "u," not an "e."
Posted at 09:17 by Howard Bashman



In Monday's newspapers: In The Christian Science Monitor, Warren Richey has an article headlined "Showdown over money in politics; In rare summer session, Supreme Court Monday takes up issue of 'soft money,' which may reshape campaigning." In other news, "Judicial rarity: death penalty in a rape case; Louisiana law on child rape revives debate over penalty in nonmurder cases." And an editorial is entitled "Death-Penalty Mistakes."

In The New York Times, Neil A. Lewis reports that "Clout Shifts With the Change in Campaign Finance Rules." An article reports that "Ashcroft's Tour Rallies Supporters and Detractors." In local news, "Jury Duty? Prepare for Rejection." And an editorial is entitled "Justice for Russians."

The Washington Post contains an article about the Patriot Act headlined "Fierce Fight Over Secrecy, Scope of Law; Amid Rights Debate, Law Cloaks Data on Its Impact." Columnist Robert J. Samuelson has an op-ed entitled "First Amendment Showdown For the Court." For opera fans, you can access here a review entitled "Low-Strauss: A Supremely Silly 'Die Fledermaus'" and here a related item entitled "Opera's Supreme Moment." These items are appellate-related because three U.S. Supreme Court Justices appeared in the production this past Saturday night. And you can access here an article headlined "Ex-Prosecutor's Past Case Contrasts With Anthrax Probe."

Finally for now, The Wall Street Journal contains an editorial entitled "Wile Reform Coyotes: John McCain will never catch his Road Runner either."
Posted at 08:35 by Howard Bashman



Defendant's height does not affect his right to assistance of counsel in a criminal case: Last Thursday, the U.S. Court of Appeals for the Fourth Circuit issued this very interesting opinion resolving whether a criminal defendant's right to testify in his own defense at trial was in conflict with his right to counsel in a criminal case.
Posted at 08:33 by Howard Bashman



"Moore talks commandments at Atlanta church": This article appears in today's edition of The Montgomery Advertiser.
Posted at 06:48 by Howard Bashman



"McCain legacy on line as court tackles campaign-finance law": Yesterday's issue of The Arizona Republic contained this report.
Posted at 06:45 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Politics in the Supreme Court" and here an article headlined "Colo. High Court Hears Redistricting Case."
Posted at 06:43 by Howard Bashman



Sunday, September 07, 2003
The week ahead: On Wednesday, I will be presenting oral argument in the Superior Court of Pennsylvania on behalf of the defendant/appellant who is appealing from this decision. The case has received a bit of press coverage in the past, and if the appellate oral argument results in any additional reportage, I may link to the news items here.
Posted at 23:21 by Howard Bashman



"Writer of offensive e-mails rehired; Attorney general brings back official whose controversial messages in 1997 cost him his job": Today's edition of The State, a South Carolina newspaper, contains this report.
Posted at 23:17 by Howard Bashman



"Bloodsworth's case sharpens DNA debate; Lawyers and lawmakers in struggle over use of such evidence in court": This article appears in The Baltimore Sun today.
Posted at 23:16 by Howard Bashman



"In Fla., it's Jeb's judiciary": Columnist Martin Dyckman has this essay in today's issue of The St. Petersburg Times.
Posted at 23:14 by Howard Bashman



"Supreme Court reviews campaign-finance reform": The Knight Ridder Newspapers today provide this report.
Posted at 23:12 by Howard Bashman



"Keeping church and state separate is the only sure way to protect religion": Nolan Finley has this op-ed in today's issue of The Detroit News.
Posted at 23:11 by Howard Bashman



Elsewhere in Sunday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Supreme Court to Take a Hard Look at Ban on 'Soft Money'; Arguments over the regulation of election ads will also be heard in a rare summer session" and here that "Administration Is Making Special Case Out of Padilla; Diverse experts call the detention of the American citizen suspected of plotting a 'dirty bomb' attack an abuse of power." In other news, "Prop. 54 Sponsor Concedes Passage Is Now Unlikely; Connerly says he can't match Bustamante's money. Schwarzenegger also weighs in against it." You can access here an article headlined "Loosening Seat Belt Safety Rules; The government, under industry pressure, has adjusted standards. Now SUV occupants are at even more risk in rollovers, some claim." And letters to the editor appear under the headings "Hijacked Nomination of Miguel Estrada" and "Who Is Behind Prop. 54 Goal to End Databases?"

The Boston Globe reports here that "Mass. Senate eyes civil unions; Move comes as SJC mulls gay marriages."

In The Washington Times, Frank J. Murray reports that "Campaign-finance law reaches high court." In other news, "Senate GOP fuzzy on tactics to handle judicial filibusters." An article reports that "Assault-weapons ban expiring in silence." Finally for now, Jay Ambrose has an op-ed entitled "Withdrawal benchmarks"; James Bovard has an op-ed entitled "Moussaoui myths"; and Walter E. Williams has an op-ed entitled "Academic tyrants."
Posted at 22:19 by Howard Bashman



That time of year again: Just like last year at this time, today was the annual reunion of law clerks and staff for William D. Hutchinson, the judge for whom I clerked on the U.S. Court of Appeals for the Third Circuit. His widow has very kindly continued the annual reunion tradition, and it was great seeing everyone present at her home near Hershey, Pennsylvania this afternoon. I made today's trip in my new car, which was more than up to the task. My car dealership provided me with two guidelines to follow during the initial 1200-mile break-in period. Don't rev the tachometer above 4000 (which I may have violated for just an instant today) and don't go faster than 100-mph (to which I have completely adhered). The car's sound system is also fantastic; on today's trip I enjoyed listening on CD to remastered Led Zeppelin, remastered Elton John, and Puddle of Mudd.
Posted at 22:06 by Howard Bashman



In the September 15, 2003 issue of U.S. News and World Report: You can access here an article entitled "Does Money Talk? The Supreme Court tackles a case of free speech vs. political clout." And in other news, "Wild-Card Court: The last best hope for Gray Davis may reside with a panel of unpredictable judges." What court takes a thrashing in both the headline and the article? Guess wisely.
Posted at 20:09 by Howard Bashman



"Alabama justice finds support for his stand": This article appears today in The Atlanta Journal-Constitution. The Montgomery Advertiser reports here that "200 Moore supporters pray at Judicial Building, blast judges." And The Birmingham News reports here that "Voters split on Moore, like display, poll says." Meanwhile, a columnist for The Daytona Beach News-Journal has an essay that calls the Alabama Ten Commandments monument "ugly."

Finally, The State Journal-Register of Springfield, Illinois today reports on a somewhat similar local "Courthouse controversy."
Posted at 18:46 by Howard Bashman



"Justices get Georgia girl's campaign reform suit": Today's issue of The Atlanta Journal-Constitution reports here that "Emily Echols, 14, is the lead plaintiff in a suit to be heard [tomorrow] before the U.S. Supreme Court." A related article is entitled "Hearing set Monday on campaign law; Supreme Court will meet for a rare special session."
Posted at 18:32 by Howard Bashman



"The Estrada Withdrawal: The Sky is Not Falling." Law Professor Rick Hasen, in Washington, DC for tomorrow's BCRA oral argument at the U.S. Supreme Court, offers these thoughts.
Posted at 18:18 by Howard Bashman



"Inmates seek to ease '3 strikes'; They're hoping recall spotlights their drive to eliminate nonviolent crimes as 3rd offenses." Today's issue of The Sacramento Bee contains this report.
Posted at 18:13 by Howard Bashman



"Supreme performance: Justices take stage at opera." CNN.com provides this report. And for those who desire more photos of the Justices on stage, click here, here, here, here, here, and here.
Posted at 17:53 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Bustamente Focuses on Racial Proposition" and here an article entitled "Split Verdict for Conscientious Objector."
Posted at 10:47 by Howard Bashman



Tomorrow, the Supreme Court of the United States will hear four hours of oral argument over the lawfulness of the Bipartisan Campaign Reform Act: You can access the text of the law, which is sometimes also referred to as the McCain-Feingold legislation, at this link.

The Supreme Court has announced that it will be releasing audiotapes of the oral argument tomorrow immediately after the entire argument session has concluded. C-SPAN is expected to broadcast the recording beginning at 3:45 p.m. tomorrow.

Briefs and other information and documents relating to the case are available at this Web page provided by the Supreme Court and at this Web page provided by FindLaw.

Those who attend tomorrow's oral argument are cordially invited to email thoughts and observations to me for publication here at "How Appealing." I will endeavor to provide complete online coverage of tomorrow's oral argument.
Posted at 09:30 by Howard Bashman



In Sunday's newspapers: In The Washington Post, Charles Lane reports that "High Court Takes On High-Stakes Dispute; Campaign Law's Constitutionality at Issue." In news from Virginia, "Parents' Suit On Removing Bricks Can Go Forward."

The New York Times today contains an article headlined "Courtroom Couture: Stripes Are Optional, but Lose the Tie." In local news, "New Trial Sought for Skakel." An editorial is entitled "The Case for McCain-Feingold." And letters to the editor appear under the headings "Justice and DNA Tests" and "TV in the Court? The Jury Is Out."

Finally for now, OpinionJournal reprints an op-ed from Timothy P. Carney entitled "Stop This Man: A specter haunts the Senate Judiciary Committee. His name is Arlen."
Posted at 09:10 by Howard Bashman



"Lashenda Floyd's cell put her in a cell": Yesterday's edition of The Charleston Post and Courier contained an article headlined "Judge's message rings loud, clear: No audible phones in court."
Posted at 08:55 by Howard Bashman



Saturday, September 06, 2003
Available online at law.com: Jonathan Groner addresses "What Estrada's Withdrawal Means for Future Nominees." And in other news, Jonathan Ringel reports here that "11th Circuit's About-Face in Immunity Case Shocks Lawyers" and here that "Georgia Supreme Court Finds AG Trumps Governor in Redistricting Fight; High court says 'joint' legal duties don't apply to redistricting case."
Posted at 23:43 by Howard Bashman



"Cell phone users find slammer in Charleston Court": The Associated Press has this report from South Carolina.
Posted at 23:37 by Howard Bashman



Plainsman is back, in a solo effort: He can't blog about the law over at "Sub Judice" for the time being, so he's set up this new eponymous blog to discuss everything else. I really enjoyed his thoughtful commentary at his former blog (which remains in existence under the stewardship of Plainsman's former co-blogger, who goes by a name similar to that of a character on the PBS children's program "Arthur"), and therefore I'm very much looking forward to this new effort.
Posted at 23:35 by Howard Bashman



Trash law: The Detroit Free Press today reports that "Lawsuit challenges trash law; Landfill operator wants garbage from Canada."
Posted at 23:26 by Howard Bashman



"Ashcroft goes to bat for antiterrorism law; Police officers applaud and protesters dissent as the attorney general defends the USA Patriot Act." This article appears today in The St. Petersburg Times.
Posted at 23:24 by Howard Bashman



Motor vehicle owners can't "Choose Life" in California: The San Francisco Chronicle today reports that "New specialty license plates blocked; Judge's order comes after Legislature rejects 'choose life' design and anti-abortion group sues." You can view a photograph of the proposed license plate at this link.
Posted at 23:19 by Howard Bashman



"Bush's 'good Hispanic' has telling record": Columnist Cindy Rodriguez had this essay in yesterday's issue of The Denver Post.
Posted at 23:12 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here tonight that "Supreme Court Justices Make Opera Debuts." And yesterday, Jesse J. Holland reported here that "Frist Says Odds Against Asbestos Deal." I guess this means that a silica deal is entirely out of the question.
Posted at 23:11 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times reports here that "Legal Hurdle Removed for Recall Voting." You can access yesterday's ruling of a special three-judge panel of the U.S. District Court for the Northern District of California at this link. Oddly, the Ninth Circuit's member of that panel is not listed first in the decision among the three judges on the panel. In other news, "Transfer Fees Waived for Holocaust Reparations; The state treasurer says more than 100 financial institutions will not charge survivors or their families for wire transfers from abroad." And letters to the editor appear under the headings "Marriage for Gay Couples" and "Rights Versus the USA Patriot Act."

The Washington Times reports here that "Judge finds college rule infringes speech rights." An editorial is entitled "An Orwellian lawsuit." And an op-ed by Debra J. Saunders is entitled "Resort to the courts."

Finally for now, The Boston Globe contains an op-ed by Alejandro M. Garro entitled "US shouldn't fear transnational justice."
Posted at 22:20 by Howard Bashman



Miguel A. Estrada -- the day after the day after: Yesterday's edition of The Barre-Montpelier Times Argus reported here that "Leahy defends his stance on Estrada." And yesterday's edition of The Capital Times of Madison, Wisconsin contained an editorial entitled "Estrada was a bad pick."
Posted at 19:58 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judge Won't Drop Charges Against Nichols"; here "Federal Warrant Seeks Computer Hacker"; and here "Woman in Honking Arrest Awarded $225K."
Posted at 19:50 by Howard Bashman



In Saturday's newspapers: Today's edition of The New York Times contains an article that addresses the question "Is Trauma Being Trivialized?" An editorial entitled "A Constitutional Anachronism" supports a constitutional amendment that would allow immigrants to become President. And letters to the editor appear under the headings "A Judicial Nominee, Derailed" and "F.C.C. and Democracy."

The Washington Post contains an editorial entitled "Sentencing Mess" that comments on the Ninth Circuit's latest en banc death penalty ruling, a decision that I first reported on here. And letters to the editor appear under the heading "Still Commanding Respect."
Posted at 19:37 by Howard Bashman



Jeffrey Rosen is right: The following two and a half paragraphs appear at the end of Law Professor Jeffrey Rosen's article, entitled "How to Reignite the Culture Wars," that appears in tomorrow's edition of The New York Times Magazine:
The history of the court's interventions in the culture wars suggests that judges should thwart the will of the majority only when the principled constitutional arguments for doing it are so overwhelmingly clear and convincing that they are easily intelligible to those who disagree. Both sides should have learned by now that relying on courts for victories that you are unable to win in the legislatures is not a recipe for enduring success.

Regardless of the fate of the gay-marriage debate, Lawrence has already turned up the heat on judicial nominations. ''This will make it all the more important that the president fulfill his promise to appoint justices like Scalia and Thomas,'' Schlafly says. ''We're tired of being betrayed by Republican presidents.'' Interest groups on both sides are now spoiling for a battle to the death over the next Supreme Court vacancy, which will inspire political passions vastly out of proportion to the actual judicial stakes.

The turn away from politics and toward the courts is almost always a sign of weakness rather than strength. But for both sides in the culture wars, the allure of the courts has proved too powerful to resist. Meanwhile, the fractious political sideshows that Lawrence has set in motion may lead not to greater equality and acceptance for gays and lesbians but to greater recriminations, suspicion and strife.
You can access the entire article at this link.
Posted at 19:15 by Howard Bashman



Remarks by Vice President Cheney at a reception yesterday for Congressman Mike Rogers (R-AL): Toward the end of his remarks, the Vice President stated:
We also need to fix the judicial confirmation process. Right now far too many nominations for the federal bench are being held up under threat of filibuster. Our friends on the other side of the aisle refuse to allow nominees of great merit to even have a vote on the Senate floor. Well qualified nominees like Alabama's Attorney General, Bill Pryor, who represents the mainstream of American law and value, who enjoys the support of Alabama's two senators -- Jeff Sessions and Richard Shelby -- and who has outstanding credentials to serve on the federal bench, have been attacked by Senate Democrats who have blocked and up-or-down vote on the floor of the Senate.

Yesterday, we saw the withdrawal from consideration of Miguel Estrada, a very talented young man with outstanding credentials, who had been nominated by the President to serve the Court of Appeals for the District of Columbia, who after waiting more than two years for an up-or-down vote, finally decided that he couldn't wait any longer, that he needed to get on with worrying about his family and his career. But he was never allowed to have a simple up-or-down vote in the United States Senate, where we had a majority to support him for confirmation as a member of the federal bench.

This is unfair not only to the nominees and their families but also to Americans who are forced to deal with courts handling a growing caseload without the judges they need. It's time to restore dignity and civility to the judicial confirmation process by making certain that every person nominated to the federal bench gets a timely up-or-down vote. (Applause.)
You can access the entire transcript at this link.
Posted at 12:17 by Howard Bashman



"Judicial Building reopens; Several supporters of the Ten Commandments display move to the sidewalk": The Montgomery Advertiser today contains this report.
Posted at 12:14 by Howard Bashman



"Lawyers seek later DNA deadline": This article appears in today's edition of The Orlando Sentinel.
Posted at 12:13 by Howard Bashman



"Inmates are pushing for their own executions": The Associated Press provides this news from Florida.
Posted at 12:11 by Howard Bashman



"Hatch to Stalled Judicial Nominees: 'Hang In.'" Reuters late yesterday provided this report.
Posted at 12:10 by Howard Bashman



"How to Reignite the Culture Wars": Law Professor Jeffrey Rosen has this article in Sunday's issue of The New York Times Magazine. The article begins, "One morning in the middle of July, in front of the federal courthouse in Charlotte, N.C., the Rev. Flip Benham summoned about 50 of his followers to hold the Supreme Court of the United States in contempt of the Court of Jesus Christ." Some of what Rosen has to say about Roe v. Wade reminds me of what I wrote on that subject in my Slate essay from last year entitled "Poll-Tergeist: Why the Supreme Court shouldn't care what you think."
Posted at 12:03 by Howard Bashman



Friday, September 05, 2003
"Workload grows for judicial misconduct panel; State commission faced new challenges as it meted out more punishments last year": The Times Union today had this report from Albany, New York.
Posted at 23:55 by Howard Bashman



Elsewhere in Friday's newspapers: In The Boston Globe, Lyle Denniston reports here that "Court nominee Estrada withdraws; In Senate battle, Democrats prevail by way of filibuster."

The Washington Times reports here that "Estrada withdraws name from court consideration." In other news, "1996 marriage act called vulnerable." And an article reports that "Closed pretrial hearing sought" in one of the DC-area sniper cases.

The Los Angeles Times reports here that "Bush Nominee Ends Confirmation Battle; Miguel A. Estrada bows out after a two-year standoff over a seat on a major appellate court." In business news, "FCC Rules Are Dealt Setback in Senate; Committee votes to keep TV station owners from reaching more than 35% of the national market." An article reports that "Record Labels to Offer Amnesty to File Sharers, With Conditions." Attorney Charles J. Unger has an essay entitled "Breaking hearts doesn't cost what it used to anymore." And a letter to the editor appears under the heading "Only Juries Can Impose a Death Sentence."
Posted at 23:42 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Accused Judge Ordered to Leave Bench" and here an article entitled "Pacifist Marine's Court-Martial Begins."
Posted at 23:40 by Howard Bashman



In Enron case, Houston "Chronicle appeals to 5th U.S. Circuit; Seeks transcripts, no more closures." The Houston Chronicle published this report on Wednesday. Last week, that newspaper reported that "Chronicle shut out of 2 more hearings; Fastow transcript still denied release." Last Saturday, The Times Union of Albany, New York published a related op-ed by Rex Smith entitled "When the courts say 'keep out.'" (Links via Romenesko.)
Posted at 23:38 by Howard Bashman



Glenn Reynolds, at his MSNBC site, comments on the dismissal this week of a lawsuit against McDonald's claiming that the consumption of fattening food makes people fat: You can access his commentary here.
Posted at 23:31 by Howard Bashman



Justice William W. Bedsworth's latest column is available online: To access it, simply click here.
Posted at 23:28 by Howard Bashman



"Bird Call: When can Congress make a federal case?" Jacob Sullum has an essay online today at Reason that begins, "When Frank Bird, a local abortion protester, crashed his van through the glass doors of a Planned Parenthood clinic in Houston last March, he was not exercising his First Amendment right to free speech."
Posted at 23:26 by Howard Bashman



"Building Reopens Without 'Commandments'": The Associated Press has this report.
Posted at 20:56 by Howard Bashman



While Indiana appears to be on my mind: You can access here a new blog formed by students at Indiana University School of Law in Indianapolis. It's called "Sapere aude."
Posted at 17:32 by Howard Bashman



"Court: Cops Can't Keep Defense Lawyers At Jailhouse Door." "TalkLeft" has this report on a recent ruling from the Supreme Court of Indiana. Many more details, including a link to the ruling, can be found in this post at "The Indiana Law Blog."
Posted at 17:29 by Howard Bashman



Is the lack of religion a religion? At the risk of making you dizzy, you should definitely check out this posting from Yale Law student Steven Wu at his blog, "Legal Ramblings." Steven was prompted to address that puzzling question by yesterday's ruling of the U.S. District Court for the Middle District of Alabama, which dismissed a lawsuit seeking a return of the Ten Commandments monument to the rotunda of the Alabama Judicial Building. While Steven's post accurately states that the trial judge said he was refraining from deciding whether the lack of religion can constitute a religion, the close of yesterday's decision seems to come as near as possible to saying that the lack of religion is not a religion as one can without directly making the observation.
Posted at 17:21 by Howard Bashman



"Professor's site taken off IU server; Students, staff upset by message about homosexuals": Today's issue of The Indiana Daily Student contains this report (via "The Volokh Conspiracy," which also has more to say here).
Posted at 17:14 by Howard Bashman



"Miguel Estrada lost judgeship, not respect": Today's edition of The Mobile Register contains this editorial (via "Southern Appeal").
Posted at 17:10 by Howard Bashman



"The Radical Case for Gay Marriage: Why Progressives Must Join This Fight." Richard Goldstein has this essay in the current edition of The Village Voice.
Posted at 16:26 by Howard Bashman



"Court will say all chests aren't created equal": Columnist Mike Thomas has this essay in today's edition of The Orlando Sentinel. You can access here my earlier mention of this federal court suit, in which ten Florida women are claiming they are unconstitutionally being denied the same right that men enjoy to bare their chests in public.
Posted at 16:13 by Howard Bashman



"Legal Hurdle Removed for Recall Voting": The Los Angeles Times provides this news update. The matter in question was heard and decided by a special three-judge panel of the U.S. District Court for the Northern District of California, and any appeal goes directly to the U.S. Supreme Court. I previously listed the judges on this special three-judge panel in a post you can access here. Update: Law Professor Rick Hasen has posted the text of the order (but not all of the footnotes) here.
Posted at 16:04 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Judges Won't Postpone Calif. Recall Vote"; here "Death Penalty Ruling Could Mean Backlogs"; here "Nichols' Lawyer: Okla. Trial Won't Be Fair"; and here "Doctor Dodges Malpractice Suit for Affair."
Posted at 15:56 by Howard Bashman



"Democratic Racism: The real reason behind the borking of Miguel Estrada." Robert Alt has this provocatively titled essay at National Review Online.
Posted at 15:51 by Howard Bashman



Ask Judge Gonzales: From The White House's Web site:
White House Counsel Judge Al Gonzales is discussing the judicial nominations crisis now on "Ask the White House." You can submit a question now.
The question and answer session just began at 3:30 p.m., so time is undoubtedly of the essence. You can view the questions and answers at this link. You can submit a question here while the chat is continuing. Update: The chat has concluded. You can view the transcript here.
Posted at 15:49 by Howard Bashman



"Law School Shooting Suspect to Go on Trial": The Associated Press has this report.
Posted at 13:48 by Howard Bashman



Hang Ten: The Crimson White reports here today that "Riley to allow Ten Commandments in state Capitol." Today's edition of The Montgomery Advertiser reports here that "Riley to display plaque."

In related news, The Advertiser reports that "House enters display fight." The Birmingham News reports here that "Aderholt renews push for commandments bill." That article begins, "Lawsuits challenging government displays of the Ten Commandments would automatically be thrown out of court under an old proposal getting renewed attention in Congress." Finally for now, The Pensacola News Journal reports here that "Miller supports Commandments law; Bill gives states power to decide on monument display."
Posted at 11:01 by Howard Bashman



"Neb. High Court Vacates Death Sentence": The Associated Press has this report. And you can access today's ruling of the Supreme Court of Nebraska at this link.
Posted at 10:47 by Howard Bashman



Congratulations to Ted Frank, who is joining "Overlawyered.com" as an ongoing contributor: Details here.
Posted at 10:01 by Howard Bashman



"U.S. Senate set to act on Michigan judges; Logjam may be over as one appeals court nominee will get a vote, another a hearing." The Detroit News last Thursday published this report. And last Friday's edition of The Lansing State Journal reported here that "Senate to move to fill judgeships."

In related news, Michigan-based Sixth Circuit nominee Henry W. Saad was scheduled to receive a vote at yesterday's business meeting of the Senate Judiciary Committee. This statement at the meeting from ranking Democratic member Senator Patrick J. Leahy (D-VT) suggests that the Democrats invoked their prerogative to postpone that vote until the very next business meeting.
Posted at 09:56 by Howard Bashman



"Attorney general's authority upheld": Today's edition of The Atlanta Journal-Constitution contains this report on a ruling yesterday of the Supreme Court of Georgia that I first reported on here.
Posted at 09:44 by Howard Bashman



Congratulations to Steven M. Colloton, whom the U.S. Senate confirmed last night to serve on the U.S. Court of Appeals for the Eighth Circuit by a vote of 94-1: And the one vote against was not from the Senator I had predicted. You can access the official roll call vote tally at this link. When he joins the Eighth Circuit, Colloton may become the youngest U.S. Court of Appeals judge currently in service.
Posted at 09:35 by Howard Bashman



"A Wake-Up Call: We failed Miguel Estrada and allowed Senate Democrats to erect a glass ceiling." Virginia Thomas -- perhaps more well known as Mrs. Clarence Thomas -- has this op-ed in today's issue of The Wall Street Journal.
Posted at 07:01 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Supreme Court Eyes Campaign Finance Laws." And Jesse J. Holland reports that "Senate Democrats Target Judicial Nominees."
Posted at 06:59 by Howard Bashman



In Friday's newspapers: In The New York Times, Linda Greenhouse reports that "Fund-Raising Law Goes Before Supreme Court." An article reports that "Senate Panel Acts to Block TV Ownership Rule." In local news, "Shots as Political Statement? Judge Raises Idea in Court." You can access here an article headlined "Government to Give Fewer Lie Detector Tests." And Norman Ornstein and Anthony Corrado are the co-authors of an op-ed entitled "'Hard Money' Is Easy to Come By."


The Washington Post
reports here that "Md. Begins Issuing 'Choose Life' Tags; State Is One of 8 With Antiabortion Slogan." In other news, "Muhammad Defense Seeks Closed Hearing." In other local news, "Affidavit Speaks of How Jury Saw Barred Lentz Evidence." From Chicago comes a report that "Palestinian Activist Faces Jail Again; Ex-Howard Teacher Balked at Grand Jury." Former U.S. Senator Alan Simpson has an op-ed entitled "Missing the Point on Gays." And columnist E.J. Dionne Jr. has an op-ed entitled "The Radical Goal of McCain-Feingold's Enemies."

Finally for now, The Christian Science Monitor provides an article that asks "As prisoners age, should they go free?"
Posted at 06:47 by Howard Bashman



"Stymied by Democrats in Senate, Bush Court Pick Finally Gives Up": Friday's edition of The New York Times contains this article by Neil A. Lewis. A related editorial is entitled "Miguel Estrada Bows Out."

Friday's edition of The Washington Post contains a front page article headlined "Estrada Abandons Court Bid." A related editorial is entitled "Victory for a Smear."

Friday's edition of The Christian Science Monitor reports here on "What Estrada's exit means for future battles: Controversial judicial nominee withdraws, signaling rising bar for court appointments." BBC News reports here that "Bush forced to drop judge choice." The Knight Ridder Newspapers report that "Embattled Bush judicial nominee Miguel Estrada withdraws his name." The Scripps Howard News Service reports that "Beleagured judicial nominee withdraws." The Hill reports here that "Estrada withdraws name in nomination battle." And the NBC affiliate in Hattiesburg, Mississippi provides a report entitled "Bush Court Nominee Estrada Quits; Will Pickering Follow?"
Posted at 00:41 by Howard Bashman



Thursday, September 04, 2003
"Bush Judicial Pick Estrada Backs Out": NPR's Nina Totenberg had this audio report (Real Player required) on this evening's edition of All Things Considered.
Posted at 23:06 by Howard Bashman



Elsewhere in Thursday's newspapers: The Los Angeles Times reports here that "Australian Judge Finds L.A. Webmaster Liable; Jurist says Net sites defamed a professor. The accused calls an order for damages unenforceable." An article reports that "State Sues Backers of Prop. 54; The political practices panel says those behind the measure to restrict state agencies from asking about race are hiding donors' names." In news from Florida, "Amid Storm, Abortion Foe Is Executed; In his final moments, Paul Hill urges fellow opponents to take any action necessary." An article reports that "Bill Giving Gay Partners More Legal Rights Sent to Governor; Acting along partisan lines, the Assembly approves the legislation without a vote to spare." In other news, "'Exiled' Senator Back in Texas; The Democrat's return means the chamber now has the quorum to vote on a redistricting plan." In business news, "Court's FCC Ruling May Delay Univision Deal." In local news, "Victim Suing Luster Says She Felt Betrayed; Ex-girlfriend testifies that she was devastated to learn he had raped her the night they met." And an op-ed by Ward Connerly is entitled "Races With No Winners; Prop. 54 will bring an end to the indignity of classifying people."

In The Boston Globe, Lyle Denniston reports that "Court delays FCC rules on media; Disputed easing of ownership limits was slated for today."

Finally for now, The Washington Times reports here that "Illegals sue over college entrance."
Posted at 22:54 by Howard Bashman



"Judicial nominee Estrada withdraws name": Joan Biskupic of USA Today has this report.
Posted at 22:40 by Howard Bashman



"Court considers inmate abortions; Terrebonne case taken up on appeal": Today's issue of The Times-Picayune contains an article that begins, "Attorneys for a woman who was denied an abortion while in jail argued Wednesday before a federal appeals court in New Orleans that it's unconstitutional to require that a prisoner hire a lawyer and get a judge's permission for the procedure. The requirement pushed the woman beyond the three-month window in which she could have legally ended the pregnancy, her attorneys said."
Posted at 22:33 by Howard Bashman



"9th Circuit Yanks Judge From Pepper Spray Case": Jason Hoppin has this report online at law.com. By the way, the article quotes an attorney who uses the F-word. I'll have to remember that's acceptable for my next interview with a law.com correspondent.
Posted at 22:31 by Howard Bashman



Divided Tenth Circuit panel holds that members of small religious organization can make sacramental use of hoasca, even though it's a substance containing a drug listed in Section I of the Controlled Substances Act: A claim under the Religious Freedom Restoration Act wins, while Attorney General John Ashcroft and the federal drug laws lose, at least at the preliminary injunction stage of this litigation. You can access today's ruling of the U.S. Court of Appeals for the Tenth Circuit at this link. And you can learn more about this case here and here. The district court's ruling granting the preliminary injunction that the Tenth Circuit today affirmed can be viewed here.
Posted at 20:54 by Howard Bashman



Perhaps it should be called the "Judicial Panel on Multicircuit Administrative Review Proceedings"? Until yesterday, I didn't appreciate that the Judicial Panel on Multidistrict Litigation has a role to play when timely petitions for review of a single administrative order are filed in more than one federal appellate court. A federal statute accessible at this link sets forth the random selection process that led to the U.S. Court of Appeals for the Third Circuit's having sole jurisdiction over challenges to the Federal Communication Commission's media consolidation order.
Posted at 19:47 by Howard Bashman



And in other news from Reuters: You can access here an article entitled "Judge Rejects Return of Ten Commandments Marker" and here an article entitled "Bush Withdraws Stalled Estrada Nomination."
Posted at 19:32 by Howard Bashman



"Big Fat" is on a roll: Reuters reports here that "Judge Throws Out Obesity Suit Against McDonald's." You can access yesterday's ruling of the U.S. District Court for the Southern District of New York at this link.
Posted at 19:28 by Howard Bashman



Second Circuit rejects Commerce Clause challenge to federal child pornography statute: You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link. The Second Circuit's opinion realizes that while today's holding is in accord with the vast weight of precedent, it is in conflict with this recent, controversial ruling of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 17:11 by Howard Bashman



"Judge Dismisses New 10 Commandments Suit": The Associated Press has this report. In sum, the federal district judge who ordered the removal of the Ten Commandments monument from the Alabama Judicial Building has dismissed a lawsuit seeking an order that the monument be put back on public display there. The opinion begins:
In this lawsuit, plaintiffs Kelly McGinley, Richard C. Dorley, and Debra Giles charge that the Associate Justices of the Alabama Supreme Court unconstitutionally established a religion of "nontheistic beliefs" when they removed a monument depicting the Ten Commandments from the rotunda of the Alabama State Judicial Building.
You can access today's complete opinion at this link.
Posted at 16:53 by Howard Bashman



FOX News interviews concerning Miguel A. Estrada's withdrawal of his nomination to the D.C. Circuit: You can view them online here (Real Player required).
Posted at 16:46 by Howard Bashman



"Frist Comments on Withdrawal of Estrada": The text of comments that Senate Majority Leader Bill Frist (R-TN) delivered today on the floor of the U.S. Senate can be viewed here.
Posted at 16:28 by Howard Bashman



The proposed amendments to the Federal Rules of Appellate Procedure are now available online: You can view them at this link (44-page PDF document). And you can view the proposed amendments to the other Federal Rules of Procedure via this link. The deadline for public comment is February 16, 2004. The official notice of the public comment period is available here. Update: I have corrected the deadline for public comments, which I originally had incorrectly reported as May 16, 2004.
Posted at 16:18 by Howard Bashman



"Damage phase of U-M admission case in flux; No timeline in place for liability portion of undergraduate suit": This article appeared in last Sunday's edition of The Ann Arbor News.
Posted at 16:07 by Howard Bashman



"Court's Gone Too Far In Purging Religion From The Square": Stuart Taylor Jr. has this essay in National Journal this week. (Thanks to "Ex Parte" for the pointer.)
Posted at 16:06 by Howard Bashman



Statement by Alliance for Justice President Nan Aron: It is entitled "Need for Consensus Nominees Is Clear," and you can access it here.
Posted at 16:03 by Howard Bashman



Eleventh Circuit certifies to Supreme Court of Florida some important and complex "economic loss doctrine" questions: You can access today's opinion of the U.S. Court of Appeals for the Eleventh Circuit at this link.
Posted at 16:02 by Howard Bashman



In the news: Both Senators Patrick J. Leahy (D-VT) and Charles E. Schumer (D-NY) have issued press releases in which they comment on the news today concerning Miguel A. Estrada. And Law Professor Lawrence Solum addresses here "What does Estrada's Decision Mean?"
Posted at 15:03 by Howard Bashman



The U.S. Supreme Court can now breathe a sigh of relief: Today the Supreme Court of Georgia finally ruled that the Attorney General of Georgia was authorized to pursue in the Supreme Court of the United States the voting rights case known as Georgia v. Ashcroft even after the Governor of Georgia had ordered the Attorney General of Georgia to dismiss the case. You can access today's ruling at this link. The U.S. Supreme Court announced its decision in Georgia v. Ashcroft back on June 26, 2003.
Posted at 14:56 by Howard Bashman



"What is Needed to Defend the Bipartisan Defense of Marriage Act of 1996?" Senate Judiciary Committee's Subcommittee on the Constitution will hold a hearing on this subject today. The hearing is scheduled to begin at 2 p.m.
Posted at 13:45 by Howard Bashman



"Why Estrada Quit: The unprecedented Democratic filibuster simply wore him down." Byron York has this essay at National Review Online.
Posted at 13:28 by Howard Bashman



Latest news from Alabama: The Montgomery Advertiser offers as breaking news a report that "Ten Commandments to be displayed in Capitol." This is apparently a granite plaque and not the huge granite monument banned from public display in the Alabama Judicial Building. Meanwhile, in other news, "Monument supporters await ruling."
Posted at 12:47 by Howard Bashman



Statement by the President: From the White House's Web site:
STATEMENT BY THE PRESIDENT

It is with regret that, at the request of Miguel Estrada, I have today withdrawn his nomination to the United States Court of Appeals for the D.C. Circuit. I understand and respect his decision, and wish Mr. Estrada and his family the best.

Mr. Estrada received disgraceful treatment at the hands of 45 United States Senators during the more than two years his nomination was pending. Despite his superb qualifications and the wide bipartisan support for his nomination, these Democrat Senators repeatedly blocked an up-or-down vote that would have led to Mr. Estrada's confirmation. The treatment of this fine man is an unfortunate chapter in the Senate's history.
You can access the withdrawal of nomination at this link.
Posted at 12:25 by Howard Bashman



"Embattled Estrada Withdraws as Nominee for Federal Bench": The New York Times provides this report, which states that "Mr. Estrada announced his decision in a letter to President Bush, officials said, though the letter has not been made public." The text of the letter is indeed now public; see the post immediately below this one to read it. The Washington Post reports here that "Embattled Judicial Nominee Estrada Withdraws; Hispanic Lawyer Faced Strong Democratic Opposition." The Los Angeles Times reports here that "Estrada Withdraws Judicial Nomination." And The Associated Press provides this list of "President Bush's other judicial nominations being held up by Senate Democrats."
Posted at 12:20 by Howard Bashman



Letter from Miguel A. Estrada to President Bush dated September 4, 2003:

Dear Mr. President:

The greatest professional honor that I have received was to be nominated by you to serve on the United States Court of Appeals for the District of Columbia Circuit. I am deeply grateful to you for this honor, and for the many acts of kindness and concern that you and others at the White House and in the United States Senate have had for me and my family during the last two years. Your personal involvement on my behalf has been a particular source of pride and comfort to me.

After considerable reflection and deliberation, however, I write to ask you to withdraw my pending nomination. I believe that the time has come to return my full attention to the practice of law, and to regain the ability to make long-term plans for my family. I remain indebted to you for offering me the opportunity to serve my adopted country, which has been so welcoming and generous to me and my family, and I profoundly hope that, at some time in the future, I may be called again to serve my country in some capacity.

Very truly yours,

Miguel A. Estrada
Posted at 11:31 by Howard Bashman



Statement of Miguel A. Estrada dated September 4, 2003: "I have today asked President Bush to withdraw my pending nomination to serve as a judge of the United States Court of Appeals for the District of Columbia Circuit. I was deeply honored by this nomination and I will forever be grateful to the President for his steadfast support of my candidacy and for his many kindnesses toward me and my family. I am also grateful to the members of the United States Senate--particularly to Majority Leader Frist and Chairman Hatch--for the many courtesies they have extended to me, and I am indebted as well to the many persons and groups--including the American Bar Association and other bar associations--who have offered me support and kind words while my nomination has been pending. I look forward to once again being able to devote my undivided time and attention to my legal practice."
Posted at 11:16 by Howard Bashman



When a copy of Miguel A. Estrada's letter to the White House becomes available, I will certainly reprint it or link to it: The nominee himself is far from home on business today.
Posted at 10:56 by Howard Bashman



"Judicial nominee Estrada withdraws his name": CNN.com provides this report. And you can access here a report from Reuters (accompanied by one of the silliest photos that this whole confirmation morass has generated).
Posted at 10:53 by Howard Bashman



"Judicial Nominee Estrada Withdraws Name": The Associated Press provides this report.
Posted at 10:04 by Howard Bashman



"Estrada Drops Out of Judicial Race": FOX News has this report. Word of this development first appeared in a subscription-only editorial found in today's issue of The Wall Street Journal.

Senate Republicans attempted seven times to invoke cloture on the debate over Miguel A. Estrada's nomination to the U.S. Court of Appeals for the D.C. Circuit, but only obtained at most 55 of the 60 votes needed for cloture. Had a vote on the merits of the nomination been allowed to occur, it is clear that a majority of Senators would have voted in favor of confirmation.

President Bush originally nominated Estrada to the D.C. Circuit on May 9, 2001, and Estrada would have been the first Hispanic to serve on that court. Back on May 10, 2003, I published here a post entitled "Miguel Estrada Wants Name Withdrawn From Nomination, CNBC Says."
Posted at 09:40 by Howard Bashman



"Group of women seeks right to bare breasts as men can": The Orlando Sentinel contains this report today.
Posted at 07:03 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "Court Blocks Media Rules; FCC's Ownership Caps Were Slated To Change Today." An article reports that "Ariz. to Fight Decision On Death Sentences. Prosecutors Cite Strains; Ruling Stirs Public Anger." In other news, "Judge Says Witness May Aid Moussaoui; Terror Suspect Is Granted Access to Pair." And you can access here an article headlined "Expert's Hiring Sought in Sniper Case; Prosecutors Want Noted Psychologist to Interview Muhammad."

The New York Times reports here that "Potent Forces Collide in Appeal Over a Wine-Shipping Law." In other news, "Florida Executes Killer of an Abortion Provider." And an article reports that "Spelling It 'Dinsey,' Children on Web Got XXX."

Finally for now, The Christian Science Monitor reports here that "Despite reprieves, 3,500 still on death row in the US."
Posted at 06:47 by Howard Bashman



"Shock rocker barely makes stir in St. Paul court": Yesterday's issue of The St. Paul Pioneer Press reported here about Marilyn Manson that "Peering through wire-rimmed glasses and paging through legal papers, he could have passed for a trial lawyer, albeit a rather pale one, who may or may not have been wearing a touch of makeup." And today, that newspaper reports that "Manson lawsuit heading to jury."
Posted at 06:43 by Howard Bashman



"License To Kill: Florida kills a man for killing a doctor for killing babies." William Saletan has this essay online at Slate.
Posted at 00:07 by Howard Bashman



Wednesday, September 03, 2003
Elsewhere in Wednesday's newspapers: The Washington Times reports here that "Republicans to force issue of gay 'marriage.'" In other news, "Testimony of Malvo's guards admissible." An article reports that "Hinckley leave ruling delayed." In other local news, "Pollard attorneys seek access to secret report used in spy sentencing." And Jonah Goldberg has an op-ed entitled "Gay men not rushing to altar."

The Los Angeles Times reports here that "Unocal to Consider Dropping Project in Myanmar." And you can access here an article headlined "Convicted Spy Pollard Contests Life Term; American who gave documents to Israel appears in court, where his attorneys say the U.S. misled him about the length of his sentence."
Posted at 22:53 by Howard Bashman



"U.S. Court Blocks Plan to Ease Rule on Media Owners": Thursday's issue of The New York Times will contain an article that begins, "A federal appeals court issued a surprise order today blocking the Federal Communications Commission from imposing new rules that would make it easier for the nation's largest media conglomerates to add new markets and areas of business." Of course, the order wasn't a surprise to readers of "How Appealing," who learned about the stay hearing this morning via this post. Elsewhere, The Los Angeles Times offers this report on today's stay order.
Posted at 22:51 by Howard Bashman



The dysfunctional Sixth Circuit? The Cincinnati Enquirer today reports here that "Court infighting reaches Congress; 6th Circuit skirmish part of larger fight over judicial independence." And a related article is headlined "Judges say appeals court being harmed by bickering; 'It gives the ... perception that we are dysfunctional.'"
Posted at 22:29 by Howard Bashman



"Law School bomber still at large. Despite string of searches during summer, police make no arrests; U.S. attorney urges patience." Today's issue of The Yale Daily News contains this report.
Posted at 22:25 by Howard Bashman



U.S. Court of Appeals for the Third Circuit issues stay of Federal Communication Commission's revamped media ownership rules: You can access the per curiam order granting the stay at this link. From what I heard about this morning's oral argument, this result should not come as a surprise to those present in the courtroom today. The Associated Press reports here that "Court Delays FCC Media Ownership Rules." And Reuters reports here that "Judges Block New FCC Ownership Rules."
Posted at 18:50 by Howard Bashman



"Abortion Dr.'s Killer Executed in Florida": The Associated Press provides this report. And Reuters reports here that "Florida Executes Anti-Abortion Killer Hill."
Posted at 18:49 by Howard Bashman



"Senators may pay dearly for blocking Bush's judges": Attorney Harry Korrell had this op-ed in yesterday's edition of The Seattle Times.
Posted at 17:20 by Howard Bashman



"Death Penalty Back on High Court's Agenda": Gina Holland of The Associated Press has this report.
Posted at 17:09 by Howard Bashman



"U-M admission rules may have changed, but the result is the same": Columnist Pete Waldmeir has this essay in today's issue of The Detroit News.
Posted at 16:02 by Howard Bashman



"Decision a win for gun owners" in Michigan: Today's edition of The Detroit Free Press contains this report.
Posted at 15:54 by Howard Bashman



Election Law Professor Rick Hasen will be blogging live from the U.S. Supreme Court's BCRA oral arguments next Monday: You can access the details here at his blog. It will be interesting to see whether Rick beats Gina Holland and Anne Gearan, the two wonderful Associated Press correspondents who cover the Court, to the Web on Monday with news of what happened during the morning and afternoon sessions.
Posted at 15:30 by Howard Bashman



Divided Supreme Court of Wisconsin denies petition seeking rule change to allow the citation of "unpublished" opinions: While this isn't exactly "news," in that the Supreme Court of Wisconsin issued its 5-2 decision on July 1, 2003, I don't recall seeing coverage of this development elsewhere in the interim. In any event, I didn't receive the two PDF documents linked in this post until yesterday (and thanks much to the reader who so kindly forwarded them along). You can access the petition that asked Wisconsin's highest court to adopt the rule change in question at this link. Finally, let me thank the good folks at "SCOTUSblog" for hosting these two PDF files on their server.
Posted at 15:27 by Howard Bashman



Seventh Circuit Judge Richard A. Posner makes criminal defendant thankful for that remaining one-tenth of the law: It's been said that possession is nine-tenths of the law. Today, in an interesting opinion you can access here, the U.S. Court of Appeals for the Seventh Circuit held that a criminal defendant was not properly convicted of having been a felon in possession of a firearm because he didn't do any possessing. What does it mean to possess a firearm? Judge Posner's answer is available here.
Posted at 14:58 by Howard Bashman



Stealing love belonging to another still remains actionable in some jurisdictions within the Eighth Circuit: Back in June 2003, I noted that the Supreme Court of Missouri, in a ruling you can access here, had abolished the tort known as "alienation of affection." The Associated Press had this report at the time.

Today the U.S. Court of Appeals for the Eighth Circuit decided a diversity jurisdiction case governed by South Dakota law in which the court upheld a jury's finding that the defendant was liable for the tort of alienation of affection, but the court ordered a fairly sizeable reduction of the damages awarded. You can access today's Eighth Circuit ruling at this link.
Posted at 14:29 by Howard Bashman



Appellate judges in Florida consider case of the youngest offender ever sentenced to serve life in prison: Today's edition of The Miami Herald contains an article headlined "Judges question Tate life sentence; Child abuse count thrust on boy, 12, at core of appeal."
Posted at 11:41 by Howard Bashman



Pro-life double-murderer scheduled for execution at 6 p.m. today in Florida: Reuters reports here that "Florida to Execute Remorseless Anti-Abortion Killer." MSNBC reports here that "Anti-abortion killer willing 'martyr.' Florida activist set for execution; reprisals feared." And USA Today reports here that "Abortion foe faces execution in Fla."

In local coverage, The Pensacola News Journal reports here that "Hill expects 'a great reward'; Unrepentant killer of two to die today" and here that "As Hill awaits death, protesters debate." The News Journal also offers this report on "Paul Hill's last day." The Gainesville Sun reports here that "Paul Hill expresses no regret." The St. Petersburg Times offers an article headlined "Facing execution, he expects glory; Paul Hill, set to die today for killing two at an abortion clinic, expects 'a great reward in heaven for my obedience.'" The Orlando Sentinel reports here that "Abortion doctor's killer expects heavenly 'reward.'" The Miami Herald reports here that "Doctor's killer welcomes execution; Antiabortionist expects 'reward.'" The Tampa Tribune reports here that "Execution Today Puts Abortion Clinics On Guard." And Florida Today reports here that "Activists deride Hill's call."

Meanwhile, from North Carolina, The Raleigh News and Observer reports here that "Execution affects victim's kin; Doctor's daughter tense as day nears." And The Associated Press reports here that "Wife of murdered abortion doctor supports killer's execution."