How Appealing

Friday, October 31, 2003
Elsewhere in Friday's newspapers: The Washington Times reports here that "Justice management lacks minorities, report reveals." In other news, "Sniper jurors cry over 911 call." And an article reports that "Colonel in Iraq refuses to resign."

In The Boston Globe, Lyle Denniston reports that "R.I. redistricting challenge allowed."

The Los Angeles Times reports here that "Appeals Court Condemns Prosecutor, but Upholds the Conviction He Won." You can access yesterday's ruling of the California Court of Appeal, Fourth District, Division Three, at this link. In other news, "City appealing profiling case; Council members will appeal to state high court to allow continuation of police data study." And you can access here an article headlined "Recall Backers Target Districts; A new initiative would assign the drawing of legislative boundaries to a panel of retired judges."
Posted at 23:30 by Howard Bashman



"Footage captures man shooting attorney outside courthouse": The Associated Press provides this report. And The Los Angeles Times reports here that "Shooting at Courthouse Is Captured on Video." Plus, The LATimes lets you watch the video here.
Posted at 23:20 by Howard Bashman



In news and commentary from Texas: In The Austin American-Statesman, David Pasztor has an article headlined "Report says state Supreme Court biased toward business; Chief Justice says the analysis ignores the legal and the constitutional bases for court decisions." Today's edition of The Houston Chronicle reports here that "High court rulings favor business, group says." You can access the report of Texas Watch at this link, and a related press release is available here.

In other news, The Associated Press reports here that "Morales gets four years in prison; Ex-Texas attorney general must pay $330,000 in restitution and fines for mail fraud and filing false tax returns." The Houston Chronicle reports that "Redistricting challenges trial date chosen; Challenge would start in December." And The Chronicle also contains an editorial entitled "Wilson's Conviction: Use of false affidavit would be reprehensible."
Posted at 23:00 by Howard Bashman



In news from Canada, "Supreme Court says police can seize DNA": The Canadian Press provides this report. And you can access today's ruling by the Supreme Court of Canada at this link.
Posted at 22:57 by Howard Bashman



"Extreme Nominee: With Brown, Bush deepens partisanship over judges." This editorial appears in today's edition of The Detroit Free Press.
Posted at 22:52 by Howard Bashman



Available online at law.com: Tony Mauro is "Counting the Clerks." Marcia Coyle reports that "Immigration Appeals Surge; Backlog shifts from one level to the circuit courts." An article reports that "2nd Circuit Finds No Privilege Waiver in Gun Inquiry; Company said U.S. agency cleared its actions." And you can access yesterday's ruling by the U.S. Court of Appeals for the Second Circuit at this link. In other news from the Second Circuit, "Judge's 'Annoyance' Results in His Removal From Case." You can access that Second Circuit ruling here. Finally, an article from Connecticut asks "Workplace Computer Off-Limits?"
Posted at 22:40 by Howard Bashman



"Improper persona": Justice William W. Bedsworth's new column deals with incarcerated pro se litigants and the sort of motions they sometimes file with the court. As always, it's a must read.
Posted at 22:27 by Howard Bashman



"Any ex parte meeting or communication between the judge and the foreman of a deliberating jury is pregnant with possibilities for error": Demonstrating the accuracy of that assertion, today a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed the criminal convictions of two defendants and remanded their cases back for a new trial. You can access the Fifth Circuit's ruling at this link.
Posted at 20:25 by Howard Bashman



Tonight's music selection: For Halloween, "Gravedigger" by Dave Matthews.
Posted at 20:10 by Howard Bashman



Another interviewee has volunteered to participate in this Web log's monthly "20 questions for the appellate judge" feature: Judge Richard B. Teitelman of the Supreme Court of Missouri will be the May 2004 interviewee in this blog's "20 questions" feature.

And at midnight on Monday, November 3, 2003, I will be posting online here my "20 questions" interview with Senior Eighth Circuit Judge Richard S. Arnold.
Posted at 17:30 by Howard Bashman



This evening's Ten Commandments-related news round-up: The Associated Press reports here from Ohio that "Judge Appeals Display of Ten Commandments." From Wyoming, The AP reports that "Ten Commandments plan blasted by Phelps, civil rights groups." And from Georgia, NBC's 11 Alive News reports that "A group of ministers in Cherokee County entered the fray over the display of the Ten Commandments in public buildings on Friday."
Posted at 17:14 by Howard Bashman



"Justice describes 'hateful' court full of 'yes men'; Pittman allegedly threatened to take differences out 'on the street'": Today's edition of The Biloxi Sun Herald contains this report about the Supreme Court of Mississippi.
Posted at 17:10 by Howard Bashman



"Democrats derail Pickering bid again; Outrage crosses party lines": This article appears in today's edition of The Hattiesburg American. And The Biloxi Sun Herald reports here that "Democrats stall Pickering nomination."
Posted at 17:08 by Howard Bashman



"Top Court Mulls Pledge of Allegiance Case": Gina Holland of The Associated Press reports here that "The Supreme Court will decide soon if the California atheist who wants the words 'under God' stripped from the Pledge of Allegiance can serve as his own lawyer when the court hears his case next year." The article also goes on to note that Justice Ruth Bader Ginsburg may in the future be less indulgent of lawyers who refer to her during oral argument as "Justice O'Connor."
Posted at 16:05 by Howard Bashman



The United States of America has today filed its opening brief in the Fourth Circuit appeal against Zacarias Moussaoui: Via FindLaw, you can access the redacted brief here (a very slow-loading, 108-page PDF document). And the Fourth Circuit's docket entries in the appeal can be accessed here.
Posted at 15:51 by Howard Bashman



"California High Court Complicates Control of Unwanted E-Mails": Denise Howell has written this evaluation of the Supreme Court of California's recent ruling in Intel Corp. v. Hamidi.
Posted at 15:35 by Howard Bashman



"ACLJ Asks Federal Appeals Court to Declare Ten Commandments in Ohio Judge's Courtroom Constitutional": The American Center for Law and Justice today issued this press release concerning an oral argument that occurred this morning before the U.S. Court of Appeals for the Sixth Circuit.
Posted at 15:02 by Howard Bashman



Effort to impeach the Chief Justice of the Philippines threatens to throw that country into a constitutional crisis: Today's edition of The Manila Bulletin reports that "Gov't will strike hard at any group that tries to destabilize it amid impeach impasse." The article provides a good deal of background on the matter. For readers seeking even more details, please visit the blog "Philippine Commentary" by Dean Jorge Bocobo. In addition to blogging, Bocobo writes commentary for The Philippine Daily Inquirer.
Posted at 14:59 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Suit Filed to Block 'Partial-Birth' Bill"; here "Judge Won't Stop Vote on Child-Testimony"; here "Jury: Patrolman Violated Officer's Rights"; and here "Judge Postpones Hearing for Ex-FBI Agent."
Posted at 14:28 by Howard Bashman



"The defendant was a witchy woman. The bewigged judge, resplendent in his red velvet robe, answered to 'Your Worship' and served liquor during sidebars." So beings a subscription-only article published in today's issue of The Fulton County Daily Report. A photograph of the Eleventh Circuit judge who presided over the mock trial can be viewed, today only, at this link.
Posted at 12:41 by Howard Bashman



Tonight's episode of the PBS program "NOW with Bill Moyers" will have a segment on Janice Rogers Brown's D.C. Circuit nomination: You can read more about tonight's program here and the segment in question here. Be sure to check your local listings. At some point, a transcript of tonight's program should be available via this link. (Thanks to "Talk Left" for the pointer.)
Posted at 12:05 by Howard Bashman



"Judge suspends crucifix verdict; An Italian judge has suspended a court order that would remove crosses from schools after the education ministry filed an appeal against the decision." BBC News provides this report.
Posted at 11:49 by Howard Bashman



Some readers of Al Kamen's "In the Loop" column in today's edition of The Washington Post may be wondering who is potential D.C. Circuit nominee "Tom Griffiths"? Why, it's Tom Griffith (no "s"), Assistant to the President--General Counsel and Secretary at Brigham Young University (see administration chart here). The column mentions, and consistently misspells, Griffith's name eight times.
Posted at 11:13 by Howard Bashman



And in other news from Georgia: The Atlanta Journal-Constitution today contains an article headlined "New fuel for Ten Commandments fray; Cherokee county pastor lobbies for courthouse display." In other news, you can access here an article headlined "ACLU attacks Matrix on privacy"; here "Journal author to change schools; Dad cites stress from story uproar"; here "Judge vows to stay on job; agency urges he go"; and here "Bar sues over Fulton's Sunday liquor law."
Posted at 10:53 by Howard Bashman



"Judges sentence outside the box; Punishment to fit the crime beats jail time": The Atlanta Journal-Constitution today contains this very interesting article. For example, the article reports that "Georgia law prohibits judges from banning people from the state, but they can ban someone from up to 158 of its 159 counties."
Posted at 10:44 by Howard Bashman



Cocaine possessed for personal use isn't relevant conduct to be considered when calculating the sentence of a defendant convicted of possession with intent to distribute cocaine: A unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit today issued this opinion, which explains that most (although not all) federal appellate courts follow this approach.
Posted at 10:41 by Howard Bashman



"Students rally for JAG suit": This article appears in today's issue of The Yale Daily News. And The Harvard Crimson reports here today that "Yale Students File Lawsuit."
Posted at 10:29 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Alaska Judge Backs Initiative for Senate"; here "Housekeeper to Testify in Peterson Hearing"; here "Sources: Green River Suspect OKs Plea Deal"; and here "Cafe's 'Naked Karaoke' Upsets Neighbors."
Posted at 10:13 by Howard Bashman



Another interviewee has volunteered to participate in this Web log's monthly "20 questions for the appellate judge" feature: I am very pleased to announce that Circuit Judge Boyce F. Martin, Jr., whose tenure as Chief Judge of the U.S. Court of Appeals for the Sixth Circuit recently concluded, will be the April 2004 participant in this blog's "20 questions" feature.
Posted at 09:59 by Howard Bashman



"Minister aims to put anti-gay monument in Idaho": The Idaho Statesman today contains this report.
Posted at 08:05 by Howard Bashman



"A tribute to the law stirs legal dispute": This article appears in today's edition of The Cleveland Plain Dealer.
Posted at 08:04 by Howard Bashman



Justice Antonin Scalia should "calm himself": That's what Ian Alexander argues in an op-ed entitled "Right-wing rhetoric has too much 'tude" published in today's issue of The Daily Texan.
Posted at 07:57 by Howard Bashman



Available online at FindLaw: Today, Vikram David Amar has an essay entitled "Why Did Justice Scalia Decline to Participate in the 'One Nation Under God' Case? Recusal Decisions and When they Should, and Should Not, Be Required." And yesterday, Edward Lazarus had an essay entitled "The New Anti-'Partial Birth Abortion' Legislation: Is It a Political Watershed, Or Not?"
Posted at 07:53 by Howard Bashman



The Pittsburgh Post-Gazette is reporting: You can access at this link an article headlined "Two Supreme Court candidates debate here" and at this link an article headlined "Court rules amendment questions stay on Tuesday's ballots."
Posted at 07:07 by Howard Bashman



"unbillable hours" addresses what makes blogs useful: You can access here a post titled "E Pluribus Reynolds: Instapundit-style Aggregating, Enframing, and Modern Blogging."
Posted at 07:00 by Howard Bashman



In Friday's newspapers: The New York Times contains an article headlined "Critical Study Minus Criticism of Justice Dept." A related article is headlined "Unediting the Editing of Federal Report." You can access the original, restored report at this link (186-page PDF document). And you can access here a graphic explaining how the redactions to the publicly-released version of the study were reversed. In other news, "Young Sniper Suspect Becomes Central Figure in Trial." In news from Moscow, "Court Overturns Law Restricting Russian Media." An article reports that "Facing a Vote to End Primaries, Many New Yorkers Just Yawn." An editorial is entitled "A Crucial Case for the Supreme Court." An op-ed by columnist Bob Herbert is entitled "Sneak Attack by Bloomberg." An op-ed by former Los Angeles Mayor Richard J. Riordan is entitled "Set the Voters Free." And letters to the editor appear under the heading "For a Judge, and Against."

The Washington Post reports here that "First Trial By Tribunal 'Imminent,' Official Says; 6 Al Qaeda Suspects Chosen as Eligible." An article reports that "911 Tape Has Jurors In Tears at Sniper Trial." In related news, "Photos Speak for Victims; Prosecutors Show Smiling -- and Graphic -- Portraits to Jurors." And you can access here an article headlined "Testimony Foreshadows Malvo Case; Lack of Witnesses May Point to Use Of His Statements." In other news, "Bankruptcy Judge Set To Rule on WorldCom." From Moscow comes news that "Russian Court Strikes Down Restrictive Press Law." Al Kamen's "In the Loop" column today -- entitled "On the Bench, Room on the Right?" -- begins with a discussion of which individual is most likely to receive a D.C. Circuit nomination to replace former nominee Miguel A. Estrada. And an editorial is entitled "Turn It Over."

The Christian Science Monitor contains an article headlined "Out of prison, into a business crusade." And Edward Ordman writes about how his father became an appellate lawyer in an essay entitled "My father succeeded by the process of elimination."
Posted at 06:25 by Howard Bashman



"Fellow justice depicts McRae accuser as 'hateful'; Quick decision promised in bid by five to have high court member suspended": The Clarion-Ledger today provides this report from Mississippi. And that newspaper also offers this related editorial cartoon.
Posted at 06:20 by Howard Bashman



Additional coverage of the filibuster of the Pickering nomination: The Gannett News Service reports that "Pickering nod may be permanently stalled." The Washington Times reports here that "Democrats filibuster Pickering nomination." The Los Angeles Times reports here that "Democratic Senators Block Pickering's Confirmation; Lawmakers again use a filibuster to halt a Bush judicial nomination. Critics attack the judge's record; backers say he was smeared." And President Bush yesterday issued this statement about the filibuster.
Posted at 06:15 by Howard Bashman



Thursday, October 30, 2003
"Filibuster on Nominee to Court Seat Survives Vote": Neil A. Lewis will have this article in Friday's issue of The New York Times.
Posted at 23:38 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Hatch proposal angers activists." In news from Virginia Beach, you can access here an article headlined "'It brought me closer to God'" and here an article headlined "Boy's sniper testimony coaxed." And an article reports that "State Department bars mail searches."

In The Boston Globe, Lyle Denniston has an article headlined "Another test in feeding-tube case; Husband asks judge to nullify new law." And in other news, "Prosecutors defend 'sneak and peek' warrant."

The Los Angeles Times reports here that "Husband Sues Florida to Halt Wife's Feeding; Michael Schiavo and the ACLU are challenging the constitutionality of 'Terri's Law,' enacted to keep the brain-damaged woman alive." In other news, "Teen Testifies About Being Shot by Sniper; A bullet tore through his chest. His wounding triggered fears that even children weren't safe during the siege of violence last year." An article reports that "Damage Estimate in Ecuador Lawsuit Mounts to $6 Billion; A new study says the environmental cost of Texaco's oil drilling is higher than thought." And in other news, "Jailed Arms Dealer Could Be Released Early, Judge Rules; One of three convictions against Edwin Wilson is overturned. He might be freed in 2005."

USA Today reports here that "Peterson trial may turn on hair strand; DNA method's validity key issue." And in other news, "Husband's lawyers file challenge to 'Terri's Law.'"
Posted at 23:01 by Howard Bashman



"O'Connor Speech Puts Foreign Law Center Stage": law.com tonight has made available online this article by Jonathan Ringel of The Fulton County Daily Report.
Posted at 22:07 by Howard Bashman



What's so terrible about Lochner? An editorial that The Washington Post published today concerning D.C. Circuit nominee Janice Rogers Brown has spawned this discussion by Law Professor David Bernstein online at "The Volokh Conspiracy."
Posted at 22:05 by Howard Bashman



"Scaliapalooza: The Supreme Court's pocket Jeremiah." Slate's Dahlia Lithwick today offers this essay.
Posted at 21:54 by Howard Bashman



The Associated Press is reporting: In news from Mississippi, "The hearing into misconduct allegations against Mississippi Supreme Court Justice Chuck McRae ended Thursday, leaving members of a judicial watchdog commission to deliberate whether to recommend barring McRae from the bench months before his term ends." And an article reports that "U.S. Capitol Said to Be Haunted Building" due, it seems, to the old U.S. Supreme Court chamber.
Posted at 21:51 by Howard Bashman



"Report says Supreme Court favors businesses": The Associated Press reports here that "The Texas Supreme Court routinely favored business over consumers in deciding cases over the last year, according to a watchdog group's annual report released today."
Posted at 21:42 by Howard Bashman



Asking the difficult questions: See this post by "boutique call" online at the "Greedy Clerks Board."
Posted at 21:33 by Howard Bashman



"Gloves Come Off in Fight to Control Courts; Brawl Over Sixth-Circuit Judgeships Illustrates High Stakes, Tough Tactics in Play": An article bearing that headline appears in today's issue of The Wall Street Journal. Unfortunately, the article is not freely available online.
Posted at 21:10 by Howard Bashman



"Arizona Sheriff Runs World's Only Female Chain Gang": Reuters provides this report.
Posted at 21:04 by Howard Bashman



"A Judge's Life: The Final Reckoning." Nat Hentoff's column published online today by The Village Voice begins, "I write this final column on Charles Pickering because, in some 50 years as a reporter, I have seldom seen such reckless, unfair, and repeated attacks on a person--not only by Democrats on the Senate Judiciary Committee but also by organizations that gather financial contributions because of their proclaimed dedication to civil rights, civil liberties, and honest research. (People for the American Way, Alliance for Justice, et al.)"
Posted at 21:00 by Howard Bashman



Here, khittie: Today the U.S. Court of Appeals for the First Circuit issued an opinion demonstrating that, while Circuit Judge Bruce M. Selya may no longer poke fun at the names of parties to litigation, he's not averse to coining a pun about a controlled substance-containing material. Today's opinion begins:
A jury found defendant-appellant Abdigani Hussein guilty of knowingly possessing and intending to distribute khat, a plant naturally containing the chemical stimulant cathinone (a Schedule I controlled substance), in violation of section 841(a)(1) of the Controlled Substances Act (CSA). The district court refused to set aside the verdict and sentenced Hussein to one year's probation. Hussein appeals, asserting that (i) the CSA did not afford him fair warning that possession of khat was illegal, and (ii) the government did not sufficiently prove his knowing possession of a controlled substance.
In the course of rejecting the defendant's sufficiency of the evidence claim, Judge Selya writes: "In this case, however, there is more than one way to skin a khat." For me to say more about the opinion, other than to recommend it as quite an interesting read, would be supererogatory.
Posted at 19:09 by Howard Bashman



"Senate Democrats Block Bush Court Pick": Friday's edition of The Washington Post will contain this report.
Posted at 19:02 by Howard Bashman



White House Counsel Alberto R. Gonzales discusses the judicial nomination and confirmation process today on "Ask the White House": According to the White House Web site, "Today is the one-year mark since the President announced his plan for timely consideration of judicial nominees. Gonzales discussed the broken confirmation process." You can access the transcript here.
Posted at 17:39 by Howard Bashman



USDOJ announces that Seventh Circuit Judge Richard A. Posner has won the John Sherman Award for his lifetime contributions to the teaching and enforcement of antitrust law and the development of antitrust policy: You can access today's press release at this link.
Posted at 17:36 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "Prosecutor Says Terror Trial Is Imminent." Gina Holland reports that "Commission Instructs Judges on Sentencing." And in other news, "Groups Question Voting Machines' Accuracy."
Posted at 17:30 by Howard Bashman



Some additional news from today's executive business meeting of the Senate Judiciary Committee: Today the committee approved by a voice vote the nomination of Dora L. Irizarry to serve on the U.S. District Court for the Eastern District of New York. Her nomination was viewed as a bit more controversial than is typical for federal district court candidates because she received a majority "unqualified" rating from the American Bar Association and, according to this article, she also was "found unqualified for an Eastern District judgeship [several months ago] by a lopsided vote of the Judiciary Committee of the Association of the Bar of the City of New York, sources report."
Posted at 16:45 by Howard Bashman



"Fox nearly sued itself over 'Simpsons' parody: Matt Groening." Agence France Presse has this report.
Posted at 15:49 by Howard Bashman



"Senate committee again delays Saad's nomination": The AP has this news.
Posted at 14:44 by Howard Bashman



"Judge Pickering calls filibuster disappointing; son says fight will continue": The Associated Press provides this report.
Posted at 14:27 by Howard Bashman



Good news for Ray Lupa: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued a decision that concludes:
Accordingly, we find that Congress did not violate the Establishment Clause of the First Amendment by its enactment of RLUIPA. There being no independent constitutional bar to the statute, it remains a valid exercise of Congress' Spending Clause authority, and the district court's decision to award summary judgment in favor of Charles on his prayer oil claim under RLUIPA is affirmed.
RLUIPA, of course, stands for the Religious Land Use and Institutionalized Persons Act. You can learn more about that federal law here.
Posted at 13:31 by Howard Bashman



"Students to file JAG suit; Groups representing about 50 law students to sue Dept. of Defense today over recruiting": This article appears in today's issue of The Yale Daily News.
Posted at 13:18 by Howard Bashman



"GOP Fails to End Filibuster of Pickering": The Los Angeles Times provides this news update.
Posted at 13:12 by Howard Bashman



"Appeals court agrees to expedite review in JOA case": The Seattle Post-Intelligencer reports here today that "A state appeals court will step into the fight between Seattle's two daily newspapers, agreeing yesterday to quickly review a lower court's ruling that handed an early victory to the Seattle Post-Intelligencer."
Posted at 13:10 by Howard Bashman



"Carson soldier faces charge of cowardice": The Gazette of Colorado Springs reports here today that "A soldier with Fort Carson’s 10th Special Forces Group has been charged with cowardice for allegedly refusing to do his duty in Iraq."
Posted at 13:06 by Howard Bashman



"GOP Fails to Break Pickering Filibuster": Jesse J. Holland of The Associated Press provides this report. Update: You can access the official roll call vote tally at this link.
Posted at 11:26 by Howard Bashman



The U.S. Senate's first cloture vote on the nomination of Charles W. Pickering, Sr. to serve on the Fifth Circuit fails to invoke cloture: Fifty-four votes were cast in favor of cloture, and forty-three votes were cast against. Sixty votes in favor are required to invoke cloture.
Posted at 11:15 by Howard Bashman



"Rally Supports Bush Nominee for Court Post": Today's edition of The Los Angeles Times reports here that "A group gathered Wednesday to urge the confirmation of Judge Carolyn B. Kuhl to the federal appellate bench included a judge who had overturned her most controversial ruling."
Posted at 11:11 by Howard Bashman



The U.S. Senate's cloture vote on the nomination of Charles W. Pickering, Sr. to serve on the Fifth Circuit has just begun: The outcome of the vote should be available soon.
Posted at 10:50 by Howard Bashman



It's true: As I noted late last night, Ninth Circuit Judge Stephen Reinhardt will be the February 2004 participant in this Web log's "20 questions for the appellate judge" feature. A list of all of the upcoming interviewees (from November 2003 through March 2004) can be accessed here.
Posted at 10:36 by Howard Bashman



"Ridgway guilty plea expected in 48 killings; In exchange, the Green River suspect's life would be spared": This article appears in today's issue of The Seattle Post-Intelligencer. And The Seattle Times reports here today that "Ridgway reportedly admits killing as recently as 1998."
Posted at 10:30 by Howard Bashman



Some judicial confirmation-related commentary: Today Sean Rushton has an essay entitled "Inaccurate Radio: NPR on Janice Rogers Brown" at National Review Online. And Ann Coulter has an essay entitled "The 'mainstream' is located in France" available online at Town Hall.
Posted at 10:20 by Howard Bashman



On the agenda: The U.S. Senate is now debating the cloture motion on the nomination of Charles W. Pickering, Sr. to serve on the U.S. Court of Appeals for the Fifth Circuit. You can watch the debate, to be followed shortly by a vote on the cloture motion, via this link.

At 10:30 a.m. today, the Senate Judiciary Committee will hold an executive business meeting. Among the judges listed on the agenda to be voted on today are Sixth Circuit nominee Henry W. Saad, Eastern District of New York nominee Dora L. Irizarry, Third Circuit nominee D. Michael Fisher, and D.C. Circuit nominee Janice Rogers Brown.
Posted at 10:01 by Howard Bashman



"Justice: McRae went too far; Disruptions, abuse cited at hearing." Today's edition of The Clarion-Ledger contains an article that begins, "Supreme Court Justice George C. Carlson Jr. testified Wednesday that Justice Chuck McRae's verbal abuse of Chief Justice Ed Pittman was so harsh 'I'll go to my grave remembering it.'"
Posted at 09:59 by Howard Bashman



"Killer will get kosher meals; The state has agreed to accommodate the kosher dietary requests of a killer who alleged that his rights were being violated." This article appeared in yesterday's issue of The Miami Herald. (Via "Obscure Store.")
Posted at 09:55 by Howard Bashman



This morning's Ten Commandments-related news: From Alabama, The Associated Press reports here that "Moore lawyers say removal may be inevitable.'" Late yesterday, The AP reported that "Court orders Moore trial open to public." You can access the order here. The AP also reports that "A poll of Alabama voters found strong support for displaying the Ten Commandments in government buildings, but a majority said suspended Chief Justice Roy Moore should have obeyed a court order to remove his monument." And an editorial published in today's issue of The Montgomery Advertiser begins, "In what may be the most unjustified, baseless campaign in the history of the American judiciary, an out-of-state supporter of suspended Chief Justice Roy Moore says he will come to Alabama to launch an impeachment effort against U.S. District Judge Myron Thompson, the federal judge who ruled against Moore in the Ten Commandments monument case."

Finally, in news from Georgia, The AP reports that "The Cherokee County Board of Commissioners is being asked to approve a Ten Commandments display at the county courthouse."
Posted at 09:52 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Spike in N.C. Executions Blamed on Debate"; here "Man Faces Prison for Not Planting Mums"; and here "Confederate Banner Back in Miss. Politics."
Posted at 09:31 by Howard Bashman



"Judicial nominee raises red flags": The Virginian-Pilot contains an editorial today that begins, "To understand the discomfort over Claude Allen’s nomination to the 4th Circuit Court of Appeals, match his credentials to those of Judge Allyson Duncan." By the way, word is that Circuit Judge Allyson K. Duncan's formal investiture into the Fourth Circuit occurred yesterday.
Posted at 07:00 by Howard Bashman



"Group says Hatch 'paying blackmail' to end filibuster": This article appears in today's edition of The Deseret Morning News.
Posted at 06:55 by Howard Bashman



Today the full U.S. Senate is scheduled to vote on whether to invoke cloture on the nomination of Charles W. Pickering, Sr. to serve on the U.S. Court of Appeals for the Fifth Circuit: Stay tuned for complete coverage of what is expected to be the start of the next judicial filibuster. Jesse J. Holland of The Associated Press reports here that "Republicans will likely fail to force a long-delayed vote on Mississippi judge Charles Pickering's nomination to the federal appeals court, the Senate Democratic leader says." The Los Angeles Times reports here today that "Senate Vote on Pickering Is a Matter of Timing; Republicans schedule the decision on the Mississippi judge just before a gubernatorial race in his home state." And in The Washington Times, Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) has an op-ed entitled "It's time to vote for Pickering."
Posted at 06:46 by Howard Bashman



"Brown Gets Borked: Her problem is that she's too qualified--and black." This editorial appears today in The Wall Street Journal.
Posted at 06:45 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "Spouse Fights New Law Over Feeding Tube." In other news, "Youngest Victim of Sniper Tells of Bullet in Chest." An article reports that "Ex-C.I.A. Man Wins Verdict Reversal." You can access here an article headlined "Nominee to Justice Department Post Vows Fair Inquiry on Leak." In news from Texas, "Double Blow, One Fatal, Strikes Police in Houston." In local news, "Suit Accuses Police in Brooklyn of Strip-Searches in Minor Cases." In other local news, "Forget About 'Wicked.' Today's Witch Is Wiccan." And a letter to the editor appears under the heading "Terms of 'Partial Birth.'"

The Washington Post reports here that "Witnesses Say They Saw, Reported Caprice; Car Was Observed Near Sniper Shooting Scenes as Police Sought White Van." A related news analysis is headlined "Slowly Building Pieces Into a Whole: In Sniper Trial, Prosecution's Circumstantial Case Begins to Coalesce." In other news, "False Evidence Cited in Overturning Arms Dealer's Case." An article reports that "Judge Delays Trial in Va. Park Killings." An editorial entitled "Fueling the Fight" remarks that "To put it mildly, Justice Brown is not what we had in mind." Columnist George F. Will has an op-ed entitled "Reason and Death." And a letter to the editor appears under the heading "Allegiance to Whom?"
Posted at 06:16 by Howard Bashman



Wednesday, October 29, 2003
Even more good news: Ninth Circuit Judge Stephen Reinhardt will be the February 2004 participant in "20 questions for the appellate judge."

Here is the schedule looking forward. Senior Eighth Circuit Judge Richard S. Arnold will be the November 2003 interviewee, and his interview will be posted online here shortly after midnight on Monday, November 3, 2003. Seventh Circuit Judge Richard A. Posner will be the December 2003 interviewee. Tenth Circuit Chief Judge Deanell Reece Tacha will be the January 2004 interviewee. Judge Reinhardt will be the February 2004 interviewee. And First Circuit Judge Bruce M. Selya will be the March 2004 interviewee. Accordingly, the federal or state appellate judge willing to claim the next vacancy will have his or her interview appear online here in April 2004. You can access the archive containing the nine past installments of the "20 questions" feature at this link.
Posted at 23:25 by Howard Bashman



The agenda for tomorrow morning's executive business meeting of the Senate Judiciary Committee is available online: You can view the agenda here. Three federal appellate court nominees are shown as scheduled for votes, but only time will tell whether the committee will actually vote on any of them tomorrow.
Posted at 23:23 by Howard Bashman



"Secret 9/11 case before high court; The justices consider a petition for a case with no public record." Warren Richey will have this article in Thursday's edition of The Christian Science Monitor.
Posted at 23:19 by Howard Bashman



Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Constitution Saves Accused Ex-Judge; Experts say it's no technicality that voids a former O.C. jurist's child porn case." The newspaper also publishes a correction to yesterday's article about this matter. In news from Colorado, "Bryant's Next Court Date Postponed Until Nov. 13." An article reports that "Until Court Rules, U.S. Wildlife Unit Won't Allow Killing of Endangered Species in Land Exchanges." In other news, "Trucker Gets 20 Years in Terror Plot; Judge refuses man's bid to renege on his guilty plea involving post-9/11 attacks." An op-ed by Stephen Drake is entitled "Disabled Are Fearful: Who Will Be Next?" And an op-ed by Mark Ridley-Thomas and Erwin Chemerinsky is entitled "Now That It's Finally Over, Let's Revamp the Recall."

USA Today contains an article headlined "Bush: USA isn't ready for total abortion ban; But many suspect president wants to go in that direction."

The Boston Globe reports here that "7 of 12 jurors in Sampson case say they support death penalty."

In The Washington Times, Frank J. Murray reports that "Defense alters tack to avoid horror." In related news, "Witnesses tell of fear on sniper's bloodiest day." And an editorial is entitled "Chipping away at abortion."
Posted at 22:50 by Howard Bashman



The plaintiff's lawsuit is "seriously frivolous": So concludes Seventh Circuit Judge Richard A. Posner in a little gem of an opinion that you can access here.
Posted at 22:23 by Howard Bashman



Unanimous Third Circuit panel holds that the indefinite detention of inadmissible aliens does not give rise to a due process violation: You can access today's ruling of the U.S. Court of Appeals for the Third Circuit at this link. This issue was already the subject of a circuit split, and I anticipate that the Supreme Court of the United States will one day agree to decide the matter.
Posted at 22:06 by Howard Bashman



"Court: Female guards do not violate male prisoners' rights." The Associated Press today provides this report on an unpublished opinion that the U.S. Court of Appeals for the Fifth Circuit issued yesterday.
Posted at 22:02 by Howard Bashman



"U.S. justice is honored: O'Connor says court has its ear to the world." This article appears in today's edition of The Atlanta Journal-Constitution.
Posted at 20:55 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Schiavo Lawyers Challenge 'Terri's Law'"; here "'Butterfly Ballots' May Have Confused"; here "FBI Primarily Focusing on Terror Cases"; here "Texas Sex Offenders Face Halloween Orders"; here "Justice Nominee Vows Fair CIA Probe"; here "Moon Rock Thief Gets Sentenced to Jail"; and here "DNA Testimony Opens Scott Peterson Hearing."
Posted at 20:49 by Howard Bashman



"Lott: Pickering defeat would rile state voters." Today's issue of The Biloxi Sun Herald contains an article that begins, "Mississippi Republican Sen. Trent Lott said his state would be 'mad as hell' if Democrats block Hattiesburg federal judge Charles Pickering's nomination for an appeals court seat this week and that he'll make sure angry voters take their wrath to the polls."
Posted at 20:37 by Howard Bashman



"Street magician sues Seattle, saying rights denied": An article in today's edition of The Seattle Post-Intelligencer begins, "A Seattle street magician has sued city for making him disappear."
Posted at 20:32 by Howard Bashman



My trip to Pittsburgh has concluded: I have arrived home, safe and sound. Awaiting me in this blog's email account was what could potentially be another amazing "20 questions for the appellate judge"-related announcement, so stay tuned to see if that materializes in the near future. Tonight's email also contained news of a new blog titled "Digitus Impudicus: Three lawyers and the finest term of art the law has produced." The part of the blog's title that's in Latin comes from a recent Texas state appellate court decision that I mentioned here earlier this month.
Posted at 20:30 by Howard Bashman



"Army files charge in combat tactic": The Washington Times today reports here that "The Army has filed a criminal assault charge against an American officer who coerced an Iraqi into providing information that foiled a planned attack on U.S. soldiers."
Posted at 14:00 by Howard Bashman



Today's Ten Commandments-related news: From Alabama, The Birmingham News reports here that "Judge denies Moore's motions; Refuses to disqualify Pryor, five judges." And The Associated Press reports here that "Court of Judiciary members refuse to step down from Moore case."

In news pertaining to Wyoming, The Rocky Mountain News reports here today that "Anti-gay preacher loses; Casper City Council votes against 6-foot monument deriding Matthew Shepard." Yesterday, that newspaper reported that "Casper set to reject anti-gay monument; City is 'repulsed' by Kansas minister's 'message of hate.'" The Casper Star-Tribune reports here that "City Council decides to create monument plaza" and here that "Crowd prays for monument." Previously, that newspaper reported that "Casper ponders 'historic plaza.'" And The AP reports that "Plaza chosen as Ten Commandments monument solution."

In news from Idaho, The AP reports that "Group wants Ten Commandments posted at courthouse."

Finally, in news from Georgia, The Athens Banner-Herald reports here that "Barrow makes no decision on legal counsel." And The Gainesville Times reports here that "California man's message favors Ten Commandments."
Posted at 13:40 by Howard Bashman



"House Committee Hears Judges Discuss Circuit Split": The U.S. Court of Appeals for the Ninth Circuit issued this press release last week. Perhaps as a split supporter I'm overly sensitive about such things, but doesn't the press release seem a bit one-sided?
Posted at 13:30 by Howard Bashman



"Sniper Suspect Rehires Lawyers": The Onion asks, "What do you think?"
Posted at 13:12 by Howard Bashman



"Judicial Nomination in Dispute": On NPR's "Morning Edition" today:
Sen. Paul Sarbanes (D-MD) and Sen. John Warner (R-VA) clash over the nomination of Virginia Judge Claude Allen to the 4th Circuit Court of Appeals. Maryland traditionally holds three of the 15 seats on the federal appeals court, based in Richmond, Va. Sarbanes opposes any candidate who is not from Maryland. NPR's Nina Totenberg reports.
You can access the audio via this link.
Posted at 13:08 by Howard Bashman



"Are the Democrats effectively discriminating against minorities?" "Jane Galt" of the blog "Asymmetrical Information" has a post that begins: "With Miguel Estrada, and now Janice Brown, the Democrats are pretty clearly trying to keep conservative minorities off the appellate bench, so that they can avoid a high-profile showdown over a potential Supreme Court nomination. Is this the kind of discrimination they've outlawed for private companies?" Thanks to "InstaPundit" for the pointer.
Posted at 13:05 by Howard Bashman



In today's issue of The Atlanta Journal-Constitution: You can access here an editorial entitled "Judicial pick not fit for U.S. court." In response, L. Lynn Hogue has an op-ed entitled "Political attacks on nominees threaten to dry up judicial pool."
Posted at 12:53 by Howard Bashman



"ACU blasts Sen. Hatch over talk of judges deal": This report appears in The Hill today.
Posted at 12:49 by Howard Bashman



"Snake Found in Conn. Divorce Courtroom": The Associated Press reports here that "A snake was found in the divorce courtroom in Danbury, Conn., and no, it wasn't someone's spouse."
Posted at 12:40 by Howard Bashman



In Wednesday's newspapers: In The New York Times, Neil A. Lewis reports that "Senators Seek Marylander for Judgeship." Also, the newspaper today runs a correction (second item) to an error in an article published yesterday that Lewis had written. In other news, "Bush Backs His Brother's Decision in Feeding Tube Case." An article reports that "Justice Dept. Tightens Security in C.I.A. Leak Case." You can access here an article headlined "Microsoft Settles 6 More Suits" and here an article headlined "Web Group Backs Microsoft in Patent Suit." In Olympics-related news, "Trial Opens in Salt Lake City on How the Games Were Won." And in local news, "Woman Guilty in Son's Suicide Says School Bullying Is to Blame."

The Washington Post reports here that "Sarbanes, Mikulski Protest Virginian's Appeals Nomination; Seat Is Maryland's, Senators Say." A front page article is headlined "Sniper Victim Prayed 'God Would Not Let Me Die'; Va. Survivor Testifies Against Muhammad." In related news, "Recalling a Day of Helplessness; Sorrow Imbues Md. Man's Testimony About Woman Slain on Bench." In other news from Virginia, "Ohio Man Gets 20 Years for Al Qaeda Plot; Judge Refuses to Drop Guilty Plea Over Plan to Attack Brooklyn Bridge, D.C." In news from Maryland, "Supremacist Set for Plea Bargain, Release; Baltimore Man's Jailing Without Bail United Civil Libertarians, Gun Enthusiasts." An article reports that "Kozlowski Jurors Shown Videotape Of Lavish Party." And a letter to the editor appears under the heading "Reality Check on Judicial Nominations."

In The Christian Science Monitor, an article about the USA Patriot Act is headlined "Odd bedfellows fall in line." You can access here an article headlined "Crime & forgiveness: Most of us like to believe that every human being deserves a chance at redemption. But are some crimes so dark that forgiveness can never be earned?" And an editorial is entitled "Schiavo and Healthcare Rights."
Posted at 08:25 by Howard Bashman



"Senate GOP Readies for Pickering Showdown": Jesse J. Holland of The Associated Press reports here that "After more than two years of waiting, Mississippi judge Charles Pickering will get a Senate vote this week on his nomination to a federal appeals court. But Senate Democrats are expected to use the vote Thursday to begin filibustering to block Pickering, who wants a seat on the 5th U.S. Circuit Court of Appeals in New Orleans."
Posted at 08:05 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Victim Appears at Sniper Suspect's Trial"; here "Court Restricts Movement of Abortion Foe"; here "Laci Peterson Hearing Set to Begin"; and here "Mo. High Court Overturns Death Sentences."
Posted at 08:00 by Howard Bashman



"Ex-CIA agent's conviction tossed; Judge: Feds withheld info." Today's edition of The Houston Chronicle contains this report.
Posted at 07:53 by Howard Bashman



The Pittsburgh Post-Gazette is reporting: You can access here an article headlined "Phone lines are crackling with slime in judge race." And in other news, "ACLU: City parade permit policy unfair."
Posted at 07:52 by Howard Bashman



"Court rejects death penalty in 3 cases": The St. Louis Post-Dispatch today provides this report.
Posted at 07:47 by Howard Bashman



From the current issue of Dissent magazine: You can access here an essay by Professor Jean L. Cohen entitled "Privacy without the Closet: Lawrence vs. Texas." And Professor Richard Rorty has a review of Richard A. Posner's new book, "Law, Pragmatism, and Democracy." (Disclosure: I too was reading that book as recently as last night.) Later today, I will review the contents of the current issue of Concur in Part magazine.
Posted at 07:43 by Howard Bashman



"Students sue over speech rights; Online chat threatened teacher, school says": The Atlanta Journal-Constitution reports here today that "Two high school seniors and their fathers filed a federal lawsuit over the students' suspensions last school year for comments they made online that were perceived to be threatening to a Gwinnett County teacher."
Posted at 07:33 by Howard Bashman



"Attorneys' pay faulted in death penalty cases": This article appears today in The Houston Chronicle.
Posted at 07:31 by Howard Bashman



"Consumers Union Case Tests Libel Law; U.S. Supreme Court asked to intervene, 15 years after magazine first gave negative product review of Suzuki car": Tony Mauro provides this preview of cases in which the U.S. Supreme Court is likely to grant review in the near future.
Posted at 07:30 by Howard Bashman



Coverage of yesterday's Senate Judiciary Committee confirmation hearing for Fourth Circuit nominee Claude A. Allen: The Richmond Times-Dispatch reports here that "Hearing on nominee stormy; Allen says he meant 'odd' people, not gays, when he said 'queers.'" The Washington Times reports here that "Judicial hearing shifts focus." And FOX News reports that "State Bias Clouds Judicial Nominee's Confirmation."
Posted at 07:15 by Howard Bashman



Tuesday, October 28, 2003
"Bickering among justices revealed; Hearing set Wednesday on complaint by five against colleague Chuck McRae": The Clarion-Ledger today contains a report about the Supreme Court of Mississippi that begins: "Chief Justice Ed Pittman, who wants Justice Chuck McRae suspended from the bench for alleged threats and name-calling, told another colleague McRae could 'kiss my butt,' according to documents."
Posted at 18:28 by Howard Bashman



"Will Democrats keep right-wing judge in limbo?" This editorial appears today in The San Francisco Examiner.
Posted at 18:20 by Howard Bashman



Another appellate conundrum brought to you by the U.S. Court of Appeals for the Sixth Circuit: The U.S. Supreme Court has its well-known "rule of five," meaning that whatever five Justices are willing to agree on becomes "the law." Analogously, three-judge federal appellate panels have the "rule of two." Today, however, a three-judge Sixth Circuit panel issued an order resolving a petition for panel rehearing in which the judge dissenting from today's order called into question the "rule of two" in the circumstances of this case.

Circuit Judge Eric L. Clay's dissent from today's order states, in pertinent part:
I question the propriety of Judges Gilman and Batchelder utilizing the vehicle of a petition for rehearing to provide an advisory legal opinion with respect to an issue that was never raised or briefed by the parties below or on appeal when the parties fully had an opportunity to do so. *** More importantly, Judge Batchelder continues to abide by her previously filed dissenting opinion in this matter. She has not relinquished her dissent, either in full or in part, by joining the majority opinion and has not concurred even partially in the majority opinion. I therefore do not believe it is proper for Judge Batchelder to vote to grant the petition for rehearing by voting to revise the majority opinion--in which she does not join--by voting for the Supplemental Order. It is my understanding that Judge Batchelder, by her dissent, continues to dispute both the reasoning of the majority opinion and the relief afforded in the form of a new penalty phase trial. Although I have not found any Sixth Circuit authority which directly addresses this situation, it certainly seems contrary to our Court's policies and procedures to think that a judge can participate in redrafting an opinion that she does not join, or participate in determining the relief to be afforded, even on a petition for rehearing, when she rejects the notion that there is any legal basis for the relief requested by the petitioner. In other words, I do not see how a member of the Court can dissent and participate in formulating the relief afforded by an opinion that he or she dissents from. Put another way, there is no legally cognizable majority vote for the Supplemental Order, notwithstanding Judge Gilman's assertions to the contrary. As a result, the Supplemental Order is of no force or effect.
Except that, of course, it was officially issued today as an order of the Sixth Circuit. So much for my theory that a new era of good feelings has dawned in the Sixth Circuit.
Posted at 18:15 by Howard Bashman



"Important redistricting case from the First Circuit": That's what Rick Hasen of the "Election Law" blog says about this decision that a divided three-judge panel of the U.S. Court of Appeals for the First Circuit issued today. I will read the decision with interest merely to determine whether Circuit Judge Bruce M. Selya, in dissent, employs the same limitless vocabulary found in his majority opinions.
Posted at 17:57 by Howard Bashman



"The row over Janice Rogers Brown": You can access Dahlia Lithwick's commentary here, via the National Public Radio program "Day to Day."
Posted at 16:58 by Howard Bashman



Ninth Circuit rejects effort to hold illegal an electoral system that uses touch-screen voting unaccompanied by any back-up paper trail: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. Law Professor Rick Hasen, at his "Election Law" blog, notes the ruling here.
Posted at 16:55 by Howard Bashman



"International tribunal weighing Texas execution; The dead man's lawyers hope to build a case against the state's criminal justice system": This article appears in today's edition of The Austin American-Statesman.
Posted at 16:43 by Howard Bashman



"Appeals Nominee Allen Faces Questions": Jesse J. Holland of The Associated Press provides this report. The article makes clear, as I had anticipated, that Maryland's U.S. Senators do not intend to allow this Fourth Circuit seat to go to a non-resident of Maryland. There once was a time when seats on regional federal appellate courts regularly jumped from State to State, but perhaps that time has ended.
Posted at 16:27 by Howard Bashman



Senior Judge Coffin rules in favor of the tobacco company based on the "common knowledge" defense in smoker's wrongful death action: The opinion that the U.S. Court of Appeals for the First Circuit issued today contains the following description of the defense:
This case calls for us to evaluate application of the common knowledge doctrine in the context of tobacco litigation. The doctrine stems from the principle that a manufacturer cannot be held liable under either strict liability or negligence for failure to warn of a danger commonly known to the public.
You can access today's opinion, written by Senior Circuit Judge Frank M. Coffin on behalf of a unanimous three-judge panel, at this link.
Posted at 16:16 by Howard Bashman



LeBoeuf, Lamb wins some relief in its suit claiming that the Department of Energy should have hired that law firm instead of Winston and Strawn: See this decision that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 16:06 by Howard Bashman



"The politics of judicial nominees": Thomas Sowell has this essay online today at Town Hall.
Posted at 15:55 by Howard Bashman



The Associated Press is reporting: An article reports that "Court Upholds FCC Digital TV Ruling." You can access today's decision of the U.S. Court of Appeals for the D.C. Circuit at this link.

In other news, you can access here an article headlined "Activists Try to Overturn Lap Dance Ban" and here an article headlined "Bush Backs Decision on Disabled Woman."
Posted at 15:19 by Howard Bashman



Neil A. Lewis predicts the future: In today's issue of The New York Times, Neil A. Lewis has an article headlined "Where the Gloves Are Nearly Always Off" that begins, "Such is the level of partisan rancor at Senate Judiciary Committee meetings that some staff aides recently suggested that the Department of Homeland Security screen senators for weapons and sharp objects before they enter the hearing room." As several readers have noted via email, the article errs when it states that D.C. Circuit nominee Janice Rogers Brown's "nomination was approved by the committee on a party-line vote." That may soon happen, but it hasn't yet occurred.
Posted at 09:29 by Howard Bashman



On this date: Today is my thirty-ninth birthday. (Confirmation is available here.) To mark the occasion, moments from now I will begin the drive to Pittsburgh, where tomorrow I will be delivering an appellate argument before the Superior Court of Pennsylvania in a case involving whether the trial court erred in allowing the corporate veil of my client to be pierced. The last time that I drove out to Pittsburgh, the Ninth Circuit declared the Pledge of Allegiance unconstitutional. Look for news of any interesting appellate developments that occur today to be posted here this afternoon from Pittsburgh.
Posted at 09:15 by Howard Bashman



"Payout for woman driven to wit's end by cockroaches": The Sydney Morning Herald reports here today that "A woman who had a cockroach embed itself in her ear has received a confidential damages payout from the NSW Department of Housing." Those who attended Columbia University during the early- to mid-1980s may recall that a similar cockroach-in-the-ear report appeared in The Columbia Spectator, although I doubt that the "victim" received a damages payout from the university.
Posted at 09:11 by Howard Bashman



On the agenda: At 9:30 a.m. today, the Senate Judiciary Committee will hold a confirmation hearing for Fourth Circuit nominee Claude A. Allen. You can access my preview of the hearing at this link. If the hearing's agenda is any indication, the first part of the hearing should be interesting, because both of Maryland's U.S. Senators are expected to speak in protest of the nomination of a Virginia resident to fill a seat last held by a Maryland resident. See this anti-Allen editorial from today's edition of The Baltimore Sun for more details. The hearing, once underway, is expected to be broadcast live via this link (Real Player required).
Posted at 09:00 by Howard Bashman



"Pa. court race turns negative as anonymous calls surface": This article appears in today's issue of The Philadelphia Inquirer.
Posted at 06:58 by Howard Bashman



"Fallout in Pledge of Allegiance case to hit Toledo; Local students recite allegiance": The Toledo Blade contained this report yesterday.
Posted at 06:55 by Howard Bashman



"Questions about Mr. Allen": Today's edition of The Baltimore Sun contains an editorial that begins, "The appointment of Claude A. Allen to the federal appeals court for the district that covers Maryland shouldn't have gotten this far."
Posted at 06:50 by Howard Bashman



In Tuesday's newspapers: The Washington Times reports here that "Hatch offers Democrats deal on stalled judges." In other news, "Widow weeps at sniper trial." U.S. Senator Russell Feingold (D-WI) has an op-ed entitled "A law too far?" And Bruce Fein has an op-ed entitled "Handicapping religion in political wars."

The New York Times reports here that "Bush Weighing Decision on Release of Documents to Sept. 11 Panel." In other news, "At Sniper Trial, a Replay of 3 Terrifying Hours." An article reports that "This Tyco Videotape Has Been Edited for Content." Clyde Haberman's "NYC" column today is entitled "On Canvas or Bare Skin, It's Free Speech." And a letter to the editor appears under the heading "The Death Penalty."

The Los Angeles Times reports here that "Witnesses Offer Vivid Details of Sniper Shootings; Victim's daughter recounts terror of not knowing her father's whereabouts. Doctor recalls futile attempt to save man's life." In other news, "Evidence on Ex-Judge Is Tossed; Child porn possessed by former O.C. jurist Ronald Kline is ruled inadmissible in a federal case. He still faces a state molestation charge." An article reports that "Court's Merced River Ruling Creates Uncertainty Over Yosemite's Future." You can access yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. And an article reports that "Blake's Attorney Challenges Allegation; Prosecutors have failed to prove the actor fired the fatal shot, says Thomas Mesereau Jr."

The Washington Post reports here that "Sniper Victim's Shock Described; Cabdriver's Slaying At Md. Gas Station Detailed at Trial." In other news, "Ohio Suit Says AOL Deceived Customers; Subscribers Allegedly Billed After Canceling." An article reports that "Tyco Trial Turns to 'Birthday Bash.'" You can access here an article headlined "Lynch a No-Show as Iraqi Visits Ex-POW's Town." And an obituary is headlined "Constitutional Scholar, Educator, Author John Hart Ely Dies at 64."
Posted at 06:15 by Howard Bashman



Monday, October 27, 2003
From Tuesday's edition of The New York Times: Neil A. Lewis has an article headlined "Where the Gloves Are Nearly Always Off" that begins: "Such is the level of partisan rancor at Senate Judiciary Committee meetings that some staff aides recently suggested that the Department of Homeland Security screen senators for weapons and sharp objects before they enter the hearing room." And in other news, "Doctors Tread a Thin Line on Marijuana Advice."
Posted at 23:40 by Howard Bashman



Tonight's Ten Commandments news: The Associated Press reports here from Wyoming that "New spin on Ten Commandments debate ignites in Casper." Meanwhile, from Alabama, The AP reports here that "Minister To Launch Drive To Impeach Federal Judge; Reddish Unhappy With Thompson's Ruling To Suspend Judge Moore" and here that "Pryor fights Moore's latest attempt to remove him from ethics case."
Posted at 23:35 by Howard Bashman



"Supreme Court granting fewer stays of execution": Joan Biskupic will have this article in Tuesday's edition of USA Today.
Posted at 23:30 by Howard Bashman



"New Bobbleheads on the Block: Supreme Court." This evening's edition of NPR's "All Things Considered" contained a report described as follows:
The Green Bag law review makes it its mission to get the legal profession to loosen up. Along those lines, they created bobblehead dolls in the likenesses of Supreme Court justices William Rehnquist and John Paul Stevens. NPR's Michele Norris talks with editor and bobblehead creator Montgomery Kosma.
You can listen online to the segment at this link (Real Player required). You can view the Chief Justice William H. Rehnquist bobblehead doll here and the Justice John Paul Stevens bobblehead doll here. And by clicking on the photographs of the dolls, you can cause them to bobble.
Posted at 19:10 by Howard Bashman



"Congress Criticized Over Succession Plan": The Associated Press provides this report.
Posted at 17:27 by Howard Bashman



"New Bobbleheads on the Block: Supreme Court; 'The Green Bag' Issues Justices Rehnquist, Stevens Toys." NPR's "All Things Considered" will include this report tonight. Check back here later for a direct link to the audio feed. And you can see the newly-issued Justice John Paul Stevens bobblehead doll at this link.
Posted at 17:12 by Howard Bashman



"Idaho Schools Law Found Unconstitutional": The Associated Press provides this news.
Posted at 16:39 by Howard Bashman



"U.S. court blocks payouts to ex-POWs; White House says money is vital for a new Iraq": Today's edition of The Detroit Free Press contains this report.
Posted at 16:32 by Howard Bashman



"Chance of execution slim in some states": Today's edition of The Richmond Times-Dispatch contains this article. In the first part of this two-part series, yesterday that newspaper reported here that "Death penalty is more likely to be carried out in Virginia."
Posted at 16:05 by Howard Bashman



The Senate Judiciary Committee will tomorrow hold a confirmation hearing for Fourth Circuit nominee Claude A. Allen: I had previously promised to explain why some are likely to oppose this nominee. An article published this past Saturday in The Richmond Times-Dispatch -- headlined "NAACP chides court nominee; It says that Claude A. Allen backed 'extremist actions' of then-Sen. Jesse Helms" -- contains all the details, including the fact that Maryland's U.S. Senators believe the seat should be occupied by a Maryland resident.
Posted at 15:47 by Howard Bashman



"The Consequences of Casual Conversations: Michael Schiavo's argument that his wife wants to die stems from an off-hand remark she made while watching a movie. It isn't the first time this has happened." Wesley J. Smith today has this essay online at The Weekly Standard.
Posted at 15:47 by Howard Bashman



"Marshals Inspector Is Shot to Death": The Associated Press provides this report from New York City.
Posted at 15:11 by Howard Bashman



"Good Judge: The case for Janice Brown." Clint Bolick today has this essay online at Reason.
Posted at 14:58 by Howard Bashman



Ninth Circuit upholds Seattle regulation that prohibited candidates for public office from discussing their opponents in city-sponsored voters' guide: The trial court had ruled that the prohibition was unconstitutional, but in this opinion issued today, the Ninth Circuit disagreed.
Posted at 13:31 by Howard Bashman



"Blawg Fever: Web-Savvy Attorneys Post Ideas, Insight and Quirks on Personal Sites Enjoyed by Thousands of Readers." An article with this headline appears in today's issue of The Daily Journal of San Francisco. The article quotes law bloggers Eugene Volokh, Denise Howell, and others. The article contains the following mention of the blog you are now reading:
The undisputed champion blogger is Philadelphia appeals court lawyer Howard Bashman. Bashman's How Appealing site is regarded as the most popular blawg on the Web, with about 10,000 visitors per day. (Volokh said Bashman's blawg is his main source of legal news.) How Appealing has been mentioned in articles from the ABA Journal to The New York Times. Bashman himself is now rumored to be a candidate for the 3rd U.S. Circuit Court of Appeals.

It's anyone's guess whether there is a connection between Bashman's blogging celebrity and his potential nomination. But, bloggers say, the medium functions on merit. If you don't have the goods, you don't get the readers.
Regrettably, The Daily Journal does not make the text of its articles freely available on the Web. Thanks much to the California-based reader who sent the text of this article to me via email.
Posted at 11:50 by Howard Bashman



Keeping your priorities straight: The Sniper Trial Blog reports that "Judge LeRoy Millette apologized to the jury for starting late. He said he had to be in Richmond this morning to see his wife sworn in as a member of the Virginia Bar."
Posted at 11:36 by Howard Bashman



D.C. Circuit nominee Janice Rogers Brown is "a quiet, sophisticated, and intellectual woman" and is not "a simple-minded blowhard for an extremist ideology": So writes Law Professor Lawrence Solum here, at his "Legal Theory Blog."
Posted at 10:27 by Howard Bashman



This is too kind! Thanks so very much to Denise Howell for noting my birthday, which is tomorrow, October 28th, when I will turn 39.
Posted at 10:25 by Howard Bashman



"Hatch still has plenty on his plate": This article appears in today's issue of The Salt Lake Tribune.
Posted at 09:55 by Howard Bashman



"Trial of Sniper Suspect Enters Week 2": The Associated Press provides this report. According to the Sniper Trial Blog, today's court session is not scheduled to start until 11 a.m.
Posted at 09:53 by Howard Bashman



"Immigration appeals surge; A backlog shifts from one level to the circuit courts": This article appears in today's edition of The National Law Journal.
Posted at 09:52 by Howard Bashman



Today's Ten Commandments news: The Montgomery Advertiser reports here today that "Group wants judge ousted; A federal jurist may face an impeachment drive." And The Associated Press reports here that "Monument battle not new."
Posted at 09:50 by Howard Bashman



"Student expelled for story returns": Today's issue of The Atlanta Journal-Constitution contains this report.
Posted at 09:46 by Howard Bashman



"Victims advocate, Son of Sam on same side this time": This article appears in today's edition of The Houston Chronicle.
Posted at 09:35 by Howard Bashman



"Supreme Mocking: Scalia on the Court." Peter Augustine Lawler has this essay today at National Review Online.
Posted at 09:30 by Howard Bashman



"GOP goes on offensive on judges": Columnist Robert Novak has this op-ed today in The Chicago Sun-Times.
Posted at 07:00 by Howard Bashman



In Monday's newspapers: The Washington Times reports here that "Filibusters passe, way needed to end judge logjam, Frist says" and here that "Hatch's delays on Saad raising GOP ire." And in other news, "Drama of sniper trial to resume."

In The New York Times, Adam Liptak has written an obituary headlined "John Hart Ely, a Constitutional Scholar, Is Dead at 64." In other news, "Quattrone Juror Says Three Wouldn't Budge." An article reports that "Inmates Discarding Medicine Pose Problem." And the chief judge of New York State has a letter to the editor entitled "Choosing Judges."

The Washington Post reports here that "Sept. 11 Victims' Chronicle of Loss May Go Unheard." An article reports that "Senators Call On White House To Share Records With 9/11 Panel." In other news, "Italian Judge Bans Crucifix From School; Anger Greets Order In Muslim's Case." An article reports that "Action on Energy, Medicare Critical to GOP Scorecard." In local news, "Interrogation Problems Caught on Video in Md." A chat with U.S. District Judge Thomas Penfield Jackson about baseball can be accessed here. And an editorial is entitled "Play Doctor -- and Judge."

The Los Angeles Times reports here that "Congress Presses White House for 9/11 Papers; Members of both parties say classified material is being withheld from the panel investigating the terrorist attacks. Legal action is threatened." In other news, "U.S. May Push to Retry Quattrone; Prosecutors could view conviction as necessary to bolster other cases involving allegations of white-collar crime." An article reports that "Federal Policy Becomes Family Matter; U.S. orders couple's deportation, though judge ruled it would hurt their gifted child." In local news, "Court Bungled Data Requests, Observers Say; Asked for details of officials' travel expenses, county's judicial system erred, according to some." Law Professor Jonathan Turley has an op-ed entitled "Back by Popular Demand: Tyranny of the Majority; Laws are not vanity plates. If they are tailored for individuals, the essence of the rule of law is lost." And letters to the editor appear under the headings "UC Admissions Policies Are Put to the Test" and "Source of Rights."

The Christian Science Monitor contains an article headlined "Standing against bias." And an op-ed by Joshua S. Burek is entitled "Jurors' sound legal decision breaks their hearts; Each believed the psychiatrist was guilty of sexual assault. Each voted 'not guilty.'"

Finally, The Boston Globe contains an op-ed by columnist Cathy Young entitled "Those accused of rape have rights, too."
Posted at 06:15 by Howard Bashman



Sunday, October 26, 2003
Elsewhere in Sunday's newspapers: The Washington Times reports here that "Sniper trial lawyers no strangers to major cases." And in other news, "'Smart stamps' next in war on terrorism."

The Los Angeles Times reports here that "Energized Conservatives Seek to Widen Fetal Rights." An op-ed by Al Meyerhoff is entitled "Knocking the Teeth Out of Class Actions; Forcing suits into federal courts would deal victims a blow." An op-ed by Bruce Laingen about the prison camp on Guantanamo, Cuba is entitled "The Agony of an Uncertain Future." And letters to the editor appear under the heading "Abortion Procedure Banned by Lawmakers."

Finally, The Boston Globe reports here that "At Michigan State, elsewhere, a fight for the right to party."
Posted at 22:33 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "John Hart Ely, influential law professor, dies at 64" and here an article headlined "New Bryant Case Judge a Polarizing Figure."
Posted at 22:20 by Howard Bashman



From the current issue of The Harvard Law Record: Clinton Dick (yes, that's the real name of an actual Harvard Law School student) reports here that "Yalies sue Defense Dept. over anti-gay discrim; Ivy League law school profs are the latest to join the burgeoning fight against Solomon Amendment enforcement." In a related development, you can access here an open letter signed by forty-six Harvard Law faculty members addressed to Harvard President Lawrence Summers urging him "to initiate or join litigation designed to challenge the Solomon Amendment." A related editorial is entitled "Summers must call a town hall meeting." And law student Vonn R. Christenson has an op-ed entitled "Military debate lacks diversity of opinion."

In other news, "Dean's Forum examines effects of judicial politics; Chicago's Cass Sunstein presents statistical findings; Fried, Minow, students react." An article reports that "3L debates anti-Pledge Newdow; Life, Law & Religion Society president Campbell defends the Pledge of Allegiance on local cable station." In case anyone was worried, this article reports that "HLS to stay in Cambridge; President Summers sends Science, Education and Public Health to the other side of Allston's tracks."

Two contributors to "The Volokh Conspiracy" are mentioned this week. You can access here an article headlined "George Mason prof highlights antidiscrim laws' threat to civil liberties." And Sasha Volokh has an op-ed entitled "Law Review has strong leadership."

And speaking of bloggers, Adam White has an op-ed entitled "'Choose Life?' Choose law, alas."

Finally, further proving the truth of their asseveration, the last item I shall mention is an article headlined "Civil libertarians bemoan legal impotence."
Posted at 20:54 by Howard Bashman



Whatever you do, don't link to this post: LawMeme considers here "How Direct is Too Direct When It Comes to Hyperlinks?"
Posted at 20:44 by Howard Bashman



"9/11 Commission Could Subpoena Oval Office Files": Today's issue of The New York Times contains this front page article.
Posted at 20:38 by Howard Bashman



Any questions? This past Thursday, I announced here that Seventh Circuit Judge Richard A. Posner has agreed to be the December 2003 participant in this blog's monthly feature "20 questions for the appellate judge." That announcement has been received with much enthusiasm throughout the blogosphere. See here, here, here, here, and here, for example. (I'd provide a pinpoint link to the mention at "Southern Appeal," but, alas, that blog's permalinks are again on the blink.)

Via email, a reader observes that it will be very difficult to ask only twenty questions of Judge Posner. So true. On the other hand, I want to make sure that I don't inadvertently overlook any questions that truly deserve to be asked. So, if any readers of this blog wish to suggest one, two, or three questions that I should consider asking Judge Posner, please feel free to send them along via email. I will be submitting my questions to Judge Posner on Friday, November 7, 2003, so emails proposing questions or subjects must arrive no later than Wednesday, November 5, 2003 to be considered. You can initiate an email to me by clicking here. Those unfamiliar with this Web log's "20 questions for the appellate judge" feature can see the sorts of questions I have been asking via this link to the interview archive. One subject that's definitely off-limits are questions that pertain to cases currently pending before the Seventh Circuit. I will be pleased to consider all suggestions, but of course I will take full responsibility for, and have the final say in choosing, the questions that ultimately are asked.

And speaking of questions, the "20 questions" that I recently submitted to November 2003's interviewee, Senior Eighth Circuit Judge Richard S. Arnold, turned out to be especially interesting. Judge Arnold's interview is scheduled to appear online here shortly after midnight on Monday, November 3, 2003, one week from tomorrow.
Posted at 17:30 by Howard Bashman



Law Professor David Bernstein takes issue with yesterday's New York Times editorial criticizing D.C. Circuit nominee Janice Rogers Brown: You can access David's commentary here.
Posted at 16:27 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Supreme Court Bides Time in Terror Cases." In other news, you can access here an article headlined "Muhammad Trial Testimony Full of Emotion" and here an article headlined "Lawmaker Faces Renewed Fight for Gun Law."
Posted at 16:04 by Howard Bashman



Senate Majority Leader Bill Frist (R-TN) comments extensively on the filibuster of various nominees to federal appellate courts: Senator Frist appeared today on "FOX News Sunday," and you can access a transcript of his interview at this link.
Posted at 14:22 by Howard Bashman



From the November 3, 2003 issue of Newsweek: You can access here an article headlined "A Firefight Over Abortion: In a dramatic move, Congress votes to ban 'partial birth' procedures, setting the stage for a judicial showdown" and here an article headlined "Bryant's Legal Eagle: Pamela Mackey is the public face of the defense--and the basketballer's best hope of staying out of jail."
Posted at 14:20 by Howard Bashman



In Sunday's newspapers: The New York Times reports here that "The War Over Abortion Moves to a Smaller Stage." An article reports that "In Feeding-Tube Case, Many Neurologists Back Courts." A related article is headlined "It May Be a Family Matter, but Just Try to Define Family." And William Saletan has an op-ed entitled "What's The Value of a Fetus?"

The Washington Post reports here that "Muhammad Trial Judge Keeps Command of Court." A news analysis is headlined "Redrawing Districts Raises Questions; No Precedent Seen For GOP Efforts." And in local news, "Supremacist Case Unites Improbable Contingent."

Finally, online at OpinionJournal, David Gelernter has an essay entitled "Terri Schiavo's Life: Gov. Jeb Bush stays an innocent woman's execution."
Posted at 14:02 by Howard Bashman



"Death penalty is more likely to be carried out in Virginia": The Richmond Times-Dispatch reports here today that "If sniper suspects John Allen Muhammad and Lee Boyd Malvo receive death sentences, their prospects for execution are far greater in Virginia than any other state in the country."
Posted at 08:00 by Howard Bashman



"S.A. abortion providers eyeing changes in laws": Today's edition of The San Antonio Express-News contains this report.
Posted at 07:59 by Howard Bashman



"Chief Justice Taney Hailed as a Hero, Reviled as a Bigot; Historical Society to Revisit Life Of Author of Dred Scott Decision": This article appears today in The Washington Post.
Posted at 07:57 by Howard Bashman



"California contender: A federal appeals court nominee could one day become the first black woman justice on the U.S. Supreme Court." Bob Egelko has this lengthy article in today's edition of The San Francisco Chronicle. And an op-ed by Harold Johnson is entitled "Will Janice Brown face the Big Stall?"
Posted at 07:55 by Howard Bashman



"Judge Lisi likes to keep lawyers in line; People who know the judge say they aren't surprised she tossed Leisa E. Young's two New York lawyers." The Providence Journal today contains this report. Barry C. Scheck is one of the lawyers in question.
Posted at 07:52 by Howard Bashman



"NAACP chides court nominee; It says that Claude A. Allen backed 'extremist actions' of then-Sen. Jesse Helms": This article appeared in yesterday's issue of The Richmond Times-Dispatch.
Posted at 07:49 by Howard Bashman



"Melvin chided for sex case decision": The Associated Press has this report from Pennsylvania.
Posted at 07:45 by Howard Bashman



Ten Commandments news: The South Florida Sun-Sentinel reports here today that "Nation, God wrongly divided, Alabama justice tells activists." The Birmingham News reports here today that "Moore speaks to his biggest supporters." And an editorial published today in The Birmingham News is entitled "Moore nonsense: Chief justice resurrects old ally, Fob James."
Posted at 07:35 by Howard Bashman



"Kennedy sees peril for U.S. judiciary": Today's edition of The Des Moines Register reports here that "U.S. Supreme Court Justice Anthony Kennedy warned at a Des Moines appearance Saturday that the independence of the judiciary faces new threats."
Posted at 07:27 by Howard Bashman



Saturday, October 25, 2003
"Expelled teen given temporary reprieve": Today's issue of The Atlanta Journal-Constitution contains this report. A related article is headlined "Students' privacy rights open to debate; No clear standard has been adopted." And in Sunday's newspaper, the teen in question, Rachel Boim, will have an op-ed entitled "Teen will write on, more carefully."
Posted at 23:50 by Howard Bashman



Elsewhere in Saturday's newspapers: The Washington Times reports here that "Testimony links rifle to Muhammad" and here that "Prosecutors take no chances in Muhammad trial."

The Los Angeles Times reports here that "Officer Places 1 Sniper Suspect at Scene; Witness says he chased Lee Boyd Malvo, alleged partner of defendant John Allen Muhammad, after the slaying of an Alabama woman." In other news, "Faculty, Rights Advocates Defend UC Berkeley Admissions Policies; In response to criticism from the Board of Regents chair, they issue a report saying SAT scores do not predict academic success." An article reports that "Judge Declares a Mistrial in Quattrone Case; The jury deadlock could make prosecutors less eager to go to trial against other alleged white-collar criminals." In related coverage, "Financiers Relieved at Court's Decision." You can access here an article headlined "Court Warns of Campus 'Police State'; A $640,000 award to the parents of a teen who had a secret affair with her teacher in O.C. is overturned. Jurists cite possible 'reign of terror.'" The opinion of the California Court of Appeal for the Fourth Appellate District, Division Three, is accessible here. An article reports that "Pair Ordered to Pay $2-Million Fine for Spam; Ruling is the first under '98 law, but the state may not be able to collect from absent defendants." In other news, "Ordinance Bans Public Urination." In news from a celebrity criminal trial pending in Colorado, "Prosecutors Seek 2-Week Delay." And Brady Sullivan has an op-ed entitled "War on Drugs Takes a Toll on the L.A. Justice System; Limited resources could be better used elsewhere."

The Boston Globe reports here that "Chance to expand gay benefits seen; Bishops' decision plays critical role, lawmaker says." In other news, "Fla. case may boost uses of living will." An article reports that "FTC drops probe of lawyer protest." An editorial is entitled "Wronged at Guantanamo." Another editorial is entitled "Deathbed demagoguery." And U.S. Congressman John Lewis (D-GA) has an op-ed entitled "At a crossroads on gay unions."
Posted at 23:30 by Howard Bashman



"Roadtrippers Follow Their Passions": The Associated Press today has this report. As the article explains, in the course of following their passions, roadtripNATION conducted an interview with Justice Sandra Day O'Connor. Access an account of the interview here.
Posted at 23:00 by Howard Bashman



The American Judicature Society dedicated its new headquarters in Des Moines, Iowa today: According to this article from The Des Moines Register, Justices Anthony M. Kennedy and Stephen G. Breyer were expected to attend the ceremony.
Posted at 22:54 by Howard Bashman



The D.C. Circuit is the Second Circuit? The Web site of Mother Jones magazine yesterday featured an item headlined "Judicial Race" about the nomination of Janice Rogers Brown to serve on the U.S. Court of Appeals for the D.C. Circuit. Perhaps I'm not understanding this correctly, but it appears that the second to last paragraph of the article states that the D.C. Circuit is the Second Circuit.
Posted at 22:50 by Howard Bashman



"'Under God' foe vows more challenges ahead": United Press International today reports that "The atheist who single-handedly brought to the U.S. Supreme Court his attempt to purge the phrase 'under God' from the Pledge of Allegiance says the legal challenge will be followed by others in his attempt to expunge all mention of a deity from government, its symbols and officials performing government duties." And you can access a partial transcript of UPI's interview with Michael A. Newdow at this link.
Posted at 22:39 by Howard Bashman



"Scalia avoids controversy in LSU remarks": The Associated Press provides this report.
Posted at 22:37 by Howard Bashman



"Rhetorical Question: What would Aristotle make of Scalia?" The November-December 2003 issue of Legal Affairs contains this essay by Professor of Legal Writing Michael Frost.
Posted at 22:11 by Howard Bashman



On this evening's episode of C-SPAN's fine program "America and the Courts": A replay of the House Judiciary Committee's Courts Subcommittee hearing on legislation to divide the U.S. Court of Appeals for the Ninth Circuit. Plus, you can access the text of the witnesses' prepared statements via this link. C-SPAN has also made the video of the hearing available for viewing online, on demand; to view the video, simply click here.
Posted at 16:58 by Howard Bashman



"Sushi Generis": The "sushi memo" has joined the ranks of "urban legends" online at snopes.com, which describes the memo's legitimacy as "undetermined."
Posted at 16:27 by Howard Bashman



"Alabama Prison at Center of Suit Over AIDS Policy": Adam Liptak will have this article in Sunday's issue of The New York Times.
Posted at 14:13 by Howard Bashman



In news from Chicago: The Chicago Sun-Times reports here today that "Hale 'church' dealt $200,000 defeat." And The Chicago Tribune reports here today that "Judge imposes sanctions on Hale; He, movement's leaders to pay $200,000 fine" and here that "Judge rejects activist's release."
Posted at 14:09 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Ex-Banker's Case Ends in Mistrial." A related news analysis is headlined "Mistrial Shows Risks in Choosing a Path for Prosecution." Another related article is headlined "Inside the Workings of a Money Machine." In other news, "Graphic Evidence Offered in Sniper Suspect's Trial." An article reports that "Judge Approves Plan to Settle Doctors' Dispute With Aetna." In environmental news, "Report Says E.P.A. Aide Knew Rule Change Could Hurt Lawsuits." In business news, "Congress Is Close to Eliminating a Privacy Law." In local news, "Man Faces Charges in His Wife's Suicide." The "Beliefs" feature looks at "The Meaning of 'Under God.'" And an editorial entitled "Out of the Mainstream, Again" begins: "Of the many unworthy judicial nominees President Bush has put forward, Janice Rogers Brown is among the very worst."

The Washington Post reports here that "String Of Crimes Described For Jury; Robberies Allegedly Financed Snipers." A related article is headlined "Comforted by Faith and Forgiveness; Husband of Woman Believed Slain by Sniper Vows to Soldier On." A front page article reports that "Gay Marriage Looms as Issue; GOP Push for Amendment Is Dilemma for Bush." In other news, "Banker's Case Ends In Mistrial; Quattrone Could Face A Second Prosecution." An article reports that "Navajo Get Opening to Revive Suit." In news pertaining to religion, "Methodists' Ad Rejected For Spot in Times Square." And in business news, "U.S. Studying Code Licensing By Microsoft; Few Firms Have Gotten Access to New Code."

Finally for now, OpinionJournal offers an editorial entitled "Tom Daschle Is the NRA: Gun owners beat trial lawyers."
Posted at 11:00 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit in the news: The Associated Press reports here that "Court OKs Tribe's $600M Royalties Lawsuit." You can access the decision issued yesterday at this link (Microsoft Word document).
Posted at 08:30 by Howard Bashman



"Chief justice's lecture addresses Supreme Court issues": The Web site Dateline Alabama provides this report on Chief Justice William H. Rehnquist's speech yesterday at the University of Alabama. And The Birmingham News reports here that "Chief Justice Rehnquist speaks at UA."
Posted at 08:20 by Howard Bashman



"Attorney defended civil rights, fought against internment": This obituary appears in today's edition of The Seattle Times.
Posted at 08:17 by Howard Bashman



"Washington heading to Supreme Court over blanket primary appeal": The Associated Press provides this report.
Posted at 08:16 by Howard Bashman



"Police ruse illegal, lawyer says; Murder suspect didn't know he was supplying a DNA sample": This article appears in today's edition of The Seattle Post-Intelligencer.
Posted at 08:08 by Howard Bashman



Friday, October 24, 2003
Jeffrey Rosen and Roger T. Severino debate The Pledge of Allegiance case: I linked to this feature available online at The New Republic earlier in the week while it was still ongoing. Now the exchange has concluded, and you can access it in its entirety at this link.
Posted at 23:49 by Howard Bashman



Why shouldn't federal judicial nominees be asked to express positions on issues at their confirmation hearings? Tenth Circuit Judge Michael W. McConnell, who went through this process himself quite recently, provides these thoughts.
Posted at 23:46 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "UC Chief Defends Admissions Rules, Cites Diversity as Goal; He says the public needs more information about schools' rationale for accepting some students who scored low on SATs." In other news, "Judge Denies Prosecution's Bid to Postpone Malvo Trial." An article reports that "Court to Rule on Cyber Cafe Regulations; Garden Grove hopes the rules it imposed to stem a rash of crime are allowed. Owners say the restrictions have killed their business." In news from Colorado, "Bryant Lawyer Accused of Leak; Prosecutors seek probe, saying attorney for the Laker star gave details that ended up in media." You can access here an article headlined "Next Stop, the Pearly Gates; Nearly two-thirds think they're going to heaven, while few believe they're hell-bound, poll finds." In business news, "Quattrone Jurors Say They're at Impasse; The judge orders them to return to court today but raises the possibility of a mistrial in a meeting with lawyers." Columnist Dana Parsons has an essay entitled "Let Judges Travel; the Money Goes Far." And letters to the editor appear under the heading "A 'Scary' Ashcroft Chills Legitimate Dissent."

The Washington Times reports here that "Sniper trial postponed amid outage at court." In somewhat related news, "Judge rejects prosecution bid to delay trial." And an editorial is entitled "Hearing the 'cries of the innocent.'"

USA Today reports here that "Defense gets day to assess damage; Attorneys must examine whether sniper suspect John Muhammad hurt his case by playing lawyer." And in news from Colorado, "Prosecutor seeks probe of defense in Bryant case leaks."

Finally, The Boston Globe reports here that "Abortion counseling bill stirs debate."
Posted at 23:30 by Howard Bashman



"Congress, abortion and hypocrisy": Michael Kirkland, UPI legal affairs correspondent, today has this essay.
Posted at 17:04 by Howard Bashman



"Attorneys remember man who changed legal landscape for the poor": Minnesota Public Radio today provides this report about Clarence Gideon.
Posted at 16:50 by Howard Bashman



Nat Hentoff continues his defense of Fifth Circuit nominee Charles W. Pickering, Sr.: Village Voice columnist Nat Hentoff is nowhere near finished defending Fifth Circuit nominee Charles W. Pickering, Sr. against what Hentoff views to be unjust attacks. Hentoff's latest column, posted online this afternoon, is entitled "A Judge Who Did Justice: 'You Have Committed a Despicable Act,' Said Sentencing Judge Pickering." Hentoff's Village Voice column from last week was entitled "The Ordeal of Charles Pickering: Are Times Editorials Fact-Checked?" And it appears that Hentoff will be writing about Judge Pickering again next week, so stay tuned.
Posted at 16:41 by Howard Bashman



"Rehnquist discusses dangers of judicial involvement outside court": The Associated Press provides this report from Alabama. And you can access here a preview of Chief Justice William H. Rehnquist's speech from The Crimson White. (Added bonus points go to those readers who know which reporter covering the Court once served as The Crimson White's editor.)
Posted at 16:22 by Howard Bashman



"The Opt-Out Revolution": You can access here the cover story from this upcoming Sunday's issue of The New York Times Magazine.
Posted at 15:42 by Howard Bashman



But does he have anything against "shmomosexuals"? A reader emails in connection with my mention last night of press coverage of Justice Antonin Scalia's speech yesterday that The New York Observer recently had an article about "the 'shmomosexual' -- gay men without 'fabulous' fashion sense."
Posted at 15:31 by Howard Bashman



USA v. Smack: The U.S. Court of Appeals for the Third Circuit issued this decision today. The defendant had pleaded guilty to a drug offense, but the drug in question wasn't smack.
Posted at 15:01 by Howard Bashman



"Appeals court nominee loses backer; A law professor calls Justice Brown's views 'too scary.'" Claire Cooper, legal affairs writer for The Sacramento Bee, today has this report.
Posted at 14:55 by Howard Bashman



No offense, day two: The St. Petersburg Times today contains an essay by columnist Howard Troxler entitled "Perspectives in lewdness on both sides of offense." You can access my earlier coverage of this matter at this link.
Posted at 14:54 by Howard Bashman



"When judge snoozes, crown loses; Appeal overturns man's conviction; Sleeping justice missed testimony": Justice may be blind, but it better not be drowsy, today's edition of The Toronto Star reports here. (Via "Obscure Store.")
Posted at 14:52 by Howard Bashman



The San Francisco Chronicle is reporting: Bob Egelko reports that "Court overturns damages for parents of abused pupil; Panel rejects jury's $640,000 award in daughter's case." And you can access here an article headlined "Harassment class for new governor? Most state workers take sex bias course -- aides say he's too busy to think about it."
Posted at 14:49 by Howard Bashman



"Assembly passes marriage bill; Words fly as some Democrats decry votes as anti-gay": This article appears in today's issue of The Milwaukee Journal Sentinel.
Posted at 14:47 by Howard Bashman



"Birch Bayh's name goes on courthouse": The Indianapolis Star today provides this report.
Posted at 14:39 by Howard Bashman



What happened yesterday at the Senate Judiciary Committee's executive business meeting: Both Sixth Circuit nominee Henry W. Saad and U.S. District Court for the Eastern District of New York nominee Dora L. Irizarry were held over, again, The Metropolitan News-Enterprise reports here today.
Posted at 14:34 by Howard Bashman



"Pickering releases videotape": The Associated Press reports here that "U.S. Rep. Chip Pickering, R-Miss., has released a video featuring civil rights activists and black leaders who praise his father, U.S. District Judge Charles Pickering, to try to blunt accusations of racism against the federal appeals court nominee."
Posted at 14:24 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Mistrial Declared in Quattrone Trial"; here "Head Scarf Raises Concerns for N.J. Teen"; and here "Man Struck by Javelin Awarded $811,000."
Posted at 13:19 by Howard Bashman



Upon further reflection: Brent Kendall, who covers judicial nominations for The Los Angeles Daily Journal, today has an article that begins:
A Democratic-leaning Boalt Hall law professor who had received attention for supporting state Supreme Court Justice Janice Rogers Brown for the federal appellate bench said Thursday that he no longer supports her nomination.

Emeritus Professor Stephen Barnett sent a letter to Senate Judiciary Committee Chairman Orrin Hatch, R-Utah, and to committee member Sen. Dianne Feinstein, D-Calif., announcing his withdrawal of support for Brown, a nominee for the U.S. Circuit Court of Appeals for the District of Columbia.
Regrettably, the full text of the article is not freely available online. Professor Barnett's bio can be accessed online here.
Posted at 11:46 by Howard Bashman



Today's Ten Commandments news: An article headlined "Moore efforts to remove Pryor renewed" appears today in The Birmingham News. An editorial published today in The Montgomery Advertiser is entitled "Moore's tactics insult people."

The Princeton Daily Clarion reports here today that "Ten Commandments challenge worries some county councilmen." An article appearing in today's issue of The Northeast Georgian reports that "Both of the plaintiffs who sued Habersham County over its public display of the Ten Commandments said they feel confident that federal court judge William O’Kelley will order the documents removed when the judge’s decision is announced in two to three weeks." Finally, The Daily Commercial of Leesburg, Florida reports here that "Ten Commandments may have move in store."
Posted at 10:45 by Howard Bashman



"Nomination has town for Brown": The Montgomery Advertiser reports here today that "If past presidential nominations are any guideline, Janice Rogers Brown may not have much of a chance for an important federal judicial position, but it doesn't really matter to the 2,300 residents of the town where she grew up."
Posted at 10:34 by Howard Bashman



"Supreme Court's two female justices honored in Phila." Today's issue of The Courier-Post contains this report.
Posted at 10:28 by Howard Bashman



"'U' defense attorney recounts high court battle, future goals": This article appears in today's edition of The Michigan Daily. And The Detroit News today contains an article headlined "Lawyer: U-M ruling is not a blank check; Colleges must use care in admissions, she says."
Posted at 10:25 by Howard Bashman



"Ex-wife of Eminem gets put on tether": The Detroit Free Press today contains this report.
Posted at 10:13 by Howard Bashman



"From convict to crusader for convicted; A Cambridge man, convicted of murder and cleared nine years later by DNA evidence, has his name on federal legislation to extend such justice to others." This article appears in today's edition of The Baltimore Sun.
Posted at 09:54 by Howard Bashman



"Justice Scalia was right to recuse himself in the Pledge case": Attorney / blogger William J. Dyer responds to the recent essay entitled "Recusal Absurdity: Let's not get silly about judges" that Professor Matthew J. Franck published at National Review Online.
Posted at 09:46 by Howard Bashman



Available online at Town Hall: Thomas Sowell has a Janice Rogers Brown-related essay entitled "A lynch mob gathers: Part III." And Paul Greenberg has an essay entitled "Why judges should be seen and not heard."
Posted at 09:41 by Howard Bashman



Zero tolerance watch: Today's edition of The Atlanta Journal-Constitution contains an article headlined "Student expelled over diary" that begins, "A Roswell High School freshman has been expelled for the remainder of the year for writing a fictional tale in her private journal about a student who dreams that she kills a teacher."
Posted at 09:30 by Howard Bashman



Highest court in Great Britain is no longer an "exclusively male bastion of judicial office": The Independent reports here today that "Hale appointed first ever law lady." The Financial Times reports here that "First woman joins ranks of top judges." And The Scotsman reports here that "First Woman Law Lord Appointed." Thanks to a reader in the UK for having alerted me to this news.
Posted at 07:09 by Howard Bashman



In Friday's newspapers: The Washington Post reports here that "Courthouse Power Outage Pulls Plug on Sniper Trial; Testimony Is Expected to Resume for Half-Day Today; Reinstated Defense Team Grateful for Break." In somewhat related news, "Judge Rejects Bid to Delay Malvo Trial; Fairfax Prosecutors Sought More Time for Mental Health Evaluation." An article reports that "Va. Man, Daughter Get Prison for Slavery Tax Claim." A front page article is headlined "U.S. Indicts Prominent Muslim Here; Affidavit: Alamoudi Funded Terrorists." In other news, "Clashes Led to Probe of Cleric; Flare-Ups Over Muslim Prisoners' Treatment in Cuba Are Cited." In business news, "Quattrone Jury Still Can't Reach Verdict." In local news, "Study Cites Race Disparity In Md. Drug Incarcerations." And a letter to the editor appears under the heading "The Harm of Marijuana."

The New York Times reports here that "Victory in Florida Feeding Case Emboldens the Religious Right." In other news, "U.S. Islamic Leader Is Linked to Terror Groups in Indictment." An article reports that "Jury Says It Still Can't Reach Verdict in Bank Case." In local news, "In Refusing Case, State's High Court Ends Chance for Class-Size Referendum." And letters to the editor appear under the heading "Life, Death and a Feeding Tube."

Finally, The Christian Science Monitor contains an article headlined "The murky side of right-to-die law: Florida woman's case is extraordinary, but it highlights widespread legal quandaries."
Posted at 06:35 by Howard Bashman



"Ex-Dallas officer, wife guilty of obscenity; FW couple plans to appeal jury verdict in adult video sales case": Thursday's edition of The Dallas Morning News contained this report. And Thursday's edition of The Fort Worth Star-Telegram reported in an article headlined "Couple guilty in obscenity trial" that "Legal experts, prosecutors and defense attorneys say it is the first federal obscenity case involving adult pornography in North Texas in at least 10 years."
Posted at 00:04 by Howard Bashman



Thursday, October 23, 2003
"Sen. Feinstein requests investigation into Lompoc prison": The Associated Press provides this report from California. And The Lompoc Record reports here today that "Feinstein asks for BOP probe."
Posted at 23:55 by Howard Bashman



"Judge Tosses Ex-Lawyer Bailey's $5M Fine": The Associated Press has this report from Florida.
Posted at 23:53 by Howard Bashman



Elsewhere in Thursday's newspapers: The Washington Times reports here that "Judiciary Democrats assail Brown." In other news, "Muhammad reinstates attorneys." An article reports that "Democrats kill bill on class-action reform." And in business news, "Senate unanimously OKs antispam bill."

The Los Angeles Times reports here that "Senate Stymies Measure to Shift Class-Action Suits." In other news, "Sniper Suspect Steps Down After Two Days as His Own Lawyer; John Allen Muhammad decided it was 'in his best interest' to no longer represent self, judge says." In news from Florida, "A Battle for Control of the Feeding Tube." In news from Ecuador, "ChevronTexaco Pollution Trial Begins; Ecuador lawsuit is a test of whether a court can hold a foreign company responsible for damage to the environment." An editorial is entitled "To Be or Not To Be." And editorial cartoonist Michael Ramirez seems to favor the ban on "partial birth" abortion.

The Boston Globe reports here that "Feeding-tube case prompts calls of victory." In other news, "Elation, fear over vote to ban form of abortion; Backers plan to file similar bill in Mass." In local news, "House passes wrongful conviction bill" and "Key figure in Lopez case claims harassment." And columnist Joan Vennochi has an op-ed entitled "Abortion foes won by framing debate."

USA Today reports here that "Fla. case raises hard end-of-life questions; Unique legal, medical issues surround Schiavo." And an editorial is entitled "'Partial-birth' abortion ban sets stage for broader fight," while an opposing view op-ed by Douglas Johnson is entitled "Infants are being killed."
Posted at 23:12 by Howard Bashman



"Scalia Ridicules Court's Gay Sex Ruling": Anne Gearan of The Associated Press provides this report. (Of course, he has nothing against metrosexuals [or should that be metrosexuals'?].)
Posted at 23:00 by Howard Bashman



Gender gap at the Harvard Law Review: Sasha Volokh offers a round-up of articles, letters, etc. And Stuart Buck has some thoughts on the topic, too.
Posted at 22:54 by Howard Bashman



"Another Clarence Thomas? Democratic senators joust with black conservative judicial nominee." Tom Curry today has this report online at MSNBC.
Posted at 22:47 by Howard Bashman



You don't say: Yesterday's edition of The Old Gold and Black, the student newspaper of Wake Forest University, contained an op-ed by columnist Doug Hutton about the federal judicial confirmation process entitled "Senate's delay raises question of partisan motives."
Posted at 22:42 by Howard Bashman



"O'Connor hails selection of Iran's first female judge as Nobel winner": The Associated Press provides this report from Philadelphia, where no falling beams nearly bonked Justice Sandra Day O'Connor in the head today. Contrast that with what happened during her last visit, in July.
Posted at 22:35 by Howard Bashman



The Associated Press is reporting: Jesse J. Holland reports here that "Democrats Ready to Use More Filibusters." In other news, you can access here an article entitled "Judge Denies Request to Delay Malvo Trial"; here "ABA Seeks Death Penalty Reforms"; here "Senate Approves Pay Increase for Itself"; here "Jeb Bush Interventions Raise Eyebrows"; and here "Ky. Court Nixes Legislative Pension Hike" (plus you can access the ruling of the Supreme Court of Kentucky at this link).
Posted at 19:25 by Howard Bashman



"Till Death Do Us Part: Why spouses get the final say in coma cases." Dahlia Lithwick has this essay online at Slate this evening.
Posted at 19:06 by Howard Bashman



All politics is local: The Montgomery Advertiser reports here that "Greenville native faces Democrats." The Greenville native in question happens to be D.C. Circuit nominee Janice Rogers Brown. (Via "Southern Appeal.")
Posted at 17:12 by Howard Bashman



"Attorney points to U-M case as peak of career; Mahoney discusses preparation for high court affirmative action arguments": This article appears in today's edition of The Ann Arbor News. No mention is found in this article, however, of the doughnut (free registration required to access this transcript from Legal Times).
Posted at 17:08 by Howard Bashman



"Both Female US Supreme Court Justices Visit Phila." KYW News Radio provides this report.
Posted at 17:02 by Howard Bashman



"Fob James weighs in with Moore on Ten Commandments": The Associated Press reports here that "Former Gov. Fob James is coming to the defense of Chief Justice Roy Moore, six years after he said he would use state troopers and the National Guard to defend Moore's display of the Ten Commandments. Moore's attorneys filed papers Thursday in which James supported a second bid by Moore to have Attorney General Bill Pryor barred from prosecuting the judge on judicial ethics charges." That second motion is not yet reflected among the pleadings found on the Web site maintained by Alabama's Court of the Judiciary.
Posted at 16:42 by Howard Bashman



Guns and the military: Today's edition of The Yale Daily News, in an article headlined "Harvard Law profs urge school to join litigation," reports that "Forty-six Harvard Law professors sent a letter to Harvard University President Lawrence Summers Wednesday night, urging Harvard to participate in litigation against the U.S. Department of Defense." Meanwhile, The Harvard Crimson reports here that "Gun Control Advocate Describes Fight With NRA." The gun control advocate in question is Sarah Brady.
Posted at 16:11 by Howard Bashman



More good news: First Circuit Judge Bruce M. Selya will be the March 2004 participant in the "20 questions for the appellate judge" feature. Readers of that interview are advised to have an unabridged dictionary close at hand.
Posted at 16:07 by Howard Bashman



Good news: Seventh Circuit Judge Richard A. Posner has agreed to be the December 2003 participant in this Web log's "20 questions for the appellate judge" feature.

Thanks to all who helped bring this about and to all who were attempting to convince other appellate judges to participate. Other participants are still being sought, and the next available interview vacancy is for February 2004 (with the questions to be forwarded to the interviewee in mid-January 2004).
Posted at 15:45 by Howard Bashman



D.C. Circuit nominee Janice Rogers Brown, the day after: C-SPAN has available online at this link the video of yesterday's Senate Judiciary Committee confirmation hearing in its entirety. On this morning's edition of NPR's "Morning Edition" (I've always wanted to say that), Nina Totenberg had a report (accessible here) on yesterday's hearing that was a bit longer than the report Totenberg had last night. And Law Professor Eugene Volokh explains here that "People for the American Way says protecting free speech too much is 'very disturbing.'"
Posted at 15:03 by Howard Bashman



May a federal court exercise diversity of citizenship jurisdiction if a plaintiff and a defendant are both citizens of the same foreign nation? Today Circuit Judge Richard A. Posner, on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit, issued an opinion resolving that question, which apparently no federal appellate court had heretofore addressed. The second part of Judge Posner's opinion involves the depressing tale of a depressed lawyer.
Posted at 13:36 by Howard Bashman



"State to appeal abortion decision": The Juneau Empire provides this report from Alaska. And The Associated Press reports here that "The state plans to appeal a Superior Court ruling that strikes down a law requiring parental consent for minors seeking abortions."
Posted at 13:35 by Howard Bashman



"McDonald's Settles Lawsuit by 420lb Man": The Associated Press provides this report.
Posted at 13:33 by Howard Bashman



"Christian school in Jupiter sued for expelling gay student": Yesterday's edition of The South Florida Sun-Sentinel contained this article. And The Associated Press today reports here that "Expelled Gay Student Sues Christian School."
Posted at 13:31 by Howard Bashman



"Kamehameha plaintiffs say past injustices not issue": This article appears in today's edition of The Honolulu Advertiser.
Posted at 13:27 by Howard Bashman



"Committee again delays Saad nomination": The Associated Press provides this report.
Posted at 13:20 by Howard Bashman



Seeking a December 2003 interviewee to participate in "20 questions for the appellate judge": On the first Monday of each month, "How Appealing" publishes "20 questions for the appellate judge." That recurring monthly feature has turned into one of this Web log's most popular offerings. Regrettably, that feature is about to come to an end, unless with your help a state or federal appellate judge volunteers on or before October 31, 2003 to be December 2003's interviewee.

From its outset in early 2003, the "20 questions" feature has been open to any federal or state appellate judge who was willing to volunteer via email to participate. The appellate judges who have agreed to participate have been tremendously impressive. The very first participant was Fifth Circuit Judge Jerry E. Smith. He was followed in chronological order by Ninth Circuit Judge Diarmuid F. O'Scannlain; Mississippi Supreme Court Justice Kay B. Cobb; Ninth Circuit Judge Andrew J. Kleinfeld; Ninth Circuit Judge Michael Daly Hawkins; Senior Third Circuit Judge Ruggero J. Aldisert; Eleventh Circuit Judge Gerald Bard Tjoflat; Federal Circuit Judge William Curtis Bryson; and Eleventh Circuit Judge Stanley F. Birch.

Senior Eighth Circuit Judge Richard S. Arnold will be November 2003's interviewee, and Tenth Circuit Chief Judge Deanell Reece Tacha will be the January 2004 interviewee.

It has long been by pledge to continue the monthly "20 questions for the appellate judge" interview feature for as long as interviewees are willing to volunteer to participate. But, the questions do not write themselves; rather, they require a bit of preparation. Due to my personal schedule, I will need to provide December 2003's interviewee with his or her questions on Friday, November 7, 2003. The answers, however, will not need to be returned to me until the end of November. Thus, unless I receive a volunteer by Friday, October 31, 2003, there will be no December 2003 installment, and the January 2004 interview with Chief Judge Tacha of the Tenth Circuit will mark the end of the "20 questions for the appellate judge" feature.

To volunteer, a federal or state court appellate judge need merely send me an email by clicking here. Since this Web log was launched in May 2002, it has received more than 2.2 million visits, and regular readers include state and federal appellate and trial court judges from throughout the United States and the world, attorneys, law professors, law students, staffers who work in the White House and at the U.S. Senate, and plenty of others readers located in the United States and throughout the world. I don't believe there is any other outlet that will allow a federal or state appellate judge to communicate to this extent in his or her own words to such a sophisticated and diverse audience. Please help me keep "20 questions for the appellate judge" a recurring feature of "How Appealing."
Posted at 10:40 by Howard Bashman



"Miller to Senate: Let the Majority Prevail; Senator Introduces Bill to End 60-Vote Requirement of Filibuster Rule." U.S. Senator Zell Miller (D-GA) issued this press release yesterday.
Posted at 10:34 by Howard Bashman



In news from Pennsylvania: The Pittsburgh Post-Gazette reports here today that "GOP lawmakers attack Supreme Court candidate's views on sentencing." The Philadelphia Inquirer reports here today that "Court workers unearth 300-year-old judgments." The Associated Press reports here that "Pa. high court limits revolving-door ban; It ruled that it, not the state legislature, has the power to establish ethics rules for lawyers." Finally, The Philadelphia Daily News reports here today that "Probe Spotlights These 2 Feds; Case comes at bad time for U.S. Attorney."
Posted at 10:30 by Howard Bashman



"Texaco Goes on Trial in Ecuador Pollution Case": The New York Times today contains this report, which explains that the U.S. Court of Appeals for the Second Circuit has already ruled that "any final ruling and financial penalty imposed against ChevronTexaco would be enforceable in the United States."
Posted at 10:25 by Howard Bashman



"Appeal threatens Univision deal": TheDeal.com provides this report.
Posted at 10:22 by Howard Bashman



"Let judicial candidates opine freely": Attorney Gerald K. McOscar had this op-ed in yesterday's edition of The Philadelphia Inquirer.
Posted at 10:11 by Howard Bashman



The death penalty trial of accused DC-area sniper suspect John Allen Muhammad has been cancelled for today and will resume tomorrow: A power outage affecting the courthouse is to blame. The Washington Post reports here that "Power Outage Postpones Muhammad Trial." And The Virginian-Pilot's Sniper Trial Blog also reports on this development.
Posted at 10:06 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Study: Women Make Big Gains in Law Firms"; here "Death-Row Inmates Give $10,000 to Student"; here "2 Face Penalty in Slave Reparations Case"; here "Court Orders Sale of Turkish Freighter"; and here "Eccentric Heir Opens Texas Murder Defense."
Posted at 10:02 by Howard Bashman



Ten Commandments news: The Birmingham News reports here today that "Moore's lawyers want 5 judges disqualified from hearing" and here that "Ten Commandments bill introduced." And The Associated Press reports here that "Alabama Chief Justice Fights to Keep Job."
Posted at 10:01 by Howard Bashman



No offense: The St. Petersburg Times today contains an article headlined "State appeals lewd conduct dismissals; The state seeks to continue prosecution of exotic dancers charged in an undercover sting operation in area clubs." According to the article, the trial court dismissed the case because "for a lewd conduct charge to stick, someone needs to be offended. [The trial court] ruled that undercover officers, in their official capacity, could not be offended."
Posted at 09:48 by Howard Bashman



"State bar asks court about discipline ruling": Today's edition of The Seattle Post-Intelligencer reports here that "The Washington State Bar Association is asking the state Supreme Court to explain why it rejected a one-year suspension as punishment for a Seattle lawyer caught in a sexual encounter with her client, a man charged with three slayings."
Posted at 09:43 by Howard Bashman



"Democrats Attack -- Again: Another Bush judicial nominee appears headed for a filibuster." Byron York has this op-ed this morning at National Review Online. And online at Town Hall, Debra Saunders has an essay entitled "Justice for Justice Brown."
Posted at 09:40 by Howard Bashman



On the agenda: In just a few moments from now, the Senate Judiciary Committee is scheduled to hold an executive business meeting. Committee votes on several judicial nominees are on the agenda. You can access my preview of this morning's business meeting in this blog post from last night.

At noon today in Philadelphia, U.S. Supreme Court Justices Sandra Day O'Connor and Ruth Bader Ginsburg will be speaking at a luncheon of the Philadelphia Bar Association. The audio of the luncheon is scheduled to be streamed live over the Internet via a link accessible here.

At 1 p.m. eastern time, White House Counsel Alberto R. Gonzales will deliver the keynote address at an American Bar Association conference on increasing diversity in the legal profession. C-SPAN plans to broadcast the address live.
Posted at 09:27 by Howard Bashman



"Bush Appeals Court Choice Under Fire; The California justice is challenged for remarks on the New Deal and Bill of Rights' reach." David G. Savage of The Los Angeles Times today has this report. Jan Crawford Greenburg of The Chicago Tribune reports here that "Bush nominee to U.S. bench on a hot seat; Senate panel has contentious day." And The Deseret Morning News reports here that "Hatch, liberals clash over judicial nominee; Utahn says their only problem with jurist is she's conservative."
Posted at 06:55 by Howard Bashman



In Thursday's newspapers: The New York Times reports here that "Sniper Suspect Regains Lawyers." In other news, "Class-Action Legislation Fails in Senate." Adam Liptak has a news analysis headlined "In Florida Right-to-Die Case, Legislation Puts the Constitution at Issue." An article reports that "Abortion Vote Leaves Many in the Senate Conflicted." In business news, "Senate Votes to Crack Down on Some Spam." In local news, "Jury Ordered to Try Harder in Trial of Former Banker." An editorial is entitled "Scorning the Courts in Florida." And letters to the editor appear under the heading "A Landmark Vote on Abortion."

The Washington Post reports here that "Muhammad Reinstates Lawyers in Sniper Trial; Witnesses Identify Malvo As Assailant in 2 Attacks." A news analysis is headlined "Stint as Attorney May Have Been Calculated." In related news, "Poetic Justice? Not With This Courthouse. Virginia Beach's Municipal Center Suffers From an Institutional Complex." An article reports that "Delay Sought for Malvo Trial; Sniper Case Prosecutors Preparing to Counter Insanity Defense." In related news, "Dual Role Possible For Malvo's Mother; Jamaican's Testimony Sought at Trials." An article reports that "Senate GOP Is Blocked On Court Award Limits." In other news, "Woman's Sustaining Care Resumed; But Experts Say No Hope Exists For Her Recovery." In business news, "Senate Votes 97-0 To Restrict E-Mail Ads; Bill Could Lead to No-Spam Registry." An editorial is entitled "Fool for a Client." And columnist Marc Fisher has an essay entitled "A Case Of Crazy Like a Fox."

Finally, The Christian Science Monitor contains an article headlined "The impact, and limits, of abortion bill; Passed by the Senate, a 'partial-birth' ban may satisfy conservatives - yet still be struck down."
Posted at 06:30 by Howard Bashman



"Sovereign Immunity Up for Grabs": This article available tonight on law.com is much more interesting than even its headline suggests. It involves a subject that "How Appealing" has covered closely in recent months -- whether the double waiver of sovereign immunity that Congress imposed on States under the Americans with Disabilities Act and the Rehabilitation Act should be given effect. Plus, the article quotes Tom Goldstein as saying "It's a stupid argument." What's a stupid argument? Find out here.
Posted at 00:11 by Howard Bashman



Wednesday, October 22, 2003
Elsewhere in Wednesday's newspapers: The Los Angeles Times reports here that "Senate OKs Ban on Abortion Procedure; Barring of 'partial-birth' operations is the first federal sanction in 30 years. Bush has said he will sign bill, but court challenge is expected." In related news, David G. Savage reports that "Action on Ban Is Unlikely, Even Its Supporters Agree; The high court would have to go back on its ruling upholding the 'partial-birth' option." In news from Virginia Beach, "Sniper Suspect, Officer Meet Again in Court; John Allen Muhammad, continuing as his own lawyer, questions a policeman who had talked with him at a shooting scene." A related article reports that "Self-Representation Is Rarely Sought, Denied." In other news, "Senate Considers Class-Action Bill That Firms Favor; Measure would shift suits to federal courts. Democrats propose a filibuster." An article reports that "Iraqi Prisoner Died After Marine Grabbed His Throat, Officials Say." In local news, "Foie Gras Firm Sues Activists Over Raids; The owners of a duck farm accuse the group of trying to put them out of business." In business news, "Tobacco Firm Is Found in Contempt; A unit of Batco is fined $25,000 a day until it produces documents being sought by the Justice Department." And Law Professor Alan M. Dershowitz has an op-ed entitled "Defendant in the D.C. Sniper Trial Risks Suicide by Jury; By letting him defend himself, government could have a hand in what amounts to self-destruction."

The Washington Times reports here that "Senate targets abortion method." An article reports that "Senate panel examines Patriot Act." In other news, "Democrats to filibuster lawsuit reform." In news from Virginia Beach, "Muhammad confronts victim." A related article reports that "Muhammad stumbles, but stars as own attorney." And an article reports that "Cameras in court are still suspect."

In The Boston Globe, Lyle Denniston reports that "Ban voted on a form of abortion."

USA Today reports here that "'Partial-birth' abortion ban nearly law after 8-year effort; Congress sends bill to Bush, who will sign it." In related news, "Late-term abortion bans have been rejected 21 times; New law would face legal challenges." And an editorial is entitled "Missed chance in sniper trial."
Posted at 23:35 by Howard Bashman



Coming soon before the Senate Judiciary Committee: Tomorrow, the committee is scheduled to hold an executive business meeting during which the committee may vote on Sixth Circuit nominee Henry W. Saad and U.S. District Court for the Eastern District of New York nominee Dora L. Irizarry. Then, on Tuesday, October 28, 2003, the committee is scheduled to hold a confirmation hearing for Fourth Circuit nominee Claude A. Allen. This nominee is likely to prove controversial for various reasons that I will describe at some point before his confirmation hearing begins next Tuesday morning.
Posted at 23:30 by Howard Bashman



"Court challenge likely to focus on 2 'flaws'": Jan Crawford Greenburg reports in today's issue of The Chicago Tribune that "When the Supreme Court invalidated state laws three years ago that banned a controversial procedure known as partial-birth abortion, the justices handed legislators a road map of sorts for drafting new statutes."
Posted at 23:25 by Howard Bashman



"Senators Battle Over Judicial Nominee": This evening's episode of The NewsHour with Jim Lehrer included this report (10 minutes and 56 seconds; Real Player required).
Posted at 23:23 by Howard Bashman



"Democratic Filibuster May Await Janice Rogers Brown": The Recorder offers this article. Neil A. Lewis will report in Thursday's edition of The New York Times that "Democrats and Republicans Trade Accusations at Confirmation Hearing." Thursday's edition of The San Francisco Chronicle will report here that "Feinstein subjects Brown to tough questioning; California justice given cool greeting in Senate." The Sacramento Bee reports here that "Court nominee faces tough questions from Democrats." And Jesse J. Holland of The Associated Press reports here that "Appellate Nominee Brown Defends Record."
Posted at 22:55 by Howard Bashman



"'Fright Wig' Cartoon Steals Show at Senate Hearing": So reports the front page of the Web site of The Black Commentator, which published the cartoon that received so much attention during today's Senate Judiciary Committee confirmation hearing for D.C. Circuit nominee Janice Rogers Brown. The Black Commentator this evening provides this update about the cartoon's use at today's hearing. And for those who feared this would be only a one day story, tomorrow morning at 7 a.m. C-SPAN is scheduled to interview Khalil Bendib, the cartoonist who drew the cartoon in question.
Posted at 20:55 by Howard Bashman



"Muhammad Cedes Control of Defense in Sniper Trial": This report (Real Player required) aired on NPR's "All Things Considered" this evening.
Posted at 19:43 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Judicial nominee defends record as Democrats question speeches, decisions"; here "Bush to Sign Partial Birth Abortion Bill"; here "Pa. Supreme Court to decide legality of same-sex benefits"; here "Appeals Court Backs Pork-Checkoff Ruling"; here "Senate Votes for Tough Limits on Spam"; and here "As cases move through courts, conservatives debate alcohol shipment laws."
Posted at 19:40 by Howard Bashman



"Pork plan not kosher; In blow to Bush administration, appeals court rules that $50M marketing program is unconstitutional." Reuters provides this report.
Posted at 18:43 by Howard Bashman



NPR's Nina Totenberg predicts a filibuster for D.C. Circuit nominee Janice Rogers Brown: You can access the audio report from this evening's installment of "All Things Considered" via this link (Real Player required).
Posted at 18:25 by Howard Bashman



Lunch tomorrow with Justices O'Connor and Ginsburg? You could be having lunch tomorrow in Philadelphia with U.S. Supreme Court Justices Sandra Day O'Connor and Ruth Bader Ginsburg if you are one of the lucky few with tickets to the Philadelphia Bar Association's quarterly luncheon meeting. Or, you could listen to the event live online via this Web page.
Posted at 16:17 by Howard Bashman



"Vote may be forced on Pickering": The Biloxi Sun Herald today provides this report.
Posted at 15:59 by Howard Bashman



"Court rules Amish sect need not use triangles; A strict Cambria County group can use reflective tape rather than orange triangles on buggies." Today's edition of The Philadelphia Inquirer contains this article. The Associated Press reports here that "Pa. appeals court sides with Amish in fight against triangles." The American Civil Liberties Union yesterday issued this press release. And the 48-page non-precedential opinion that the Superior Court of Pennsylvania issued Monday is accessible here (a very slow-loading, large PDF file).
Posted at 15:45 by Howard Bashman



Today's Senate Judiciary Committee hearing for D.C. Circuit nominee Janice Rogers Brown has just concluded: C-SPAN plans to rebroadcast the entire hearing tonight beginning at 8 p.m.
Posted at 15:40 by Howard Bashman



Opening statements: You can access online the the prepared texts of the opening statements of Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) and Ranking Democratic Member Patrick J. Leahy (D-VT) at today's confirmation hearing for D.C. Circuit nominee Janice Rogers Brown. The statements are available here and here, respectively.
Posted at 15:24 by Howard Bashman



Another filibuster: Today the U.S. Senate failed by a single vote to invoke cloture on the Class Action Fairness Act of 2003. You can access the official roll call tally here. The Associated Press reports here that "Democrats Block GOP Move on Class Actions." And Reuters reports here that "Senate Refuses to Take Up Class Action Bill." By the way, The AP's headline may be slightly misleading, because U.S. Senator Richard C. Shelby (R-AL) joined with thirty-eight Democratic Senators in voting against cloture.
Posted at 14:50 by Howard Bashman



Say hello to the new group law blog "en banc": No discussion there yet of today's interesting Sixth Circuit en banc decision, which I reported on here this morning.
Posted at 14:37 by Howard Bashman



Pledge of Allegiance: Online at The New Republic, Jeffrey Rosen and Roger T. Severino are engaging in an online "debate" over the Pledge of Allegiance case. I put the word debate in quotes because they both agree on the outcome that the U.S. Supreme Court should reach.

Online at The Weekly Standard, Terry Eastland has an essay entitled "Arguing the Pledge: A look at how the arguments against the Pledge of Allegiance are shaping up for the Supreme Court."
Posted at 14:15 by Howard Bashman



From the November 6, 2003 issue of The New York Review of Books: Ronald Dworkin writes of "Terror and the Attack on Civil Liberties." And former New York Times columnist Russell Baker reviews the work of current New York Times columnist Paul Krugman.
Posted at 13:56 by Howard Bashman



"Muhammad Stops Representing Himself; Original Counsel to Resume Defense of Sniper Suspect": The Washington Post provides this news update.
Posted at 13:52 by Howard Bashman



"Votes 'Not There' for Pickering; Allies Predict Backlash": This article (subscription required) appears in today's issue of Roll Call. The article begins, "With one eye on his confirmation prospects and another on Southern electoral strategy, allies of Judge Charles Pickering are making a final push to secure him a seat on the 5th U.S. Circuit Court of Appeals."
Posted at 13:45 by Howard Bashman



When it comes to the Pledge of Allegiance, the editorial board of The Harvard Crimson sides with Dr Pepper: See this editorial published today.
Posted at 13:01 by Howard Bashman



"Appellate Nominee Brown Defends Record": Jesse J. Holland of The Associated Press has this report. The Senate Judiciary Committee will break for lunch soon and then be back at 2:15 p.m. for even more questioning.
Posted at 12:43 by Howard Bashman



Someone get U.S. Senator Arlen Specter (R-PA) a copy of the Ninth Circuit's ruling in Coalition for Economic Equality v. Wilson, 122 F.3d 692 (9th Cir. 1997): In that decision (accessible here), the U.S. Court of Appeals for the Ninth Circuit held that the California Constitution's prohibition of public race and gender preferences does not violate the Equal Protection Clause of the United States Constitution. Senator Specter was just asking California Supreme Court Justice Janice Rogers Brown some difficult questions about whether the California constitutional provision conflicted with the federal Constitution's equal protection clause. The Ninth Circuit's ruling holds that no such conflict exists. Senator Specter stated at the start of the hearing that he is not sure yet whether he will or will not vote in favor of this nominee.
Posted at 11:32 by Howard Bashman



This pork program from the federal government is unconstitutional: Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit decided a case in which that court observed that "the constitutionality of the Pork Act turns on whether pork is more like mushrooms or more like peaches." The court concludes that pork is more like mushrooms, and thus the court affirms a federal trial court's decision declaring the Pork Promotion, Research and Consumer Information Act and the Pork Promotion Order issued thereunder unconstitutional. You can access today's ruling at this link.
Posted at 11:20 by Howard Bashman



En banc Sixth Circuit splits 6-5 over when time to file federal habeas corpus petition begins to run for prisoner who first pursues state court collateral relief: You can access today's ruling at this link. Look for the U.S. Supreme Court to grant review on this question in the very near future.
Posted at 11:12 by Howard Bashman



At 11:02 a.m., the testimony of California Supreme Court Justice Janice Rogers Brown is about to begin: C-SPAN is providing live coverage, via this link. Justice Brown begins her remarks by stating that when people tell her "It's just politics, it's not personal," that's not true, because "it is personal, to the nominee and to the supporters of the nominee." She is referring to the extremely offensive political cartoon that I previously referenced here.
Posted at 11:02 by Howard Bashman



"Senators' buddy networks for judgeships criticized": This article appears in today's issue of The Washington Times.
Posted at 10:35 by Howard Bashman



"Federal Judge Claims Sentencing Pressure": The Associated Press reports here this morning from Minneapolis that "A federal judge has accused Congress and the Justice Department of bullying judges into thinking twice about handing down lenient sentences."
Posted at 10:27 by Howard Bashman



Accused DC-area sniper suspect John Allen Muhammad resigns from serving as his own attorney: The Virginian-Pilot's Sniper Trial Blog reports this morning that "John Muhammad's short tenure as a defense attorney is at an end. Judge Millete has informed the court that Muhammad had decided it is in his best interest to allow his attorneys to defend him."
Posted at 10:20 by Howard Bashman



Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT) calls "despicable" cartoon reproduced at "The Volokh Conspiracy": Law Professor Eugene Volokh comments on the cartoon here.
Posted at 10:17 by Howard Bashman



"Recusal Absurdity: Let's not get silly about judges." Matthew J. Franck has this essay today at National Review Online.
Posted at 10:15 by Howard Bashman



C-SPAN is broadcasting live the Senate Judiciary Committee confirmation hearing for D.C. Circuit nominee Janice Rogers Brown: You can access the C-SPAN coverage live online via this link. The hearing is not yet underway, and if the past is any indication, questioning of the witness won't begin until sometime between 11 a.m. and 11:30 a.m., after all of the non-question-based speechifying has concluded.

Update: The hearing is gaveled to order at 10:12 a.m.
Posted at 10:07 by Howard Bashman



"A lynch mob gathers: Part II." Thomas Sowell has an essay online at Town Hall that begins, "'The preservation of a viable constitutional government is not a task for wimps.' So said California's state Supreme Court Justice Janice Rogers Brown. If there is any doubt about that, those doubts are sure to be erased during Justice Brown's confirmation hearings to become a member of the federal Court of Appeals in Washington."
Posted at 10:05 by Howard Bashman



"Gawker" posts the sushi memo: You can access it online here (3-page PDF file).
Posted at 10:00 by Howard Bashman



On the agenda: At 10 a.m. today, the Senate Judiciary Committee will hold a hearing on the nomination of California Supreme Court Justice Janice Rogers Brown to serve on the U.S. Court of Appeals for the D.C. Circuit. A live broadcast of the hearing should be available at this link (Real Player required).
Posted at 09:50 by Howard Bashman



In re sushi memo, part two: Earlier this morning, I checked one of my blog's hit counters and discovered that overnight "How Appealing" received almost double its usual traffic. "Finally my lucid and comprehensive coverage of efforts to divide the Ninth Circuit was beginning to receive the attention it deserved," I theorized. Well, not exactly.

You see, today's edition of The New York Times contains a front page article about the infamous "sushi memo." And the added traffic was largely due to online searches by people seeking to learn more about, and perhaps gain access to, the sushi memo. "How Appealing" ranks highly in response to searches for the sushi memo because I mentioned that memo several times last month.

It all began when a reader drew my attention to a mention of the memo by the "Gawker" blog. The reader asked whether I had seen the memo and if I could share a copy. I hadn't yet seen or even heard of the memo. But one of the benefits of having a popular and thus widely-read blog is that readers are more than happy to send you stuff that you ask for (see, e.g., Chief Justice Rehnquist bobblehead doll). So, I put out a call for the sushi memo, and soon thereafter it arrived in my email in-box.

I ended up sharing the memo with a few friends, including one well-known reporter covering the U.S. Supreme Court, who remarked on the paucity of fine dining near the Court. I did not post the memo online, but I did express the hope that The Smoking Gun Web site would do so. Later that day, I received an email from a high-ranking executive at The Smoking Gun advising that he too had the sushi memo but wasn't sure if it was "for real." Perhaps today's NYTimes article will resolve that concern. Time will tell.
Posted at 09:33 by Howard Bashman



In re sushi memo: For those of you arriving via Google searches for the infamous "sushi memo," I will have more to say on that topic a bit later on this morning. For now, let me observe that if you're searching the Web for the sushi memo, perhaps you don't have a copy of it. By contrast, I've had my copy of the memo for quite some time now.
Posted at 08:20 by Howard Bashman



"Pryor defends duty to prosecute Moore": Today's edition of The Birmingham News contains this article. And The Associated Press reports here that "Pryor rejects Moore's claims." You can access the court filing in question at this link (13-page PDF file).

In somewhat related news, The Mobile Register reports here today that "Pryor's name comes up briefly during Senate debate; Republicans drop discussion of judgeship nomination because of scheduling mixup."
Posted at 07:35 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, a front page article reports that "Sniper Trial Witness Tells How He Was Shot, Robbed." In related news, "Exception Allows Prosecutors To Move Beyond Meyers Case." In other related news, "Witnesses Face the Surreal -- and Muhammad." An article reports that "Horan Wants Va. Expert To Assess Malvo's Sanity." A front page article reports that "Senate Passes Ban On Abortion Procedure; Bush Set to Sign Bill; Foes Plan Court Fight." In news from Florida, "Woman's Feeding Tube Is Ordered Reinstated; Gov. Bush Gains Power To Override Courts." In other news, "Patriot Act Misunderstood, Senators Say; Complaints About Civil Liberties Go Beyond Legislation's Reach, Some Insist." In business news, "Tobacco Firm Faces Daily $25,000 Fine; Judge Orders Company to Produce Files." In news from Virginia, "A Pioneering 'Rat' Pack at VMI; Freshmen on School's First-Ever Women's Sports Team Endure Torturous Traditions." And Al Kamen's "In the Loop" column begins, "The Justice Department, after stonewalling media requests for more than a year, has finally posted an outside consultant's study of the agency's efforts to ensure diversity in the workplace."

The New York Times reports here that "Senate Approves Bill to Prohibit Type of Abortion." In other news, "Polite but Dogged, Sniper Suspect Offers Defense." You can access here an article headlined "Governor of Florida Orders Woman Fed in Right-to-Die Case." An article reports that "Bill Changing Class-Action Law Heads to Crucial Senate Vote." In business news, "Judge's Instructions Draw Criticism in Quattrone Case." In prison-related news, you can access here an article headlined "Study Finds Hundreds of Thousands of Inmates Mentally Ill" and here an article headlined "Report on State Prisons Cites Inmates' Mental Illness." And an editorial is entitled "Class-Action Showdown."

Finally, The Christian Science Monitor reports here that "Bryant case tests limits of 'rape shield laws'; The klieg-light trial will help determine how much of alleged victim's past can be scrutinized."
Posted at 06:30 by Howard Bashman



You can now access online the prepared testimony of Ninth Circuit Judge Diarmuid F. O'Scannlain submitted into the record at yesterday's congressional hearing on whether to split the Ninth Circuit: The testimony is accessible online at this link (35-page PDF document; right click and save the document to your computer's hard drive, because the document likely will cause your Web browser to crash if you attempt to open it online).
Posted at 06:25 by Howard Bashman



Tuesday, October 21, 2003
"For many years, I have written and testified in opposition to successive proposals to divide the Ninth Circuit.... Today, however, I think the time has come for the judges and lawyers to take a fresh look at the question." Be sure not to miss the very persuasive written testimony that Law Professor Arthur D. Hellman, one of the Nation's leading authorities on the U.S. Court of Appeals for the Ninth Circuit, submitted into the record at today's Courts Subcommittee hearing of the House Judiciary Committee to consider legislation to divide the Ninth Circuit.

Among other things, Hellman observes that the Ninth Circuit's unwillingness to allow citation to unpublished opinions provides a basis for supporting a split. Take that, Circuit Judge Alex Kozinski. (Judge Kozinski simultaneously opposes allowing citation to unpublished opinions and splitting the Ninth Circuit.) Circuit Judge Diarmuid F. O'Scannlain's written testimony is not yet available online, but I have seen a copy and it is quite good. I will link to it once it is posted online by the House Judiciary Committee.
Posted at 23:55 by Howard Bashman



"John Allen Muhammed's self defense": This evening's edition of The NewsHour with Jim Lehrer contained a report whose transcript you can access here.
Posted at 23:53 by Howard Bashman



U.S. Court of Appeals for the First Circuit proposes to amend local rule to make it easier to grant rehearing en banc when one or two active judges have recused: Kudos to the First Circuit for this proposed rule amendment, which would eliminate the First Circuit's current practice of requiring a majority of all active circuit judges to vote for rehearing en banc even when some active judges are recused. In practice, the current rule ends up counting recused judges as votes against rehearing en banc. Here's an illustration. When no judges are recused, for rehearing en banc to be granted in the First Circuit, four of that circuit's six active judges must vote in favor. Currently, if one judge is recused, four of the remaining five must vote in favor of rehearing en banc, and if two active judges are recused, all four of the remaining non-recused active judges must vote in favor of rehearing en banc. Under the new rule, if one judge is recused, only three of the remaining five non-recused active judges must vote in favor of rehearing en banc for it to be granted. And if two judges are recused, only three of the remaining four non-recused active judges must vote in favor of rehearing en banc for it to be granted.

I have long favored the approach the amended First Circuit local rule will take. My monthly appellate column published in April 2001 was entitled "Recused Federal Appellate Judges Should Not Be Counted As Voting Against Petitions For Rehearing En Banc." I'm pleased to report that the Federal Rules of Appellate Procedure are in the process of being amended to adopt the approach that I favor. (See pages 39 through 44 of this PDF document.)
Posted at 23:40 by Howard Bashman



Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Justices to Weigh a New Right to Remain Silent" and here that "L.A. Stabbing Conviction Is Revived by High Court; Although 'no Aristotle,' a lawyer did not fail in his duty to represent his client, the justices say." In news from Virginia Beach, "Sniper Defendant Acts as Own Lawyer; A rambling John Allen Muhammad tells jurors that evidence will show he wasn't linked to the deadly rampage in the Washington, D.C., area." In related coverage, "Legal Experts Agree Defendant Is 'Making a Bad Case Worse.'" An article reports that "Kobe Bryant Ordered to Stand Trial; The judge says probable cause exists, but he points out several flaws in the sexual assault case." In other news, "Inmate's Fatal Shooting at Issue; Prison officials say use of deadly force by guard was needed to protect another prisoner during a riot, but witnesses raise questions." In business news, "Quattrone Judge Wants Deliberations to Resume; A mistrial request is denied despite a divided jury and the absence of a second member." And an article reports that "Travel Expenses for Judges Becomes Union Issue; Orange County labor union has fought to gain access to records of expenses, saying the spending is excessive in a time of tight budgets."

The Washington Times reports here that "Muhammad gets OK to defend self." In related news, "Muhammad bid seen as chance to get leniency." And an article reports that "Senate starts terror-law inquiry."

USA Today reports here that "Sniper suspect to lead defense; Muhammad stuns court as trial opens." In other news, "Kobe Bryant sex assault case will go to trial; Judge says case was barely made." And letters to the editor appear under the heading "Pledge should not spark religious debates."

Finally, The Boston Globe reports here that "Charges expected against Yankees; Police press ahead on melee at Fenway."
Posted at 23:15 by Howard Bashman



"Things you should know about Justice Janice Rogers Brown (but won't hear from her critics)": U.S. Senator John Cornyn (R-TX) today issued this statement.
Posted at 23:11 by Howard Bashman



"Legal Research? Get Me Sushi, With Footnotes." Wednesday's edition of The New York Times will contain this report. Perhaps now The Smoking Gun Web site will publish the memo?
Posted at 23:03 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Missouri's Only Female Deemed a Violent Sexual Predator Appeals for Release"; here an article from South Carolina headlined "Supreme Court hears oral arguments in urine sale conviction"; and here an article from Arizona headlined "High court overturns death sentence in prison slaying."
Posted at 21:20 by Howard Bashman



"'Under God': The history of a phrase." This article will appear in the October 27, 2003 issue of The Weekly Standard.
Posted at 19:55 by Howard Bashman



"Court-Assisted Suicide: Why only serial killers have a right to die." Dahlia Lithwick has this essay tonight online at Slate about John Allen Muhammad's last-minute decision to represent himself at trial. You can listen online here (Real Player required) to Dahlia's discussion of this topic with NPR's Alex Chadwick.
Posted at 19:50 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Senate OKs Ban on Partial Birth Abortion" and here an article headlined "Abortion Vote Likely to Loom in '04 Race." The official roll call vote tally from the U.S. Senate can be accessed here. In other news, you can access here an article headlined "Fla. Gov. Orders Feeding Tube Reinserted" and here an article headlined "Moussaoui Can't Represent Self at Appeal."
Posted at 19:44 by Howard Bashman



"Judge supports splitting Ninth Circuit": Today's issue of The Pocatello Idaho State Journal reports here that "Ideological reasons might be behind an effort to split the Ninth Circuit Court of Appeals into two districts, but a circuit justice said if the split occurs, it will be for administrative purposes. Ninth Circuit Judge Richard Tallman, of Seattle, said during an interview Friday he supports a congressional measure introduced by U.S. Rep. Mike Simpson, R-Idaho, that would split the Northwest from other West Coast states and create a new judicial district."
Posted at 17:16 by Howard Bashman



"Someone secreted video cameras in the locker rooms, bathrooms, and showers of several sports teams." So begins an opinion that Circuit Judge Frank H. Easterbrook issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit.
Posted at 16:44 by Howard Bashman



"Judge This Justice Fairly: This D.C. Circuit nominee cherishes civil liberties-and transcends the ideological divide." Clint Bolick has this essay (free registration required) in the current issue of Legal Times.
Posted at 16:41 by Howard Bashman



"Fla. Passes Bill Allowing Feeding Tube": The Associated Press has this report.
Posted at 16:33 by Howard Bashman



Don't let the bedbugs bite: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit issued an opinion by Circuit Judge Richard A. Posner that begins (some citations omitted):
The plaintiffs brought this diversity suit governed by Illinois law against affiliated entities (which the parties treat as a single entity, as shall we) that own and operate the "Motel 6" chain of hotels and motels. One of these hotels (now a "Red Roof Inn," though still owned by the defendant) is in downtown Chicago. The plaintiffs, a brother and sister, were guests there and were bitten by bedbugs, which are making a comeback in the U.S. as a consequence of more conservative use of pesticides. Kirsten Scharnberg, "You'll Be Itching to Read This: Bedbugs Are Making a Comeback: Blame World Travelers and a Ban on Certain Pesticides," Chi. Tribune, Sept. 28, 2003, p. 1; Mary Otto, "Bloodthirsty Pests Make Comeback: Bug Infestations Raising Welts, Ire," Wash. Post, Sept. 2, 2003, p. B2. The plaintiffs claim that in allowing guests to be attacked by bedbugs in a motel that charges upwards of $100 a day for a room and would not like to be mistaken for a flophouse, the defendant was guilty of "willful and wanton conduct" and thus under Illinois law is liable for punitive as well as compensatory damages. The jury agreed and awarded each plaintiff $186,000 in punitive damages though only $5,000 in compensatory damages. The defendant appeals, complaining primarily about the punitive-damages award. It also complains about some of the judge's evidentiary rulings, but these complaints are frivolous and require no discussion. The plaintiffs cross-appeal, complaining about the dismissal of a count of the complaint in which they alleged a violation of an Illinois consumer protection law. But they do not seek any additional damages, and so, provided we sustain the jury's verdict, we need not address the cross-appeal.
You can access at this link the Seventh Circuit's decision affirming the jury's verdict.
Posted at 16:20 by Howard Bashman



"Janice Rogers Brown: A Perfect Fit for the D.C. Circuit." The Committee for Justice today has issued this report (22-page PDF document).
Posted at 16:16 by Howard Bashman



"Janice Rogers Brown: to the Right of Thomas and Scalia." People For the American Way has today issued this press release. PFAW issued a lengthy report (43-page PDF document) on this subject back in late August 2003.
Posted at 15:54 by Howard Bashman



Today's Congressional hearing on whether to split the Ninth Circuit has concluded: At some point the videotape of the hearing will be available for viewing via this link, which is also where you can access the prepared text of witness statements. The hearing closed on an interesting point. Professor Hellman stated that he would support a split of the Ninth Circuit when a sufficient number of that court's own judges supported it. Judge O'Scannlain then observed that a substantial number of the judges who would be serving in the proposed Twelfth Circuit are already on record as supporting the split.
Posted at 15:36 by Howard Bashman



The U.S. Court of Appeals for the Fourth Circuit denies motion of Zacarias Moussaoui to represent himself on appeal: You can access today's order at this link.
Posted at 15:28 by Howard Bashman



It appears that the video feed to today's House Judiciary Committee hearing on whether to split the Ninth Circuit has gone off-line: So far no one is blaming the Ninth Circuit for this development. Update: The live online feed is working again, and the outage was for a period shorter than the famous missing 18.5 minutes.
Posted at 15:09 by Howard Bashman



"Louisiana Supreme Court removes New Orleans judge": The Associated Press provides this report. Update: You can access the opinion of the Supreme Court of Louisiana at this link.
Posted at 14:52 by Howard Bashman



The texts of the prepared statements of certain of the witnesses at today's House Judiciary Committee subcommittee hearing on whether to divide the Ninth Circuit are available online: You can access them via this link.
Posted at 14:34 by Howard Bashman



"Bybee returns to UNLV for public ceremony marking new court post": Saturday's edition of The Las Vegas Review-Journal contained this report. And you can access the Ninth Circuit's own press release at this link.
Posted at 14:29 by Howard Bashman



Watch live online the hearing of the Courts Subcommittee of the House Judiciary Committee on whether to divide the Ninth Circuit: You can view the hearing live online at this link (Real Player required). My post here from this morning provides all the details and links to the legislation under consideration.
Posted at 13:59 by Howard Bashman



The Washington Post will host an online chat about the sniper trial starting at 3 p.m. eastern time today with criminal defense attorney Jeralyn Merritt (author of the "TalkLeft" blog): You can access the chat at this link, and you can submit questions now via this link. "TalkLeft" and other HostingMatters-hosted blogs (including "InstaPundit") appear to be off-line at the moment, so here's your chance to find out what Jeralyn is thinking about the trial. And don't forget about the excellent Sniper Trial Blog, published by The Virginian-Pilot newspaper.
Posted at 13:30 by Howard Bashman



"Rapper disses, the judge dismisses; Hip-hop jurist tosses suit against Eminem": This article appears today in The Detroit Free Press. And you can access here in HTML format the "Rap ruling in Eminem's favor."
Posted at 13:10 by Howard Bashman



"Magazine judges judge one of worst; Reader's Digest, rehashing his 2001 drunken escapade, gives Charles W. Cope its annual Broken Gavel award." The St. Petersburg Times reports here today that "Until a few days ago, the troubled saga of Pinellas-Pasco Circuit Judge Charles W. Cope was confined mostly to the Tampa Bay area."
Posted at 13:08 by Howard Bashman



Dot-com versus dot-sucks: The Detroit Free Press reports here today that "Canton woman caught in web of cyber justice."
Posted at 13:00 by Howard Bashman



"Judge drops one suit brought by Bessinger; Federal ruling gives grocers right not to stock his sauce": The State reports here today that "Barbecue king Maurice Bessinger’s lawsuit against grocery chains that pulled his sauce from their shelves because of his views on race and religion took a hit Monday, but he vows to continue the fight."
Posted at 12:57 by Howard Bashman



"Caucasian Club founder decides to leave school; Oakley freshman decides to transfer, cites harassment": This article appears today in The San Francisco Chronicle.
Posted at 12:54 by Howard Bashman



"Ten Commandments decision may take weeks": Today's issue of The Northeast Georgian contains an article that begins, "Federal Judge William O'Kelley called a May 2001 resolution passed by the Habersham County Commission to post the Ten Commandments 'the most blatant religious resolution I've ever seen.'"
Posted at 11:20 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Senate Set to Ban Partial Birth Abortion"; here "Muhammad Drops Request on Sanity Evidence"; here "Judge: 'Minimal' Evidence Against Bryant"; and here "Guantanamo Inmates Concern Rights Groups."
Posted at 11:11 by Howard Bashman



On the agenda: Today at 2 p.m. eastern time, the Courts Subcommittee of the House Judiciary Committee will hold a hearing on legislation to divide the U.S. Court of Appeals for the Ninth Circuit. The hearing will be streamed live online at this link. You can access the text of the legislation here, and a section-by-section analysis of the bill is accessible here.

Scheduled to testify at the hearing are three Ninth Circuit judges: Chief Judge Mary M. Schroeder and Circuit Judges Alex Kozinski and Diarmuid F. O'Scannlain. Also scheduled to testify is Law Professor Arthur D. Hellman, a leading expert on the Ninth Circuit.

Three Ninth Circuit judges, including Judge O'Scannlain, have participated in this Web log's "20 questions for the appellate judge" feature, and all three commented extensively about whether the Ninth Circuit should be divided. You can access here my interview with Judge O'Scannlain, who supports a split of the Ninth Circuit. You can access here my interview with Ninth Circuit Judge Andrew J. Kleinfeld, who also supports a split. And you can access here my interview with Ninth Circuit Judge Michael Daly Hawkins, who opposes a split. Finally, my views on a split are accessible here, in my monthly appellate column from April 2003, which appeared under the title "When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How."
Posted at 10:40 by Howard Bashman



"High Court justice admits thoughts of recusal in suits; John Paul Stevens reveals idea of recusing himself from nine-judge panel that ruled on 'U' admissions": Today's edition of The Michigan Daily contains this report. In largely unrelated news, you can view an image of The Green Bag's newly issued Justice John Paul Stevens bobblehead doll at this link (free registration required).
Posted at 10:35 by Howard Bashman



Attorney Bruce R. Lindsey seeks reimbursement of attorneys' fees in the amount of $245,000 under the Ethics in Government Act, but receives only $28,000: You can access today's ruling by the D.C. Circuit's Division for the Purpose of Appointing Independent Counsels at this link.
Posted at 10:30 by Howard Bashman



Groovy: A unanimous three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit today issued an opinion by Circuit Judge John G. Roberts, Jr. that begins:
Learned Hand once remarked that agencies tend to "fall into grooves, ... and when they get into grooves, then God save you to get them out." Judge Hand never met the National Transportation Safety Board. In this case, we grant the petition for review because the Board has failed adequately to explain its departures from its own precedent in no fewer than three significant respects.
You can access the complete ruling at this link.
Posted at 10:18 by Howard Bashman



"Oyez! The chief justice speaks out: In rare interview, Poritz reflects on frustrations and tries to shed light on court's workings." This article appears today in The Star-Ledger of Newark, New Jersey.
Posted at 10:18 by Howard Bashman



"Judge talks about God, monument; Roy Moore discusses Ten Commandments controversy, why he defied court orders": The State, a South Carolina-based newspaper, today contains this article.
Posted at 10:16 by Howard Bashman



"Coalition vows to fight nomination; Senate will consider Justice Brown for a seat on federal bench." This article appears in today's edition of The Sacramento Bee.
Posted at 10:05 by Howard Bashman



"Privacy at issue in case; Supreme Court to decide whether arrest was lawful": Today's edition of The Las Vegas Review Journal contains this article. And a related editorial is entitled "Identity crisis: Justices to rule on Nevada privacy challenge."
Posted at 09:42 by Howard Bashman



"Thin Law Line: Judicial Catch-22." Robert Alt has this essay today at National Review Online.
Posted at 09:40 by Howard Bashman



"A lynch mob gathers": Online at Town Hall today, Thomas Sowell has an essay entitled "A lynch mob gathers." It begins, "The nomination of Justice Janice Rogers Brown of the California Supreme Court to become a federal Court of Appeals judge has brought out vicious special interest groups with their long knives -- and a long record of smears and character-assassination, going back to the campaign of wholesale misrepresentations that defeated the nomination of Judge Robert Bork in 1987."
Posted at 09:30 by Howard Bashman



"Nominee to D.C. appeals court a political lightning rod; State court justice's conservative views alarm liberal groups": Bob Egelko has this front page article in today's edition of The San Francisco Chronicle.
Posted at 07:35 by Howard Bashman



"Ten Commandments put to the test; Judge to rule on Habersham County display in a few weeks": The Gainesville Times today contains this report.
Posted at 07:03 by Howard Bashman



"Moore lawyers say Pryor has conflict": Today's edition of The Birmingham News contains this report. And The Montgomery Advertiser reports here that "Moore wants Pryor off case." I first mentioned this development, and provided a link to the court filing in question, here.
Posted at 06:55 by Howard Bashman



Local coverage of the death penalty trial of DC-area sniper suspect John Allen Muhammad: The Virginian-Pilot reports here that "Muhammad defends himself" and here that "Risks are many, acquittals few when defendants act as attorneys."

The Richmond Times-Dispatch reports here that "Muhammad acts as lawyer; 'I had nothing at all to do with these crimes' defendant tells jury" and here that "Muhammad to jurors: 'Somebody's lying.'"

The Baltimore Sun reports here that "Sniper suspect opens trial as own counsel; Judge reluctantly allows defendant Muhammad to fire his lawyers; 'I know what happened'; Co-defendant Malvo makes brief appearance to be identified by witness" and here that " 'A tragedy for the justice system'; Muhammad's decision to represent himself is decried by experts."

Finally for now, The Daily Press of Hampton Roads, Virginia contains an article headlined "Muhammad for the defense: He assumes lead counsel in murder case."
Posted at 06:44 by Howard Bashman



In Tuesday's newspapers: The Washington Post reports here that "Muhammad Takes Over His Own Defense; Judge Advises Against Move, Then Allows It." A related article is headlined "A Legal Move That Rarely Helps Defendants: Ignorance of Court Rules Will Impede Muhammad." In other related coverage, you can access here an article headlined "Muhammad's Self-Defense Stuns Families; Few Fear Face-to-Face Encounters"; here "Muhammad Swayed Judge With 'I Know Me'"; here "Sniper Suspect Keeps Them Guessing; Muhammad Opens His Defense With a Rambling Discourse"; here "Malvo a Constant Presence in Statements, Brief Court Appearance"; and here "'I Kept Saying to Myself, You Should Sit Down'; Muhammad Gives Trial Observers A Startling Show." Plus, you can access online certain transcripts (prosecution opening statement; defense opening statement; and excerpt of conference during which the defendant received permission to represent himself). In other news, "Lakers' Bryant Will Stand Trial For Sexual Assault." An article reports that "GOP Pushes Vote to Curb Class-Action Suits; Senators Struggle To Beat Filibuster." An article headlined "YWCA's Top Official Fired After 6 Months in Job" begins, "Six months after hiring women's rights activist Patricia Ireland as its chief executive, the YWCA of the U.S.A. has fired her, saying the organization 'proved to be the wrong platform' for her advocacy on women's issues." In other news, "Tex. Students Sue to Organize Gay Club at High School." An article reports that "Juror's Baby Delays Quattrone Verdict; Judge Refuses Defense's Mistrial Motion." And letters to the editor appear under the heading "Sniper Celebrity Gone Too Far."

The New York Times reports here that "Sniper Suspect Is Own Lawyer as Trial Opens." In related coverage, Adam Liptak has an article headlined "Rights, and Wrongs, as Sniper Suspect Represents Self." In other news, Liptak reports that "Bryant Is Ordered to Stand Trial in Rape Case." In business news, "Pension Math Proves Elastic in Court Case Over Pilots." In other business news, "Judge Rejects Mistrial in Ex-Banker Case." An article reports that "Judge Rules Stewart Note to Lawyer Won't Be Evidence." In news from Boston, "Police Seeking to Charge 2 Yankees." An editorial is entitled "Legal Abuses in the Sniper Case." And an op-ed by Mark Essig is entitled "Continuing the Search for Kinder Executions."

Finally, The Christian Science Monitor reports here that "Passenger tracking at airports on hold; Carriers say system will violate privacy, without increasing safety significantly."
Posted at 06:15 by Howard Bashman



The New York Times prints a correction: Today's edition of The New York Times contains the following correction:
An article on Saturday about opposition to President Bush's latest judicial nomination referred incorrectly to Janice Rogers Brown, his choice for the United States Court of Appeals for the District of Columbia. If confirmed, she would be the second black woman on that court. (Judge Judith W. Rogers, who has served for 10 years, was the first.)
I first noted this error on Saturday in posts you can access here and here.
Posted at 06:05 by Howard Bashman



Monday, October 20, 2003
"Justice Anthony Kennedy speaks on Law Panel": Today's edition of The Stanford Daily reports here that "Supreme Court Justice Anthony Kennedy spoke Saturday morning as part of a panel dissecting the origin and power of the United States Constitution." (Via "campus press notes.")
Posted at 23:53 by Howard Bashman



"Democrats May Block Class Action Bill": Jesse J. Holland of The Associated Press reports here that "Despite majority support for changing the way America sues, Democrats say they have enough votes in the Senate to block Republicans from moving class action lawsuits out of state court and into the federal system."
Posted at 23:20 by Howard Bashman



U.S. Supreme Court round-up: Linda Greenhouse of The New York Times reports here that "Court Refuses Case on a Presidential Pardon" and here that "Justices to Revisit Judges' Role in Sentences." Charles Lane of The Washington Post reports here that "High Court to Decide Right to Refuse ID." And David G. Savage of The Los Angeles Times reports here that "Court to Consider New Right to Remain Silent."
Posted at 23:12 by Howard Bashman



"With a 6-5 Split, 9th Circuit Treads Familiar Ground": Jason Hoppin will have this article in tomorrow's edition of The Recorder.
Posted at 23:10 by Howard Bashman



Elsewhere in Monday's newspapers: The Washington Times reports here that "Sniper prosecution to open."

The Los Angeles Times reports here that "City Has Sniper Trial in Its Sights; The case has been a boon to local merchants, but for many in the military town that strongly backs the death penalty, the verdict is already in." In local news, "Internet Upstarts Savor Victory in a Big League; Starting out of their folks' O.C. home, three brothers in their 20s win big, and may win more, in a legal fight." In other local news, "60,000 Can Join Lawsuit Over O.C. Jails." Letters to the editor appear under the heading "Pledge of Allegiance Takes the Stand." And you can access the recent editorial cartoon by Michael Ramirez that one of those letter writers characterizes as "scurrilous" at this link.
Posted at 23:00 by Howard Bashman



"Supreme Court campaign rivals disagree on speaking out; Should justice be mute as well as blind?" This article appears in today's edition of The Pittsburgh Post-Gazette.
Posted at 22:54 by Howard Bashman



"Rhetoric heats up ahead of Brown confirmation hearings": David Kravets of The Associated Press provides this report.
Posted at 22:50 by Howard Bashman



"Ten Commandments suit goes to court; Habersham defends courthouse display as historical, 'not religious'": Tuesday's edition of The Atlanta Journal-Constitution will contain this report.
Posted at 22:34 by Howard Bashman



Alabama Supreme Court Chief Justice Roy S. Moore moves to recuse Alabama Attorney General Bill Pryor and the Attorney General's Office from prosecuting judicial ethics complaint against Moore: You can access the recusal motion at this link. Montgomery, Alabama's NBC affiliate, WSFA-12, reports here that "A spokeswoman for Pryor, Joy Patterson, issued a statement saying the motion 'is completely without merit and we will oppose it vigorously.'" You can access all of the filings made in this matter before Alabama's Court of the Judiciary via this link.
Posted at 21:25 by Howard Bashman



In news from Guam: The Pacific Daily News reports here in Tuesday's edition that "U.S. Attorney Leonardo Rapadas recently asked a Superior Court of Guam judge to prohibit the island's attorney general from possessing any firearms while under a court-imposed restraining order, citing a federal statute."
Posted at 21:20 by Howard Bashman



NPR's "All Things Considered" covers today's developments in the DC-area sniper trial: Brian Naylor provides this recap of today's events. And Law Professor Jonathan Turley is interviewed about the perils of self-representation by a defendant in a criminal case. (Real Player is required to hear the audio segments.)
Posted at 21:10 by Howard Bashman



"Alabama judge brings Ten Commandments issue to S.C.": The Associated Press has this report.
Posted at 21:02 by Howard Bashman



"Kobe Bryant must stand trial, judge rules": CNN.com provides this report, and you can access the court's ruling at this link.
Posted at 18:40 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Muhammad Defending Himself, at Own Risk" and here an article entitled "U.S., Microsoft Fight Over Online Music."
Posted at 17:30 by Howard Bashman



Probable cause ruling expected within the hour in the Kobe Bryant trial: CNN is reporting that before 6 p.m. eastern time the judge in the Kobe Bryant trial is expected to issue a ruling on whether probable cause exists to hold a trial on the criminal charges that have been brought against the defendant. You should be able to access the judge's written ruling via this official court Web site once the ruling is issued.
Posted at 17:23 by Howard Bashman



The first day of evidence in the DC-area sniper trial has concluded: The Virginian-Pilot's Sniper Trial Blog continues to provide comprehensive coverage. Especially interesting are the complaints from the prosecution that John Allen Muhammad's standby attorneys are too actively consulting with their client while the trial is underway. Later, one of the standby attorneys for Muhammad raised an objection to the prosecution's order of presenting evidence, which caused the trial judge to remind the standby attorney that his objection was out of order and that Muhammad had to object for himself.
Posted at 17:21 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "High Court to Review Judges' Sentencing." And in other news, "Foes of Abortion Ban Ready to Go to Court."
Posted at 16:56 by Howard Bashman



My October 2003 appellate column: One week ago today, The Legal Intelligencer published the October 2003 installment of my monthly appellate column, entitled "What Should a Three-Judge U.S. Court of Appeals Panel Do When Faced With Conflicting On-Point Authority Issued By Previous Panels?" You can access the column online at this link.

Some may recall that I had originally intended to comment this month on a new law review article by Cass R. Sunstein, David Schkade, and Lisa Michelle Ellman entitled "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation." But then I learned that Washington Post editorial writer Benjamin Wittes had written an essay published in the October 6, 2003 issue of The Weekly Standard that expressed more eloquently than I could the objections I had to that law review article.

So, I returned to the subject that I traditionally write about in my column in October of each year, the subject of rehearing en banc.
Posted at 16:48 by Howard Bashman



Pledge of Allegiance news: The Gainesville Times today contains an editorial entitled "Supreme Court ought to allow pledge to stand." In The Detroit News, columnist Pete Waldmeir has an essay entitled "Supreme Court debate on Pledge of Allegiance is monumental waste." Meanwhile, the good Dr Pepper had no difficulty eliding any objectionable content found in the Pledge, as this item entitled "FYI: One nation, under carbonation" from today's issue of The Capital Times of Madison, Wisconsin explains.
Posted at 16:15 by Howard Bashman



In today's reader mail: A longtime reader of "How Appealing" emails in connection with the new book "Family Circle: The Boudins and the Aristocracy of the Left" by Susan Braudy:
Over the weekend, I had the opportunity to purchase and read the new book by Susan Braudy, FAMILY CIRCLE: THE BOUDINS AND THE ARISTOCRACY OF THE LEFT (New York: Alfred A. Knopf 2003). As one might imagine from the title, the book is a collective biography of the Boudin family -- primarily Leonard Boudin (the civil rights attorney) and Kathy Boudin (the would-be revolutionary who was a member of the Weather Underground and subsequently served 22 years in New York State prison for involvement in the 1981 Brinks robbery in Rockland County, which led to her pleading guilty to murder and robbery charges), but there are also frequent references to Michael Boudin, who as you know is now Chief Judge of the United States Court of Appeals for the First Circuit.

Without commenting on any other aspect of the book, the background information on Judge Boudin is quite interesting. Unfortunately the discussion is marred by some silly errors, such as twice stating that Judge Boudin serves on the Second Circuit rather than the First Circuit, or characterizing Justice Harlan (for whom Boudin clerked) as "ultraconservative" (he was conservative by Warren Court standards, to be sure, but I don't think "ultraconservative" under any reasonable definition). I suspect the final round of fact-checking and proofreading may have been sacrificed in the admitted rush to get the book into print early (the Boudins have been much in the news in New York lately as the result of Kathy Boudin's recently being paroled). I haven't seen the book reviewed anywhere yet but am sure it will be in the near future.

One startling passage was unrelated to the Boudin story. In a passing mention of Supreme Court Justice Fortas, the author claims that Fortas' resignation from the Supreme Court occurred "because of J. Edgar Hoover's threat of blackmail: an FBI agent had visited Fortas in 1968 to inform him of Hoover's 'concern' that Fortas had been seen at a homosexual bar." (p. 331) The endnote states further: "Newly elected President Richard Nixon's henchmen took public aim at Fortas for having briefly served (while on the Court) as the salaried head of a foundation set up by his former client, Louis Wolfson. This was not a major sin. It was therefore surprising that Fortas resigned abruptly, marking the downfall of the trailblazing liberal Warren court. (Chief Justice Earl Warren himself had retired.) It would be many years before a hint of more complicated factors leading to Fortas's resignation surfaced. According to a document from the FBI files, an FBI agent had visited Fortas and politely explained that on Director Hoover's orders, he was alerting Fortas to the dismaying fact that an informant had seen Fortas at a homosexual club. Abe Fortas thanked his visitor and resigned from the Supreme Court." (p. 431n)

I thought I was familiar with the literature on Supreme Court turnover in the past few years, but this claim is news to me. Poking around on the 'net, I see copies of the memos referred to on the "Smoking Gun" site, but no correlation between the two memos (from 1967) and the Fortas resignation (1969). There is no reference to this incident in the discussion of Fortas' resignation in Laura Kalman's biography of Fortas, or in John Dean's THE REHNQUIST CHOICE (which discusses the resignation from the White House point of view, including the fact that G. Harrold Carswell, one of the Senate-rejected nominees to replace Fortas, may have himself been gay). It will be interesting to see if any of the reviews of the Boudin book, or anyone else, pick up on this extraordinary claim. I wonder if your readers would have anything to add.
The memos on The Smoking Gun Web site are accessible here; a review of the Dean book that mentions the Carswell allegation on page 20 of the PDF document is accessible here; and a recent New York Times article about the Boudin book entitled "New Book Explores a Radical Mind" is accessible here.
Posted at 15:52 by Howard Bashman



Today's Ten Commandments news: The Gainesville Times reports here that "Judge to hear Ten Commandments case; Arguments scheduled today for courtroom in Gainesville." And you can access an update here from WSB-TV.

In other news, The Princeton Daily Clarion reports here from Indiana that "Monument gets support from thousands."
Posted at 14:20 by Howard Bashman



"Muhammad Denies Involvement in Sniper Shootings": The Washington Post provides this news update.
Posted at 14:07 by Howard Bashman



Knack for timing: Tomorrow, the Courts Subcommittee of the House Judiciary Committee will be holding a hearing on legislation to divide the U.S. Court of Appeals for the Ninth Circuit. Today, the Supreme Court of the United States summarily reversed the Ninth Circuit in an opinion you can access here, and the dissenters in an en banc ruling that the Ninth Circuit decided today by a vote of 6-5 complained (as detailed in my post immediately below) that six active judges have declared "objectively unreasonable" the views on the merits of the case held by seven other active judges serving on that court.
Posted at 13:50 by Howard Bashman



When it comes to en banc rehearings in the Ninth Circuit, six active judges can declare the contrary views of seven active judge colleagues to be "objectively unreasonable": Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit, by a vote of 6-5, set aside the death penalty that the State of California had imposed on a defendant convicted of rape and murder. The dissenting opinion of Circuit Judge Richard C. Tallman begins (with footnotes omitted):
Today, six judges of this court announce that the legal conclusion reached by seven of their colleagues (plus five justices of the California Supreme Court) is not only wrong, but objectively unreasonable in light of clearly established federal law. According to the six judges in the majority, those twelve judges were so off-the-mark in their analyses of United States Supreme Court precedent that their shared legal conclusion--that Payton's constitutional rights were not violated by the "unadorned" factor (k) instruction—must be deemed objectively unreasonable. I respectfully dissent.
You can access the complete decision at this link.
Posted at 13:27 by Howard Bashman



The Associated Press is reporting: Anne Gearan has a report headlined "Court: Lawyer No Darrow, but Good Enough." Gina Holland reports that "Court Takes Police Identification Case." And in news from Virginia Beach, "Sniper Suspect Rambles As Arguments Begin."
Posted at 13:23 by Howard Bashman



Eminem ruling delivered partially in rap is now available online: I first reported on this story here on Saturday night, providing links to several news reports. Now, courtesy of The Smoking Gun Web site, you can access the actual opinion at this link.
Posted at 12:41 by Howard Bashman



Anne Gearan, David G. Savage, and the Congressional Black Caucus: Gearan, who together with Gina Holland comprehensively covers the U.S. Supreme Court for The Associated Press, and Savage, who covers that Court for The Los Angeles Times, preview the October 2003 Term, and the Congressional Black Caucus delivers its views on the nomination of California Supreme Court Justice Janice Rogers Brown to serve on the D.C. Circuit. See it all on this past Saturday's edition of C-SPAN's fine program, "America and the Courts" via this link (Real Player required).
Posted at 12:35 by Howard Bashman



"Congressional Black Caucus Announces Opposition to the Nomination of Janice Rogers Brown to the U.S. Court of Appeals for the D.C. Circuit": This press release issued this past Friday is now available online.
Posted at 12:24 by Howard Bashman



"Stop Pickering": The Arkansas Times, a weekly publication, offers this editorial in its October 17, 2003 issue. For an opposite view, see Nat Hentoff's op-ed entitled "Restoring a judge's reputation" published today in The Washington Times.
Posted at 11:44 by Howard Bashman



Sniper trial breaking news: CNN is reporting that John Allen Muhammad has been granted permission to serve as his own attorney. And the Sniper Trial Blog confirms this news. You can access the U.S. Supreme Court's decision in Faretta v. California, 422 U.S. 806 (1975), at this link. In Faretta, the Court recognized an accused's right of self-representation when "voluntarily and intelligently" invoked.

Update: The Associated Press reports here that "D.C. Sniper Suspect to Represent Himself."
Posted at 11:01 by Howard Bashman



"Supreme Court Passes Up Pardon Case": Gina Holland of The Associated Press provides this report.
Posted at 10:49 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access this morning's Order List at this link. The Court today granted review in two cases. In addition, the Court today summarily reversed the U.S. Court of Appeals for the Ninth Circuit -- for those keeping score, this is the first summary reversal of the Ninth Circuit in the October 2003 Term. You can access the U.S. Supreme Court's per curiam opinion at this link and the Ninth Circuit's ruling that was the subject of today's reversal at this link.
Posted at 10:00 by Howard Bashman



Giving thanks: The Pennsylvania-based publications of American Lawyer Media have today published a list of "Lawyers on the Fast Track" consisting of twenty-nine lawyers under the age of forty who practice law in Pennsylvania. I thank the independent panel of judges for including me on that list. Interestingly, the write-up that accompanies my photograph contains no mention of "How Appealing," suggesting that my non-blog-related endeavors caused me to receive this most kind recognition.
Posted at 09:50 by Howard Bashman



Opening statements are slated to begin this morning in the death penalty trial of DC-area sniper suspect John Allen Muhammad: The Virginian-Pilot reports here today that "Lucky few to witness sniper trial." And you can access that newspaper's frequently-updated Sniper Trial Blog at this link.
Posted at 09:39 by Howard Bashman



"Scalia's recusal: Justice Scalia's decision to recuse himself from the Pledge of Allegiance case leaves court looking for a fifth vote to overturn 9th Circuit's ruling." This editorial appears in today's edition of The Free Lance-Star of Fredericksburg, Virginia.
Posted at 07:01 by Howard Bashman



On the agenda: The Supreme Court of the United States is scheduled to issue orders at 10 a.m. today before embarking on its first two-week recess of the October 2003 Term.
Posted at 06:55 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Sniper Suspect's Trial Set to Begin"; here "Motions Set in Technology Espionage Case"; and here "Death Chamber Unusually Quiet in Texas."
Posted at 06:52 by Howard Bashman



In Monday's newspapers: The Washington Post reports here that "Sniper Case Jury To Get Previews From Both Sides; Opening Statements Called Critical Gambit." A front page article is headlined "Right to an Attorney Comes at a Price; Minnesota Law Requiring Fees for Public Defenders Is Challenged." An article reports that "'Runaway Jury' Aside, Consultants Are a Fact of Life in Courtrooms." In other news, "Daschle Joins Move to Shoot Down Some Liability of Gun Merchants." An editorial is entitled "Sniper as Terrorist." And letters to the editor appear under the heading "Preserving the Potomac's Flow."

The New York Times reports here on "The Banker, the Judge and a Divided Jury." A lengthy article is headlined "Replacement Near, Old Vote Machines Are New York Issue." In other news, "Day in Court for Suspect in Breaches of Security." And letters to the editor appear under the heading "Our Prisoners at Guantanamo."
Posted at 06:30 by Howard Bashman



Sunday, October 19, 2003
"Virginia's strategy in the sniper trial: Prosecutors argue that both the 'triggerman rule' and a new antiterrorism law apply." Warren Richey will have this article in Monday's edition of The Christian Science Monitor.
Posted at 23:35 by Howard Bashman



"Nation's busiest death chamber unusually quiet": The Associated Press provides this report from Huntsville, Texas.
Posted at 23:30 by Howard Bashman



"Alabama Attorney General Bill Pryor sees no conflict between moral and legal obligations": Alabama Attorney General, and Eleventh Circuit nominee, William H. Pryor, Jr. today has this op-ed in The Mobile Register. (Via "Southern Appeal.")
Posted at 22:50 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times contains an article headlined "A necessary evil? Pelican Bay State Prison houses 'the worst of the worst' in the starkest isolation imaginable. But these 'supermax' units are turning inmates into mental cases." An article reports that "Builders Swamp Wetlands; Developers are taking advantage of a 2001 Supreme Court ruling that removes 'isolated' waterways from any federal protection." In other news, "Illegal Immigrants Face New License Test; A seminar on how to apply turns into a rally opposing the petition drive to repeal the new law before it can take effect." In news from Colorado, "For Paper, It's a Slam Dunk: Bryant Story Isn't Fit to Print; The Aspen Daily News triggers an avalanche of controversy for refusing to further cover the case." An article reports that "Marines Charged in Death of Captive." And a letter to the editor appears under the heading "Workers Would Feel Pinch of Arbitration."

The Washington Times reports here that "'The Beach' peaceful for first days of sniper trial."

And The Boston Globe reports here that "Disease rates high in Mass. prisons; Rate of HIV infections is 7th-highest in US."
Posted at 22:00 by Howard Bashman



"Sex offender unit nears capacity": This article appears in today's issue of The Trenton Times.
Posted at 17:30 by Howard Bashman



"Meeting prayer is facing challenge": The Trenton Times today contains this report.
Posted at 17:28 by Howard Bashman



"Fate of Ten Commandments to be decided Oct. 28": So reports The Casper Star-Tribune today in an ominously headlined article. Relatedly, The Associated Press reports here that "Council to decide fate of Ten Commandments monument."
Posted at 17:27 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "Scalia Not Out of All Religion Cases." In other news, you can access here an article headlined "Sniper Jurors May Lean Toward Prosecution"; here "Massachusetts Locks Horns With Microsoft"; and here "Woman Sentenced for Intercepting E-Mail."
Posted at 17:20 by Howard Bashman



"How the Moussaoui Case Crumbled: A trial once described as a slam dunk is caught in a post-9/11 legal wrangle." This article will appear in the October 27, 2003 issue of Time magazine.
Posted at 14:25 by Howard Bashman



"Judge throws Scheck off Young case against city": The Providence Journal reported here Saturday that "A federal judge yesterday threw 'Dream Team' lawyer Barry C. Scheck off the civil case filed by the mother of Sgt. Cornel Young Jr. -- the black off-duty officer shot by two white officers in January 2000. U.S. District Judge Mary M. Lisi also vowed to pursue sanctions against Scheck for filing a document that she said contained 'false assertions' about her actions in the case. The ruling came eight days into the high-profile jury trial in U.S. District Court, leaving Young's mother, Leisa E. Young, without her lead lawyer. Scheck, who had been part of O.J. Simpson's legal 'Dream Team,' had made last week's opening statement and done most of the talking for the plaintiff."
Posted at 14:01 by Howard Bashman



View online the remarks of Justice John Paul Stevens that are the subject of Charles Lane's article in today's edition of The Washington Post: You can view the remarks at this link (Real Player required) from the September 20, 2003 episode of C-SPAN's "America and the Courts" program. Justice Stevens' remarks begin approximately 43 minutes into the program.
Posted at 12:40 by Howard Bashman



In Sunday's newspapers: In The Washington Post, Charles Lane reports that "Stevens Gives Rare Glimpse Of High Court's 'Conference'; Justice Details His Thoughts on Affirmative Action Case in Michigan." Paul Butler has an op-ed entitled "We Want the Trial As Much as the Verdict." And a letter to the editor appears under the heading "U-Va.'s New Activism on Affirmative Action."

In The New York Times, Linda Greenhouse has an article headlined "Compassionate Conservatives on the High Court." In other news, "30 Plague Vials Put Career on Line." And a letter to the editor appears under the heading "A Terror Case and Our Liberties."
Posted at 12:10 by Howard Bashman



"Enron's legal fees are priciest ever; Filing in New York one factor": The Houston Chronicle reports here today that "It's now official: Enron has spent more than half a billion dollars on bankruptcy lawyers and accountants so far, and the bills are still pouring in. The $515 million billed by more than 50 law firms, accountants and independent professionals is more than double the cost of any known bankruptcy case."
Posted at 11:59 by Howard Bashman



"Hittner doesn't fit mold of typical federal judge": This article appears in today's edition of The Houston Chronicle.
Posted at 11:55 by Howard Bashman



Saturday, October 18, 2003
"Rhymin' ruling: Eminem's opponent is dissed; judge says lawsuit dismissed." Today's edition of The Macomb Daily reports here that "A Macomb County circuit judge gave rapper Eminem a fitting birthday present Friday by dismissing a defamation lawsuit against him in true 'Eight Mile' rap style. In a footnote to a 13-page opinion, Judge Deborah Servitto and her research staff added a 10-stanza rap verse to explain her ruling in a case in which DeAngelo Bailey claims he was defamed in an Eminem song." The Associated Press reports here that "Judge Said to Pen a Rap in Eminem Ruling." And BBC News reports that "Eminem judge raps out dismissal."
Posted at 23:35 by Howard Bashman



"Justice Rehnquist plans UA law school lecture": The Associated Press reports here today that "University of Alabama law students expect to hear a lecture by U.S. Supreme Court Chief Justice William H. Rehnquist on Friday, but he's unlikely to comment on the Pledge of Allegiance case because it's pending before the court."
Posted at 23:15 by Howard Bashman



"Joint campaign to end appeals court delays": The Age provides this report from Australia.
Posted at 23:14 by Howard Bashman



"Commandments justice to visit Barrow County": Today's edition of The Athens Banner-Herald contains this report.
Posted at 23:11 by Howard Bashman



Pledge of Allegiance: The St. Louis Post-Dispatch today includes an article headlined "Pledge of Allegiance case to be heard by Supreme Court have critics suggesting judicial activism." And The Seattle Post-Intelligencer today contains an editorial entitled "Parsing the pledge's past."
Posted at 23:10 by Howard Bashman



"Federal judges call Oregon case moot; The court dismisses the matter involving the state budget cuts." The Associated Press provides this report on a ruling that the U.S. Court of Appeals for the Ninth Circuit issued Friday.
Posted at 23:08 by Howard Bashman



"Reiber sworn in as new Vt. justice": Today's edition of The Rutland Herald reports here that "Rutland lawyer Paul Reiber officially joined the Vermont Supreme Court on Friday."
Posted at 23:05 by Howard Bashman



McRae to respond to allegations by fellow justices: The Associated Press has this report from Mississippi.
Posted at 23:01 by Howard Bashman



"Native Hawaiians to rally for rights": This article appears in today's issue of The Sacramento Bee.
Posted at 22:59 by Howard Bashman



"Oh wise guy: Judge cites Stooges in ruling; Federal appeals decision allows protesters to be barred from courthouse." Today's edition of The Milwaukee Journal Sentinel contains this report on a recent, must-read ruling by the U.S. Court of Appeals for the Seventh Circuit involving pro-jury nullification protestors. Circuit Judge Richard A. Posner is the author of the majority opinion.
Posted at 22:44 by Howard Bashman



"Stevens says he has no plans to retire from Supreme Court": The Associated Press today has this report from San Diego.
Posted at 22:41 by Howard Bashman



Elsewhere in Saturday's newspapers: The Los Angeles Times reports here that "Appeals Court Nominee in for a Fight; Civil rights groups deplore choice of conservative justice for federal bench." In other news, "Petitioners Now Target License Law; A Republican-led drive aimed at reversing approval of driver's permits for illegal immigrants is gaining momentum." An article reports that "Bryant Defense Weighs Request." In business news, "Recording Industry Warns File Sharers; RIAA tells 204 people they will be sued unless they settle allegations of copyright infringement." And letters to the editor appear under the headings "The Flap Over 'Under God'" and "More Light on UC Admissions Process."

The Washington Times reports here that "Sniper trial's jurors chosen." And an editorial is entitled "Marriage Protection Week."

Finally for now, The Boston Globe contains an op-ed by Juliette N. Kayyem entitled "Hard lessons from Guantanamo Bay."
Posted at 22:20 by Howard Bashman



DC-area sniper trial update: Today's edition of The Virginian-Pilot reports here that "Jury selected for Muhammad trial." The Richmond Times-Dispatch reports here that "15 to decide Muhammad's fate" and offers here "A glimpse of the 15 jurors." The Daily Press of Hampton Roads, Virginia reports that "Family attends trial to honor sniper victim." The Baltimore Sun reports here that "Sniper trial jury is chosen; 10 women, 5 men to hear case against Muhammad; Selection in Va. took four days; Panel includes veterans, nurses, foster parents" and here that "Victim's kin share memories at court; Family sees trial publicity as tribute to their brother."

Sunday's edition of The Washington Post will contain an article headlined "Trial Puts Crucial Focus on Pr. William Slaying; Sniper Case to Test Virginia's Death Penalty, Anti-Terrorism Measures." And Sunday's edition of The New York Times will report here that "Sniper Trial Defense Is Said Likely to Focus on Penalty."
Posted at 22:10 by Howard Bashman



"Web Poster Who Republishes Defamation May Be Liable": Friday's edition of The Metropolitan News-Enterprise contained this report on a ruling that the California Court of Appeal for the First Appellate District issued this past Wednesday. The Electronic Frontier Foundation had previously issued a press release entitled "Court Rules That Internet Re-Posting Is Protected Speech" about the trial court's ruling in this case.
Posted at 19:09 by Howard Bashman



"Pryor vote likely soon in Senate": The Montgomery Advertiser reports here today that "Republicans have a strategy to try to win approval of controversial judicial candidates like Alabama Attorney General Bill Pryor and hope to put it into play next week." Thanks to "Southern Appeal" for the pointer.
Posted at 18:55 by Howard Bashman



"Courthouse opens doors to unsuspecting public; All invited to mark 100th anniversary of historic building": Today is the 100th anniversary of the federal courthouse in Indianapolis, Indiana, The Indianapolis Star reports here. Among other interesting things, the article reports:
A mural in one courtroom shows what some have suggested is a depiction of the Ten Commandments. Such a depiction would likely violate the court's long-held stance on the separation of church and state. However, no one is sure if the art actually depicts the commandments because the artist has died, Secrest said. "There is no way to know what he meant," he said.
Thanks to "The Indiana Law Blog" for the pointer. By the way, you can learn more about the history of the courthouse here and more about the centennial celebration here.
Posted at 18:47 by Howard Bashman



"Law officers get free-speech guidelines; Lockyer's rules vary widely from FBI's": This article appears in today's edition of The San Francisco Chronicle.
Posted at 18:37 by Howard Bashman



More bad news for the accused DC-area sniper suspects: The Montgomery Advertiser reports here that a $50 million judgment has just been entered against them in Alabama.
Posted at 15:35 by Howard Bashman



It's official: News of the following nomination appears today on the White House Web site: "James B. Comey, of New York, to be Deputy Attorney General, vice Larry D. Thompson, resigned."
Posted at 15:31 by Howard Bashman



Perhaps Neil A. Lewis is right and the Federal Judicial Center is wrong? True, the official Federal Judicial Center biography for D.C. Circuit Judge Judith W. Rogers says that she is African-American. But someone who sees Judge Rogers from time to time emails to say that she's not African-American. And this photograph of her may confirm what my correspondent has written. If Judge Rogers's official Federal Judicial Center biography is incorrect, then Neil A. Lewis would be correct in stating, in his article published in today's edition of The New York Times, that D.C. Circuit nominee Janice Rogers Brown, if confirmed, "would be the first black woman to sit on the United States Court of Appeals for the District of Columbia ...."

Update: A reader who recently clerked for a Justice serving on the Supreme Court of the United States emails: "If you can solve the mystery of Judge Rogers's race, I know many people who would be grateful. I interviewed with her for a clerkship and am still left wondering; it's been a source of great speculation for years. Pretty much a Seinfeld-episode sprung to life." Well, consider the mystery solved. This page on the Harvard Law School Web site (scroll about three-quarters of the way down the page) states that "Rogers became only the second African-American woman to serve on a U.S. Court of Appeals." And another reader who knows quite a bit about the D.C. Circuit emails to say that Neil A. Lewis is wrong and the Federal Judicial Center is correct.
Posted at 14:38 by Howard Bashman



"Black Caucus assails Bush court pick; Critics say the Sacramento jurist is ruled by 'notoriously conservative' views." Today's edition of The Sacramento Bee contains this report. The Washington Times reports here that "Black Caucus rips Bush nominee." Howard Mintz of The San Jose Mercury News reports here that "U.S. Senate showdown looms over state judge's nomination." And The Oakland Tribune today publishes an article headlined "Lee attacks Bush's judicial nomination; African-American justice has ruled against affirmative action, Oakland representative says."
Posted at 09:50 by Howard Bashman



In Saturday's newspapers: In The New York Times, Neil A. Lewis reports that "Battle Lines Already Forming Against a Bush Court Selection." According to the article, "The nomination of Justice Brown, 54, a member of the California Supreme Court, may turn into the most heated judicial confirmation battle yet for the Bush administration." But the very next sentence of the article contains an error. It says, "She would be the first black woman to sit on the United States Court of Appeals for the District of Columbia, often called second in importance to the Supreme Court." D.C. Circuit Judge Judith W. Rogers, a currently-serving Clinton nominee, is both female and African-American, according to her official Federal Judicial Center biography. Lewis also errs when he writes that "Justice Brown is the only Bush appeals court nominees [sic] to date who has not received a strong endorsement from the American Bar Association." The "not qualified" rating from a minority of evaluators that D.C. Circuit nominee Janice Rogers Brown received from the American Bar Association is identical to the ratings that several other federal appellate court nominees have received, including at least three whom the U.S. Senate has confirmed by substantial margins. (A chart from the ABA detailing recent federal appellate court nominee ratings is accessible here, in PDF format.)

In other news, Adam Liptak reports that "U.S. Joins Request to Delay a Capital Case." An article reports that "Sniper Jury Is Empaneled; Arguments Start on Monday." From Pennsylvania comes an article headlined "Foes of Idle Hands, Amish Contest a Child Labor Law." An article reports that "Court Papers Show Charges That Group Aided Terrorists." In business news, "Record Industry Warns 204 Before Suing on Swapping." In other business news, "Microsoft Responds to European Regulators in Antitrust Case." And a report from Madrid is headlined "Aiming at Judicial Targets All Over the World."

In The Washington Post, a front page article reports that "Jury Picked To Decide Sniper Case; Opening Statements Expected on Monday." A related article reports that "Capital Case Jurors Find Own Beliefs on Trial; As Ultimate Judgment Looms, Panel Members Confront Personal Doubts, Lawyers' Queries." In other news, "Maryland High Court Denies Appeal of Death Sentence." In business news likely to be of interest to judges serving on the U.S. Court of Appeals for the Tenth Circuit, "Sorry, Wrong Number on the Registry." In local news, "Irate Senator Gets His Money Back; Bank, Blasted as 'Stupid,' Replaces $4,000 Stolen From Wife." An article reports that "Terror Probe Points to Va. Muslims; Local Network Provided Millions in Financing, Agency Charges." In other local news, "Suing TV's 'Wheel' for a Fortune; Lorton Contestant Took Home Money and a Bad Back." And an article reports that "Three Americans Jailed in Bizarre Mexican Land Dispute; Caretakers of Man, 91, Held in Standoff Involving a Member of President Fox's Cabinet."
Posted at 09:30 by Howard Bashman



Friday, October 17, 2003
"Judging Priscilla: Priscilla Owen's opponents attack her conservative views, but the more troubling issue is whether she disregards precedent." This article will appear in the November 2003 issue of the Texas Monthly magazine.
Posted at 23:44 by Howard Bashman



Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "Challenge to Abuse Law Questioned; Alleged victims of priest ask Stockton diocese to drop its legal bid to have the statute of limitations waiver declared unconstitutional." In other news, "New Name May Stand as Ballot Label." An article reports that "'Terminator' Mural Faces Termination; The city says the Cahuenga Pass ad for DVD and video release of a movie starring the governor-elect violates billboard law." You can access here an article headlined "L.A. Attorneys Divided on Ashcroft Directive; Some defense lawyers fear that placing restrictions on prosecutors who are seeking plea bargains will strain the system." From Colorado comes a news analysis headlined "Evidence Is the Great Unknown." An article reports that "Korean American Flight Attendants File Bias Suit." And Law Professor Jonathan Turley has an op-ed entitled "Students, Nuns and Sailor-Mongers, Beware: Atty. Gen. Ashcroft is pulling out all the stops to prosecute protesters."

Finally for now, The Boston Globe reports here that "Lawyers for poor feel slap from US."
Posted at 23:35 by Howard Bashman



Available online at law.com: Tony Mauro has an article headlined "Scalia Recusal Revives Debate Over Judicial Speech, Ethics." But perhaps the biggest news in Tony's article appears as its second item: "Following the successful unveiling of Bobble Chief earlier this year, the irreverent law review Green Bag last week took delivery of the next doll in the series: Justice John Paul Stevens. By the end of last week, says editor Ross Davies, the first Stevens doll was to be placed on Stevens' desk at the Supreme Court -- via a courier Davies won't name.... As before, the roughly 1,200 Stevens dolls manufactured are not for sale. But one each will be sent to those who were subscribers to the law review as of Oct. 17. After a similar cutoff deprived many fans of their own Rehnquist doll, Davies detected an uptick in subscriptions to the journal -- presumably from those who did not want to miss the subsequent justice dolls. Next in seniority is Justice Sandra Day O'Connor, and her doll should be ready by next summer, Davies says." I recently began my subscription to the Green Bag, and I can attest that the publication is well worth the price even in the absence of any Justice bobbleheads. I am pleased to learn, however, that I will be able to obtain a Justice Stevens bobblehead doll much more readily than I was able to obtain the Chief Justice Rehnquist bobblehead.

In other news, Shannon P. Duffy reports that "Radio Stations Must Pay Royalties for Webcasting." A report from Texas is headlined "Top-Secret Petitions for Review: High court says votes on whether it will hear a case should stay under wraps." And The Recorder's bar-ometer notes, "Atheists, your prayers have been answered: Antonin Scalia will sit out Michael Newdow’s challenge to 'under God' in the Pledge of Allegiance."
Posted at 22:32 by Howard Bashman



"Flagellum Dei": Antonin Scalia and William Safire, "On Language," from this upcoming Sunday's issue of The New York Times Magazine.
Posted at 20:01 by Howard Bashman



The federal government struck these jurors from serving on the criminal trial of Jerry DeJesus because the jurors believed too fervently in Jesus: You can access here the third and final especially interesting Third Circuit opinion issued today, this one by a divided three-judge panel addressing whether the federal government violated the rights of two prospective jurors by striking them because of their religious beliefs.
Posted at 19:33 by Howard Bashman



It certainly looks like it might be a museum: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit issued an opinion that begins:
Defendant Russ Pritchard, Jr. was convicted of theft from a museum for his involvement in the misappropriation of a Civil War officer’s uniform in violation of 18 U.S.C. sec, 668 (1994). At issue is whether the Hunt-Phelan Home Foundation, from whose care the uniform was taken, was a "museum" for purposes of the statute.

I.

The Hunt-Phelan Home enjoys a colorful history of regional and national significance. Located on historic Beale Street in Memphis, Tennessee, the Hunt-Phelan Home was built between 1828 and 1832 by Ellis Moore Driver. The five-bedroom, 8,500 square foot antebellum mansion was designed in the federal style by Robert Mills, an architect well-known for his design of the Washington Monument, the U.S. Treasury Building, and parts of the White House. The Hunt-Phelan Home and its surrounding grounds contained many novel features for the time, including a gas plant for interior illumination, a hot air furnace, and the first swimming pool in Memphis. Bricks for its five-brick thick walls were pressed and dried in the front yard.
You can view pictures of the Hunt-Phelan Home here and here. And an Associated Press article from January 2002 headlined "Trial begins in alleged theft of Civil War officer's uniform" is accessible here.
Posted at 19:26 by Howard Bashman



Third Circuit delivers bad news for radio stations that wish to broadcast music over the Internet: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Third Circuit affirmed the federal district court's ruling in Bonneville International Corp. v. Peters. You can access the Third Circuit's ruling at this link. Back in August 2001, when reporting on the district court's ruling, c|net News.Com had an article headlined "Court rules that radio must pay online fees."
Posted at 19:14 by Howard Bashman



"Judge in language flap stepping away from case": The Omaha World-Herald has this report today.
Posted at 17:30 by Howard Bashman



"Black Caucus Denounces Judicial Nominee": Jesse J. Holland of The Associated Press reports here that "The Congressional Black Caucus denounced White House judicial nominee Janice Rogers Brown of California on Friday, with one member saying she was 'cut from the same cloth as Clarence Thomas' and should be kept off a federal appellate court."
Posted at 16:58 by Howard Bashman



Final statistics on the jury for the death penalty trial of DC-area sniper suspect John Allen Muhammad: According to The Virginian-Pilot's sniper trial blog, "the final panel of jurors and alternates is composed of 10 women and five men, 13 whites and two African-Americans." And The Associated Press reports here that "Jury of 12 Seated in Sniper Trial."
Posted at 16:47 by Howard Bashman



"Renowned Stanford dean of law school to leave in '04": The San Jose Mercury News provides this report. And The Stanford Daily reports here that "Law school dean to step down."
Posted at 16:41 by Howard Bashman



Let me apologize in advance for this: In news from France, "Judge jailed for penile offence." And Ananova provides this report.
Posted at 16:33 by Howard Bashman



Developments surrounding D.C. Circuit nominee Janice Rogers Brown: National Journal, in a subscriber-only portion of its Web site, stated that the Congressional Black Caucus was going to hold a news conference this morning to announce its opposition to the nomination of California Supreme Court Justice Janice Rogers Brown to serve on the D.C. Circuit. Meanwhile, U.S. Senator John Cornyn (R-TX) responds in a press release issued today to "recent partisan and groundless attacks" against Justice Brown. As I reported here last night, Justice Brown's Senate Judiciary Committee confirmation hearing is scheduled to occur on Wednesday, October 22, 2003.
Posted at 16:08 by Howard Bashman



"Free speech? Not according to this judge." Columnist Cindy Rodriguez has this essay in today's edition of The Denver Post.
Posted at 15:32 by Howard Bashman



"Illinois Supreme Court Scolds Prosecutors": The Associated Press has this report. Update: You can access today's ruling by the Supreme Court of Illinois at this link.
Posted at 15:01 by Howard Bashman



Jury selection has concluded in the death penalty trial of DC-area sniper suspect John Allen Muhammad: The Associated Press provides this report. You can access The Virginian-Pilot's sniper trial blog at this link.
Posted at 14:26 by Howard Bashman



"Ginsburg: From Cornell to Court." The Cornell Daily Sun today offers this report on a talk Justice Ruth Bader Ginsburg delivered at Cornell yesterday. The Ithaca Journal also covered the event, reporting here that "Before [Jeffrey Lehman's] address, U.S. Supreme Court Justice Ruth Bader Ginsburg, the inaugural guest speaker, lauded Lehman for his 'vigorous' defense of the University of Michigan law school's controversial affirmative action policy last year. Lehman served as the law school's dean from 1994 to 2003."
Posted at 14:19 by Howard Bashman



Today's federal judicial confirmation news and commentary: The Senate Judiciary Committee, at yesterday's executive business meeting, held over the nominations Henry W. Saad to join the Sixth Circuit and Dora L. Irizarry to join the U.S. District Court for the Eastern District of New York.

In commentary, yesterday's edition of The Hattiesburg American contained an editorial entitled "Does truth matter to senators?" Judiciary Committee Chairman Senator Orrin G. Hatch (R-UT) has an op-ed today entitled "Judicial nominee's critics mislead -- it's time to vote" that the Knight Ridder News Service is distributing. U.S. Senator Trent Lott (R-MS) today has an op-ed entitled "Voters should disregard smear campaign" in today's edition of The Times-Post. The Winchester Star today has an editorial entitled "The List Widens: More Judicial Filibusters Imminent." And Columnist Jay Ambrose of the Scripps Howard News Service has an essay entitled "Remember Estrada."
Posted at 14:10 by Howard Bashman



"Scalia to speak Oct. 24 at LSU": The Advocate of Baton Rouge, Louisiana reports here today that "U.S. Supreme Court Justice Antonin Scalia will give a speech at LSU next week, possibly his first since recusing himself from the high-profile Pledge of Allegiance case. Scalia will decide if his remarks are open to the public or the news media, said John Costonis, chancellor of the LSU Law Center, which is sponsoring Scalia's visit as part of a multifaceted celebration Oct. 24."
Posted at 13:00 by Howard Bashman



Available online from The Washington Post: "How Appealing" reader Charles Lane, who covers the U.S. Supreme Court for the Post, participated in an online chat with readers about the Court's new Term this morning. You can access the transcript at this link. And in this upcoming Sunday's edition of The Post, you will find an essay by Chris Mooney entitled "What Atheists Want."
Posted at 12:55 by Howard Bashman



Math is hard: Thanks to several readers who emailed to point out the following passage from the article headlined "The Man in the Middle: Justice Kennedy's Opinion in the Gay Rights Case Underlines His Growing Influence" published in the current issue of the ABA Journal:
[Rutgers-Camden law professor Earl] Maltz breaks it down to simple math: "To get a five-vote liberal majority you need both Kennedy and O'Connor; to get a five-vote conservative [bloc] all you need is either one."
As one reader explains:
Either Professor Maltz believes that one of the "fab four" (Justices Stevens, Souter, Ginsburg, and Breyer) is a member of the conservative voting bloc on the court (which empiricallylly wrong), or he needs to check his math.
Or, in the words of a recent clerk to one of the "fab four":
Isn't it the opposite? Stevens, Souter, Breyer, Ginsburg + 1; the Chief, Scalia, Thomas + 2. As my first year constitutional law professor used to say, everything you need to know about constitutional law is how to count to five.
Barbie was right, math is hard.
Posted at 11:58 by Howard Bashman



"Faculty files suit vs. JAG": Today's issue of The Yale Daily News contains this report. Yesterday that newspaper published an editorial entitled "Law School leads on discrimination dispute." And a recent op-ed entitled "Anti-JAG policy quashes law students' free speech rights" has resulted in this letter to the editor published today.
Posted at 11:50 by Howard Bashman



"The Man in the Middle: Justice Kennedy's Opinion in the Gay Rights Case Underlines His Growing Influence." This article appears in the current issue of the ABA Journal.
Posted at 09:51 by Howard Bashman



"Supreme Court dashes Red Sox pennant hopes." The Weekly Standard offers this, um, parody.
Posted at 09:42 by Howard Bashman



"Workers Worry Over New Okla. Fed Building": The Associated Press provides this report.
Posted at 09:31 by Howard Bashman



"Judge explains pledge appeal to teachers": Today's edition of The Billings Gazette reports here that "Circuit Court Judge Sidney Thomas gave a standing-room-only group of teachers a lesson on the Pledge of Allegiance Thursday morning."
Posted at 06:55 by Howard Bashman



"Moore insults Judiciary court": This editorial appears in today's edition of The Montgomery Advertiser.
Posted at 06:52 by Howard Bashman



"Ridgway deal could change criteria for death penalty": Today's issue of The Seattle Times contains this report.
Posted at 06:50 by Howard Bashman



In Friday's newspapers: In The Washington Post, Charles Lane and David Von Drehle have an article headlined "Is Scalia Too Blunt To Be Effective? Justice Out of Case About Which He Cares." A front page article reports that "Malvo Ordered to Appear At Muhammad's Trial." In related news, "Judge in Malvo Case Bars Video Testimony." And in other related news, "A Personal Stake in Bearing Witness; Sniper Victim's Relatives Arrive to Watch and Testify." From Seattle comes news that "Duo Pleads Guilty to Conspiracy Against U.S.; Last of the 'Portland 7' Face 18 Years in Prison." And an article reports that "Judge Orders Neb. Father To Not Speak 'Hispanic.'"

The New York Times reports here that "In Races With One Deep Pocket, the Law Tries to Tailor a Second."

And online at OpinionJournal, Daniel Henninger has an essay entitled "The Nonreligious Left: Why do they fear the religious right?"
Posted at 06:30 by Howard Bashman



Thursday, October 16, 2003
Elsewhere in Thursday's newspapers: The Washington Times reports here that "Senators join forces to roll back parts of Patriot Act." In news from Virginia, "Selection of jury takes another day." A related article reports that "Connecting with jury critical in sniper trial." And Frank J. Murray reports that "Challenges must be for 'cause.'"

USA Today reports here that "Supreme Court case looks at how search warrants are served." And in news from Colorado, "Bryant defense goes on offensive."

In The Chicago Tribune, Jan Crawford Greenburg reports that "Court to decide if cops were too hasty; Suspect in shower didn't hear knock."

The Los Angeles Times reports here that "U.S. Admits Convicted Man Is No Hacker." In other news, "Partial Hand-Count of Ballots Reveals Few Irregularities." In news from Colorado, "Bryant's Lawyers Attack Evidence, Accuser's Story; The woman's account varied, including whether she said 'no,' the investigator testifies." And an article reports that "Comatose Florida Woman's Feeding Tube Is Removed."

Finally for now, The Boston Globe reports here that "Man in melee in bullpen hires lawyer, weighs suit."
Posted at 23:30 by Howard Bashman



Local coverage of the DC-area sniper death penalty trial of John Allen Muhammad from today's newspapers: The Virginian-Pilot reports here that "Panel hits halfway mark with jurors" and here that "Special diet is all that sets Muhammad apart." The Richmond Times-Dispatch has an article headlined "Jury selection: Sniper jury is nearly half full." And The Daily Press contains an article headlined "Doing Them Justice: Va. Beach artist sketches closed trials."
Posted at 23:20 by Howard Bashman



House Judiciary Committee to hold a hearing next week on proposal to divide the Ninth Circuit: This hearing is scheduled to occur on Tuesday, October 21, 2003 at 2 p.m. before the Subcommittee on Courts. You can access a press release concerning the hearing at this link. The press release identifies the witnesses scheduled to testify, and included among the witnesses are three Ninth Circuit Judges: Chief Judge Mary M. Schroeder and Circuit Judges Alex Kozinski and Diarmuid F. O'Scannlain. Also scheduled to testify is Law Professor Arthur D. Hellman, a leading expert on the Ninth Circuit.

You can access the proposed legislation at this link, and a section-by-section analysis of the bill is accessible here.

Chief Judge Schroeder is opposed to a split; Judge O'Scannlain strongly supports it (for reasons he discussed in detail in his "20 questions" interview with me). Judge Kozinski, I presume, sides with Chief Judge Schroeder in opposing a split, and it will be interesting to hear him explain why. My views in support of a split are explained here.
Posted at 23:12 by Howard Bashman



Senate Judiciary Committee schedules confirmation hearing for D.C. Circuit nominee Janice Rogers Brown: The hearing is scheduled to get underway at 10 a.m. on Wednesday, October 22, 2003. I have been looking forward to this for quite some time.

Brown currently serves as a justice on the Supreme Court of California. You can access coverage of Brown's nomination here from Charles Lane of The Washington Post and here from Mike McKee and Jeff Chorney of The Recorder. My original take on the nomination is accessible at this link.
Posted at 22:42 by Howard Bashman



"Truly digital communication": Fritz Schranck has a must-see post on the recent Texas appellate court ruling (majority opinion here; dissent here) about giving someone the finger.
Posted at 22:29 by Howard Bashman



"Senate committee again delays action on Saad": The Associated Press tonight provides this report.
Posted at 22:24 by Howard Bashman



"High court defends new judges' code": The Raleigh News and Observer reports here today: "Responding to a protest from trial judges over recent changes in judicial conduct rules, the state Supreme Court has sent every judge in the state a memorandum saying: We make the rules, and they're good ones. "
Posted at 22:12 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Jury Selection Slows in Sniper Trial"; here "Prosecutor Apologizes for 'Cave' Remark"; and here "Judge Nixes Video Conferencing for Trial."
Posted at 18:50 by Howard Bashman



"Wash. Court Asked to Reverse Gay Ruling": The Associated Press provides this report.
Posted at 17:39 by Howard Bashman



Attention spouses who wish to wiretap each other -- the Eleventh Circuit is no longer the place to be: Today the en banc U.S. Court of Appeals for the Eleventh Circuit ruled 7-4 that there is no implied exception for interspousal wiretapping within the marital home to a federal law that generally criminalizes wiretapping. The concurring opinion by Circuit Judge Ed Carnes contains a hypothetical dialogue between spouses that should not be missed. You can access the complete ruling at this link. Clarification: The ruling that no such exception exists was essentially unanimous; the dissenters disagreed over whether that ruling should be applied retroactively or not in civil cases seeking damages for violation of the statute.
Posted at 17:32 by Howard Bashman



November's "20 questions for the appellate judge" are now in the hands of the interviewee: It was quite difficult to ask only twenty questions of Senior Eighth Circuit Judge Richard S. Arnold, but I hope when the interview is published here in early November that you will agree that the questions that made the cut turned out to be quite interesting.

Meanwhile, I need to find a federal or state appellate judge willing to volunteer to serve as December's interviewee, or the "20 questions" feature will come to an end in January 2004 with my interview of Tenth Circuit Chief Judge Deanell Reece Tacha. The appellate judge willing to serve as the December 2003 interviewee will receive his or her questions from me no later than Friday, November 7, 2003. To volunteer to be the December 2003 appellate judge interviewee, simply send me an email (a process you can initiate by clicking here).
Posted at 17:25 by Howard Bashman



Res judicata and the amount in controversy for federal court diversity subject matter jurisdiction: A divided three-judge panel of the U.S. Court of Appeals for the Second Circuit today issued a very interesting decision involving these topics. You can access the majority opinion here and the dissenting opinion here.
Posted at 17:19 by Howard Bashman



"Stanford Law School Dean Kathleen M. Sullivan announced today that she will conclude her tenure as dean as of September 1, 2004." The law school issued this press release today.
Posted at 16:39 by Howard Bashman



"Judges deny Moore's request for bias hearing": The Birmingham News reports here today that "The panel of judges that will hear ethics charges against suspended Alabama Chief Justice Roy Moore refused Wednesday to answer Moore's questions about possible bias against him."
Posted at 15:09 by Howard Bashman



"Award cut in suit over tree stands; A judge cites a Supreme Court ruling in the $7.8 million change." Today's edition of The Sacramento Bee contains this report.
Posted at 13:21 by Howard Bashman



"Bay Area family wins Chilean 'atrocity' suit; First U.S. civil jury verdict for crimes against humanity": This article appears in today's edition of The Oakland Tribune.
Posted at 13:03 by Howard Bashman



"State high court declines fax case": Today's edition of The Sacramento Bee reports here that "The California Supreme Court said Wednesday it will not hear an appeal of a Court of Appeal decision that lets individuals sue junk fax advertisers directly -- at a rate of $500 per unwanted fax -- without waiting for a state or local prosecutor to go to court on their behalf."
Posted at 12:49 by Howard Bashman



"Scalia benched by remarks": The Free Lance-Star of Fredericksburg, Virginia reports here today that "Comments he made at a religious freedom ceremony in Fredericksburg apparently led Supreme Court Justice Antonin Scalia to recuse himself from deciding a major church-state case."
Posted at 12:40 by Howard Bashman



"High court nominee list missing expected candidate": The Associated Press has this report from Albany, New York.
Posted at 12:36 by Howard Bashman



Washington Post editorial cartoonist Tom Toles previews the Pledge of Allegiance case: Here, from today's newspaper. It's kinda funny.
Posted at 10:17 by Howard Bashman



"Panel rejects Pataki's choice; Governor's former counsel surprisingly absent from list of candidates for high court": This article appears in today's issue of The Times Union. And The Buffalo News reports here today that "Pigott is called a top choice for state high court."
Posted at 10:12 by Howard Bashman



"Oyster damages upheld; $1.3 billion is not excessive, court says": Today's edition of The Times-Picayune reports here that "Almost three years after a Plaquemines Parish jury awarded about $1.3 billion to oyster farmers who say their business was destroyed by the Caernarvon Freshwater Diversion Project, a deeply divided state appeals court has concluded that the verdict is not disproportional to the damage suffered by the victims."
Posted at 10:05 by Howard Bashman



"Supreme Honor: Top-notch teacher radiates enthusiasm." The Times-Picayune today contains an article that begins, "Jamie Staub follows the U.S. Supreme Court like sports fans watch their favorite teams. When major rulings are expected, she's glued to the news."
Posted at 10:04 by Howard Bashman



Available online at Reason: Nick Gillespie has an essay entitled "Sexual Politics 2003: Clarence Thomas, your legacy's calling." And Cathy Young has an essay entitled "Bipartistan Coulterism: Who's meaner, conservatives or liberals?"
Posted at 10:01 by Howard Bashman



Day three of the death penalty trial for DC-area sniper suspect John Allen Muhammad: According to The Virginian-Pilot's wonderful sniper trial blog, "There are 13 jurors on the panel.... The court's goal is to get 27 approved jurors. Each side will be required to strike six from the panel of 27, leaving a jury of 12 plus three alternates to hear the evidence."
Posted at 09:54 by Howard Bashman



On the agenda: At 10 a.m. today the Senate Judiciary Committee is scheduled to hold an executive business meeting. Among the judicial nominees on the agenda to receive votes from the committee are Sixth Circuit nominee Henry W. Saad and U.S. District Court for the Eastern District of New York nominee Dora L. Irizarry. It is not yet known whether the audio and/or video from today's meeting will be accessible online.
Posted at 09:34 by Howard Bashman



In Thursday's newspapers: In The New York Times, Linda Greenhouse reports that "Justices Consider Timing of Police Entries." An article reports that "Jury Screening Is Under Way in Sniper Case." In other news, "Senior Federal Prosecutors and F.B.I. Officials Fault Ashcroft Over Leak Inquiry." From Houston comes news that "Texas Court Gives Sanction to a Gesture." In news from Colorado, "Bryant Defense Attacks Accuser's Story." An article reports that "Feeding Tube Is Removed in Florida Right-to-Die Case." In other news, "Translator at Prison Carried Secrets, F.B.I. Agent Testifies." In local news, "On the Bench or in the Dock, That's Politics." An editorial is entitled "The American Prison Camp." And letters to the editor appear under the heading "The Pledge: Recite, or Rewrite?"

The Washington Post reports here that "Justice Wows 'Em In Visit to St. John's; She Explores Court's Power." In other news, "Sniper Trial Lawyers Plan To Begin Cases Monday; Potential Jurors Are Questioned Individually." A related article is headlined "Defense Keeping An Eye on Future; Motions Could Aid Appeal, Experts Say." An article reports that "Preliminaries End In Bryant Case; Judge Will Decide on Trial Monday." In other news, "After Years of Battles, Comatose Woman's Feeding Tube Removed; Parents Protest 'Right-to-Die' Case in Florida." An article reports that "Secrets Found on Computer, FBI Says; U.S. Outlines Case Against Syria Native." An editorial is entitled "One Nation Under Justices." And columnist Art Buchwald writes of "Shrinking Prospects on Death Row."

Finally for now, at OpinionJournal, David Frum has an essay entitled "The Marriage Buffet: When it comes to commitment, a lot of options is not a good thing."
Posted at 06:30 by Howard Bashman



"Delay requested in Chong term": The Pittsburgh Post-Gazette reports here today that "Actor and comedian Tommy Chong, who considers his stint in federal prison akin to 'going on location,' still would rather be someplace else."
Posted at 06:28 by Howard Bashman



"Fisher grilled by senators, but is likely to win judgeship": The Associated Press provides this report on yesterday's Senate Judiciary Committee confirmation hearing.
Posted at 06:22 by Howard Bashman



Wednesday, October 15, 2003
NPR's Bob Edwards finds the concept of "ceremonial Deism" funny: Certainly he's not alone. You can hear Nina Totenberg's report on the U.S. Supreme Court's grant of review in the Pledge of Allegiance case at this link.
Posted at 23:00 by Howard Bashman



Elsewhere in Wednesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "High Court to Decide School's Pledge Case; Conservative Justice Antonin Scalia has withdrawn from the issue, but the remaining jurists will ponder the meaning of 'under God'"; here "Justices Give Doctors Right to Discuss Pot; The high court's action means physicians in nine Western states may recommend marijuana, but U.S. officials insist they'll prosecute users"; here "Justices Rethink Pornography; For the first time, the Supreme Court considers letting the U.S. enforce a 1998 law to shield minors from explicit sex on the Web"; and here "Justices to Inspect Gas Tank Searches; In a California case, the high court will decide whether agents can take apart vehicles to look for drugs. The U.S. calls it a matter of security." In other news, "Jury Selection Begins in First Sniper Trial; John Allen Muhammad pleads not guilty to two counts of capital murder and other charges." An article reports that "Journalists Ordered to Give Sources to Scientist; Judge's decision is part of the nuclear expert's suit over leaks and could play into CIA furor." A news analysis from Colorado reports that "Surprises Are Likely to Continue: The Bryant case hearing resumes amid accusations from prosecutors that the defense misrepresented evidence." In news from Sacramento, "Governor to Make More Appointments; Since the recall vote, Davis has named more than 20 to state jobs, in spite of GOP criticism." In local news, "Boy, 12, Awarded $34 Million." An editorial is entitled "Unfettered Medical Advice." And an op-ed by Law Professor Erwin Chemerinsky is entitled "Court Must Buck Political Pressure in Pledge Case; It would be wrong to uphold the 'under God' clause. It clearly is unconstitutional."

In The Boston Globe, Lyle Denniston reports here that "High court to decide Pledge case" and here that "Court rejects DEA press to censor doctors." And in other news, "No decision yet on filing charges in bullpen fight."

In The Washington Times, Frank J. Murray reports here that "Court to rule on Pledge's 'under God.'" And in news from Virginia Beach, "Muhammad stoic at trial" and "Defense focuses on trying to avoid the death penalty."

USA Today reports here that "Supreme Court to consider Pledge; Constitutionality of 'under God' argued" and here that "High court refuses marijuana case, accepts porn case." In other news, "Fla. court OKs letting woman die; Parents appear to have lost battle to keep husband from removing feeding tube in case watched by euthanasia opponents and advocates of the disabled." And you can access here an article headlined "Bryant's lawyer uses preparation to gain an edge."
Posted at 22:20 by Howard Bashman



Available online at law.com: Tony Mauro previews possible upcoming cert. grants in an article headlined "The Power of the Pardon." Robert J. Ambrogi provides "A Guide to Online Supreme Court Resources." Shannon P. Duffy reports here that "Becker Calls on Congress, Justices to Fix ERISA." You can access today's Third Circuit decision at this link. In other news, "2nd Circuit Orders Hearing on Use of Race in Juror Challenges" and "2nd Circuit: No-Fault Fraud Counts Stand Under U.S. Law." And in news from Atlanta, "Trash Talk Culminates in Judge's Recusal."
Posted at 22:12 by Howard Bashman



"Court victory for medical pot law; Justices let state's doctors discuss patients' options": Bob Egelko of The San Francisco Chronicle today provides this report. And The Oregonian reports here that "High court rebuffs medical pot case."
Posted at 22:10 by Howard Bashman



"High Court Considers Murky Area of Criminal Search Law": Linda Greenhouse of The New York Times provides this news update. And CNN.com reports here that "High Court weighs 'knock and announce' rules used in police searches."
Posted at 20:05 by Howard Bashman



The Associated Press is reporting: Gina Holland reports here that "High Court's Colorful Justice Sidelined" and here that "Top Court to Consider Police Search Case." In other news, you can access here an article headlined "Court Sets Dec. 3 Moussaoui Hearing"; here "Court: IRS Can Force Law Firm Disclosure"; here "Court rejects AOL's insurance claim"; here "Craig: Congress Must Change Patriot Act"; and here "Fla. Doctors Remove Woman's Feeding Tube."
Posted at 19:50 by Howard Bashman



U.S. District Judge wonders: "Hey Magistrate Judge, don't I know you from somewhere?" Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued an unpublished opinion that reads, in its entirety:
German Rodriguez, Texas prisoner #748574, appeals from the dismissal of his 42 U.S.C. sec. 1983 action as frivolous. We do not address the merits of any of Rodriguez's appellate contentions.

The district judge is married to the magistrate judge, and he therefore should have recused himself under 28 U.S.C. sec. 455(a) so that another judge could review the magistrate judge's reports and recommendations. See Jones v. Patrick, No. 02-40846 (5th Cir. Nov. 14, 2002) (unpublished; copy attached). Accordingly, we VACATE the judgment and REMAND the case with directions that the magistrate judge's reports and recommendations be considered by another district judge. See Jones at 2-3.

VACATED AND REMANDED.
You can access the Fifth Circuit's opinion at this link.
Posted at 19:43 by Howard Bashman



"Mock and Announce: How long does it take to flush the 9th Circuit down the toilet?" Dahlia Lithwick has this essay online at Slate this evening.
Posted at 19:32 by Howard Bashman



Additional Pledge of Allegiance coverage: Jan Crawford Greenburg of The Chicago Tribune reports here that "Court to rule on reciting 'under God' in schools." Bob Egelko of The San Francisco Chronicle reports here that "Top court to take on Pledge of Allegiance." The Sacramento Bee reports here that "Pledge case set for review; Capital dad will get his day in biggest court of all." The Houston Chronicle reports here that "High Court to consider Pledge of Allegiance change." The Pittsburgh Post-Gazette reports here that "Supreme Court takes pledge case; Is reciting the phrase 'under God' in school violation of the Constitution?" The San Jose Mercury News reports here that "Flag pledge to high court; Justices to decide whether 'Under God' is constitutional." The Clarion-Ledger reports here that "Supreme Court to hear appeal of pledge ruling." And The Contra Costa Times reports here that "Supreme Court takes on pledge case."
Posted at 17:30 by Howard Bashman



"'Shooting the bird' rude, crude but legal; Appeals court overturns conviction": Today's edition of The Houston Chronicle contains this report on a ruling (majority opinion here; dissenting opinion here) that I first reported on at this link.
Posted at 17:26 by Howard Bashman



Not to be confused with the "Serbonian blog": Today the U.S. Court of Appeals for the Third Circuit issued a case involving ERISA preemption and medical malpractice. A concurring opinion by Senior Circuit Judge Edward R. Becker describes that area of law as the equivalent of a "descent into a Serbonian bog." In a footnote, Judge Becker explains:
A Serbonian bog is a mess from which there is no way of extricating oneself. E. Cobham Brewer, The Dictionary of Phrase and Fable 1121-22 (First Hypertext ed.). The Serbonian bog itself was between Egypt and Palestine. Strabo called it a lake, and said it was 200 stadia long, and 50 broad; Pliny made it 150 miles in length. Hume said that whole armies have been lost therein, as did Milton: "A gulf profound as that Serbonian bog, / Betwixt Damiata and Mount Cassius old, / Where armies whole have sunk." Milton, Paradise Lost, ii. 592.
You can access the complete ruling at this link. By the way, a quick Google search suggests that the title "Serbonian blog" remains available for the taking.
Posted at 17:19 by Howard Bashman



The Fourth Circuit schedules oral argument on the federal government's appeal in the Zacarias Moussaoui case for Wednesday, December 3, 2003: See the appellate court's docket entries here. I hereby predict that the federal government's oral argument will be presented by someone other than the attorney who argued this case last time, because Michael Chertoff has in the interim begun serving as a judge on the neighboring U.S. Court of Appeals for the Third Circuit.
Posted at 15:24 by Howard Bashman



Divided Fourth Circuit panel holds that AOL isn't entitled to insurance coverage for damage its software is alleged to have caused to its customers' computers: Today a three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a decision in which the majority opinion begins:
After America Online, Incorporated ("AOL") released to the public its Version 5.0 access software, consumers filed numerous class actions against AOL, alleging that the software had substantial "bugs" in it and was incompatible with their computers' other applications software and operating systems, causing the computers to be damaged. AOL tendered the defense of these actions to its insurers, St. Paul Mercury Insurance Company ("St. Paul"), its primary insurer, and to Underwriters at Lloyd's of London, its professional liability insurer. St. Paul denied coverage mainly because the damages claimed by the consumers were not "property damage" as defined by the relevant provisions of the applicable policy. AOL commenced this action against St. Paul for a declaratory judgment that St. Paul owed AOL a duty to defend and indemnify and for damages.

The district court granted summary judgment to St. Paul on the grounds that the consumers' underlying complaints did not allege physical damage to tangible property and that any damage from loss of use of tangible property fell within a policy exclusion. We affirm.
You can access both the majority and dissenting opinions at this link.
Posted at 15:03 by Howard Bashman



"All Published Appellate Opinions From State Available Free on Court's Web Site": The Metropolitan News-Enterprise reports here today that "All appellate opinions published in California since it became a state in 1850 are now available online without charge at the state courts' website, the state Supreme Court announced yesterday." You can access the caselaw via this link, and be sure to check out the lengthy disclaimer from LexisNexis.
Posted at 14:45 by Howard Bashman



Eight jurors have been selected for service in the John Allen Muhammad trial: That's what The Virginian-Pilot's DC-area sniper death penalty trial blog is reporting.
Posted at 14:35 by Howard Bashman



"Detainees pick up legal support": The Orlando Sentinel reports here today that "A group of retired federal judges, former U.S. diplomats, ex-military officials and international law experts are urging the U.S. Supreme Court to review the indefinite detention of prisoners held by the United States at Guantanamo Bay."
Posted at 14:13 by Howard Bashman



"A contentious docket: 9th Circuit takes center stage in current Supreme Court term." This editorial appears in today's issue of The Las Vegas Review-Journal.
Posted at 14:01 by Howard Bashman



"Bryant hearing resumes in open court; Defense claims to have evidence of innocence": The Associated Press provides this report from Colorado.
Posted at 13:30 by Howard Bashman



The Salt Lake Tribune is reporting: You can access here an article headlined "Former Trib owner's hopes now down to federal appeal"; here "City trying to stop antigay monument"; and here "Judge bows out on guns in schools."
Posted at 13:20 by Howard Bashman



"Judge rejects bid to unseal warrants": Today's edition of The Philadelphia Inquirer reports here that "A U.S. District Court judge last night refused to unseal any search warrants issued in the federal investigation that has enveloped Mayor Street."
Posted at 13:01 by Howard Bashman



"Sitting on the Recusal Fence": Law Professor Lawrence Solum, at his "Legal Theory Blog," has this post about Justice Antonin Scalia's recusal in the Pledge of Allegiance case.
Posted at 12:57 by Howard Bashman



Access online a transcript of yesterday's CNN interview with Michael Newdow: It is available here. Here is one key exchange:
O'BRIEN: All right, Justice Scalia has recused himself from this. That is something you had hoped for. Why?

NEWDOW: Well, had spoken -- first of all, I want to say I admire Justice Scalia for doing that. The way it works, is you just submit a request and he acts on it on his own. There's nothing he has to do. He does whatever he chooses.

But he had spoken earlier this year in January at an event, and he said the case was wrongly decided. And the way the law works if there's any appearance of partiality, the judge is obligated to recuse himself, and he did.

O'BRIEN: So do you feel that increases your chances of a favorable ruling from your camp?

NEWDOW: I suppose it does, although I think that the chances of not having a favorable ruling for my camp are close to nil. This case is the easiest case they're going to have. The law is clearly on my side.

O'BRIEN: Of course that particular circuit court is overturned frequently by the Supreme Court. How can you be so confident?

NEWDOW: Because just read the Supreme Court's decisions in establishing cause of law. By every single test that they've even enunciated, sticking the two words "under God" in the middle of the pledge is clearly unconstitutional.

O'BRIEN: Well, if it's that clear cut, why bother to take up the case then?

NEWDOW: Well, because right now, there's conflict. The 7th Circuit decided the other way. Plus, if they didn't take up the case, we've have half the country saying "under God," and half the country not saying that. That would be kind of untenable.
Law Professor Eugene Volokh examines here whether Newdow's decision to argue the case himself in the U.S. Supreme Court is likely to affect the outcome.
Posted at 12:32 by Howard Bashman



"Moore's lawyers ask to question judges": The Associated Press reports here that "Attorneys for suspended Chief Justice Roy Moore asked Alabama's Court of the Judiciary on Tuesday for permission to question and possibly disqualify its members in the judicial ethics case against him -- a prospect the judges balked at less than a month ago."
Posted at 11:20 by Howard Bashman



"Iraq Diary, Part I: Two months shy of graduation, a Georgia State law student was sent to the Persian Gulf. This is his story." The Fulton County Daily Report today provides this very interesting article.
Posted at 11:15 by Howard Bashman



Local coverage of death penalty trial for DC-area sniper suspect underway in Virginia Beach, Virginia: The Virginian-Pilot reports here that "Jury pool narrowed in sniper trial." An article reports that "Preparation pays off in Muhammad trial." And in other coverage, "Today and in the days to come, media professionals put Beach on the map."

The Daily Press of Hampton Roads, Virginia reports here today that "Sniper suspect pleads not guilty; On first day, jury pool reduced to 70."

And The Richmond Times-Dispatch reports here that "Muhammad pleads not guilty; The judge excuses 53 potential jurors as jury selection starts."
Posted at 10:52 by Howard Bashman



"Lawmaker, judge square off; High court candidate Baer decries GOP 'cheap trick'": The Pittsburgh Post-Gazette today contains this article.
Posted at 10:50 by Howard Bashman



"Not a Chance: The electoral journey of Proposition 54." Ward Connerly today has this essay at National Review Online.
Posted at 10:48 by Howard Bashman



"The upcoming docket": Armstrong Williams has this essay online at Town Hall.
Posted at 10:46 by Howard Bashman



Today is day two of the death penalty trial of DC-area sniper suspect John Allen Muhammad: The sniper trial blog supplied by The Virginian-Pilot newspaper is already being updated with new entries.
Posted at 10:05 by Howard Bashman



Today's "How Appealing" brain teaser: In the past, "How Appealing" has sought to identify (1) those federal judges who serve in courthouses named in their honor; and (2) judicial law clerks who have gone on to join the federal judiciary as colleagues of the judges for whom they clerked.

Today's question is perhaps the most difficult yet. I am looking to identify those federal judges who previously clerked at the same time for the same judge and who today serve as colleagues on the same federal court. Before you exclaim "that's impossible," be sure to see the first question that I asked of this month's "20 questions for the appellate judge" interviewee. As always, answers should be submitted via email.

P.S. One more answer to question (2), above, arrived recently. U.S. District Judge Karon O. Bowdre clerked for U.S. District Judge J. Foy Guin, Jr., and now they are colleagues on the U.S. District Court for the Northern District of Alabama.
Posted at 09:38 by Howard Bashman



On the agenda: At 10 a.m. eastern time today, the Senate Judiciary Committee will hold a confirmation hearing for several candidates for the federal judiciary, including Third Circuit nominee D. Michael Fisher. I previously previewed this morning's hearing in a post you can access here. You should be able to view the hearing live online via this link. And audio only is available via this link.
Posted at 09:30 by Howard Bashman



In Wednesday's newspapers: For a look at Pledge of Allegiance-related coverage in the newspapers mentioned here, please see this posting from last night.

In The New York Times, Linda Greenhouse reports that "Justices Say Doctors May Not Be Punished for Recommending Medical Marijuana." In related news, "Backers of Medical Marijuana Hail Ruling." An article reports that "Selection of Jurors Begins in Trial of Sniper Suspect." In other news, "Name Sources, Judge Orders Five Reporters." In news from Florida, "A Right-to-Die Battle Enters Its Final Days." From Colorado comes news that "Accuser Asks for Privacy in Bryant Case." In local news, "Survivor in Gay Union Appeals Denial of Benefits to Boy"; "Panel Seeks to Oust Justice for History of Improper Acts"; and "Retrial Hearing Under Way for Man Sentenced to Die." And an editorial is entitled "Pataki's Controversial Federal Judge."

In The Washington Post, Charles Lane reports here that "Court to Hear Case on Web Porn; Law to Protect Children Is Stalled by First Amendment Issues" and here that "U.S. Appeal Of Marijuana Case Rejected." A front page article reports "Muhammad: 'Not Guilty'; Suspect Publicly Denies Culpability for First Time." In related news, "Drama of Jury Selection Hard to Detect; Quiet, Deliberate Process Belies All That's Going On and What It Could Mean in End." You can access here an article headlined "Lightening The Scales Of Justice; Before His Long Trial Began, Sniper Suspect Eschewed Food." An article reports that "Pr. William, Va. Beach Have Much in Common; 2 Areas Likely to Yield Similar Jury Pools." An article is headlined "A Portent-Laden Protest." And in related news, "Malvo's Prosecutors Resist Video Testimony; Defense Has Witnesses in Caribbean." An article reports that "Judge Orders Reporters to Reveal Sources; 4 News Organizations Told to Identify Officials Interviewed in Wen Ho Lee Reports." And in local news, "Woman Gets Jail In Assault On Boy, 4; Hot French Fries Smashed in Face."

Finally for now, The Wall Street Journal contains an editorial entitled "Rainbow Filibuster Coalition: The Democrats aren't prejudiced--they bork everybody."
Posted at 06:30 by Howard Bashman



Tuesday, October 14, 2003
"Chertoff has not yet learned to talk like a judge": So reports Law Professor Eric Muller in a very interesting post you can access here at Eric's blog "IsThatLegal?"
Posted at 23:28 by Howard Bashman



"State Supreme Court overturns seat belt assault": The Associated Press reports here that "An insurance company cannot be held liable for injuries suffered by a Colorado Springs woman during a sexual assault in her car, a divided Colorado Supreme Court ruled Tuesday. In a 4-3 decision that overturned a lower court ruling, the high court said the woman's injuries were not sufficiently related to any covered use of the car. The woman was shopping at the Citadel Mall in Colorado Springs when she was abducted. She opened the passenger door in an attempt to get away, but was held in by the automatic seat belts. The man grabbed her by the hair, put a knife to her throat and assaulted her. Lower courts ruled the State Farm insurance company was liable because the woman's injuries resulted from use of a motor vehicle." You can access today's ruling by the Supreme Court of Colorado at this link.
Posted at 23:24 by Howard Bashman



"An Appealing Point: Did Arthur Andersen have fair notice of SEC investigation?" law.com provides this report on a recent oral argument before the U.S. Court of Appeals for the Fifth Circuit.
Posted at 23:20 by Howard Bashman



"Prosecutor accuses Bryant defense of 'smear'; Judge asked to bar testimony on accuser's sex history": This article appears in today's issue of The Denver Post. That newspaper also reports here that "'SNL' mocks attorney for Bryant." And The Associated Press reports here that "Judge in Bryant case gets high marks; Gannett strives for fairness, analysts say."
Posted at 23:19 by Howard Bashman



"Appeals to London abolished": Wednesday's edition of The New Zealand Herald contains this article.
Posted at 23:13 by Howard Bashman



"Inmate on death row wins appeal; Alleged retarded killer to get new sentencing trial": This article will appear in Wednesday's edition of The Atlanta Journal-Constitution.
Posted at 23:08 by Howard Bashman



"U.S. Supreme Court Will Hear Internet Porn Case": Shannon P. Duffy of The Legal Intelligencer provides this report. BBC News reports that "US court revisits net porn law." And Declan McCullagh of c|net News.Com reports here that "Supreme Court weighs Net porn law."
Posted at 23:07 by Howard Bashman



"Court to review border vehicle searches": Michael Kirkland of United Press International has this report.
Posted at 23:02 by Howard Bashman



"Supreme Court rejects appeal over medical marijuana": Claire Cooper, legal affairs writer for The Sacramento Bee, provides this report. And tomorrow's edition of The Seattle Post-Intelligencer will contain an editorial entitled "Court says states, doctors know best."
Posted at 22:55 by Howard Bashman



"High Court to review indictment against Minneapolis businessman": This article will appear in Wednesday's edition of The Star Tribune.
Posted at 22:52 by Howard Bashman



"Antitrust case may have big impact": Tomorrow's edition of The Financial Times reports here that "The US Supreme Court yesterday heard arguments in what could prove a landmark antitrust case involving two telecommunications giants and their duty to help each other compete in providing telephone service."
Posted at 22:50 by Howard Bashman



More Pledge of Allegiance news: The Bend (Oregon) Bugle contains a fascinating article headlined "'Pledge' judge pleased high court will hear case; 'Ted' Goodwin, part-time Sisters resident, says he has 'no idea' how Supreme Court will rule."

In The New York Times, Linda Greenhouse reports here that "Supreme Court to Consider Case on 'Under God' in Pledge to Flag." In The Washington Post, Charles Lane reports here that "High Court To Consider Pledge in Schools; Scalia Recuses Himself From California Case." The Sacramento Bee reports here that "Supreme Court to hear pledge case." law.com's Tony Mauro reports here that "U.S. Supreme Court to Hear Pledge of Allegiance Case." The Houston Chronicle reports here that "High Court to consider Pledge of Allegiance change." United Press International reports here that "Court to hear 'under God' challenge."

Finally, the U.S. Supreme Court's grant of review was discussed during today's White House press briefing.
Posted at 22:21 by Howard Bashman



"The Big Trunk" offers additional thoughts on the law school protests, and the New Jersey lawsuit, over the enforcement of the Solomon Amendment requiring federally funded educational institutions to allow military recruiters on campus: See this post at the "Power Line" blog.
Posted at 20:53 by Howard Bashman



"Sniper jury could be set Wednesday, prosecutor says; Muhammad pleads not guilty to fatal shooting": CNN.com provides this report. Meanwhile, The Virginian-Pilot's sniper trial blog (accessible here) proved quite informative today.
Posted at 20:47 by Howard Bashman



"Supreme Court Acceptance Of Pledge Of Allegiance Case Sets Stage For Showdown Over Freedom Of Conscience, Says Americans United": The organization Americans United for Separation of Church and State today issued this press release.
Posted at 19:17 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "High Court Weighs Phone Antitrust Suits"; here "Judge to Media: Reveal Wen Ho Lee Sources"; here "Oklahoma Bomb Case Judge Criticizes Feds"; here "Fla. Court: Comatose Woman's Tube Can Go"; and here "Pledge of Allegiance Revisions."
Posted at 19:15 by Howard Bashman



"Should police wait after knocking? High court hears search-and-seizure case Wednesday that will impact the war on terrorism." Warren Richey will have this article in Wednesday's edition of The Christian Science Monitor.
Posted at 19:11 by Howard Bashman



Pledging Allegiance: Linda Greenhouse of The New York Times reports here that "Justices Take Case on Pledge of Allegiance's Reference to God." David G. Savage of The Los Angeles Times reports here that "Supreme Court to Review Pledge of Allegiance." Warren Richey of The Christian Science Monitor reports here that "High Court to rule on the Pledge; The court will hear a case on whether public schoolchildren can say 'under God.'" And this evening's edition of NPR's "All Things Considered" offered this audio report on the matter.
Posted at 18:40 by Howard Bashman



"Sniper Case Victim Survived Vietnam": The Associated Press provides this report.
Posted at 16:03 by Howard Bashman



Unfair pepper: A reader emails:
I have followed with great fervor all of your postings relating to the Solomon litigation. Due to the somewhat confusing, secretive and vague nature of the parties involved (not to mention the articles detailing the parties in the litigation), I searched for the actual papers in the litigation. I was most happy to find that Georgetown had posted the court filings. I thought that your readers -- especially those as confused as I -- might enjoy reading the complaint and motion papers for themselves.
You can access the court filings at this link, and via this Web page even more information is available.
Posted at 15:52 by Howard Bashman



Garrett Moritz is having fun with Westlaw: And now you can too, via this post at his blog "gtexts."
Posted at 15:15 by Howard Bashman



"DNA: Is the 9th Circuit wrong?" National Review Online today offers this debate.
Posted at 14:15 by Howard Bashman



In news from Harvard and Yale: Today's issue of The Harvard Crimson contains an article headlined "Campus Military: Schools fight required visits" and an editorial entitled "Cruel, Unusual and Illogical: Medicating the mentally ill in order to execute them shows capital punishment’s brutality."

And The Yale Daily News reports here today that "Law schools turn on legal heat in JAG debate."
Posted at 14:10 by Howard Bashman



"Supreme Court Weighs 'Under God' Reference in Pledge; Justice Scalia Recuses Himself; Could Lead to a 4-4 Split Decision": Charles Lane of The Washington Post provides this report.
Posted at 13:55 by Howard Bashman



Judicial speech and the First Amendment: That was the topic of last Saturday's installment of C-SPAN's fine program "America and the Courts." Here's the program's complete description:
Panel discussion on judicial speech and the First Amendment, featuring two judges recently involved in ethical incidents, Judge Thomas Penfield Jackson of the U.S. District Court in Washington, DC and Judge Thomas Spargo of the New York Supreme Court's Third Judicial District.
You can view the entire program online at this link (Real Player required).
Posted at 13:51 by Howard Bashman



"New governor likely to select key judge; But Davis is working to leave few posts open": Howard Mintz had this article in last Friday's issue of The San Jose Mercury News.
Posted at 13:47 by Howard Bashman



"High court to rule on DUI evidence; Ohio decision expected this year": The Associated Press provides this report.
Posted at 13:30 by Howard Bashman



Michael Newdow is now being interviewed on CNN: Tune your XM Satellite Radios to channel 122. He describes his chances of losing as "nil."
Posted at 13:20 by Howard Bashman



"Supreme Court accepts Pledge of Allegiance case": CNN.com provides this report. And The Sacramento Bee reports here that "Supreme Court to decide Pledge of Allegiance case."
Posted at 13:11 by Howard Bashman



The sniper trial blog is in full swing: Who would have thought that jury selection might merit such thorough coverage? You can access the blog at this link, via The Virginian-Pilot newspaper.
Posted at 11:54 by Howard Bashman



The wire services are reporting from the U.S. Supreme Court: From The Associated Press, Anne Gearan reports here that "Supreme Court to Decide Pledge Case" and here that "Supreme Court to Revisit Online Porn Law." Gina Holland, meanwhile, reports here that "Supreme Court Clears Way for Medical Pot" and here that "Supreme Court Takes Border Search Case."

Reuters reports here that "Supreme Court to Decide Pledge of Allegiance Case"; here that "Internet Porn Law to Be Decided by Supreme Court"; here that "Justices Reject Govt. Medical Marijuana Appeal"; and here that "Supreme Court Looks Into Border Search of Gas Tank."
Posted at 11:33 by Howard Bashman



"Atheist does not believe Justice Antonin Scalia should participate in Pledge of Allegiance case": Back on Saturday, September 13, 2003, I had this post about the efforts to obtain Justice Scalia's recusal from the Pledge of Allegiance case. My post from that date, which you can access here, contains extensive links to background materials.
Posted at 11:23 by Howard Bashman



The Supreme Court of the United States grants writ of certiorari to review the Ninth Circuit's ruling in the Pledge of Allegiance case: This will undoubtedly be today's big news from the Court. Just a few quick observations.

First, the Court will not be summarily disposing of this case without oral argument, as many had predicted. So, the questions presented are not that straightforward, perhaps.

Second, the Court is not guaranteeing a ruling on the merits of whether the words "under God" violate the Establishment Clause, because the first question as to which the Court granted review concerns whether Michael Newdow has standing to pursue the case. If the Court concludes that Newdow lacks standing, it would have to dismiss the case without reaching the Establishment Clause question.

Third, there were a total of three cert. petitions pending in this case, and while the Court granted review in one, it took the curious step of denying review in the other two (see pages eleven and twelve of today's Order List, accessible here).

Finally, Justice Antonin Scalia recused from the Court's actions in all three cases, demonstrating that he will not be participating in the matter, presumably because of his public comments on the merits of the dispute. I am a bit surprised by Justice Scalia's recusal, but I doubt that it will result in an equally divided Court on the question whether the language of the Pledge violates the Establishment Clause. But what if Justice Scalia's recusal resulted in an equally divided Court on the question of Newdow's standing? Could the Court then proceed to determine the Establishment Clause issue? Probably so, because an equally divided Court on the standing question would result in the affirmance of the Ninth Circuit's holding that Newdow had standing.
Posted at 10:30 by Howard Bashman



Today's U.S. Supreme Court Order List: Today's Order List is available at this link, via The Associated Press. The Court has granted review in a total of eight cases:
02-1609 LITTLETON, CO V. Z.J. GIFTS D-4, LLC, ETC.
The petition for a writ of certiorari is granted limited to the following Question: Whether the requirement of prompt judicial review imposed by FW/PBS, Inc. v. Dallas, 493 U.S. 215 (1990) entails a prompt judicial determination or a prompt commencement of judicial proceedings.

02-1689 GRUPO DATAFLUX V. ATLAS GLOBAL GROUP, ET AL.
The petition for a writ of certiorari is granted.

02-10038 TENNARD, ROBERT J. V. DRETKE, DIR., TX DCJ
The motion of petitioner for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted and it is consolidated with No. 02-11309, and a total of one hour is allotted for oral argument in these cases.

03-44 SABRI, BASIM O. V. UNITED STATES
03-218 ASHCROFT, ATT'Y GEN. V. ACLU, ET AL.
The petitions for writs of certiorari are granted.

02-1624 ELK GROVE UNIFIED SCH. DIST. V. NEWDOW, MICHAEL A., ET AL.
The motion of Pacific Legal Foundation, et al. for leave to file a brief as amici curiae is granted. The motion of Rutherford Institute for leave to file a brief as amicus curiae is granted. The petition for a writ of certiorari is granted limited to the following Questions: 1. Whether respondent has standing to challenge as unconstitutional a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance. 2. Whether a public school district policy that requires teachers to lead willing students in reciting the Pledge of Allegiance, which includes the words "under God," violates the Establishment Clause of the First Amendment, as applicable through the Fourteenth Amendment. The Solicitor General is invited to file a brief in this case on behalf of the United States. Justice Scalia took no part in the consideration or decision of these motions and this petition.

02-1794 UNITED STATES V. FLORES-MONTANO, MANUEL
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted.

02-1824 DRETKE, DIR., TX DCJ V. HALEY, MICHAEL W.
The motion of respondent for leave to proceed in forma pauperis is granted. The petition for a writ of certiorari is granted.
Reuters reports here that "Supreme Court to Decide Pledge of Allegiance Case" and here that "Supreme Court to Decide Internet Pornography Law."

From The AP, Anne Gearan reports here that "Supreme Court to Decide Pledge Case." And Gina Holland reports here that "Supreme Court Rejects Anti-Marijuana Case."

"SCOTUSblog" summarizes the grants in a post you can access here.
Posted at 10:00 by Howard Bashman



Divided three-judge panel of the U.S. Court of Appeals for the Sixth Circuit resolves whether the City of Flint, Michigan can be sued in federal court to pay for its police officer's theft of the $300,000 Cocker Spaniel: You can access today's ruling here (HTML) and/or here (PDF).
Posted at 09:54 by Howard Bashman



The death penalty trial of DC-area sniper suspect John Allen Muhammad begins: The Virginian-Pilot reports here that "Jury selection in sniper trial begins today." A news update reports that "Defense attorneys 'look forward to getting started.'" And that newspaper's trial update blog is accessible here.

The Daily Press of Hampton Roads, Virginia reports here today that "Sniper suspect trial starts today; Media gear, tents, trucks in place before judge, jury."

The Richmond Times-Dispatch reports here today that "Case draws media from U.S., abroad." A related article reports that "Victim recalled as selfless." And on Sunday, that newspaper published an article headlined "Defense strategy: Avoid death penalty."

You can access court filings in the case via this link. And the City of Virginia Beach offers this Web page devoted to the case.
Posted at 09:41 by Howard Bashman



"Justice Scalia speaks in New Orleans": "Ernie the Attorney" was present and provides this report this morning.
Posted at 09:35 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "D.C. Sniper Suspect Trial Starts Today" and here an article headlined "Lawyer Calls Jurors 'Cave Dwellers.'"
Posted at 09:30 by Howard Bashman



"Faith-based aid may hinge on high court": This article appears in today's edition of The Atlanta Journal-Constitution.
Posted at 09:25 by Howard Bashman



On the agenda: At 10 a.m. eastern time today, the Supreme Court of the United States is scheduled to release an Order List that may include additional grants of review. And this morning in Virginia Beach, Virginia, the death penalty trial against accused DC-area sniper suspect John Allen Muhammad begins. Stay tuned for additional details.
Posted at 08:21 by Howard Bashman



"State Supreme Court keeps gun law on hold; Justices decline to review a temporary injunction order by St. Louis judge." This article appears in today's edition of The News-Leader of Springfield, Missouri.
Posted at 06:57 by Howard Bashman



"Montana Supreme Court to hear case in Billings": The Billings Gazette today provides this news.
Posted at 06:55 by Howard Bashman



"Superior Court race has field of 6; Westmoreland's Driscoll is only local candidate": This article appears today in The Pittsburgh Post-Gazette.
Posted at 06:53 by Howard Bashman



"Supreme Court bill passes final vote": The New Zealand Herald provides this report.
Posted at 06:52 by Howard Bashman



"Sniper trial renews death penalty talk; Legislators are vowing push to clarify, improve Maryland's statutes; 'It should have been tried here'; Decision to prosecute in Va. angers lawmakers, points to ambiguities." This article appears in today's edition of The Baltimore Sun. And you can access here an article headlined "A year after killings, sniper suspect's trial to start today in Va.; Prosecution of Muhammad relies on indirect evidence; Faces 2 capital murder counts."
Posted at 06:51 by Howard Bashman



In Tuesday's newspapers: The Washington Times reports here that "Muhammad set for sniper trial." In other news, "Marriage issue rises in public debate." Frank J. Murray reports that "Family fights for daughter's survival." And an op-ed by Bruce Fein is entitled "Blunting the prosecution."

The Los Angeles Times reports here that "For Sniper Victim's Family, Grief Lingers as Trial Starts; Jury selection begins today in Virginia in the case against Gulf War vet John Allen Muhammad." In other news, "Group Contends Record Labels Have Wrong Guy; The Electronic Frontier Foundation asks the music industry to drop its case against a Playa del Rey man who says he doesn't download songs." An article reports that "Foes Protest Limits on Medical Pot; Measure signed by Gov. Davis will restrict the amount of marijuana that patients can possess and allow for a voluntary ID system." And you can access here an article headlined "Navy Agrees to Restrict Sub-Detecting Sonar; Peacetime testing and training missions will be limited to areas off Asia. Activists contend that the sweeps may harm marine animals."

USA Today reports here that "Suspects' relationship big issue in D.C. sniper case; Muhammad trial begins today in Virginia."

The New York Times reports here that "Texas Democrats Look at New Map and Point Out Victims." In other news, "Suit Over Injury to Whales Ends in Deal to Limit Navy Sonar Use." An article reports that "2 Yanks Are Step Closer to Criminal Charges." And an editorial is entitled "A Disability Law Catch-22."

The Washington Post reports here that "Navy Agrees to Injunction Limiting Sonar Use; Hill Exemption Still Sought; Groups Say Whales Threatened." In other news, "Boston Police to Seek Summonses; Yankees' Nelson, Garcia Face Possible Charges for Alleged Assault in Bullpen at Fenway." And KidsPost previews "The Sniper Trial."

The Christian Science Monitor contains an article headlined "How to get Gen Y to carry ACLU cards; The civil-liberties group lures students with hip-hop and slam poets." And an op-ed by Dante Chinni is entitled "Put the Patriot Act to good use - on the White House leak."
Posted at 06:05 by Howard Bashman



Monday, October 13, 2003
Elsewhere in Monday's newspapers: The Los Angeles Times reports here that "U.S. Prison Camp Has a Key Flaw: It's called trust. The security system at heavily fortified Guantanamo Bay rests on the belief that all staff members are loyal." In other news, "Desire, Caution Will Collide at Breast Implant Hearings; An FDA panel may urge an end to restrictions on silicone. The stakes, and the drama, will be high." An article reports that "Davis Signs Last Bills of His Term; The most far-reaching legislation of his final year in office affects gay rights, environmental protection and consumer privacy." In business news, "Case Targets High-Tech Manufacturing; Two former IBM workers blame health problems on exposure to dangerous chemicals." And columnist Patt Morrison asks "When the Gov's Away Will Bustamante Play?"

The San Francisco Chronicle reports here that "Davis signs partner benefit bill; Business groups say it will make it harder to operate in the state."

The Boston Globe reports here that "Univ. of Calif. probes admissions bias claim; Official cites acceptance of low-scoring students to prestigious schools." And in sports, "Charges eyed in bullpen fracas; Police witnesses: Yankees started it."

USA Today reports here that "Bryant defense ignites debate." And an op-ed by the mother of Matthew Shepard is entitled "Five years later, progress against gay hatred lags."

Finally, The Washington Times contains an op-ed by Jay Ambrose entitled "Worthy tort benchmarks."
Posted at 23:30 by Howard Bashman



In Tuesday's edition of The Washington Post: A front page article reports that "Sniper Case Reaches Fateful Phase; Jury Selection Begins Today at Muhammad's Trial in Virginia Beach." In related news, "At Heart, Sniper Case Purely Circumstantial; Prosecutors Rely on Wealth of Data." In other coverage, "Bracing for the Trial It Could Not Refuse; Sniper Case Disrupts Virginia Beach." And an article in the Style section is headlined "Ready for The Next Storm; Va. Beach Braces for the Sniper Trial, and a Wave of Publicity."
Posted at 23:01 by Howard Bashman



Available online at law.com: A must-read article in The Recorder is headlined "The Battle for Janice Rogers Brown: Bruising confirmation hearing ahead for Bush's nominee to D.C. Circuit." One of the sources interviewed in the article is quoted as saying, "I expect she'll get tougher treatment than Miguel Estrada."

From The Legal Intelligencer, Shannon P. Duffy has one article headlined "Throwing a Wrench in Bone Screw Case; Medicare dispute must begin with agency appeal" and another headlined "ERISA and Bad-Faith Claim Debate."
Posted at 22:50 by Howard Bashman



"80pc want a say on new court - poll": Tuesday's edition of The New Zealand Herald reports here that "Legislation abolishing New Zealanders' right to appeal to the Privy Council will be passed into law today, although a new poll reveals that public opinion has turned against the change." And a related article is headlined "Court likened to unbridled power."
Posted at 22:41 by Howard Bashman



"Republicans Still Pushing Judge Pickering": The National Newspaper Publishers Association, also known as the Black Press of America, today provides this report.
Posted at 22:31 by Howard Bashman



Tomorrow the death penalty trial of DC-area sniper suspect John Allen Muhammad begins in Virginia Beach Circuit Court: Perhaps the best source for local coverage during the trial will be The Virginian-Pilot newspaper. Among other reasons, it will have a frequently updated blog (accessible here) providing real-time coverage of the trial.

In today's newspaper, the lead article is headlined "The trial of John Allen Muhammad." An article reports that "After a year in jail, suspect remains a mystery." Yesterday's newspaper contained articles headlined "The seventh sniper victim remembered for 53 years he lived"; "Beach braces for courthouse chaos"; "At trial, group will take silent stand against death penalty"; and "Muhammad arrives in Virginia Beach." You can access here a list of "Principals in John Muhammad Trial." A news update this afternoon from The Associated Press reports that "800 enter lottery for seats to see Muhammad trial." And the newspaper's Sniper Trials Index is accessible here.

Today's edition of The Richmond Times-Dispatch reports here that "Trial move may help prosecution." And you can access here an article headlined "Jury likely to be tough; Trial of sniper suspect will commence tomorrow."
Posted at 22:12 by Howard Bashman



"Untraditional choice for bench; Bush taps nonresident for Virginian's seat": Today's edition of The Richmond Times-Dispatch contains this report. And The Associated Press reports here that "Virginia nominee for 4th Circuit seeking commonwealth address."
Posted at 22:01 by Howard Bashman



"Lobster Man is in hot water": This past Thursday's issue of The Cape Cod Times contained this article. (Thanks to "Obscure Store" for the pointer.)
Posted at 19:12 by Howard Bashman



"Ex-Law Student Indicted in School Deaths": The Associated Press provides this report.
Posted at 19:07 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Sniper defense costs will easily exceed $1 million." And in other news, "Going up: Elevator operator case reaches Supreme Court."
Posted at 15:09 by Howard Bashman



"A Five-Year Stint. Verniero's early leave, en route to better pay in private sector, raises a question: Is Supreme Court justice just another job?" This article appeared in last week's issue of the New Jersey Law Journal (free registration required).
Posted at 14:57 by Howard Bashman



"Judge chides Moore over watching costs": Yesterday's edition of The Montgomery Advertiser contained this editorial about a recent ruling by the U.S. Court of Appeals for the Eleventh Circuit that I first noted here.
Posted at 14:31 by Howard Bashman



"Supreme Court denies appeal in concealed-weapons suit": The Associated Press reports here that "The state Supreme Court refused Monday to lift a preliminary injunction against Missouri's new concealed guns law, meaning the law will remain on hold for at least a little while longer."
Posted at 13:31 by Howard Bashman



"Guns, abortion are center stage in the state's political drama": Today's issue of The St. Louis Post-Dispatch contains this article.
Posted at 13:27 by Howard Bashman



"How to kill a crazy man": Columnist Paul Greenberg has this essay online today at Town Hall.
Posted at 13:25 by Howard Bashman



"UNC lauds leadership of Michigan president": Today's edition of The Herald-Sun reports here that "Even with a much-heralded U.S. Supreme Court victory under her belt, University of Michigan President Mary Sue Coleman believes her university -- and American education in general -- still have a great deal of work to do."
Posted at 13:22 by Howard Bashman



"Freedom's freeloaders": "The Big Trunk" of the "Power Line" blog visited Yale this past weekend and has this report on the military recruitment brouhaha. On Friday, The Harvard Crimson contained an article headlined "Panel Discusses Military Policy Toward Gays; At teach-in, students question recruiters' presence on campus." And today, The Yale Daily News reports here that "At least half of Yale Law School's professors will soon file a federal lawsuit against the U.S. Department of Defense with respect to the military's campus-recruiting policies, administrators and law professors said Sunday."
Posted at 13:17 by Howard Bashman



"Updating law to support an Amish custom; Legislators are pushing a bill that would allow young teens to work." This article appeared in Sunday's issue of The Philadelphia Inquirer.
Posted at 12:30 by Howard Bashman



"Judicial elections can leave voters to make choices in the dark": The Associated Press provides this report from Harrisburg, Pennsylvania.
Posted at 12:27 by Howard Bashman



"Moore to speak at local church; Suspended justice refused to remove religious monument": This article appears today in The Pensacola News Journal. In somewhat related news, The Athens Banner-Herald today reports here that "Area at heart of battle for nation's 'soul'" and here that "Controversy surrounding display splits preachers." Finally, yesterday columnist Bill Shipp had an op-ed entitled "A word of thanks to the ACLU" in The Gwinnett Daily Post.
Posted at 12:12 by Howard Bashman



"Judicial college celebrates 40th anniversary": Today's edition of The Reno Gazette-Journal contains this article.
Posted at 12:11 by Howard Bashman



"Tenn. law on pledge passes muster, attorney general says": The Associated Press provides this report.
Posted at 12:09 by Howard Bashman



"Learning from the California Recall Experience: What the Unprecedented Election Tells Us About our Laws Governing Politics." Election Law Professor Rick Hasen, whose blog you can access here, today has this essay online at FindLaw.
Posted at 10:43 by Howard Bashman



"Man, 72, sentenced to 26 years, not life": The Associated Press has this report from Spokane, Washington.
Posted at 10:28 by Howard Bashman



"Right-to-die law defined by local case; Justices ruled that people can decide if they wish to be force-fed to stay alive." The St. Petersburg Times today provides this report.
Posted at 10:12 by Howard Bashman



"As tribes prosper, they need lawyers; Special role played by Indian attorneys gets new attention": This article appears in today's edition of The Seattle Post-Intelligencer. And a related article reports that "Burgeoning field is left out of state's bar exam."
Posted at 10:00 by Howard Bashman



"Breyer to Students: Participate." The Valley News has this report on Justice Stephen G. Breyer's speech yesterday at Dartmouth College.
Posted at 09:58 by Howard Bashman



"Investigation of suspect continues two years after slaying of prosecutor": This article appeared in yesterday's edition of The Seattle Times.
Posted at 09:46 by Howard Bashman



"Breyer defends democracy": The Dartmouth reports here on a speech that Justice Stephen G. Breyer delivered at that college yesterday.
Posted at 09:37 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Court Dismisses Claim by Barefoot Man"; here "Davis Signs Domestic Partner Benefit Bill"; and here "Redistricting Map Sent to Texas Governor."
Posted at 09:29 by Howard Bashman



"Las Vegas man ready to take argument to Supreme Court": This article appears in today's issue of The Las Vegas Review-Journal.
Posted at 06:57 by Howard Bashman



"Attorney discusses sodomy case": Today's edition of The Red and Black, the student newspaper of the University of Georgia, contains this report.
Posted at 06:56 by Howard Bashman



Today is the federal holiday of Columbus Day: As a result, most federal and state appellate courts -- including the Supreme Court of the United States -- won't officially be open for business today. One exception is the U.S. Court of Appeals for the Fifth Circuit, which (as I explained back on January 21, 2003 in a post you can access here) will be open for business today because it doesn't close for just any federal holiday.
Posted at 06:45 by Howard Bashman



In Monday's newspapers: The New York Times reports here that "Patriot Act Curbing Data Retention." In other news, "For Direct Marketers, the No-Call Dispute Falls Close to Home." An article reports that "After Bitter Fight, Texas Senate Redraws Congressional Districts." In business news, "I.B.M. Toxic-Chemical Suit Heads to Court." And an editorial is entitled "Toward Death Penalty Reform."

The Washington Post reports here that "D.C. Prosecutors to Review All Murder Trials; Increased Accountability in U.S. Attorney's Office Sought." And in other news, "Sniper Victim's Laugh, Love Resonate Still."
Posted at 06:30 by Howard Bashman



Sunday, October 12, 2003
"Judge Gives Leg Up to Internet Calls": Monday's issue of The New York Times will contain this report.
Posted at 23:20 by Howard Bashman



"Bush's Vanished Prisoner: He Wonders Whether He Will See the Light of Day Again." Nat Hentoff has this essay in the current issue of The Village Voice.
Posted at 22:54 by Howard Bashman



"Marijuana laws once again taking high profile in Alaska politics": The Associated Press provides this report.
Posted at 22:53 by Howard Bashman



Elsewhere in Sunday's newspapers: The Los Angeles Times reports here that "Intolerance Chiseled in Stone Hits City Hard; Casper, Wyo., faces the prospect of having to allow a monument that condemns gay murder victim Matthew Shepard." You can access here an article headlined "The death penalty: A novelist gets real; The newest book from author and lawyer Scott Turow, who's known for legal thrillers, is a personal reflection on the morality of capital punishment." A review of the book appears today at this link. And the newspaper's Editor has written a report entitled "The Story Behind the Story: How The Times decided to publish the accounts of 16 women who said they had been sexually mistreated and humiliated by Arnold Schwarzenegger."

The Washington Times contains a report headlined "Seeking justice" about the upcoming DC-area sniper trial.

The Boston Globe reports here that "19 years later, innocence comes home." And an article reports that "Case shines spotlight on Mexico's 'dirty war.'"
Posted at 22:44 by Howard Bashman



"Law students sue over Pentagon access; Question wisdom of Solomon Amendment linking funding and military recruitment": Yesterday's edition of The Star-Ledger of Newark, New Jersey reported here that "Attorneys for a coalition of law school professors and students yesterday urged a federal judge in Newark to strike down a law that they say forces their schools to accept Pentagon recruiters or lose federal funding. Government attorneys countered that the law, the so-called Solomon Amendment, was designed only to give the military the same access to job candidates as any potential employer. They also called into question the right of students and faculty to sue on behalf of the institutions."
Posted at 19:32 by Howard Bashman



"Justice O'Connor lectures to 600 at St. John's College; Her talk focuses on case that set up judicial review": The Baltimore Sun today provides this report.
Posted at 15:25 by Howard Bashman



"Concealed carry will be decided by high court; Judges will decide whether constitution bars practice": This article appears in today's edition of The St. Louis Post-Dispatch. Meanwhile, The Kansas City Star reports here today that "Permit seekers continue training despite order blocking concealed carry gun law."
Posted at 15:21 by Howard Bashman



"Palmore memoir spans decades of Kentucky law": The Henderson Gleaner today has this report on a book by former Kentucky Supreme Court Chief Justice John S. Palmore.
Posted at 15:20 by Howard Bashman



"Legal to Oregon, illegal to federal agents": The answer, of course, is medical marijuana, The Oregonian reports here today.
Posted at 15:17 by Howard Bashman



"Interest in state Appeals Court judgeship low": The Journal News today has this report from Albany, New York.
Posted at 15:16 by Howard Bashman



In Sunday's newspapers: The New York Times contains a lengthy article headlined "Unclear Danger: Inside the Lackawanna Terror Case." In the Week in Review section, an article asks: "It's a World of Media Plenty. Why Limit Ownership?" In local news, "Out of Glare, Advocate for Women Fights On." And in the Magazine section, an article examines "The (Agri)Cultural Contradictions of Obesity."

The Washington Post reports here that "Minorities Less Visible at Justice After Departures." In other news, "Heavily Guarded Suspect Flown to Virginia Beach." An article reports that "For Some Teams, Finding A PC Mascot Can Be a Bear." And in local news, "For Convict Freed by DNA Evidence, a Season of Reconciliation."
Posted at 14:50 by Howard Bashman



"Terror Revisited: Will the beltway sniper trial answer the unsettling question of why they did it?" The October 20, 2003 issue of U.S. News and World Report will contain this article. The Associated Press reports here that "Trial of Older Sniper Suspect to Open." And The Daily Press of Hampton Roads, Virginia reports here that "1st trial in sniper case set to begin; Media to besiege Hampton Roads."
Posted at 14:44 by Howard Bashman



"Physicians take shots for advancing lawsuits": This article appears in today's issue of The St. Petersburg Times.
Posted at 12:25 by Howard Bashman



"Victims find pain, not justice, in some of Kentucky's courts": The Courier-Journal of Louisville, Kentucky today has part one of a four-part series entitled "Justice Delayed; Justice Denied." The series pursues a topic that was the subject of a similar three-part special report that the newspaper published in November 2002.
Posted at 12:23 by Howard Bashman



"Tortured path leads inmate to retrial; On medication for years, 1981 murder defendant deemed competent": The Tennessean today contains this report.
Posted at 12:18 by Howard Bashman



"Make it a super size, then call your lawyer; Battle of the bulge targets restaurants": Today's edition of The San Francisco Chronicle contains this article.
Posted at 12:12 by Howard Bashman



"GOP plans push on Bush court nominations": This article appears today in The Washington Times. The Clarion-Ledger reports here today that "Pickering supporters hope for vote soon; But Democrats are expected to stall nomination with debate." The Pascagoula Mississippi Press today contains an editorial entitled "Justice delayed, justice denied." And The Times Record of Fort Smith, Arkansas reported here on Friday that "Groups Fight Judicial Nominee."
Posted at 09:28 by Howard Bashman



In news from Pittsburgh: An article in today's issue of The Pittsburgh Post-Gazette about the Democratic nominee to fill a vacancy on the Supreme Court of Pennsylvania is headlined "There's no middle ground when it comes to Judge Baer." And in other court-related election news, "Bitter campaign battle is waged for protho-- ... prothon-- ... what?"
Posted at 09:22 by Howard Bashman



"Supporting gays, but not gay marriage; For many, equality is one thing, but an institution's sanctity is quite another." Today's edition of The Philadelphia Inquirer contains this report.
Posted at 09:19 by Howard Bashman



Saturday, October 11, 2003
In Saturday's edition of The Los Angeles Times: An article reports that "Another Law Firm Dismissed in Pooh Case; The family suing Disney over royalties says it can't afford the mounting legal costs." And in news from Colorado, "Prosecutors Hedge on Open Hearing."
Posted at 23:31 by Howard Bashman



"Inquirer seeking access to warrants": Today's edition of The Philadelphia Inquirer reports here that "Philadelphia Newspapers Inc., publisher of The Inquirer, yesterday sought a court order for access to all federal search warrants connected to the bugging of Mayor Street's office. Those documents were sealed Wednesday on order of U.S. District Court Judge Eduardo C. Robreno."
Posted at 23:11 by Howard Bashman



In news from Florida: The Orlando Sentinel reports here today that "Alabama judge tells crowd to 'pray for our country.'" And The St. Petersburg Times reports here today that "Woman ready to nudge dormant ERA struggle toward completion."
Posted at 15:28 by Howard Bashman



In Saturday's newspapers: In The New York Times, Adam Liptak reports that "Typical Greenpeace Protest Leads to an Unusual Prosecution." An article reports that "After Delays, U.S. Prepares to Enforce Do-Not-Call List." In other news, "Outside Lawyers Question Strategy of Bryant's Defense." In local news, "N.F.L. Is Sued Over a Crash That Left a Child Paralyzed." And in other local news, "Judge Reprimands a Reporter for Interviewing Possible Jurors."

The Washington Post contains a lengthy front page article headlined "Muhammad's Inexorable Descent: On Eve of Trial, Acquaintances Describe a Stinging Succession of Hopes Followed by Failures." An article reports that "Bryant's Defense Tactics Are Criticized; Crime Victim Advocates Call Line of Questioning a 'Sleazy Performance.'" And you can access here an article headlined "Cable's Closed Connections: Firms Have Kept Rivals Off High-Speed Networks."
Posted at 14:05 by Howard Bashman



"Decision to enforce law not a violation of Christianity": Alabama Attorney General, and Eleventh Circuit nominee, Bill Pryor has this op-ed in today's edition of The Birmingham News.
Posted at 14:02 by Howard Bashman



Today's round-up of Ten Commandments news: Today in The Washington Times, Frank J. Murray reports that "Ten Commandments lawyers lose pay bid." The Birmingham News reports here that "Court remands fee request in Moore case." The Atlanta Journal-Constitution reports here that "Alabama justice chided for not fighting fees." And The Associated Press reports here that "Monument legal fees questioned; The 11th Circuit cites a lack of objection to $76,109 in legal fees for the monument suit." In related news, The AP reports here that "In less than two months as Alabama's acting chief justice, Gorman Houston has experienced death threats, been forced to enact record budget cuts, and had his morality questioned by strangers." And yesterday The AP reported that "Judges who will decide the fate of suspended Chief Justice Roy Moore in his ethics case are being swamped with calls and letters from his supporters, some of whom have prompted security worries."

Yesterday, The Gainesville Times reported here that "500 rally for Commandments." And The Houston Chronicle reported here yesterday that "Three seek to enter Bible suit; Group opposes removal of book outside courts building."
Posted at 13:51 by Howard Bashman



"Faith in justice: Family law Judge James Mize sees every case as an opportunity to do good." This article from today's issue of The Sacramento Bee reports, among other things, that "Mize is the judge in the high-profile custody dispute involving Michael Newdow, the Sacramento atheist suing to have the phrase 'under God' removed from the Pledge of Allegiance, and Sandra Banning, the mother of their child."
Posted at 12:50 by Howard Bashman



Access online the federal district judge's order blocking the Missouri law that would have imposed a twenty-four-hour waiting period for abortions: The order issued yesterday is available here, via FindLaw.
Posted at 12:48 by Howard Bashman



"Panel rebukes justices behind McRae complaint; Five told roles in hearing are as 'witnesses, not as parties'": Today's edition of The Clarion-Ledger contains this report.
Posted at 08:38 by Howard Bashman



"Jet-setting governor has rock star following": Columnist Lucy Morgan has this essay today in The St. Petersburg Times about a visit Governor Jeb Bush recently made to Hattiesburg, Mississippi.
Posted at 08:35 by Howard Bashman



Abortion in the news: From Michigan, The Detroit Free Press reports here that "Abortion bill's veto spurs plan to override; Granholm: Measure doesn't protect the health of the woman." And the Booth Newspapers report that "Granholm veto re-ignites abortion fight."

And in news from Indiana, The Indianapolis Star reports here that "Abortion consent decision reversed; Appeals court rules minors need go-ahead from only 1 parent." You can access the decision that the Indiana Court of Appeals released yesterday at this link.
Posted at 08:30 by Howard Bashman



Friday, October 10, 2003
Elsewhere in Friday's newspapers: The Los Angeles Times reports here that "New Smog Measures Are Ordered; Federal appeals court says the EPA erred in blaming Mexico for harmful haze in the Imperial Valley and must develop controls." You can access yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. In other news, "He's taking one big hit; Chong, who built a career on drug-based humor, begins serving a nine-month term for selling paraphernalia." In news from Colorado, "Graphic Testimony in Bryant Hearing; A detective details the accuser's account of a night that she said began with flirting and ended with rape. The defense counters aggressively." A news analysis is headlined "Bryant Defense Manages to Get Its Side Aired; Its counterattack is unusually powerful. Prosecution gains too, with nature of detail." Columnist Bill Plaschke has a related essay entitled "There's No Way to Shrug Off Details." An article reports that "Teen Sniper Suspect to Enter an Insanity Plea; Lawyers for Lee Boyd Malvo say evaluations show he was swayed by John Allen Muhammad." And an editorial entitled "Keep This One Off the Court" opposes the confirmation of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit.

In The Washington Times, Frank J. Murray reports that "Rallies will mark world opposition to death penalty." In other news, "Malvo's attorneys pursue insanity defense." And an op-ed by David Limbaugh is entitled "Judicial activism influence."

Finally, The Boston Globe reports here that "Bryant rape hearing begins; Detective describes the alleged assault."
Posted at 22:45 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Michigan Governor Vetoes Abortion Bill"; here "Judge Delays Mo. Concealed Weapons Law"; and here "Judge Won't Intervene for Comatose Woman."
Posted at 22:37 by Howard Bashman



"State attorney fined for writing on job": The Daily News Transcript reports here from Boston that "An attorney who prosecutes other lawyers for professional misconduct was fined $5,000 by the state Ethics Commission yesterday for writing mystery novels during office hours and using subordinates to help him publish the books." And The Boston Globe reports here that "Ethics panel going by the book."
Posted at 22:33 by Howard Bashman



"No: 'No means no' is still a pretty good rule." Dahlia Lithwick has this essay online at Slate this evening.
Posted at 22:31 by Howard Bashman



Same-sex marriage in the news: In news from Canada, The Toronto Star today reports that "Gay-marriage foes lose fight; Top court turns down their appeal bid; Religious, family groups undaunted." Reuters reports here that "Canadian court blocks gay marriage decision appeal." The Calgary Sun reports here that "Gay marriage upheld; Top court refuses to hear challenge to homosexual union ruling." And The Canadian Press reports here that "Conservative groups lose gay marriage battle in Supreme Court."

In today's edition of The Boston Globe, Lyle Denniston reports that "Arizona court says gays do not have right to wed." And The Detroit News reports here today that "Panel supports vote on marriage; Macomb joins trend, calls for statewide vote to amend Constitution."
Posted at 16:11 by Howard Bashman



"Closed Hearing Sought in Moussaoui Case": The Associated Press has this report on a motion that the federal government filed today in the U.S. Court of Appeals for the Fourth Circuit.
Posted at 15:58 by Howard Bashman



"President Bush: Use recess appointments to break blockade on pro-life judicial nominees." The American Life League has issued this press release, which contains a link to an embargoed version of an advertisement that the organization plans to publish in the October 14, 2003 issue of The Washington Times.
Posted at 15:22 by Howard Bashman



Reader mail: Longtime "How Appealing" reader Robert A. Neinast advises that you can access trial and appellate court filings in the going-barefoot-in-the-public-library case, which the Sixth Circuit decided today (see my earlier post here), via this link.
Posted at 15:11 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Judge Blocks New Missouri Abortion Law" and here an article headlined "Federal Courts Forge Into Electronic Age."
Posted at 15:05 by Howard Bashman



"U.S. Indicts Activist on Contempt Charges": The Associated Press has this report from Chicago. Perhaps the news relates to this decision that the U.S. Court of Appeals for the Seventh Circuit released last week. You can access my initial report on that decision at this link.
Posted at 15:00 by Howard Bashman



The Eighth Circuit isn't finished with Miranda v. Arizona yet: Today a divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued a majority opinion that begins:
Plaintiff-Appellant the United States of America appeals the suppression of physical evidence derived from a violation of Miranda v. Arizona, 384 U.S. 436 (1966), as well as the suppression of Defendant-Appellee Angel Benito Villalba-Alvarado's later, post-warning/post-waiver statements also derived from the earlier Miranda violation. We reverse. The post-waiver statements were voluntary and are admissible notwithstanding the earlier Miranda violation. United States v. Fellers, 285 F.3d 721, 724 (8th Cir. 2002), cert. granted, 123 S.Ct. 1480 (March 10, 2003) (citing Oregon v. Elstad, 470 U.S. 298, 309 (1985)). Further, we join the Third and Fourth Circuits to hold that a Miranda violation does not demand the suppression of derivative physical evidence if the non-Mirandized statement was voluntary.
The dissenting opinion of Senior Circuit Judge Gerald W. Heaney begins:
The majority obscures the real issue in this case: May the police violate a person's constitutional rights, and then exploit that violation to obtain evidence that they otherwise would not have secured? Miranda v. Arizona, 384 U.S. 436 (1966), and related cases, clearly mandate that this evidence must be excluded. Both the magistrate judge and the district court correctly determined that the cocaine seized by the police would not have been discovered absent the violation of Angel Benito Villalba-Alvarado's constitutional rights. Since the evidence seized and a portion of Villalba-Alvarado's subsequent confession flowed from the constitutional violation, they must be suppressed. I would thus affirm the district court.
You can access the complete ruling at this link.
Posted at 11:54 by Howard Bashman



Protecting the interests of the innocent taxpayers of Alabama: Today the same three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit that decided the Alabama Ten Commandments monument appeal issued a decision on the plaintiffs' request for attorneys' fees incurred on appeal. The majority opinion by Circuit Judge Ed Carnes explains:
The time that should be devoted to a case varies directly with the difficulty of the case. It takes more time and effort to stalk beasts in the backwoods than it does to shoot fish in a barrel. Whatever may have been the situation when this lawsuit was filed, by the time it reached the appellate stage -- after Chief Justice Moore had testified and the district court had made detailed factfindings -- not much stalking by plaintiffs' counsel was required. Given the well-established Lemon test, which is binding on us, and the settled facts, this case was not a hard one, and it was not difficult for plaintiffs to defend their judgment at this level.
You can access the entire, quite interesting decision issued today at this link.
Posted at 11:22 by Howard Bashman



The San Francisco Chronicle is reporting: An article reports that "More than 400 students -- nearly 90 percent of them minorities -- were admitted to UC Berkeley in 2001 with below average SAT scores under an admissions policy that was to have ended racial preferences at state universities, The Chronicle found in an analysis of admissions data."

In other news, Bob Egelko reports here that "Sex offender beats 3rd strike; Law on transients ruled too vague" and also has an article headlined "Power payback in court; Appeals justices sympathetic to refund request."
Posted at 09:55 by Howard Bashman



Virginia, Maryland, and the Potomac: Tom Toles has this editorial cartoon today in The Washington Post.
Posted at 09:50 by Howard Bashman



No shirt, no shoes, no literature: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Sixth Circuit rejected the claim of "shoeless" Robert A. Neinast that the enforcement by a public library in Columbus, Ohio of "the requirement that patrons of the Library wear shoes deprived him of his right to receive information under the First and Fourteenth Amendments." You can access today's ruling, whether or not you are wearing shoes, at this link.
Posted at 09:27 by Howard Bashman



"Andersen puts forth its case; Previous rulings bother judges": This article appears in today's edition of The Houston Chronicle. And The Associated Press reports here that "Lawyer Says Andersen Denied Fair Trial."
Posted at 06:59 by Howard Bashman



In Friday's newspapers: In The New York Times, Adam Liptak reports that "Younger of Suspects in Sniper Shootings Will Claim Insanity." In news from Colorado, "Detective Details Accuser's Case Against Bryant." Neil A. Lewis reports that "Red Cross Criticizes Indefinite Detention in Guantanamo Bay." From California comes news that "Schwarzenegger Wants Davis to Stop Filling Posts and Signing Bills." You can access here an article headlined "He's Not the Focus of Inquiry, Mayor of Philadelphia Says." And in technology news, "Snoop Software Gains Power and Raises Privacy Concerns."

The Washington Post reports here that "Malvo Plans Insanity Defense; Use of Mental Health Evidence Is Barred From Muhammad's Trial." In news from Colorado, "Bryant's Hearing Opens With Graphic Testimony." A related article is headlined "'We're Used to Everything': Californians Turn Attention to Bryant." In other news, "Texas GOP Makes Another Redistricting Bid; Democrats Promise To Fight Proposal." In news from Virginia, "Man Convicted in Islamic Charity Probe; Prosecutors Say Investment Firm Founder Had Ties to Terrorists, Urge Longer Sentence." And an editorial is entitled "The Court's Conscience."
Posted at 06:45 by Howard Bashman



"Ginsburg Honored for Judicial Career": The Associated Press provides this report.
Posted at 06:33 by Howard Bashman



Thursday, October 09, 2003
Elsewhere in Thursday's newspapers: In The Chicago Tribune, Jan Crawford Greenburg reports that "Court weighs rights of recovered addicts." And an article reports that "Court to hear Andersen appeal; Errors alleged in instructions to jury, evidence."

In The Los Angeles Times, David G. Savage reports that "Work Rights of Former Addicts at Issue." And in news from Colorado, "Security Is a Priority at Hearing; Armed guards and other precautions are planned today because of threats made in the Bryant case."

USA Today reports here that "Justices hear ex-addict's challenge of hiring rules."

Finally, The Boston Globe reports here that "Colorado court prides itself on no-frills justice; No special handling of Bryant hearing."
Posted at 23:45 by Howard Bashman



Available online at law.com: Jonathan Groner reports that "Senate Filibuster Likely for Pickering; Following committee approval, Bush nominee to 5th Circuit may face another Democratic blockade." And in other news, "Justices Consider Medical Marijuana Laws."
Posted at 23:05 by Howard Bashman



Today's Ten Commandments news: From Alabama, The Associated Press reports here that "Plaintiffs decline to respond to Moore's Supreme Court filing." From Wyoming, The Casper Star-Tribune reports here that "A First Amendment expert in Laramie said the city of Casper would lose if its officials decide to fight in court to keep a controversial Ten Commandments monument in City Park." And from Georgia, The Athens Banner-Herald reports here that "Commissioners back displaying Commandments."
Posted at 21:02 by Howard Bashman



"Supreme Court blocks Nelson execution in final hours": The Associated Press reports here from Alabama that "The U.S. Supreme Court blocked the execution of David Larry Nelson shortly before it was to take place Thursday, granting a stay to review his claim that death by lethal injection would be unconstitutionally cruel because of the condition of his veins."
Posted at 20:50 by Howard Bashman



"Gun Makers May Win Exemption From Suits": Jesse J. Holland of The Associated Press has this report.
Posted at 17:17 by Howard Bashman



"Teen Sniper Suspect to Argue Insanity": The Associated Press provides this report. And CNN.com reports that "Malvo to use 'insanity' defense in sniper trial."
Posted at 16:08 by Howard Bashman



"176,000 bad punch-card ballots, ACLU says; Group not planning to sue over lost votes": Bob Egelko has this article in today's issue of The San Francisco Chronicle.
Posted at 15:50 by Howard Bashman



"Court Urged to Review Guantanamo Appeals": The Associated Press provides this report.
Posted at 15:36 by Howard Bashman



Fourth Circuit grants rehearing en banc in case I previously described as "one of the more interesting decisions involving an issue of appellate procedure that I have read in quite some time": The Fourth Circuit's grant of rehearing en banc is noted on the front page of the PDF file that contains the three-judge panel's now vacated, divided ruling.

You can access my original post on this decision, which I entitled "Divided Fourth Circuit panel agrees that riding a jet ski over the gates of the Robert C. Byrd Dam is not recommended but splits over whether later three-judge panel may overrule holding of earlier three-judge panel," at this link. Two days later, I published extensive reader comments that I received in reaction to my call for views on the interesting question of appellate procedure that the case presents.

Here's hoping that the en banc court will address the provocative issue of appellate procedure raised in the dissent from the panel's ruling.
Posted at 15:18 by Howard Bashman



Lee Boyd Malvo to advance insanity-based defense in DC-area sniper case: That's what CNN has just reported. More details to come.
Posted at 15:12 by Howard Bashman



"Who's on first in the White House?" U.S. Senator John Cornyn (R-TX) yesterday had this op-ed in The Fort Worth Star-Telegram.
Posted at 14:38 by Howard Bashman



Free bird: A divided three-judge panel of the Third Court of Appeals of Texas ruled today that a driver who "gestured with his raised middle finger--or 'shot the bird'" at the passengers in another vehicle should not have been convicted of disorderly conduct, a class C misdemeanor, because the gesture did not tend to incite an immediate breach of the peace.

The majority opinion explains in its first footnote:
The "bird" is "an obscene gesture of contempt made by pointing the middle finger upward while keeping the other fingers down." Merriam-Webster OnLine, at http://www.m-w.com. This gesture is of ancient origin:
[T]he middle-finger jerk was so popular among the Romans that they even gave a special name to the middle digit, calling it the impudent finger: digitus impudicus. It was also known as the obscene finger, or the infamous finger, and there are a number of references to its use in the writings of classical authors. . . . The middle-finger jerk has survived for over 2,000 years and is still current in many parts of the world, especially the United States.
Desmond Morris et al., Gestures 81-82 (1979). This symbolic gesture has come to mean many things to many people in many contexts, including "displeasure" and "mild annoyance." See Martha Irvine, Is the Middle Finger Losing Its Badness?, AP Online, Feb. 23, 2003, available at 2003 WL 13367718 (reprinted in several newspapers). See also the cover of the September 20, 2003 issue of The Economist magazine, depicting a cactus in a desert panorama giving the gesture because of displeasure with the outcome of the Cancun trade talks.
You can access the majority opinion at this link and a dissenting opinion at this link. Thanks so very much to the reader who emailed to draw this ruling to my attention. (Next thing you know, the FCC will okay the F-word; oops, that's already happened, too.)
Posted at 13:47 by Howard Bashman



"Judge Geraldine paved way for women": Columnist Luther Keith has this essay in today's issue of The Detroit News.
Posted at 11:00 by Howard Bashman



"Abortion bill puts governor on spot; Activists determined that it will become law": The Detroit Free Press today contains this report.
Posted at 10:58 by Howard Bashman



"Air quality before Supreme Court": This article appears in today's edition of The Fairbanks Daily News-Miner.
Posted at 10:55 by Howard Bashman



"The First Monday in October, 2003: Reflections on the Beginning of a New Supreme Court Term, And A Federalism More Moderate than Many Claim." Law Professor Marci Hamilton has this essay online today at FindLaw.
Posted at 10:39 by Howard Bashman



In the news: A reporter from the Washington, DC bureau of The Los Angeles Daily Journal is traveling to Philadelphia this morning to interview me in connection with a profile that the newspaper is planning to run. Readers based in the Los Angeles area can be on the lookout for that in the near future. The Daily Journal doesn't post its content online, so I'll see what I can do to make the profile more widely available once it is published. In the meantime, you can access profiles by Tony Mauro (second item) and by The ABA Journal.
Posted at 10:30 by Howard Bashman



"Government agents confiscate work of two D.C. college journalists; Secret Service apologizes, returns confiscated notes; other student cannot identify agency responsible": The Student Press Law Center provides this report.
Posted at 10:21 by Howard Bashman



The color of money: The Federal Reserve reports here that the redesigned $20 bills are going into circulation today. You can learn more about the money redesign at this link.
Posted at 10:17 by Howard Bashman



"Judge will block Missouri abortion law; Wording of Missouri measure comes under challenge": This article appears in today's edition of The Kansas City Star. And The Springfield News-Leader reports here that "Abortion waiting period to be blocked; U.S. judge plans to issue order stopping enforcement of state's 24-hour delay." Accordingly, it shouldn't be long before this matter is pending before the U.S. Court of Appeals for the Eighth Circuit.
Posted at 08:48 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Judge Plans to Block Mo. Abortion Law" and here an article headlined "Moussaoui Again Denies Link to Sept. 11."
Posted at 06:55 by Howard Bashman



In Thursday's newspapers: In The Washington Post, Charles Lane reports that "Case Before High Court Centers On Job Rights, Addict's Recovery." In other news, "Moussaoui Ruling Reflects Judge, Lawyers Say." An article reports that "Malvo Lawyers Target Statement; Sniper Defense Says Prosecution Withheld Material." Today's sniper book excerpt appears under the headline "Jurisdictions Vied To Prosecute Pair." From Colorado comes an article headlined "Bryant's Aggressive Defense." And in news from Maryland, "Smoke Ban Challenge Is Denied By Judge; Measure Takes Effect Today in Montgomery Restaurants and Bars."

The New York Times reports here that "Judge Says Minnesota Cannot Regulate Internet Calls." And in local news, "Pity the Poor Gator, Lost in All the Roar."
Posted at 06:35 by Howard Bashman



"Court upholds ban on gay marriage; Ruling by state appeals panel stymies aspirations of 2 Phoenix men": Today's edition of The Arizona Republic contains this report.
Posted at 06:30 by Howard Bashman



Third Circuit nominee D. Michael Fisher to receive his Senate Judiciary Committee hearing next week: You can view the official notice of next Wednesday's hearing at this link. To increase the potential hijinks, a U.S. District Court nominee whose last name is Fischer will also be testifying at the hearing.

Attorney General Fisher and I served together as co-panelists on a Continuing Legal Education program in early 2001 (current Pennsylvania Governor Ed Rendell was also on the panel, Governor Rendell defeated Fisher in November 2002 to win the office of Governor, and Mrs. Rendell will be Fisher's colleague for life on the Third Circuit once Fisher is confirmed), and I still have the videotape of that wonderful program (which was broadcasted on the always popular Pennsylvania Cable Network and probably viewed by many who were intending to watch that week's featured farm show). Moreover, Fisher's daughter serves as an associate in the Pittsburgh office of my law firm. For all of these reasons, I wish him all the best for a smooth and rapid confirmation.
Posted at 00:15 by Howard Bashman



Wednesday, October 08, 2003
Untranslatable: The Japanese version of Larry Lessig's blog reminds me that my name is apparently untranslatable. Those who would prefer to read Professor Lessig's blog post in English are welcome to click here.
Posted at 23:58 by Howard Bashman



If you can bring a chimpanzee to court, then why not a parrot? Attorney Bill Dyer has this to say about a story that I previously mentioned here.
Posted at 23:54 by Howard Bashman



"Case raises questions about fetuses' rights; River Oaks couple wants state Supreme Court to extend wrongful death statutes to the stillborn": Yesterday, The Fort Worth Star-Telegram published this preview of an appeal argued today before the Supreme Court of Texas. You can access the appellate briefs filed with that court via this link.
Posted at 23:48 by Howard Bashman



"Federal court hears pot cases; Two appeals center on issues of states' and patients' rights." Claire Cooper, legal affairs writer for The Sacramento Bee, provides this report.
Posted at 23:38 by Howard Bashman



"Times files appeal of ruling on JOA losses": This article appears today in The Seattle Times. And The Seattle Post-Intelligencer reports here that "Times appeals ruling in JOA dispute; 'No other choice,' says publisher of step taken against P-I's owner."
Posted at 23:36 by Howard Bashman



In Wednesday's newspapers: In The Washington Post, Charles Lane reports that "Md. Asserts Final Claim To Potomac; Va. Rejects Position in High Court Arguments." A related editorial is entitled "Potomac Follies." In other news, "Dismissal of Terror Charges Appealed; Federal Judge Barred Sept. 11 Evidence, Death Penalty in Moussaoui Case." A front page article reports that "Court Says Do-Not-Call List Can Be Enforced." In local news, "Muhammad Prosecutors Withdraw Malvo Bid; Young Suspect Could Still Be Called as a Witness." A related book excerpt is headlined "In the End, Caprice Lost Its Invisibility; Gathering of Key Facts Brought Sighting, SWAT Assault and Two Arrests." And you can access here an article headlined "At Princeton, Feeling Failed; Family Seeks Return of $525 Million, Saying University Has 'Abused' Gift."

In The Washington Times, Frank J. Murray reports that "Supreme Court hears case on Potomac water." In other news, "U.S. appeals Moussaoui ruling." An article reports that "Malvo won't testify in case." And Steve Chapman has an op-ed entitled "Partial-birth chasm of ideas."

The Los Angeles Times reports here that "FTC Wins Court OK for Registry; A three-judge panel allows the agency to enforce the 'do-not-call' list while the appeal is being resolved." Henry Weinstein reports that "Mexican Abuse Victim Gains Right to Stay in the U.S.; The woman is protected by an anti-violence law, even though the beatings occurred outside the country, a court rules." And in other news, "Bryant May Waive Hearing; Laker star's defense could choose to avoid testimony in open court. A bond proceeding would follow."

The New York Times reports here that "U.S. to Appeal Ruling on 9/11 Terror Suspect." In news from Florida, "Jeb Bush Files Brief in Case of Woman on Life Support." And an article reports that "Overseer of Holocaust Fund Fears Some Victims Are Left Out."

In The Boston Globe, Lyle Denniston reports here that "US filing in Moussaoui case would avert military tribunal" and here that "FTC gets court's backing to launch no-call registry." And Frank Kramer has an op-ed entitled "Why the Patriot Act worries booksellers."

In The Christian Science Monitor, Warren Richey has an article headlined "Limits of disability act tested; The high court considers Wednesday whether a former addict should be afforded employment protections."

USA Today reports here that "Young workers say their age holds them back; Case before high court could open door for people in their 20s, 30s to sue over ageism." And in other news, "FTC told to enforce do-not-call list; Appeals court ends weeks of confusion."

Finally, online at OpinionJournal, Andrew Sullivan has an essay entitled "The State of Our Unions: If it's not a crime to be gay, why can't we get married?"
Posted at 22:15 by Howard Bashman



Available online at law.com: Tony Mauro reports that "Supreme Court Weighs Workplace Rights for Ex-Substance Abusers." And Jason Hoppin reports from the Ninth Circuit that "Latest Pot Argument May Go to Seed."
Posted at 22:11 by Howard Bashman



"Man can claim items seized in bomb probe": Yesterday's edition of The New Haven Register contained this report. The Associated Press yesterday had a report headlined "Lawyer: Branford man no longer a suspect." And Thursday's edition of The Yale Daily News will report here that "Law School bomb suspect allegedly cleared."
Posted at 22:02 by Howard Bashman



"The Supreme Court Rules": Michael M. Uhlmann has this essay in the October 2003 issue of First Things.
Posted at 20:13 by Howard Bashman



"Junkie Justice: Are drug addicts covered under the ADA?" Dahlia Lithwick has this report at Slate on an oral argument that occurred today before the U.S. Supreme Court. It's only the second day of argument in the October 2003 Term, and already an experienced appellate advocate is calling Justice Ginsburg "Justice O'Connor." In describing the procedural history of the case, Lithwick writes: "Enter the 9th Circuit, in a panel led by Judge Stephen Reinhardt--a man who's never met a sad sack he couldn't love. Reinhardt crafted an opinion reversing the district court that lacked for nothing save sound legal analysis. Lord, save us from compassionate liberal judges." It is great to have Dahlia back at the Court.
Posted at 20:04 by Howard Bashman



"Supreme Court Considers Alaskan EPA Case": Gina Holland of The Associated Press provides this report.
Posted at 19:18 by Howard Bashman



Rather be in Philadelphia? The Associated Press reports here that "Federal law enforcement officials today confirmed that listening devices found in the offices of Mayor John F. Street were planted by the FBI - a discovery that touched off a political furor just weeks before Election Day. "
Posted at 19:11 by Howard Bashman



Fourth Circuit places federal government's appeal in the Zacarias Moussaoui case on the fast track: See this order filed today.
Posted at 17:17 by Howard Bashman



Today at the U.S. Supreme Court: Gina Holland of The Associated Press reports here that "Court Weighs Rights of Recovering Addicts." The Financial Times reports here that "Companies eye test cases on clean air and disability." And The AP reports from Alaska that "Red Dog Mine appeal going before U.S. Supreme Court."
Posted at 17:04 by Howard Bashman



Ken Starr wins in the Federal Circuit against Walt Disney, ABC, and ESPN: You can access today's ruling of the U.S. Court of Appeals for the Federal Circuit at this link. The opinion explains that "The present case concerns technology for the synchronization of television information with information from the Internet."
Posted at 16:56 by Howard Bashman



"How the Public Feels About the Ten Commandments": Blogger Clayton Cramer examines the results of several recent Gallup polls.
Posted at 16:46 by Howard Bashman



In news from Georgia: Today's issue of The Atlanta Journal-Constitution reports here that "Ruling could speed execution of 10 inmates" and here that "Perdue's faith-based plan would clear impediments to school vouchers."
Posted at 16:10 by Howard Bashman



"Court Strikes Down Grandparent Rights Law": The Associated Press provides this report on a decision that the Supreme Court of Iowa issued today.
Posted at 16:03 by Howard Bashman



Should the government be liable for lightning strikes or shark attacks? According to this article published today in The Orlando Sentinel, today the Supreme Court of Florida heard oral argument in a case presenting that question.
Posted at 16:00 by Howard Bashman



"Refuge ruling for abused immigrant": Bob Egelko reports in today's issue of The San Francisco Chronicle that "A federal appeals court ruled Tuesday that some illegal immigrants who flee spousal abuse in their homeland can find refuge in the United States." You can access yesterday's ruling by the U.S. Court of Appeals for the Ninth Circuit at this link.
Posted at 15:58 by Howard Bashman



"No-call list dials up a win - for now; FTC can activate registry amid free-speech appeal": Today's edition of The Denver Post contains this article.
Posted at 15:54 by Howard Bashman



Law Professor Lawrence Solum reports on the Ninth Circuit's most recent medical marijuana oral argument: You can access his report on yesterday's oral argument at this link. And Bob Egelko reports in today's edition of The San Francisco Chronicle that "Medical pot backers appeal to court; Congress can't bar use of local weed, they say."
Posted at 14:49 by Howard Bashman



"Court upholds state's ban on same-sex marriage": The Associated Press has this news from Arizona. I have more details on this ruling immediately below.
Posted at 13:30 by Howard Bashman



BREAKING NEWS -- Arizona Court of Appeals holds that State's prohibition of same-sex marriage violates neither the federal nor the state constitution: You can access today's unanimous ruling by a three-judge panel of the Arizona Court of Appeals Division One at this link. The opinion begins:
Recently, in Lawrence v. Texas, 539 U.S. ____, ____, 123 S. Ct. 2472, 2484 (2003), the United States Supreme Court struck a Texas statute that prohibited certain sexual activity between persons of the same sex. The Court reasoned that the statute impermissibly infringed on homosexuals' liberty interest under the Due Process Clause of the Fourteenth Amendment to the United States Constitution to engage in private, consensual sexual activity without state intervention. Id.

In the wake of Lawrence, we are asked to declare that Arizona’s prohibition of same-sex marriages, Arizona Revised Statutes ("A.R.S.") sections 25-101(C) and -125(A) (2003), similarly violates the federal and state constitutions. For the reasons that follow, we hold that Arizona's prohibition of such state-licensed unions does not violate Petitioners' rights under either constitution. Therefore, although we accept jurisdiction of this special action, we deny relief to Petitioners.
The Arizona Republic reported here on July 15, 2003 that "Gay couple sue county, state to wed"; published an article on July 16, 2003 headlined "Will court case help marriage lawsuit for Ariz. gay couple?"; reported here on August 20, 2003 that "Court vows ruling on same-sex unions"; and reported here on September 1, 2003 that "Couple struggle with suit to wed; Committed to gay marriage in Arizona." And a report on the appellate oral argument is accessible here.
Posted at 12:57 by Howard Bashman



No litigation is expected to arise challenging the results of yesterday's recall election vote in California: So reported CNN at the top of the hour. One look at the results perhaps explains why. (Notably, Larry Flynt is leading Gary Coleman in the battle for seventh place.)
Posted at 12:13 by Howard Bashman



"Sodomy and 'don't ask, don't tell' go to court": Phil Carter, a UCLA law student and former Army officer, offers these thoughts at his blog "Intel Dump" on yesterday's oral argument before the U.S. Court of Appeals for the Armed Forces.
Posted at 12:10 by Howard Bashman



"Can Va.'s governor sip from Potomac? Justices grill Md.'s lawyer in centuries-old dispute over who owns the river; Great Falls intake sparked case." This article appears in today's edition of The Baltimore Sun.
Posted at 12:06 by Howard Bashman



Today's Ten Commandments news: From Ohio, The Dayton Daily News reports here today that "Ten Commandments debate may arise; Lawmaker wants state to affirm it as vital to government." From Wyoming, The Associated Press reports here that "Casper council tables 10 commandments." From Georgia, The Gainesville Times reports here that "Rally planned Thursday to support Ten Commandments." In commentary, Baltimore Sun columnist Gregory Kane today has an essay entitled "Commandments monument is testament to states' rights." And in The Hill, pollster David Hill has an essay entitled "Values contest looms in '04."
Posted at 11:55 by Howard Bashman



"U.S. Supreme Court refuses to hear lawyer's appeal; Justices won't rule on the punishment of Hoosier attorney." Today's edition of The Indianapolis Star reports here that "The U.S. Supreme Court has refused to decide whether an Indiana court's disciplining of lawyer Michael A. Wilkins for his caustic remarks included in a court brief violated his right to free speech."
Posted at 10:34 by Howard Bashman



"K Street enters fray over bench; At urging of GOP, business sets aside reluctance to fight": Today's edition of The Hill contains this report.
Posted at 10:12 by Howard Bashman



"Military Court Hears Appeal to Anti-Sodomy Rule": NPR's "All Things Considered" provided this report (Real Audio required) yesterday evening.
Posted at 09:42 by Howard Bashman



The U.S. Court of Appeals for the Sixth Circuit decides the latest installment of Amway Corp. v. The Procter and Gamble Co.: The "Factual Background" section of today's opinion begins:
Recitation of the extensive and hate-filled history between P&G and Amway would take a writing as long as both the Old and New Testaments and involve at least one of the Good Book's more prominent players. Although each side would likely argue, if given the chance, that its opponent was in the garden advising the serpent when Eve took her first bite of the apple, for our purposes we need only go back to the 1970s and Satan's rumored more recent activity with and interest in soap products.
You can access the complete opinion here (HTML) and here (PDF).
Posted at 09:31 by Howard Bashman



"Military Anti Sodomy Law Under Review": United Press International provides this report. And you can access an account from a reader of "How Appealing" of yesterday's oral argument before the U.S. Court of Appeals for the Armed Forces at this link.
Posted at 07:40 by Howard Bashman



Tuesday, October 07, 2003
Elsewhere in Tuesday's newspapers: In The Los Angeles Times, David G. Savage reports here that "Convicted Mother's Appeal Is Refused; The Supreme Court gives no reason for turning down a case in which a baby died after the mildly retarded defendant took cocaine" and here that "High Court Sends Back Tobacco Case Award; Verdict against Philip Morris exceeded limits set in April, justices say. Daimler also wins." In related news, "Top Court Rejects Infineon Appeal in Rambus Fight; Designer of high-speed chips is free to resume its suit seeking $840 million in patent royalties from semiconductor makers." An article reports that "No Closure at End of Police Trial; Some jurors and Oakland officials are outraged after acquittals in the 'Riders' abuse case. Panelists say deliberations were tense." In news from Colorado, "Judge Defers Ruling on Notes." And Kermit L. Hall has an op-ed entitled "Jury's Out on the High Court."

In The Washington Times, Frank J. Murray reports that "High punitive awards dismissed." In related news, "Court takes 'first Monday' lightly." Bruce Fein has an op-ed entitled "Redskins win over PC." And William E. Dannemeyer has an op-ed entitled "Article III, Section 2."

In The Boston Globe, Lyle Denniston reports that "Court lets S.C. murder conviction stand; Woman who used drug in pregnancy is serving 12 years." And an article reports that "Sculptor tries to carve out legal protection."

USA Today reports here that "High court declines case of mom who used cocaine, killing baby."

Finally, Jan Crawford Greenburg of The Chicago Tribune reports here that "Justices reject City Hall plea on peddling ban; Lower court said United Center ban hinders free speech."
Posted at 23:15 by Howard Bashman



CNN is projecting: "CNN projects that California voters will recall Gov. Gray Davis and elect Arnold Schwarzenegger governor."
Posted at 23:08 by Howard Bashman



Some additional coverage of yesterday's U.S. Supreme Court orders: The Oregonian reports here that "High court says punitive damages excessive in Oregon smoker case; The case goes to the Oregon Court of Appeals, which is likely to slash the $79.5 million award."

Bob Egelko of The San Francisco Chronicle reports here that "WWII slave labor reparations bid comes to an end; Justices won't hear claim against Japanese firms" and here that "AT&T loses appeal; High court says company can't force arbitration."

The Sacramento Bee reports here that "Court lets monument plan stand; Property-rights advocates had fought Clinton's order to form Giant Sequoia."

Finally, The Japan Times reports here that "U.S. court rejects appeals by war slave laborers."
Posted at 23:07 by Howard Bashman



"ScoFla reconsiders life term of burglar who had pocketknife": The Associated Press today has this report. You can access the ruling that the U.S. Supreme Court issued in this case on May 27, 2003 at this link.
Posted at 22:48 by Howard Bashman



"Supreme Court hears first cases of new term": The Knight Ridder News Service offers this report. Meanwhile, from law.com, Tony Mauro reports here that "Oral Arguments Commence at U.S. Supreme Court" and also provides an article headlined "Ringing Verizon's Bell: Antitrust case by lawyer angry over phone service heads up list of important business cases on docket," while Marcia Coyle has an article headlined "Sleeper Case on the High Court Docket: Can states be held to consent decrees?"
Posted at 22:44 by Howard Bashman



"Justices Consider Dispute on Use of Potomac River": Linda Greenhouse will have this article in Wednesday's edition of The New York Times.
Posted at 22:30 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Court: FTC Can Run Nat'l Do-Not-Call List"; here "Appeal of Terrorism Ruling Is Dropped"; and here "U.S. Military Strictly Limits Reporters."
Posted at 22:28 by Howard Bashman



"Kevorkian deserves to live outside": Columnist Susan Ager has this essay in today's edition of The Detroit Free Press.
Posted at 22:22 by Howard Bashman



"Canada Court Eases Medical Marijuana Rule": The Associated Press has this report on a ruling that the Court of Appeal for Ontario issued today. In other coverage, Reuters reports here that "Canada Eases Rules on Growing Medical Marijuana." And The Canadian Press reports here that "Court makes pot possession illegal again; Ontario judges tell Ottawa it has duty to provide medical marijuana to the ill."
Posted at 22:09 by Howard Bashman



A report on today's oral argument before the U.S. Court of Appeals for the Armed Forces in a case that presents the question whether the U.S. Supreme Court's ruling in Lawrence v. Texas requires the U.S. military to eliminate from its Code of Conduct the ban on consensual sodomy: A longtime reader emails:
The gallery was packed with spectators, about half of which were uniformed personnel. While there were also lots of folks in business suits, judging from the casual dress and book bags sported by several spectators, I would guess that several students (or at least non-lawyers) attended as well.

While there were two other issues presented on appeal, the oral argument focused almost exclusively on the issue of the post-Lawrence viability of Article 125 (which criminalizes "unnatural carnal copulation"). Oral argument took the better part of 90 minutes -- which struck me as absolutely luxuriant, if not excessive. Of course, my limited experience is with the First and Second Circuits; perhaps the COAFTAF (what exactly is the proper acronym?) routinely permits lengthy oral arguments.

Also, compared with most benches I've seen, this one was relatively cold. While most of the judges appeared engaged (i.e., not nodding off), they also seemed content to let counsel wax prolix, only asking questions when counsel appeared to be "done" having his/her say. It was all very polite (almost to a fault) and not at all what I expected (a rather unforgiving "militaristic" bench, perhaps?).

As for the merits, the judges appeared troubled by the positions taken on all sides. Counsel for the government (a career military lawyer), insisted (unsurprisingly) that Lawrence did nothing to Article 125. Citing Justice Scalia's characterization of the Lawrence majority opinion, she insisted that Lawrence, at best, subjects Article 125 only to rational basis review -- to which one of the judges pithily responded, "The traditional way to read opinions is to look at a the majority opinion, not the dissent." Nevertheless, even assuming that rational basis review should apply, two of the five judges seemed clearly troubled by the rational bases offered by the government -- unit cohesion, maintenance of discipline, morale, etc. Article 125 criminalizes homosexual as well as heterosexual sodomy, and some of the judges couldn't seem to understand how private, consensual sodomy (whether heterosexual or homosexual) could possibly relate to these legitimate interests. While government counsel appeared to concede that some heterosexual sodomy falling under Article 125 would be protected by Lawrence, she insisted that Article 125 was constitutional as applied to this particular defendant, who was convicted of both consensual and nonconsensual sodomy. When pressed to explain why, she rather conclusorily returned to the litany of "unit cohesion, maintenance of discipline, and morale" -- an explanation with which the judges did not seem particularly impressed.

Counsel for amicus, who was represented by a gentleman from Wilmer Cutler, argued that Lawrence mandates strict scrutiny of the statute. According to amicus, when the Supreme Court said in Lawrence that the Texas statute served "no legitimate purpose," the Court wasn't implying that it was engaging in rational basis review. Rather, according to counsel, the Supremes meant that the Texas statute served not even a legitimate purpose. The sweeping language of Lawrence (and the cases upon which it relies), he maintained, makes clear that prohibitions of Article 125 should be strictly scrutinized, and that the professed justifications of the military are (a) hardly compelling or (b) narrowly tailored. Therefore, Article 125 is unconstitutional on its face. The judges, however, seemed somewhat skeptical of this argument. One judge posed the following hypothetical: suppose that the Secretary of the Air Force or a military commander issued a rule or a general order that prohibited the conduct described in the Don't Ask Don't Tell statute, 10 U.S.C. 654(f)(3)(B) (mandating discharge for engaging in "any bodily contact which a reasonable person would understand to demonstrate a propensity or intent to engage in [a homosexual] act"). Now suppose a servicemember violated that order. Could the servicemember then be prosecuted for insubordination? Under amicus's theory, wouldn't Lawrence bar such a prosecution? Therefore, doesn't amicus's theory call into question the whole Don't Ask Don't Tell policy?

Appellant's civilian counsel initially declined to opine on what level of scrutiny should be applied following Lawrence. His approach appeared to be, Lawrence said what it said, namely, the state can't criminalize consensual sodomy, and the military is no exception. Counsel also seemed to distance himself from the facial challenge advanced by amicus, and directed the court's attention to the facts of this case. The defendant was convicted (among other things) of engaging in consensual sodomy off base. Lawrence, if anything, should prohibit prosecution for that. The judges responded, however, by noting that simply because the government failed to prove that the sodomy was forcible does not mean that it was consensual (apparently the testimony of the "victim" was inconsistent on this point).

As for how the court will ultimately rule, I will leave such prognostications to others. But whatever the outcome is, I think that the court will be divided. Yes, I know that you can't always judge a judge by what he or she says in oral argument, but I would say that there is definitely one, if not two, votes to throw out the Article 125 conviction.

Finally, given how courts everywhere seem to heed your advice, I end by noting that the sound system in the courtroom was less than ideal, and those of us sitting in the back rows had a hard time hearing everything. Perhaps the court personnel could crank up the volume?
I thank this reader very much for sending along such a thorough report on today's oral argument in this potentially very significant case.
Posted at 19:48 by Howard Bashman



"Supreme Scene: The year ahead in the Supreme Court." Tom Goldstein of "SCOTUSblog" today joins the impressive ranks of Slate columnists with this essay.
Posted at 19:23 by Howard Bashman



"Appeals Court Lets 'Do-Not-Call' List Go Forward": Reuters provides this report about a ruling (accessible at this link) that the U.S. Court of Appeals for the Tenth Circuit issued today.

Update: The Tenth Circuit's ruling concludes:
In light of our conclusions as to the three harm factors addressed above, we will stay the district court's order only if the FTC shows substantial likelihood of success on the merits. After reviewing the record and the parties' submissions, we are satisfied the FTC has met its burden.

We ORDER the district court's permanent injunction preventing implementation of the FTC's national do-not-call list stayed pending final resolution of this appeal on the merits. We further ORDER that the petition for review on the merits be expedited. The FTC shall file its opening brief on October 17. Mainstream Marketing shall file its responsive brief on October 31. The FTC shall file any reply on November 7. Oral argument will be held in Tulsa, Oklahoma, on November 10, 2003.
The entire ruling is available at this link.
Posted at 17:16 by Howard Bashman



"Open Excess: Federal judges perform miracle, make broadband policy worse." Reason today publishes an essay by Jeff Taylor about yesterday's ruling of the U.S. Court of Appeals for the Ninth Circuit, which I previously reported on here.
Posted at 17:05 by Howard Bashman



"Juice Misconstrued: The O.J. Simpson case and the War on Terrorism." You can access here an essay by Timothy Lynch that Reason posted online yesterday.
Posted at 17:01 by Howard Bashman



"Supreme Court Debates State Lawsuit Deals": Gina Holland of The Associated Press provides this report.
Posted at 16:21 by Howard Bashman



Does the U.S. Supreme Court's ruling in Lawrence v. Texas require the U.S. military to eliminate from its Code of Conduct the ban on consensual sodomy? This afternoon the U.S. Court of Appeals for the Armed Forces heard oral argument in an appeal presenting that question. And you can access here a press release issued last week entitled "SLDN, ACLU and Lambda Legal Urge Military's Highest Court to Strike Down Law Banning Consensual Sodomy."

A "How Appealing" reader had planned to attend the argument, and if I receive a report on what occurred in open court, I will certainly reprint it here.
Posted at 16:11 by Howard Bashman



More Moussaoui appellate news: The Fourth Circuit's docket entries in the appeal that the federal government filed today reveal that the government has also filed a motion asking that the appeal be expedited and that the word count limits generally applicable to appellate briefs be increased.
Posted at 16:00 by Howard Bashman



Appellate newz from New Zealand: Wednesday's edition of The New Zealand Herald reports here that "Privy Council on way out - by 6 votes." Thanks to "Kiwi Pundit" for the pointer.
Posted at 15:46 by Howard Bashman



"McRae complaint depositions near for 5 state justices": Today's edition of The Clarion-Ledger contains this report from Mississippi.
Posted at 15:24 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Court Skeptical of Maryland's Case in Potomac Dispute"; here "Court to Decide on Ex-Drug User's Rights"; here "Oregon Family Set Back by Tobacco Ruling"; here "U.S. to Appeal Moussaoui Decision"; and here "Prosecutors Drop Bid for Malvo Testimony."
Posted at 15:12 by Howard Bashman



The federal government today filed its appeal to the U.S. Court of Appeals for the Fourth Circuit in the Zacarias Moussaoui case: You can view the notice of appeal at this link.
Posted at 15:04 by Howard Bashman



In news from Colorado: The Denver Post today reports here that "Ruling puts no-frills judge in hot seat; Jurist's call on telemarketers stirs criticism"; here that "Death-penalty change upheld; U.S. high court refuses to hear appeal of end to state's 3-judge system"; here that "Motion to preserve evidence on Columbine expected today"; and here that "Minister seeks anti-gay shrine; Wyo. marker would cite Shepard's death."

The Rocky Mountain News, meanwhile, reports here that "Columbine interviews imperiled; Salazar working to save depositions by Klebolds, Harrises."
Posted at 14:27 by Howard Bashman



"Suit testing how top court takes cases": Saturday's edition of The San Antonio Express-News contained this report.
Posted at 14:21 by Howard Bashman



"Diane Sykes has dark secrets": Columnist Joel McNally had this essay in Saturday's issue of The Capital Times of Madison, Wisconsin.
Posted at 14:17 by Howard Bashman



Today's Ten Commandments news: The Birmingham News reports here from Washington, DC that "Protesters rally outside court; Advocates urge public displays of commandments." And The Casper Star-Tribune reports here that "Eagles will take monument."
Posted at 14:06 by Howard Bashman



Seventh Circuit panel holds that Protect Act's requirement of plenary review of federal Sentencing Guidelines departures does not amount to an unconstitutional Ex Post Facto violation: Seventh Circuit Judge Frank H. Easterbrook yesterday issued an opinion on behalf of a unanimous three-judge panel in which he explains:
[The statutory provision at issue] does not change the statutory penalties for crime, affect the calculation of the Guidelines range, or alter the circumstances under which departures are permitted. It changes who within the federal judiciary makes a particular decision, but not the legal standards for that decision. Instead of one district judge, three appellate judges now decide whether a departure is justified. An increase in the number of judges who must consider an issue reduces the variance of decisionmaking but should not affect the mean or median outcome.
You can access the complete opinion at this link.
Posted at 13:47 by Howard Bashman



See the interview of suspended Chief Justice Roy S. Moore of the Supreme Court of Alabama on Saturday's edition of C-SPAN's "Washington Journal": Simply click here to view the interview (fifty minutes; Real Player required).
Posted at 13:15 by Howard Bashman



Today is "20 questions for the appellate judge" day at "How Appealing": What this means, of course, is that today a new installment of the "20 questions" feature has been published. This month's interviewee is Eleventh Circuit Judge Stanley F. Birch, Jr. You can access his interview either by scrolling down this page a bit or by clicking on this link to the archive of "20 questions" interviews.

Law Professor Larry Lessig already has identified his favorite part of the interview with Judge Birch.

And a reader last night emailed to point out the following passage (emphasis added) from my interview last month with Federal Circuit Judge William Curtis Bryson:
19. If you were placed in charge of selecting nominees for U.S. Court of Appeals vacancies, what qualifications and attributes would you view as important, and why?

I would start with the proposition that we should put the best lawyers available on appellate courts and work from there. A degree of humility and an even temperament are desirable qualities. "Robitis" is an occupational hazard for judges, and a person who is arrogant and irascible to start with is at heightened risk of succumbing. Although most of an appellate judge's work is solitary, the appellate function is still collegial in essential respects, so an ability to work with colleagues is important. In addition, a fair dose of plain old horse sense is always useful. It is easy to get a little ethereal when parsing the precedents and counting the prongs of the multi-pronged tests, which can lead to a loss of perspective regarding the real world effect of what we are doing. Finally, I would like to see the time come when political considerations would not play a large role in judicial selection. But I would also like to see the Red Sox and the Cubs play each other in the World Series, yet I recognize that neither event is likely to occur in my lifetime or that of my grandchildren.
While we are far from assured of a Red Sox-Cubs World Series, we are a bit closer to it now than we were back in early September when Judge Bryson submitted his answers.
Posted at 12:01 by Howard Bashman



State waived sovereign immunity by accepting federal funds conditioned on such waiver, notwithstanding additional (later to be declared invalid) congressional abrogation of immunity, divided Eighth Circuit panel rules: I wish there were some pithy way to describe the fascinating issue involved in this decision that a divided three-judge panel of the U.S. Court of Appeals for the Eighth Circuit issued today. Suffice it to say that the U.S. Supreme Court can be expected to take a case presenting this question soon, as the circuits are deeply divided on its proper resolution. And if more reason is needed to read today's ruling, Senior Circuit Judge Richard S. Arnold provides perhaps the most persuasive explanation I have so far seen for why a finding of waiver is appropriate.

Update: For an opposite view, see the concurring opinion that Ninth Circuit Judge Andrew J. Kleinfeld issued today in a case presenting this same question.
Posted at 11:34 by Howard Bashman



"New judge wades into case; A new judge takes his first tentative steps toward resolving the Everglades cleanup debate." The Miami Herald reports here today that "About midway through his first slog into the thick legal muck surrounding Everglades cleanup, U.S. District Judge Federico Moreno held up a white mug and asked, 'Is there a conflict if I do take sugar in my coffee?' The courtroom cracked up. It was, after all, a charge of conflict from the sugar industry against fellow Judge William Hoeveler that landed one of Florida's most complex and contentious environmental cases in Moreno's courtroom."

Today's edition of The Palm Beach Post contains an article that begins, "At least one thing become clear in federal court Monday: This was not your father's Everglades judge." And The South Florida Sun-Sentinel reports here today that "Judge to consider special master for Everglades cleanup lawsuit."

Finally, on Sunday The Miami Herald published a profile headlined "Everglades cleanup suit passes to 'quick, fair' judge; Lawyers say Judge Federico Moreno's lack of experience in environmental law won't hamper justice in the Everglades cleanup lawsuit."
Posted at 11:30 by Howard Bashman



NPR's Nina Totenberg previews the October 2003 Term at the U.S. Supreme Court: You can click here to listen to her report (five minutes and six seconds; Real Player required).
Posted at 11:05 by Howard Bashman



Supreme Court of Georgia on my mind: The Supreme Court of Georgia yesterday issued three newsworthy decisions. The Atlanta Journal-Constitution reports here that "Retarded inmates still must prove it; Court upholds high bar for avoiding execution." The Fulton County Daily Report, meanwhile, today offers an article headlined "Standard of Proof Stands in Claims of Retardation" that begins, "Georgia was the first state to ban executing the mentally retarded, but it will remain the only state to require death penalty defendants to prove their retardation beyond a reasonable doubt." You can access the Court's Sisyphean ruling in Head v. Hill; and vice versa at this link.

In yesterday's other newsworthy decisions, The Journal-Constitution reports here that "Part of DUI law is erased; state's implied consent flawed, court rules" (access the ruling at this link) and here that "Court upholds Sunday liquor restrictions" (access the ruling at this link).
Posted at 10:30 by Howard Bashman



Is the judge obsessed with topless photographs? The Associated Press reports here that "Lawyers for former Miss North Carolina want judge disqualified."
Posted at 10:29 by Howard Bashman



"Federal judge lifts ban on plea deals; Compromise grants defendants more rights to appeal": This article appears in today's edition of The Charlotte Observer.
Posted at 10:16 by Howard Bashman



"Jury orders Legg Mason to pay $19.7 million in copyright case; Market-analysis publisher sued firm for distributing copies of its newsletter": This article appears in today's edition of The Baltimore Sun.
Posted at 07:00 by Howard Bashman



In Tuesday's newspapers: In The Washington Post, Charles Lane reports that "Battle for Potomac Back in Court; Md. to Ask Justices to Recognize Its Right to Control River." An article reports that "High Court Orders New Look at Punitive Award; Philip Morris Had Faced $79.5 Million Judgment." In other news from the U.S. Supreme Court, "Class-Action Status Stands in Sodexho Suit." An article reports that "Rights Groups Seek Information on Detainees' Treatment." In business news, "Stewart Seeks Dismissal; Fraud Charge Is Biggest One She Faces." In other business news, "Legg Mason Told to Pay Newsletter." In local news, "Gang Trial Judge Allows Statements; Slain Girlfriend Implicated Group's Leader in Rival's Death." Today's excerpt from the book "Sniper: Inside the Hunt for the Killers Who Terrorized the Nation" is headlined "Frustrations -- and Finally a Breakthrough." And an editorial is entitled "Justice Through DNA."

In The Christian Science Monitor, Warren Richey reports that "Court upholds murder verdict in stillbirth case; A cocaine-addicted woman was sentenced to 12 years in prison in S. Carolina for homicide by child abuse." And an op-ed by David R. Dow is entitled "Innocent until (sort of) proven guilty."

The New York Times reports here on a "Fear of Sabotage by Mistranslation at Guantanamo." In other news, "Tough Questions Are Raised on Fen-Phen Compensation." An article reports that "U.S. Convicts 2 in 9/11 Swindle of $350,000 in Business Relief." In business news, "Stewart's Lawyers Seek Dismissal of 2 of 5 Criminal Charge." In local news, "After Son's Suicide, Mother Is Convicted Over Unsafe Home." A related article is headlined "A Boy Alone, Treated as if 'He Was Nothing.'" And letters to the editor appear under the headings "Partial Birth Legislation" and "Restricting Prison Food."
Posted at 06:35 by Howard Bashman



"Monument pilgrimage ends": The Montgomery Advertiser today contains this report.
Posted at 06:31 by Howard Bashman



20 Questions for Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit: "How Appealing" is delighted that Circuit Judge Stanley F. Birch, Jr. of the U.S. Court of Appeals for the Eleventh Circuit has agreed to participate in this Web log’s recurring monthly feature, "20 Questions for the Appellate Judge."

Judge Birch joined the Eleventh Circuit in May 1990 at the age of 44. He attended undergraduate school at the University of Virginia and law school at the Emory University School of Law, from which he received both his J.D. and LL.M. in Taxation degrees. Following law school, he served as a first lieutenant in the U.S. Army for two years with the Special Forces and is a Vietnam Veteran. Thereafter, he began a two–year judicial clerkship for Chief U.S. District Judge Sidney O. Smith, Jr. of the Northern District of Georgia. Following that clerkship, Birch entered the private practice of law, working first in Gainesville, Georgia and then, beginning in 1985, in Atlanta.

Judge Birch has his chambers in Atlanta, which is where the Eleventh Circuit has its headquarters.

Questions appear below in italics, and Judge Birch's responses follow in plain text.

1. I see that you and a colleague of yours on the Eleventh Circuit, Chief Judge J.L. Edmondson, both clerked for the same U.S. District Judge in the early 1970s, and your clerkships appear to have overlapped for one year. Now your former co–clerk is Chief Judge of the Eleventh Circuit, and you are in line to become the next Chief Judge when his tenure in that post ends in 2009. If someone had told District Judge Smith back in 1973 that his two law clerks would go on to serve together as Judges on the federal court of appeals, do you think he would have believed it? And what, if anything, did both you and Chief Judge Edmondson take away from your clerkship experiences that enabled you to end up where you both are today?

With little doubt, absent the inspiration of Chief Judge Sidney O. Smith, Jr., Chief Judge J.L. Edmondson ("Larry") and I, probably would be country lawyers in the hinterland of North Georgia -- or practicing law in Samoa, where we seriously considered applying for clerkships on the High Court after leaving Judge Smith! In annual bar polls conducted in Atlanta, Judge Smith was consistently ranked first -- and that was no accident. We both learned much from his quiet, concerned and competent approach to judging.

Judge Smith displayed to himself a plaque on his desk and on his bench bearing the acronym "KYDMS." After awhile I inquired as to its meaning. "Keep your damn mouth shut" was his answer and his approach -- one that many judges should embrace. A Georgia small-town native, Judge Smith had been educated at Middlesex School and Harvard College (where he played football), served in the military, and graduated first in his class at the University of Georgia Law School. He returned to his hometown as a lawyer, eventually becoming an elected Superior Court (trial) judge, and was then appointed by President Lyndon Johnson as an Article III Judge.

Judge Smith could "cut through the crap" as we often heard from lawyers -- he got to the heart of the matter before him. His hallmark was the application of common sense in every case. He treated everyone, from the janitor to his fellow judges with dignity and respect. He counseled me as I departed for service in the Army and to Vietnam (after law school, but not as a JAG) that the experience with "my men" would teach me a great deal about human nature and myself. The experience, he noted, would stand me in good stead later as a trial lawyer. He was so wise. As he predicted, I formed relationships and bonds with men I would never otherwise have encountered in my life -- and I am a better person (and probably judge) for it.

When Judge Smith left the bench at the conclusion of my clerkship to become a senior partner in Alston, Miller & Gaines (now Alston & Bird) I shared the sadness and sense of loss that the bar experienced. Judge Smith had been frustrated by Congress in not providing the Northern District with enough trial judges for its exploding complex caseload and in failing to pay judges a liveable wage -- his son was on the way to Harvard and he also had two daughters to educate.

You ask whether he would have believed that we would one day become judges. I think that he was not really surprised. One of his other law clerks became a Georgia Superior Court Judge and another the director of Georgia Indigent Legal Services. Others all went on to be successful in law practices and have made contributions in public service as well. His confidence in us, the great trust and responsibility he placed in us, and his kindness nurtured an attitude of self-confidence -- but a humble self-confidence born of spending two years with a truly remarkable man and role model.

On a recent visit to Judge Smith for lunch in Gainesville, his now-deceased wife and magnificent lady, Patsy, called out as Larry and I walked up to the porch: "Sid, the boys are here." We are here in many ways because of Judge Smith. I only hope that I can also inspire, to some small degree, my clerks to aspire to the bench and public service as well.

2. What are your most favorite and least favorite aspects of being a federal appellate judge?

The interaction with my law clerks, the time spent dissecting good legal arguments and drafting an opinion, and the collegial time spent with my fellow judges are the favorite aspects of this "job." The least favorite aspects include dealing with issues and gaps in legislation that an increasingly partisan Congress causes to be considered by the courts. Another negative aspect of the job is the constant prioritizing and re-prioritizing of our work in order to afford the time and focus needed to properly address the ever-growing number and complexity of cases we confront. When I began this job our twelve active judges faced case filings totaling about 4,475. Now, the same twelve active judges (and several fine senior judges) must resolve over 7,000 cases. We are all very tired. Many of us are also frustrated with the manner in which we are treated by Congress -- both as to our cost-of-living increases (few) and the budget of the Third Branch of government. More than a few in Congress appear to view us as another administrative agency. Our entire budget is less than that of the Justice Department. But then, nobody promised us a rose garden.

3. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

I come to work each day in the courthouse named for my most admired judge (other than Judge Smith), Elbert Parr Tuttle. Upon arrival on my first day of work as a new judge with no judicial experience, before the coffee got warm Judge Elbert Tuttle walked in to the office to say "hello" and to welcome me. We had met at the festivities surrounding my investiture, but really had no occasion to "visit." He let me know that he was just below on the next floor and that he would be pleased if I would call on him for any advice that I thought he might have for me. Judge Tuttle and his life-partner, Sara, were some of the most warm, wonderful, elegant, and accomplished people I will likely ever know. He came to his chambers everyday and worked -- well into his 90's. Together with Sara, Judge Tuttle, the quintessential southern gentlemen, set the tone of collegiality and conviviality that still pervades our court and makes it a wonderful place to work. I had the privilege, together with Judge John Fullam (sitting as a senior judge by designation) of sitting with Judge Tuttle on his last oral argument panel. His body had slowed down, but his mind and quiet wit were razor sharp. I encourage those who do not know this Medal of Freedom and Devitt Award recipient, Army General (fighting in hand-to-hand combat against the Japanese as a 40+ colonel), confidant of President Eisenhower, pro bono advocate in Johnson v. Zerbst, and one of the "Unlikely Heroes" in Professor Jack Bass's recounting of the civil rights era, to become acquainted with this great American. See his tribute in Volume 82 of the Cornell Law Review (1996); and, the many articles and forthcoming biography by Professor Anne S. Emanuel (one of his former law clerks).

4. How did you come to President George H.W. Bush's attention as a potential nominee to serve on the U.S. Court of Appeals for the Eleventh Circuit?

After clerking for Judge Smith I concentrated on a path to best position myself for selection to the federal bench. Aside from furthering my legal education (a masters of law in taxation) and involving myself in a practice focused primarily in the federal courts, I realized that active involvement in the political process was essential.

For me this was not difficult since I have always believed that for a democracy like ours to work, dedicated citizens must become involved in a positive way in solving our nation's problems and maintaining it on the correct course. I had, when politically active, the greatest respect for folks with different or even opposing political views. We all wanted what was best for our nation -- we just advocated a different approach to the solutions needed to accomplish that goal. The greatest threat to our form of government is apathy.

I became active in the Republican Party because, at a national level, I was more in tune with its philosophy for good government. I say at "the national level" because when I became active in Georgia there were few in Georgia who would admit to being a Republican. However, the Republican approach to governing was truly what most Georgia Democrats embraced and practiced while clinging to the name "Democrat." History has validated my early observation. I directed Senate candidate Mack Mattingly's campaign in North Georgia when, to the surprise of many, he defeated Herman Talmadge, an entrenched southern senator. During the following years, I remained active in building the Republican Party in Georgia. This State has become a two-party state which is a good thing for Georgia. Becoming active politically lets the President have a good idea of your political philosophy. If you combine that with becoming known as a solid lawyer otherwise involved in your community and in bar work, you have laid the ground-work you need to be considered for judicial appointment. I did that.

After being on the "short-list" for three district court vacancies, the powers-that-be in Washington knew of me when the vacancy for the Eleventh Circuit occurred. After written submissions, I was invited to Washington to spend a day at the Justice Department being interviewed by about ten people, including a long session with then-Solicitor General Ken Starr. I can honestly report that no one asked me how I would vote on any ideological issue. The closest that anyone came was a question from a high-ranking Justice Department official inquiring as to how I viewed the separation of church and state. My reply was that while I had little opportunity to think about such a lofty issue in my mundane practice, I thought the founding fathers wise to insist upon a clear division, but that I worried that the state might be coming hostile to all things religious -- which I believed to be a mistake.

After vetting my work and my background, hearing what I had to offer, and meeting with me for that day, I heard from the White House a month later that I would be President Bush's nominee. I was at once humbled and elated. I will never forget the personal telephone call I received from the President inviting me to serve.

5. Your official Federal Judicial Center biography indicates that President Bush nominated you to fill a vacancy on the Eleventh Circuit on March 22, 1990 and the U.S. Senate confirmed you to serve as a U.S. Circuit Judge fewer than two months later, on May 11, 1990. Today, not too many of the least controversial federal appellate court nominees make it through the process that quickly, and for those who have, or are perceived to have, views that the opposing political party finds objectionable, the wait for confirmation can be interminable. Now there's no doubt plenty of blame to be shared between both political parties for the current state of things, but when you look at the situation facing Eleventh Circuit nominee William H. Pryor, Jr. or other stalled nominees, what is your reaction, and how if at all could the process for selecting and confirming nominees be improved?

I wish I had the answer because the courts need to fill vacancies quickly and with solid folks. In most human endeavors where conflict exists one constant for improving the situation is usually enhanced communication -- both in quantity and quality. I am not sure that the three branches of government communicate well with one another. In fact, there seems to be precious little informal communication between the Third Branch and the two other branches. I don't suggest that it is anyone's fault, we are all busy doing our respective jobs, but more understanding of each others' problems, concerns, and ideas garnered in a less formal setting than testifying before a Congressional committee could not hurt. Judges leave this type of communication too often to the Administrative Office of the Courts who deal with Congressional staffers. While that is necessary and helpful, a more personal and structured dialogue between judges, Members of Congress and the Executive Branch may be one of the answers to many of the problems characterized as "partisan gridlock." Perhaps I am just naive and unsophisticated in the ways of Washington, but to me it is as plain as the nose on my face that government seems to be pulling apart instead of pulling together. Perhaps that is not so and the media focuses us only the negative, but I suspect my colleagues inside the Beltway may concur in my opinion.

6. You and I are both graduates of the Emory University School of Law, as are several of your colleagues on the Eleventh Circuit. I remember feeling proud back in 1990 when I learned, while in the midst of my own judicial clerkship, that President Bush had chosen one Emory Law graduate to fill the Eleventh Circuit vacancy created when another Emory Law graduate, Circuit Judge James C. Hill, took senior status. Around the time of my law school graduation, Emory was placing its law students in judicial clerkships not only on federal appellate courts in the South, but also on the D.C., Second, and Third Circuits. Someone who graduated two years before me went on to clerk at the U.S. Supreme Court from a Second Circuit clerkship. This is an admittedly long-winded way of offering you the opportunity, if you'd like, to say something nice about the Emory School of Law that perhaps might cause federal and state appellate court judges from throughout the Nation to look even more favorably on clerkship applicants from our law school.

Some of my finest law clerks have come to me from the Emory Law School -- they have performed on a par with clerks from the high profile institutions such as Harvard, Yale, Columbia, Chicago, Virginia, Duke and Georgetown. I have remained active in the life of the law school, serving recently as president of the alumni association and on the alumni council. The school has marvelous, modern, handsome, and fully-automated facilities; a scholarly, dedicated and teaching-oriented faculty and a diverse and interesting student body. Its placement in the finest city on earth doesn't hurt either. Many of my judicial colleagues have assured me that prospecting for diamond quality clerks at Emory is easier and more often rewarding than mining the often depleted resources of other better known fields. If I say too much I will be working against my own self interest -- enough said.

7. Seventh Circuit Judge Richard A. Posner has described his own judicial philosophy as "pragmatic." How would you describe your judicial philosophy, and what types of cases have you found the most difficult to decide?

Thanks for mentioning Judge Posner in my question -- he is a fine author and jurist! I would describe my "judicial philosophy" as one centered on common sense and stare decisis (and when the two diverge, stare decisis with criticism). In many ways I suppose I am more of an idealist then an ideologue. Some of my colleagues and law clerks, I suspect, think that I am naive and not nearly as cynical as some situations warrant. However, in this job I think we have a duty to maintain the purity of the law and where possible differentiate between the correct and the wrong by drawing the lines of legal demarcation as clearly as possible. We are sometimes unfairly criticized as being removed from reality and encased in an ivory tower. I have always viewed the courthouse as a temple of justice where our job is to keep the flame of the rule of law burning brightly. Temples are places where high ideals and lofty ideas are worshiped. It is the harmonizing of such ideals and ideas, embodied in our Constitution and the rule of law, with the trials of daily life that I view as our challenge. As long as that harmonizing process is undertaken with the catalyst of common sense, then I feel we have succeeded in discharging our trust.

I have found those cases where a balancing process must always be employed between sometimes conflicting fundamental rights to be the most difficult. The collision of First Amendment free speech rights and any number of other personal liberties always produce for me the greatest anxiety.

8. You are considered one of the foremost experts on copyright and intellectual property law serving on the federal appellate bench. What has caused those areas of the law to be of such great interest to you, which of your own opinions do you view as your most important contributions to that area of the law, what type of copyright and intellectual property issues do you expect to be grappling with five to ten years from now, and do you think that the U.S. Supreme Court reached the right result for the right reasons in Eldred v. Ashcroft?

I appreciate your compliment -- but there are other judges who have contributed greatly to the development of intellectual property law; I am privileged to have made a contribution as well.

To quote my good friend, Professor L. Ray Patterson: "There is no legal concept so important to so many that is understood by so few as copyright." To that I say AMEN! Copyright affects core activities of a democratic republic -- learning and communication. Copyright places limits on what, where and when citizens may read, see and hear. But those limits are carefully circumscribed. Copyright was born out of censorship in England and the response to that censorship, the statute of Anne, was incorporated into our Constitution (Article I, Section 8, Clause 8). That clause together with the complementary free speech clause of the First Amendment stand as a bulwark in protecting the free flow of ideas in a free society. In our society of free men (and women) and free markets, the necessity for informed citizens and consumers is essential. Uninhibited access to information and the ability to process it, critically, is central to our way of life -- politically and economically. But therein lies the problem, the marketing monopoly that inheres in copyright represents a conflict between two fundamental tenets of American society: free speech (and the concomitant right to hear it) and free enterprise. With the advent of the transmission copyright and the technological age of communication and learning, we are called upon to reconcile, balance and harmonize these forces in a manner true to our history and enriching to our future. From a legal standpoint I cannot think of a more challenging and exciting place to be -- that is why copyright holds such interest for me. To some degree, the same may be said of trademark, trade secret, and unfair competition law as well. As I tell my clerks -- in the law this is "where the action is"! That is why I find the law of copyright so fascinating and why I attempt to stay "current" in that body of law.

As to my opinions that I view as important contributions to that area of law, I would hope they are all important contributions -- I certainly worked hard on them with that in mind. Whether "history" treats them that way will be for others to decide. In a recent opinion I had the opportunity of examining the important, and often overlooked, relationship between copyright and the First Amendment. Because I am a "son of the South" I enjoyed the opportunity to write about copyright in the context of Margaret Mitchell's "Gone With the Wind" in Sun Trust Bank v. Houghton Mifflin Co., 268 F.3d 1257 (11th Cir. 2001) (an opinion that Judge Stanley Marcus refined even further in his artful concurring opinion). I also enjoyed crafting opinions in several other cases: Greenberg v. National Geographic Society, 244 F.3d 1267 (11th Cir. 2001); Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996); Warren Publishing Inc. v. Microdos Data Corp., 115 F.3d 1509 (11th Cir. 1997) (en banc); BellSouth Adv. & Pub. Corp. v. Donnelley Info. Pub., 999 F.2d 1436 (11th Cir. 1993) (en banc); and a case where my opinion (of which I remain proud) was vacated by our going en banc and then dismissing the appeal on other grounds, Cable News Network v. Video Monitoring Services, 940 F.2d 1471 (11th Cir. 1991), vacated and reh’g en banc granted, 949 F.2d 378 (11th Cir. 1991), appeal dismissed, 959 F.2d 188 (11th Cir. 1992) (en banc). Those are just a few of the opinions that I have enjoyed writing in the intellectual property arena.

In five years we will undoubtedly be grappling with more technologically induced collisions and disputes in the copyright and First Amendment areas of the law, again confronting issues of harmonization and adaptive application.

With regard to Eldred v. Ashcroft, had I been on the Court, I would have been a respectful dissenter (if I could not have persuaded my colleagues to follow the correct path as Justice Breyer gallantly attempted to do). I will briefly explain my concerns with the Eldred decision (although much more could and will be said).

In Eldred v. Ashcroft, the Supreme Court upheld the constitutionality the Copyright Term Extension Act, which extended the term of all extant copyrights for a twenty-year period. Euphemistically it was called the "Mickey Mouse Protection Act." With all respect, Eldred was wrongly decided. A larger concern is that the majority justices, a fortiori, may not know why they decided it wrongly. The most logical reason is that they misunderstood the source of Congress' Copyright Power, the Copyright Clause of the U.S. Constitution.

The Copyright Clause contains three policies significant for a free society: (1) the promotion of learning (because the clause so states); (2) the protection of the public domain (because copyright is available only for original works only for a limited time; thus copyright cannot be used to capture works in the public domain and all copyrighted works go into the public domain); and (3) the right of public access (because in 1787, copyright was available only for published books, which, of course, ensured public access.)

Eldred, in holding that Congress did not exceed its copyright power by extending extant copyrights (without exception) for 20 years, approved Congress' rejection of the three constitutional policies. The CTEA obviously inhibits learning, freezes the public domain, and burdens the right of access by continuing the copyright holder's (not necessarily the author, usually a publisher) control of access, which returns us to the first point -- that the CTEA inhibits learning.

The question is why the Court made such a fundamental error, and the answer seems to be the majority ignored a fundamental -- the difference between a condition and a requirement. The former cannot be waived, the latter can. The Court treated the constitutional policies of copyright as requirements rather than conditions. The advantage, of course, was that it enabled the Court to ignore the promotion of learning, the protection of the public domain, and the right of public access. If one takes the position that constitutional requirements are by definition conditions, the magnitude of the error is manifest. At the least, one can ask what public interest was served by the arbitrary extension of the copyright term. Much can be debated about "conditions" and "requirements" and which the copyright policies are. There is, however, one question that needs to be answered by those on the "requirement" side. Is a Constitution for all the people or only the privileged few?

The result with Eldred is that it provides a windfall profit for a few monopolists (usually publishers, not creators) that results in a seismic fault in the structure for learning that is the framework for a free society. One can only hope that the Court will realize the error of its ways and correct a fundamental faux pas. Again, my criticism is made with great respect for the Court.

9. You wrote a letter dated November 5, 1998 to the Commission on Structural Alternatives for the Federal Courts of Appeals opposing a proposal to send all copyright-related appeals to the U.S. Court of Appeals for the Federal Circuit. That proposal, of course, was not implemented. The last page of your letter mentions that as a lawyer in private practice, you represented the owner of the "Cabbage Patch Kids" copyrights and trademarks. Tell us a little bit about what that was like and about the other types of work you handled as a lawyer before you joined the Eleventh Circuit.

I began practicing law with a small firm in Gainesville, Georgia where I lived and worked while clerking for Judge Smith (see response to 1 above). All firms were small in that rural city (population 20,000). Our firm represented Hall County and specialized in litigation, principally for insurance companies. Consequently, I was able to try a lot of jury trials early on -- much sooner than my contemporaries in the large cities. While I litigated by day, I continued my education several evenings each week that I had begun while clerking: first, in the MBA program at Georgia State University; and, later in the Master of Laws in Taxation program at Emory University (both 60 miles away in Atlanta). I finally received my LL.M. degree from Emory in 1976.

I was developing my firm's business practice when a young man named Xavier Roberts walked into my office carrying several soft sculpture dolls that he referred to as "babies" and were initially commercially known as "Little People." I registered his copyright claims in the soft sculptures, his birth certificates and adoption papers, incorporated his company, and generally helped him to organize his business. It was truly a Horatio Alger story. That small company, Original Appalachian Artworks, Inc., initially made the sculptures by hand and sold to only high-end gift shops around the country. Its sales climbed from just over $500,000 in 1978, to gross sales of over $1.5 billion by its over 120 world-wide licensees (the sculptures and assorted paraphernalia) in the early 1980's -- generating a handsome royalty flow. Watching that growth and participating in that success was invigorating and inspiring. It also allowed me to develop an expertise in copyright and trademark law. A lifelong love of copyright law followed and eventually took me back to Atlanta to join a firm formed by classmates that focused on the computer industry. We were pioneers in the early 80's in the South in computer industry representation. I actually tried the first computer source code infringement case in Atlanta. My background allowed me to do both litigation and transactional work in that practice. It was from that firm that I left to take the bench.

10. What is your view on whether the Ninth Circuit -- which now is authorized to have twenty-eight active judges and might soon be expanded to thirty-five active judges -- should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?

I have no informed opinion on that subject. The senior judges from the Ninth Circuit who sit with us on oral argument panels from time to time do not think a split would work. I would defer to their judgment. However, I just cannot imagine operating with 27 colleagues.

11. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven't been? Also, how if at all did the brand new "Law Clerk Hiring Plan" change for better or worse your experience in hiring law clerks who will be reporting to work in the fall of 2004?

The qualities I look for in a law clerk are as follows (and not necessarily in order of importance): intellectual integrity; demonstrated ability; collegiality; maturity; conscientiousness; dedication to the rule of law; and, generally emanating "good vibes" during the personal interview. My law clerks also have to be self-starters and self-sustainers because I am not a hard-task-master type of manager.

The new "hiring plan" works just fine (better if begun in July). I always thought it was ludicrous to initiate the hiring process so early. I also disdain any of the "competition" between judges for clerk candidates -- my experience is that there are plenty of fine folks to go around. I can only wonder if those judges who feel compelled to capture the perceived "top" graduates of the "best" schools have a self-confidence problem.

12. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is in the process of approving a new rule that would allow citation to unpublished, non-precedential decisions in briefs filed in all federal appellate courts. Where do you stand on the question of allowing citation to "unpublished" opinions; do you believe that federal appellate court panels should be able to designate some of their rulings as "non–precedential" upon issuance, or should the precedential value of an opinion be left to later panels to determine; and why?

Our circuit "allows" citation to unpublished opinions as persuasive authority and only designates our published opinions as precedential. Given the volume of work that we accomplish it would be unrealistic to expect us to scrutinize each opinion with the thorough rigor that we utilize when we understand that we are addressing an issue of first impression or extending or modifying such a ruling. By limiting the precedential value to certain published opinions we can better keep the law clear and certain. All of our "unpublished" opinions are in reality open to public view and scrutiny -- they are freely available to the public.

Currently we hear oral argument in only about 25% of our cases. It is generally out of these cases that our carefully crafted and vetted published, precedential opinions flow. During the year ending 30 June 2003 each active judge (we also have 5 "active" senior judges) wrote an average of 165 opinions. The number of opinions written by each individual judge ranged from a low of 149 opinions to a high of 184 opinions. During that same period, each active judge wrote an average of 24 published opinions (from a low of 15 to a high of 38). During that same period our circuit had 757 merits terminations per active judge (2d among the circuits) and 370 procedural terminations per active judge (1st among the circuits). Our circuit has the largest caseload per active judge of any circuit (654; the next is the Fifth at 579). Our total number of filings have risen from 4,476 appeals when I came on the court in June of 1990 to 7,198 as of June 2003. During the last five years we have decreased our median time of disposition (notice of appeal to issuance of opinion) by 5.7 months. We now rank third among the circuits with a time of 8.4 months (all circuit average is 10.6). In a number of significant categories our court leads all circuits: total appeals filed per panel (1,800); criminal appeals per panel (420); civil appeals per panel (excluding prisoner) (670); total appeals terminated by panel (1,826); merits terminations per panel (802); and, merits terminations per active judge (292). We all work pretty hard around here.

In the final analysis, if each opinion had to be considered precedential, there is no way that we could resolve that many disputes in a reasonable time-frame. Moreover, additional judges would hinder our efficient operation rather than help it. Given our caseload the Administrative Office of the Courts has suggested that we could request an additional 12-14 judges based on its workload statistics. As a court we have almost unanimously rejected adding even a single more judge. A collegial court operates most efficiently and effectively by remaining as small as possible. See Judge Gerald Bard Tjoflat (a former Chief Judge and a current active judge), "More Judges, Less Justice," July 1993 issue of The ABA Journal.

13. The committee in charge of considering amendments to the Federal Rules of Appellate Procedure is also in the process of approving a new rule that would end the Eleventh Circuit’s practice of counting recused judges, in essence, as having voted against granting a petition for rehearing en banc. Do you support this proposed change, and do you believe the Eleventh Circuit currently grants rehearing en banc too frequently, too infrequently, or about as often as it would occur if whether to grant rehearing en banc were solely up to you?

The proposed change makes sense and I would wholeheartedly support such a change. I am satisfied that we do not grant rehearing en banc too frequently and that our current practice of en banc rehearing, on the average about 6-10 cases per year, is working quite well. We are a very collegial court and many differences or concerns are addressed outside of the formal en banc process. Over the last 5 years we have heard a total of 29 en banc arguments (some involving consolidated cases) -- on average 6 per year. We typically have en banc sessions in February, June and October. Moreover, the only cases that I ever recall hearing initially en banc (i.e., before a panel opinion issues) were the 2001 presidential election cases. Many potential en banc cases are worked out by modifications of opinions by the panel after a member of the court voices a concern. As I noted above, and emphasize again, we are a very collegial court and work well together -- we disagree very agreeably.

14. In one of your law review articles, you wrote that "the actual composer of the law firm's work may be the 'associate' toiling away in the catacombs for little more pay than that of a federal circuit judge * * *." That passage provides a nice introduction for the following question: Is the salary now paid to federal appellate judges too low? What should federal appellate judges be paid or, perhaps less controversially, how would one determine what the proper salary should be?

Alexander Hamilton, in Federalist No. 78, wrote that "there can be but few men in the society who will have sufficient skill in the laws to qualify them for the stations of judges. And making the proper deductions for the ordinary depravity of human nature, the number must be still smaller of those who unite the requisite integrity with the requisite knowledge. These considerations apprize us, that the government can have no great option between fit character; and that a temporary duration in office, which would naturally discourage such characters from quitting a lucrative line of practice to accept a seat on the bench, would have a tendency to throw the administration of justice into hands less able, and less well qualified, to conduct it with utility and dignity."

Not only for judges, but also for top-level Federal employees including Members of Congress and their staffs, the failure of government salaries to maintain parity with changed economic conditions has affected our government's ability to attract and retain qualified, experienced people in today's highly competitive marketplace. Given the gravity and significance to our nation of the decisions made by these people in government, we are facing or will soon confront a crisis in attracting our best and brightest into government service -- particularly at points in their lives when their earning potential and family responsibilities are greatest.

Earlier this year, the National Commission on Public Service ( the "Volcker Commission"), after an exhaustive study, succinctly summarized the gravity of the problem when it observed:
The lag in judicial salaries has gone on too long, and the potential for diminished quality in American jurisprudence is now too large. Too many of America's best lawyers have declined judicial appointments. Too many senior judges have sought private sector employment -- and compensation -- rather than making the important contributions we have long received from judges in senior status. Unless this is revised soon, the American people will pay a high price for the low salaries we impose on the men and women in whom we invest responsibility for the dispensation of justice . . . .
The core problem with the current procedure for setting judges' pay is the statutory linkage of judicial salaries (as well as those of high-ranking Executive Branch officials) to the salaries of Members of Congress. This linkage causes Federal judges to suffer the consequences of Congress' reluctance to award itself a pay increase or even to accept cost-of-living adjustments that have been provided for by statute. Such reluctance stems largely from lawmakers' concern over adverse public reaction to pay increases for themselves. This dynamic has suppressed the pay of judges and other Federal executives and subjected it to the ravages of inflation. The media only exacerbates the problem by inevitably, and unfairly, labeling Congress' cost-of-living adjustments a "pay raise." While that makes for "good copy" it undermines the already eroding pool of talented and committed public servants. When I write to my Congresspersons I request that they just treat me like my postman -- just give me the same COLA as enjoyed by other federal workers each year. But that has not happened very often in the last 10 years. Judicial salaries have not kept pace with inflation over the past decade. As a consequence of receiving just five cost-of-living adjustments since 1993, judges have suffered a 9.8 percent decline in the purchasing power of their salaries from 1993 through 2002. Salary erosion over the last 10 years has offset the benefit derived from the "catch-up" raise that went into effect in 1991. Even that raise was not sufficient to restore judicial salaries to their 1969 benchmark level and only temporarily arrested the downward trend. Between 1969 and 2002, when adjusted for inflation, Supreme Court justices experienced a 37.3 percent loss in purchasing power, while circuit court and district court judicial salaries lost 23.5 percent.

There are two bills currently pending in Congress, S.1023 and H.R. 2118, that would raise judicial pay by 16.5 percent. While helpful, particularly to the low morale among the judiciary as to this issue, it too would only be a good beginning. Certainly no judge expects to be paid wages comparable to successful practitioners. However, in a free enterprise culture, pay is a measure that cannot be ignored. The Volcker Commission used the salaries of leaders of academia or nonprofit institutions as reference points because the level of education and expertise required of leaders of these institutions is similar to that required of federal judges, and these leaders, like judges, derive non-monetary rewards from the work they perform. The differential between Federal judicial salaries and salaries of leaders in the academic world is large. In 2002, The Chronicle of High Education reported that the median compensation of presidents of private doctoral institutions had increased 18 percent from 1996 to 2001 to reach $356,092. Many presidents and chancellors of the best public universities are receiving comparable compensation packages. Nationwide, the average salary of law school deans for 2002-03 was approximately $200,000 while deans of law schools at public and private doctoral institutions earned more $209,000. The Volcker Commission reported that the average salary for deans of the 25 top-ranked law schools was $301,639. Regardless of the selectivity of the group of law schools surveyed, law school deans make substantially more than district court judges. Furthermore, their compensation has not remained stagnant: 2002-03 salaries were approximately $9,000 higher than 2001-02 salaries. Even though market conditions alone should not be the measure of the adequacy of judicial salaries, they do demonstrate the growing disparity in salaries, the extent of the financial sacrifice Federal judges make to serve the public, and the lure of alternative private employment for those who have significant financial responsibilities. These sizeable disparities cannot continue without causing harm to our nation's Third Branch.

In fact, between 1990 and 2003, 77 Article III judges resigned or retired from the Federal bench, with many returning to private practice. When an experienced Federal judge retires or resigns, the caseloads of the remaining judges on that court, by necessity, increase until the resulting vacancy is filled (a process that can take months, and sometimes years). In addition, the judiciary loses the valuable skills and insights of the departing jurist -- assets that are not quickly or easily replaced. Rarely do new appointees join the bench with the range of judicial capabilities and experience that years of service confer. Moreover, the loss of the services of judges who elect complete retirement from judicial office rather than senior status is especially costly to the government. Not only does the judiciary lose experienced jurists, but, in addition -- because judges who take senior status and continue to work part time receive essentially the same salary as judges who elect complete retirement -- the judiciary loses the labor that would have been provided at no extra expense had the judges leaving the bench instead taken senior status.

The reason for their departures and the many more that are sure to follow is plain. The average age at time of judicial appointment is 52 years for circuit court judges and 50 years for district court judges. By that age, most individuals who have been tapped for the bench have spent 20 to 25 years building their careers. Most, if not all, are stars in their profession and at the pinnacle of their earning power. And, like many other individuals entering their sixth decade, they face mounting expenses because of big-ticket items, such as college tuition for their children or long-term health care of their parents or in-laws (often both). Yet, this is the time we ask them to forego their private-sector salaries and accept a salary that is a fraction of the size and not even protected from the deleterious effects of inflation. It is no wonder that salary considerations weigh heavily in the decision to join the Federal bench -- or, as recently witnessed, leave it.

Had I not been blessed with great clients and a lucrative law practice (and a spouse willing to continue working), I could not have afforded to be a federal judge. Moreover, my capable and committed colleagues who have always been in public service as U.S. attorneys and state court judges, deserve better than they are receiving from a nation to which they have devoted their lives. They should not have to mortgage their homes to send their children to college -- it is just not right! Moreover, no survivor's pension is at all provided to federal judges -- we have to purchase an annuity that maxes out at 50% and then only after many years of service.

Finally, while I understand that these are tough economic times, because it costs taxpayers less than 1% of the U.S. budget to run the entire federal court system (the Third Branch of government -- putatively a co-equal branch), a pay raise for judges, even during today's economic climate, would virtually have no impact on the nation's ability to fund key programs. I sincerely and respectfully urge those reading this to contact your Senators and Members of Congress and urge them to support S.1023 and H.R. 2118.

15. From mid–November 2000 through early December 2000, the en banc Eleventh Circuit was in the midst of the court battles over the Bush vs. Gore recount in Florida. What memories do you have of your involvement as a judge in that matter, and what was it like to have to decide such difficult questions of such great importance in such a short timeframe?

Given the short time-frame involved and importance of the many issues presented, it was a daunting challenge. We allowed counsel to "lodge" copies of pleadings with our court electronically when they were filed in the district courts so that we could be up-to-speed on the issues by the time they reached us. We literally worked day and night for several weeks. Our group of published opinions, I thought, were well-developed and hopefully were of some benefit to the Supreme Court in resolving those issues by way of its review of the Florida Supreme Court case. It was only after those opinions were published and the Supreme Court ruled that we really appreciated our involvement in that historical undertaking.

16. Your "'Helpful Hints' on Appellate Practice" is aptly titled, yet perhaps those hints will prove most useful to lawyers who don't handle appeals all that frequently in the Eleventh Circuit. What suggestions would you offer to more experienced appellate advocates when it comes to brief-writing, so that their appellate briefs might qualify as among the best you receive instead of just being very good?

That is a tough question. The truly outstanding briefs are those that succinctly and with straight-forward clarity relate the existing law to their case. Too much time is spent, even in good briefs, reviewing legal principles with which most judges are familiar. I have proposed that each circuit publish a web-site on which the "boilerplate" for each area of law in that circuit is contained and referenced by an identifying number -- much like standard jury charges. A committee of judges and/or staff attorneys could maintain the currency of the citations and text. In briefs all of those familiar legal principles could simply be enumerated (and perhaps "jump-cited" for the benefit of law clerks or new judges) thereby reducing the volume of reading and compelling counsel to focus on applying the law to the circumstances in the case before us. I have waded through pages chronicling the shifting burdens in an employment discrimination case only to be presented with a couple of paragraphs relating all of that law to the facts in the case on appeal.

17. Similarly, with respect to oral argument, what suggestions can you offer that might help a very good appellate advocate become even better?

In our circuit oral argument is typically a question and answer session. Accordingly, knowing the record inside out, being prepared to cite "your best case" for a legal proposition key to your arguments on each issue, and an ability to get to the core of your opponent's arguments and refute them would serve a presenter well in our circuit.

18. If I remember correctly, during the two years that I was clerking for a judge on the U.S. Court of Appeals for the Third Circuit, my judge confronted only one last-minute stay request in a death penalty case. I imagine that such cases must arise with greater frequency in the Eleventh Circuit. Can you describe how such last-minute stay of execution requests are handled in the Eleventh Circuit, whether, in your view, some alternate procedure might be preferable to the current practice of litigating significant life or death issues at the eleventh hour, and whether fewer serious last-minute challenges arise now as compared to when you joined the court in 1990?

We have had and do have a significant number of death penalty habeas appeals in our circuit. We have developed a procedure that typically ensures no hurried "eleventh hour" reviews are required. The first time a prisoner's appeal is filed in our court a panel of three active judges is assigned to remain with that prisoner through that appeal and all subsequent appearances. This promotes familiarity with the issues and history. Any subsequent or successive filings return to the same panel. Usually death penalty appeals, at least the first time around, are heard on oral argument after briefing and are specially set. Should a new appeal be presented after entry of a death warrant setting execution, we request that the filings in the state courts and federal district court be forwarded to us (or, as we say "lodged") with the panel assigned to the petitioner so that by the time the appeal reaches us we are totally conversant with the issues and the dispositions below. We have found this approach to be fair to both the petitioner and to the state. Because of AEDPA we are beginning to see fewer last-minute challenges.

19. How do you define the term "judicial activism," 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, and do you believe there is any way that the U.S. Senate can determine in the confirmation process whether a nominee is likely to engage in judicial activism if confirmed to the bench?

"Judicial activism" to me has the connotation of placing a personal agenda or view of the law over stare decisis. There have been quite a few cases where I have followed the existing precedent but have voiced my disapproval in an opinion suggesting how it should be different (as to our circuit precedent -- with Supreme Court precedent I do not do that). If an issue is of first impression and I am not in the majority, I respectfully dissent.

20. What do you do for enjoyment and/or relaxation in your spare time (and please be sure to mention your background as a musician)?

"Spare time" -- what's that?? In the time that I do have I spend as much of it as possible with my wife and young son, daughter, son-in-law and two grandchildren. I do pick up my trumpet occasionally to literally "blow-off-steam" but my "lip" does not last as long as it did in years past. I treadmill daily and work out with a weight trainer twice each week. I enjoy tennis when I have time to play. I follow the UVA Cavaliers, Braves and Falcons. Good food, fellowship and fire-water (particularly of the single malt Highland variety) are always welcome distractions. And Howard, on your next visit to Atlanta, you're buying!
Posted at 00:00 by Howard Bashman



Monday, October 06, 2003
"Critics Say Execution Drug May Hide Suffering": Adam Liptak will have this report in Tuesday's edition of The New York Times.
Posted at 23:18 by Howard Bashman



"Ruling Allows Forcible Drugging of an Inmate Before Execution Stands": Neil A. Lewis will have this round-up of events today at the U.S. Supreme Court in Tuesday's edition of The New York Times.
Posted at 23:17 by Howard Bashman



"Ruling Opens Cable Lines; Internet Access Choices May Grow": Tuesday's edition of The Washington Post will contain this front page article. And Tuesday's edition of The New York Times will report here that "Court Rules F.C.C. Erred in Decision on Net Access."
Posted at 23:16 by Howard Bashman



Week two of "Raising the Bar": You can access this week's round-up of interesting law blog offerings via the blog "Mellow-Drama."
Posted at 23:08 by Howard Bashman



"Wanted: judge to fill seat on federal bench." This article appears today in The Houston Chronicle. And you can access here the questionnaire candidates are expected to complete in order to apply for the job.
Posted at 23:03 by Howard Bashman



"Employee claims he was forced into prayer": Today's edition of The Alameda Times-Star reports here that "Will Osuna said he was uncomfortable when, as a University of California employee, he felt pressured to participate in what he considered religious rituals on company time." And in other news, that newspaper reports here that "Prosecutors weigh options in possible medical pot cases."
Posted at 22:59 by Howard Bashman



"Defense issues in capital cases hit Pa., not N.J.; Pa. has death-penalty reversals. A N.J. unit wins more life terms." This article appears in today's issue of The Philadelphia Inquirer.
Posted at 22:52 by Howard Bashman



"Challenge to Ban on Non-Resident Weapons Permit Fails": Friday's edition of The New York Law Journal contained an article that begins, "Adopting a position that the Second Amendment of the U.S. Constitution does not protect a fundamental individual right, a Northern District judge has held that a U.S. naval attorney with top-secret security clearance can be barred by New York from carrying a concealed weapon while visiting relatives in Ulster County, N.Y." You can access the ruling of the U.S. District Court for the Northern District of New York at this link.
Posted at 22:50 by Howard Bashman



"10 Commandments caravan arrives at U.S. Supreme Court": The Associated Press provides this report.
Posted at 22:39 by Howard Bashman



Do you swear that you want a cracker? The Associated Press reports here that "Man Wants to Question Parrot in Court." This story made the front page of Sunday's edition of The Washington Post, in an article headlined "Loulou Flew Coop, So Pet Owners Sued; Dispute Brews Over Bird Adoption."
Posted at 22:33 by Howard Bashman



"Illinois County Court a Corporate 'Hellhole'": Reuters has this report from Madison County, Illinois.
Posted at 22:28 by Howard Bashman



"Court Reverses Ruling on Cable Internet Service": Reuters today offers a report that begins, "In a pivotal decision that could shift the competitive balance among Internet service providers, a U.S. appeals court on Monday said the Federal Communications Commission erred last year in ruling that cable-based ISPs were not obliged to give rivals access to their networks." The Associated Press reports here that "Court Overturns FCC Cable Modem Decision." And c|net News.Com reports here that "Court rejects FCC cable ruling." You can access today's per curiam ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit at this link. Be sure not to miss the quite interesting concurring opinion by Circuit Judge Diarmuid F. O'Scannlain.
Posted at 22:25 by Howard Bashman



Today's U.S. Supreme Court round-up: Today is the first Monday in October, and thus the Supreme Court of the United States today issued the very lengthy Order List that heralds the start of a new Term. Today's Order List, which you can access here, is an eighty-three-page-long PDF document. As in recent years, today's Term-opening Order List contained no new grants of review; the grants of review from the cases that had accumulated over the summer had issued last week (see that Order List here). For those concerned that the Court would issue an outright denial of certiorari in the Pledge of Allegiance case from the Ninth Circuit, no such denial of review issued today.

James Vicini of Reuters sums up today's activities at the Court in an article headlined "High Court Opens Term, Disposes of 2,000 Cases." For those who desire more details, Reuters also offers the following reports: "Court Sets Aside $79.5 Mln Smoker Award"; "Court Rejects Medicated Death Row Inmate's Case"; "Justices Reject World Trade Center Bombing Case"; "US top court asks govt. views on 3M antitrust case"; "Supreme Court Rejects Appeal by Slave Laborers"; "Top Court Rejects Baby Death Conviction Appeal"; "US high court rejects AT&T appeal on bill disputes"; "Top Court Rejects Infineon Appeal Versus Rambus"; and "Court Rejects Sports Arena Peddling Ban Case."

Anne Gearan, Gina Holland, and their colleagues at The Associated Press also had a busy day producing the following coverage: "High Court Tosses Philip Morris Judgment"; "Supreme Court Won't Hear Bible Club Case"; "High Court Rejects WWII POW Labor Case"; "Supreme Court Denies Stillbirth Appeal"; "Supreme Court Denies WTC Bombing Appeal"; "Ex-Death Row Inmate Can Sue Over Defense"; "Supreme Court sidesteps class-action cases"; "High Court Won't Hear Federal Land Case"; "Supreme Court Won't Hear Beach Boy Suit"; "Supreme Court Rejects Infineon Appeal"; and "Supreme Court Allows Suit Against Sodexho." If that wasn't enough fun for one day, "Demonstrators Protest Supreme Court." And looking ahead to tomorrow, "Potomac River Dispute Goes to Supreme Court."

In coverage from the Nation's major newspapers, Neil A. Lewis reports in The New York Times that "Court Begins New Term by Letting State Authority Expand." Earlier today, Linda Greenhouse reported that "Supreme Court's Docket Includes 48 New Cases." David G. Savage of The Los Angeles Times reports here that "Conviction of Stillborn Baby's Mother Upheld; South Carolina case involved woman who used cocaine and a new statute extending abuse to include unborn children."

If you're looking for additional Term-opening previews, Joan Biskupic of USA Today reports here that "Court to weigh individual rights in new session; Miranda warning, religious studies on docket as justices begin 10th term together Tuesday." Bob Egelko of The San Francisco Chronicle today has an article headlined "Diverse docket for court's new term; Pledge of Allegiance case's fate is unclear." Jan Crawford Greenburg of The Chicago Tribune reports here that "Justices face election season scrutiny; High-profile rulings likely to spark issue of who will pick new members." The Pittsburgh Post-Gazette reports here that "Political cases on U.S. Supreme Court docket; Campaign finance, Pa. districts argued." And The Knight Ridder News Service reports that "Supreme Court's docket filled with cases on constitutional issues."
Posted at 21:19 by Howard Bashman



Tonight's music selection: "Falls on Me" by Fuel (Windows Media Player required).
Posted at 21:10 by Howard Bashman



Sunday, October 05, 2003
Programming note: "How Appealing" will next be updated on the night of Monday, October 6, 2003. At 10 a.m. eastern time on Monday, the Supreme Court of the United States is expected to issue the very lengthy order list that emerges each year on the first Monday in October. When the Court posts that order list online, you will be able to access it via this link. Finally for now, the next brand new installment of "20 questions for the appellate judge" is scheduled to be posted online here shortly after midnight on Tuesday, October 7, 2003.
Posted at 10:59 by Howard Bashman



Tomorrow, the Supreme Court of the United States begins the October 2003 Term: David G. Savage of The Los Angeles Times reports here that "45 Cases Await Returning High Court Justices; One issue is whether a state can refuse to pay for religious schooling. An employer's refusal to hire a recovered drug user is also being tested." law.com's Tony Mauro has an article headlined "Gearing Up for the New Term." And you can access here law.com's "October 2003 Docket Watch." Also, today's edition of The Fort Worth Star-Telegram contains an editorial entitled "Beginning Monday, it gets interesting."
Posted at 10:55 by Howard Bashman



Today's Ten Commandments news: From Virginia, The Free Lance-Star reports here that "Ten Commandments caravan arrives." From Wyoming, The Casper Star-Tribune reports here that "Council puts Ten Commandments monument on agenda." From Texas, The Associated Press reports here that "East Texans rally in support of Ten Commandments judge." The Huntsville Times reports here that "Georgia county heeds Commandments." Finally, The Herald-Tribune reports here that "Sarasota pastor to speak at rally."
Posted at 10:49 by Howard Bashman



We haven't yet heard the last of the marijuana smoking Michigan jurist: Yesterday, The Traverse City Record-Eagle reported here that "Judge may yet be ousted; Lawmakers want more answers before deciding."
Posted at 10:36 by Howard Bashman



"South Carolina statute exposes abortion patients; Policy not a guarantee of privacy from public": Today's edition of The Florida Times-Union contains this report.
Posted at 10:34 by Howard Bashman



"Supreme Court ideology hard to predict": Professor Kermit L. Hall has this essay in today's issue of The Salt Lake Tribune.
Posted at 08:27 by Howard Bashman



"Religion, patriotism to take center stage at high court": Lyle Denniston has this article today in The Boston Globe. He also has a related article headlined "Campaign finance tops Supreme Court docket."
Posted at 07:52 by Howard Bashman



"Pennsylvania's newest Chief justice to take on modernization of state courts": This article appears in today's edition of The Pittsburgh Post-Gazette.
Posted at 07:50 by Howard Bashman



"Justices call recent reversals coincidence": The Casper Star-Tribune provides this report.
Posted at 07:44 by Howard Bashman



"Suicide concert is a no show; Officials say there is no evidence rock band Hell on Earth went through with its promise of an onstage suicide." This article appears in today's edition of The St. Petersburg Times.
Posted at 07:37 by Howard Bashman



In Sunday's newspapers: In The Washington Post, Charles Lane reports that "Justices Return to Face Issues of Religion and Politics; Pledge of Allegiance Case Tops Docket in New Court Term." Today's excerpt from the new book "Sniper: Inside the Hunt for the Killers Who Terrorized the Nation" is headlined "Truck Took Probe Down Wrong Road; Police Focused on White Vehicle Despite Bulletin for Blue Caprice." A related item is entitled "Card's Discovery Opened Line of Communication; Leak Seemed to Imperil Link, Prompting Tirade by Chief." Law Professor Stuart Banner has an op-ed entitled "It Isn't So Easy to Put Those Marketers on Hold." And Law Professor Jeffrey Rosen reviews the book "Same-Sex Marriage and the Constitution" by Evan Gerstmann.

In The New York Times, Adam Liptak has an article entitled "Leaks and the Courts: There's Law, but Little Order." And an editorial is entitled "Law Schools, Gays and the Military."
Posted at 07:32 by Howard Bashman



Saturday, October 04, 2003
Elsewhere in Saturday's newspapers: The Washington Times reports here that "Bill would permit military academy prayers." And an editorial is entitled "Scrap the pot and sex ads."

The Los Angeles Times reports here that "White House Probe Raises Legal and Ethical Issues; With the expiration of the independent counsel law, the course of the leak inquiry is unclear." In other news, "UC Berkeley Admissions Scrutinized; Study finds hundreds of highly qualified applicants were rejected in favor of freshmen who were 'marginally academically qualified.'" An article reports that "Remap Battle May Delay Primary; Republican officials in Texas can't agree on proposals. The state could miss the chance to pick a Democratic presidential candidate." In news from Colorado, "Funds Request in Bryant Case Signals Strategy; Prosecutors want to hire a strangulation expert, seen as an attempt to prove use of force. Judge says the Laker star must come to court Thursday." And an editorial is entitled "Connerly's Unreal World."

Finally, The Boston Globe reports here that "Disclosure of library choices sought."
Posted at 23:00 by Howard Bashman



"Canadian PM Mulls Smoking Marijuana When He Retires": Reuters provides this report.
Posted at 22:35 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Web Attack Postpones Suicide Rock Show"; here "Colleges Push Suicide Prevention Web Site"; here "Sniper-Trial Jury Selections May Be Tough"; here "Fla. Dept. of Children Loses in Court"; and here "Amish Seek Help From Machines After Storm."
Posted at 22:29 by Howard Bashman



"Un-American Activities": In the October 23, 2003 issue of The New York Review of Books, Anthony Lewis has this review of Law Professor David Cole's book "Enemy Aliens: Double Standards and Constitutional Freedoms in the War on Terrorism."
Posted at 20:40 by Howard Bashman



"Barbour helps place Pickering ad; Musgrove's letter confirming support of judge runs in newspaper": Today's edition of The Clarion-Ledger contains this article.
Posted at 20:23 by Howard Bashman



Also in Saturday's issue of The New York Times: An article asks "Are More People Cheating?" In news from California, "Davis Busy Filling Vacancies and Judgeships Just in Case." And an article reports that "Manhattan U.S. Attorney in Line to Be Ashcroft Aide."
Posted at 20:21 by Howard Bashman



"Custody fight flares when lesbian relationship ends": The Seattle Times today reports here that "In what has become a legal conundrum, the state Court of Appeals was asked yesterday to sort out the parental rights of two women who once shared a lesbian relationship." And The Seattle Post-Intelligencer today provides coverage of this story in an article headlined "Court battle over girl, 8."
Posted at 12:28 by Howard Bashman



"Groups protest state high court's secrecy; Judge hears argument for disclosure of justices' pretrial votes": The Houston Chronicle today reports here that "About 90 percent of the cases taken to the Texas Supreme Court are not accepted for review, and a coalition of public interest groups claimed in federal court on Friday that the secretive process of screening the appeals violates the public's constitutional rights."
Posted at 12:24 by Howard Bashman



Today's Ten Commandments news: From Wisconsin, The La Crosse Tribune reports here that "Appeals court questions Crabb's action on monument." From Florida, The Ledger reports here that "Polk Display Escapes Lawsuit." From Georgia, The Gwinnett Daily Post reports here that "Ten Commandments bout against ACLU costing county $300,000." And from Maryland, The Baltimore Sun reports here that "'Ten Commandments' judge guest at Md. rally; Ala. justice endorses effort of conservative legislators."

Suspended Chief Justice Roy S. Moore of the Supreme Court of Alabama was a guest on C-SPAN's "Washington Journal" this morning. The video is not yet available online, but I will keep an eye out for it.
Posted at 12:02 by Howard Bashman



Will staging a suicide as part of a shock rock band's performance injure a family's good name? Finally someone is focusing on the questions that matter the most. See this article from today's issue of The St. Petersburg Times.
Posted at 10:03 by Howard Bashman



"Attorney suggests limiting prayers; The county attorney says the commission should open meetings with a neutral invocation, avoiding church-state separation issues." This article appears in today's edition of The St. Petersburg Times.
Posted at 10:00 by Howard Bashman



In Saturday's newspapers: The New York Times reports here that "Government Lawyers Fear 9/11 Ruling Threatens Qaeda Cases." You can access here an article headlined "Foreigners' Rights in the Post-9/11 Era: A Matter of Justice." An article reports on "Doctors Who Performed Abortions Before Roe v. Wade." In local news, "Judge Censured for Remarks, and He Agrees to Step Down." And in other local news, "Mother Seeks Mistrial After Juror Incident."

The Washington Post reports here that "Sniper Book Taints Case, Defense Says." In other news, "Ala. Judge Takes Biblical Laws Case to Md.; Christians' Rights Labeled at Risk." Editorials are entitled "A Way Out" and "To Quell the Killings." And a letter to the editor appears under the heading "No Threat To Marriage."
Posted at 09:55 by Howard Bashman



"Judge orders halt to band's suicide show plans; Members of Hell on Earth made themselves scarce as officers sought to serve them the order." This article appeared in Friday's issue of The St. Petersburg Times. And that newspaper's pop music critic, Gina Vivinetto, had an op-ed entitled "Band's stunt robs us all of dignity."
Posted at 00:30 by Howard Bashman



Friday, October 03, 2003
In Friday's newspapers: The New York Times reports here that "Judge Rules Out a Death Penalty for 9/11 Suspect." In local news, "Governor Defends His Embattled Choice for a Federal Judgeship." And in news from Colorado, "Bryant's Accuser Will Not Testify at Hearing."

The Washington Post reports here that "Ruling Shakes Up Moussaoui Terror Case; Judge Refrains From Dismissal, Bars Execution." In local news, "Metro Arrest For Snacking Ruled Legal." And an article reports that "Suit Holds Microsoft Responsible for Worm Holes."

The Los Angeles Times reports here that "Judge Rules Out Death Penalty for Moussaoui; The Justice Department is also barred from using evidence and testimony to connect the alleged terrorist conspirator to the Sept. 11 attacks." David G. Savage has a related article headlined "A Tough Sell as Death Penalty Case: Judge says government didn't show Moussaoui directly participated in the Sept. 11 attacks." Henry Weinstein reports that "Parolees Cannot Be Forced to Give DNA Samples, Court Rules; Only those reasonably suspected of a crime can be compelled to give blood, appellate panel says. The decision is likely to be appealed." In other news, "House Backs Ban on Form of Abortion; Prohibition of what critics call the 'partial- birth' procedure is favored in the Senate. It would be the first such federal law in 30 years." In business news, "Microsoft Faces Suit Over Viruses, Worms; Plaintiff uses a new California disclosure law to try to force the company to alert users about problems sooner." You can access here an article headlined "Slot peddler: Knowing he couldn't win, Flynt entered the race to get message out." In other news, "An Immigrant President? It Could Happen. The House and Senate are weighing proposals for an amendment to the Constitution that would let foreign-born citizens hold the job." In local news, "Luster Ordered to Pay Millions; Court awards $20 million to a woman, who said she was unaware she had been drugged and raped until she was shown a tape." And in other local news, "Parents of Rape Suspect Arrested; The couple threatened and tried to bribe the alleged victim, police say."

Finally for now, in The Boston Globe, Lyle Denniston reports that "Moussaoui ruling poses new setback for prosecutors."
Posted at 23:51 by Howard Bashman



"Man and woman jailed for having sex on lawn": The Daily Herald of Columbia, Tennessee yesterday provided this report.
Posted at 22:50 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Planned Parenthood Sues to Block Mo. Law"; here "Judge Denies Moussaoui Access to Media"; here "Dismissal of Patriot Act Suit Sought"; and here "Justice Dept. Taps Stewart Prosecutor."
Posted at 22:46 by Howard Bashman



"Why a local hospital gave in to a racist demand; Supervisors said they sought only to avoid a confrontation." The Philadelphia Inquirer reports here today that "For several days in early September, supervisors at Abington Memorial Hospital told African American employees to stay out of a patient's room after a man ordered that no blacks assist in the delivery of his child."
Posted at 22:39 by Howard Bashman



"Pickering gets approval from committee": Today's edition of The Hattiesburg American contains this article. And at National Review Online, Byron York has a must-read essay entitled "Lindsey Graham's Pickering Moment: The new senator makes a passionate statement on the Senate stalemate."
Posted at 22:28 by Howard Bashman



"Federal court candidate criticized for e-mail to Stabenow": The Associated Press reports here that "A Michigan appeals court judge has come under fire for an e-mail criticizing U.S. Sen. Debbie Stabenow's efforts to delay his nomination for a federal judgeship. The e-mail from Judge Henry Saad appeared to be a response to one sent to him by a man identified only as Joe. Stabenow said she received the e-mail from Saad on Monday."
Posted at 22:22 by Howard Bashman



"Asbestos victims urge 'no' vote on legislation": Saturday's edition of The Minneapolis Star-Tribune will contain this report.
Posted at 22:20 by Howard Bashman



In news from Wyoming: The Casper Star-Tribune today reports here that "Ten Commandments plan may be illegal" and here that "Phelps seeks anti-gay marker."
Posted at 22:16 by Howard Bashman



"Life in the midst of terror probe: Innocent neighbors feel the sting of accusations, arrests." The Detroit Free Press today contains this report.
Posted at 22:11 by Howard Bashman



"Detroit makes good on bounced check": This article appears in today's edition of The Detroit News. And The Detroit Free Press reports here that "Computer blamed for check foul-up."
Posted at 22:08 by Howard Bashman



"Michigan gay union limits sought; Sen. Cropsey wants amendment defining rite as between one man and one woman": The Detroit News provides this report.
Posted at 22:05 by Howard Bashman



"Judge weighs Ashcroft charge; A contempt decision against attorney general would be only second citation in history." This article appears in today's edition of The Detroit News.
Posted at 21:59 by Howard Bashman



"Lawyer Pleads Guilty in Tobacco Case": The Associated Press reports here that "A lawyer indicted with former Attorney General Dan Morales pleaded guilty to mail fraud Friday for his efforts to obtain hundreds of millions of dollars in fees from the state's tobacco settlement."
Posted at 17:57 by Howard Bashman



"Whither Corporate Blogs??" "Balasubramania's Mania" has this interesting post.
Posted at 17:48 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit today grants rehearing en banc in two criminal cases: In one case, the Ninth Circuit appears to allow the federal government when prosecuting a criminal case to invoke "issue preclusion" against the defendant where a fact at issue in the current prosecution was resolved by a jury beyond a reasonable doubt against the defendant in an earlier prosecution. Other federal appellate courts do not allow the prosecutor to invoke issue preclusion in these circumstances. You can access the now-vacated three-judge panel's opinion here and the order granting rehearing en banc here.

In the other case, the Ninth Circuit has granted rehearing en banc to determine the method used to ascertain whether a violation of the speedy trial provision of the Juvenile Delinquency Act has occurred. The Ninth Circuit's current method has been subject to criticism from within that court and from other federal appellate courts. You can access the now-vacated three-judge panel's opinion here and the order granting rehearing en banc here.
Posted at 17:19 by Howard Bashman



In re Grand Jury Witness who refused to testify way back when and says he won't testify now: The U.S. Court of Appeals for the Seventh Circuit publicly released this quite interesting opinion today.
Posted at 17:13 by Howard Bashman



Programming note: The October 2003 installment of "20 questions for the appellate judge" is scheduled to appear online here shortly after midnight on Tuesday, October 7, 2003. This month's interviewee is Eleventh Circuit Judge Stanley F. Birch, Jr.
Posted at 16:55 by Howard Bashman



"New Supreme Court Term Begins Next Week": Anne Gearan of The Associated Press has this report. A related article notes that while the new Term starts on the traditional first Monday in October, because October 6, 2003 is the Jewish holiday Yom Kippur, the U.S. Supreme Court won't hear its first argument of the Term until Tuesday, October 7th.
Posted at 16:50 by Howard Bashman



James B. Comey nominated to be Deputy Attorney General at the Department of Justice: The White House today made this announcement. Comey currently serves as the U.S. Attorney for the Southern District of New York.
Posted at 16:47 by Howard Bashman



Quick reaction time: As some of you no doubt noticed, I was away from the computer for a bit during the middle of the day. Here in the Philadelphia area, today is one of the most beautiful days of the year -- not a cloud in the sky, and the temperature is in the mid-50s with only a light breeze.

I had the good fortune to visit early this afternoon with the good folks from Pontiac Motorsports at Raceway Park in Englishtown, Old Bridge Township, New Jersey. They were in town for the 5th Annual NHRA Sport Compact Fall Nationals. Sport compacts are front-wheel-drive Pontiac Sunbirds, Chevy Cavaliers or the like into which 1000+ horsepower engines are placed for drag racing.

Now I know many people read this blog because I'm often the first to report on interesting appellate court rulings. My quick reaction time was mechanically confirmed today in a drag racing simulator that times how quickly one reacts to the green light's appearance on the light tree that starts a drag race. The simulator, which gives one the tactile and visual feedback of actually being on the track, timed my reaction time at .070 seconds, or seven one-hundredth of a second. That put me in first place among approximately thirty-five people in attendance and earned me a commemorative (non-Ten Commandments bearing) plaque.
Posted at 16:29 by Howard Bashman



Fourth Circuit grants rehearing en banc in case involving employee fired for refusing to remove Confederate Flag from his tool box: Today the U.S. Court of Appeals for the Fourth Circuit posted this document to its Web site, noting the granting of rehearing en banc in this case.

When a divided three-judge Fourth Circuit panel first announced its ruling back on May 30, 2003, I had this to say:
Employee fired for flying the flag: The Confederate flag, that is. Today a divided three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued a very interesting decision in which the majority's opinion begins:
Matthew Dixon, an employee of Coburg Dairy, Inc., was asked by his employer to remove two Confederate flag stickers from his tool box after an African-American co-worker complained. Dixon refused to remove the stickers, and Coburg, relying on the company's anti-harassment policy, fired Dixon. Dixon then filed suit in South Carolina state court, alleging wrongful discharge and a "Violation of Constitutional Rights." Coburg removed the case to federal court on the ground that Dixon's complaint necessarily depended on the resolution of a substantial question of federal law. Dixon filed a motion to remand, which the district court denied. The district court then granted Coburg's motion for summary judgment and dismissed the case. Dixon appeals both of the district court's rulings. For the reasons discussed below, we affirm in part and reverse in part.
Circuit Judge Roger L. Gregory delivered the majority opinion. The other two judges on the panel were U.S. District Judges sitting by designation. You can access both the majority opinion and the dissenting opinion at this link.
Stay tuned for an eventual ruling from the en banc Fourth Circuit.
Posted at 16:04 by Howard Bashman



Iraq, September 11th, and the Second Circuit: Today the U.S. Court of Appeals for the Second Circuit issued an opinion that begins:
This litigation arises from the attacks upon the United States on September 11, 2001, and takes place in the context of ongoing American military and reconstruction activity in Iraq. It involves competing claims to the disposition of certain Iraqi assets held by the Federal Reserve Bank of New York. On the one hand, Plaintiffs, who are relatives of victims who perished in the World Trade Center catastrophe, seek a declaration that they are entitled to execute against those assets to satisfy a judgment they hold. On the other hand, Defendants contend that those assets should return to Iraq, where they are desperately needed for military and rebuilding efforts. In a very real sense, this case implicates questions of national security and foreign affairs, as well as immediate experiences of collective loss, fear, and grief.

As a Court, our task is limited to interpreting the statutes governing the disposition of those assets in a way that is faithful to Congressional meaning. Because we conclude that the plain language of the statutes that govern dictates that the funds Plaintiffs seek to attach are no longer available for that purpose, we affirm the judgment of the district court.
You can access the complete ruling at this link.
Posted at 16:01 by Howard Bashman



Third Circuit panel again refuses to transfer challenge to Federal Communication Commission's media consolidation rules to the U.S. Court of Appeals for the D.C. Circuit: See this order that a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit issued on Wednesday. You can access the panel's original order denying a request for transfer, over the dissent of the Third Circuit's Chief Judge, at this link.
Posted at 15:56 by Howard Bashman



The Associated Press is reporting: You can access here an article entitled "Kerry Against Bush Majority on High Court"; here "Bryant to Head Justice Legal Policy Dept."; here "Impact of Gun Control Laws Questioned"; here "Court Won't Delay Wis. Recall Election"; and here "Judge in Tawana Brawley Case Must Retire."
Posted at 15:37 by Howard Bashman



"Professor Dershowitz 'Rests His Case'": Law Professor Alan M. Dershowitz has this letter to the editor in today's issue of The Harvard Crimson.
Posted at 10:00 by Howard Bashman



"Santorum denounces 'bigotry'; Senator says his colleagues should examine motives": The Hill reported here yesterday that "Charges of an anti-Catholic bias have resurfaced over district court nominee J. Leon Holmes, but this time they are leveled against centrist Republicans rather than at Democrats. Sen. Rick Santorum (R-Pa.) is angry with members of his own caucus who object to writings by Holmes, a devout Catholic, about women and marriage."
Posted at 09:56 by Howard Bashman



"Kmart advisers bill $138 million; Concerns raised about fairness to employees, shareholders who lost": Today's issue of The Detroit Free Press contains this report.
Posted at 09:53 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "FBI Probes Big Jury Awards in Mississippi"; here "N. Carolina Man Executed for 1993 Murder"; and here "FCC Proposes N.Y. Shock Jock Case Fine." Via the FCC's Web site, you can access the FCC's decision here and a press release here.
Posted at 09:48 by Howard Bashman



"Officials mull more Exxon claims; Lawsuit: Clause allows spill settlement to be reopened." The Associated Press provides this report.
Posted at 09:40 by Howard Bashman



"State asks court to back ban on same-sex unions. ICLU maintains law is discriminatory; 2 briefs are filed in support of measure." This article appears today in The Indianapolis Star. More details are available via this link to Marcia Oddi's "Indiana Law Blog."
Posted at 09:35 by Howard Bashman



"Judge urges considering black for court post": Back on Friday, August 8, 2003, I published the following post (internal links omitted):
"Judge urges considering black for court post": Today's issue of The St. Louis Post-Dispatch reports here that "Judge Theodore McMillian, who grew up amid blatant racism before breaking the color barrier on the 8th U.S. Circuit Court of Appeals here a quarter-century ago, hopes African-Americans will at least be considered to replace him." As the reader who drew this article to my attention has noted, the article misspells the name of another Eighth Circuit judge.
Last month, however, columnist Deb Peterson had this to say in her column published in The St. Louis Post-Dispatch:
GREAT APPEAL: Missouri's chief justice, Ronnie White, is urging President George W. Bush to appoint Supreme Court Judge Stephen N. Limbaugh Jr. to the 8th U.S. Circuit Court of Appeals. White also got the state's Black Caucus - mostly Democrats in the House and Senate - to support Limbaugh. White's name had been forwarded for the same spot by local U.S. Reps. Richard Gephardt and William "Lacy" Clay Jr. But White knows the appointment isn't in the cards for him, so he endorsed Limbaugh in a letter to the president. As the state's senior senator and a Republican to boot, Sen. Christopher "Kit" Bond, R-Mo., has a big say in who gets the nod. Bond is said to be leaning toward labor lawyer and Bryan Cave partner Jerry Hunter. ... Insiders say White's support for Limbaugh is partly an effort to hinder Hunter, although Hunter and White are both African-Americans. Limbaugh is Caucasian.
You can read more of what Peterson wrote at this link.
Posted at 09:20 by Howard Bashman



"State's chief justice calls for more diversity in the legal system": The Associated Press reports here that "Chief Justice Ronnie White, noting his status as the first black leader of Missouri's Supreme Court, urged lawyers and judges Thursday to increase diversity in the legal system."
Posted at 09:15 by Howard Bashman



"Michigan judicial spat spurs move to change constitution": The Michigan-based Booth Newspapers reports that "The political battle between Michigan's two Democratic U.S. senators and the Bush administration over judicial appointments just might end up changing the U.S. Constitution." And The Associated Press reports here that "House members back bill to change nominations as Saad delayed again."
Posted at 09:10 by Howard Bashman



Today's Ten Commandments news and commentary: From Alabama, The Birmingham News contains an article headlined "Moore lawyer: Ethics charges premature." The Associated Press reports here that "Attorneys say Moore innocent." The Clanton Advertiser reports here that "Display legislation will be revisited." And yesterday's edition of The Birmingham News contained an editorial entitled "More Moore: Chief justice makes case to U.S. Supreme Court."

From Florida, The Orlando Sentinel reports here that "ACLU won't fight monument." And The News Chief reports here that "Law firms say they'll back 'rock' in case of lawsuits."

From Georgia, The Gainesville Times reports here that "Commandments trial starts Oct. 20." And The Atlanta Journal-Constitution today contains an op-ed by David Rensberger entitled "Commandments force-fed."

From Indiana, The Evansville Courier and Press reports here that "Hostettler fights judicial rulings."

Finally, World magazine has an essay entitled "Squeezing Lemon."
Posted at 08:55 by Howard Bashman



"2nd vote by panel OKs Pickering bid; Judge's approval party-line victory": The Clarion-Ledger today contains this report. The New York Times reports here that "Senate Panel Approves Judge's Nomination." The Washington Post reports here that "Panel Backs Pickering For Appellate Bench; Democratic Filibuster May Doom GOP Effort." The Washington Times reports here that "Pickering nomination goes to full Senate." The Atlanta Journal-Constitution reports here that "Court nominee clears hurdle; Pickering debate moves to full Senate." The Knight Ridder News Service reports that "Senate judiciary approves controversial judge; Democrats vow fight." Reuters reports here that "Senate Panel Approves Judicial Nominee Pickering." And The Associated Press reports here from Vermont that "Senators split on judge."
Posted at 06:55 by Howard Bashman



"2 justices must testify in McRae case; Five high court judges complained that fellow judge is disruptive, merits suspension": This article appears in today's edition of The Clarion-Ledger.
Posted at 06:54 by Howard Bashman



Thursday, October 02, 2003
"Bond's chief spokesman leaves after Web site flap": The St. Louis Post-Dispatch today contains this report. You can access cached copies of these two blogs here and here.
Posted at 23:36 by Howard Bashman



"Proof and justice: The Florida Supreme Court did the right thing by suspending the arbitrary two-year deadline on the petition process for postconviction DNA testing." This editorial appears today in The St. Petersburg Times.
Posted at 23:11 by Howard Bashman



Available online at law.com: An article reports that "9th Circuit Scoffs at Forced DNA Testing." In news from Florida, "Deadline for Convicts' DNA Requests Suspended." An article reports that "2nd Circuit Clarifies Attorney Fees Award Standard." In other news, "Ashcroft Memo Endorses Plan for Swift Pleas; New policy codifies 'fast-track' case processing in border states." And Shannon P. Duffy reports that "Law Professors, Students Sue Defense Department."
Posted at 23:09 by Howard Bashman



In Thursday's newspapers: The Washington Post reports here that "High Court Urged to Review Hamdi Detention." In other news, "Redskins Can Keep Trademark, Judge Rules." An article reports that "Sniper Suspects Reunited in Court; At Pretrial Hearing, Malvo Declines to Answer Questions About Muhammad." In other news, "Bipartisan Deal Reached on DNA Tests for Inmates; Bill to Provide $1 Billion to Solve Federal, State Crimes, Give Defendants Access to Technology." And in business news, "FCC Begins To Receive Complaints About Calls."

In USA Today, Joan Biskupic has a profile entitled "Olson's return spans huge victory, deep loss; Once the target of investigation, he became a top Justice official. Then his wife perished on 9/11." A related item is entitled "The Olson file."

The Los Angeles Times reports here that "Tobacco Giant, in a Shift, Pays Victim; A $2-million settlement in a fire case is a break from Philip Morris' policy of not yielding on individual claims. More suits could result." An article reports that "Sniper Case Suspects Come Face to Face in a Virginia Courtroom; The defendants -- Lee Boyd Malvo and John Allen Muhammad -- barely acknowledge each other during a pretrial hearing." In local news, "Judge Opts Out of Lengthy Pooh Case." And in other local news, "Judge in Tax Case Appeals Condo Bill; John M. Watson, who ruled that a common real estate assessment method is illegal, disputes an 18.6% tax increase for his property in La Habra."

The New York Times reports here that "Pataki Choice for Judgeship Is Assailed." An article reports that "In Murder Suspect's Mind, Victims Live, Defense Says." In business news, "Judge Rejects Class Action Against Seed Producers." An article reports that "Man Who Quit Withholding Taxes Pleads Guilty." And an op-ed by Viet Dinh and Neal Katyal is entitled "Let Justice Take Its Course."

The Washington Times reports here that "Senators praise nominee highly." In other news, "Judge rules Redskins name not demeaning." An article reports that "Malvo makes eye contact with ex-mentor in court." Mona Charen has an op-ed entitled "Free speech disorientation." And Tom Knott has an essay entitled "Fat-cat lawyers on attack against the Big Mac."

The Boston Globe reports here that "Translator said to carry sensitive data." And columnist Ellen Goodman has an op-ed entitled "A right to make annoying calls?"

The Christian Science Monitor contains an editorial entitled "The Moussaoui Muddle." And Pat M. Holt has an op-ed entitled "Driving dangerously with the Patriot Act."
Posted at 22:16 by Howard Bashman



The Associated Press is reporting: Anne Gearan reports that "U.S. Might Try Moussaoui Before Tribunal." And in other news, "Judge Blocks U.S. From Towing Ships" (plus access here the ruling of the U.S. District Court for the District of Columbia).
Posted at 19:45 by Howard Bashman



"The Do Not Call Squall: The constitutional smack-down at the heart of Do Not Call." Dahlia Lithwick today has this essay online at Slate.
Posted at 19:41 by Howard Bashman



U.S. Court of Appeals for the Second Circuit agrees that tobacco companies' status as tortfeasors does not convert them into primary plans or self-insured plans for Medicare beneficiaries injured by using their products: You can access today's ruling at this link.
Posted at 16:57 by Howard Bashman



In news and commentary pertaining to recent Ninth Circuit rulings: Today's edition of The Arizona Republic reports here that "High court taking role in school tax credits; Will give authority to Arizona or feds." And columnist E.J. Montini today has an essay entitled "Court ruling on executions overlooks the victims."
Posted at 16:30 by Howard Bashman



Arizona appellate court prohibits governmental taking of private property for "private use": Yesterday, the Arizona Court of Appeals Division One issued this ruling in a case that was featured last Sunday on the CBS News program "60 Minutes." Today, The Arizona Republic reports here that "Judges rule in favor of Mesa brake shop; Randy Bailey gets to keep his property."
Posted at 16:22 by Howard Bashman



The Associated Press is reporting: You can access here an article headlined "Court Strikes Down U.S. Prisoner DNA Law" and here an article headlined "House Passes Partial Birth Abortion Ban."
Posted at 15:40 by Howard Bashman



Updates available online from The Washington Post: You can access here an update headlined "Senate Panel Approves Judicial Nominee Pickering" and here an update headlined "Judge Bars Death Penalty for Moussaoui."
Posted at 15:36 by Howard Bashman



"New abortion bill defies logic, medicine, even the dictionary": Columnist Laura Berman has this essay in today's issue of The Detroit News.
Posted at 15:30 by Howard Bashman



"Murderer's appeal is rejected; Hartman's last options are high court, Easley": Today's edition of The Raleigh News and Observer contains this report.
Posted at 15:21 by Howard Bashman



"State looking to define marriage; It's 1 man, 1 woman, amendment proposes": This article appears today in The Detroit Free Press.
Posted at 15:18 by Howard Bashman



"Given those two holdings and the facts of this case, the last word in this opinion is: 'Affirmed.'" So concludes the introduction to this interesting opinion that Circuit Judge Ed Carnes delivered today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Eleventh Circuit in a Family and Medical Leave Act case.
Posted at 15:15 by Howard Bashman



When should a federal appellate court allow an interlocutory appeal of an order certifying, or refusing to certify, a large number of defendants as a "defendant class action"? Today a unanimous three-judge panel of the U.S. Court of Appeals for the First Circuit issued an opinion by Circuit Judge Bruce M. Selya that begins:
A recent amendment to the Civil Rules permits courts of appeals, in their discretion, to entertain interlocutory appeals from orders granting or denying class certification. See Fed. R. Civ. P. 23(f). To this point, no court has addressed the criteria that should guide the exercise of discretion in permitting (or declining to permit) interlocutory appeals with respect to defendant classes. This petition for leave to appeal from a class certification order requires us to plunge into that abyss.
You can access the complete opinion at this link.
Posted at 14:56 by Howard Bashman



BREAKING NEWS -- U.S. District Judge presiding over prosecution of Zacarias Moussaoui refuses to dismiss case but precludes the death penalty: You can access the opinion that U.S. District Judge Leonie M. Brinkema issued today at this link and Judge Brinkema's accompanying order at this link. Today's decision was taken in response to the federal government's refusal to allow Moussaoui's lawyers access to the testimony of witnesses in the custody of the U.S. military.

Today's decision would seem to allow the federal government to obtain from the U.S. Court of Appeals for the Fourth Circuit a review of the merits of the discovery orders that the federal government has disobeyed. You can access here the Fourth Circuit's earlier decision dismissing the federal government's previous appeal as premature due to the lack at that time of any penalty imposed by the district court for the federal government's noncompliance.

Update: Coverage of the ruling is available here from The Associated Press and here from Reuters.
Posted at 13:48 by Howard Bashman



Divided three-judge Ninth Circuit panel declares unconstitutional the federal DNA Analysis Backlog Elimination Act of 2000: As today's