How Appealing

Tuesday, November 30, 2004
Wow, that was fast! It may be approaching the midnight hour, but in response to this post from less than an hour ago, a "How Appealing" reader with access to a copy in PDF format of the federal government's opening appellate brief that arrived today at the U.S. Court of Appeals for the Eighth Circuit in the federal partial birth abortion ban appeal has sent the brief along so that I can post it online. You can access the brief at this link.
Posted at 23:02 by Howard Bashman



"Supreme Court weighs whether Title IX covers retaliation claims": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 22:40 by Howard Bashman



"Videos Cited in Calling Kosher Slaughterhouse Inhumane": This article will appear Wednesday in The New York Times.
Posted at 22:38 by Howard Bashman



Charles Lane is reporting: In Wednesday's issue of The Washington Post, he will have articles headlined "Retaliation, Bias Are Alleged in Ala. Case; Court Weighs Suit Of School Coach" and "High Court Puts Limit On Lender Liability; Statutory Damages Can't Exceed $1,000."
Posted at 22:35 by Howard Bashman



Available online from law.com: Tony Mauro reports that "High Court Considers Title IX's Reach."

And in news from Georgia, "Fen-Phen Trials May Test New Damages System; 'Reverse bifurcation' procedure designed to block 'back-door' punitives."
Posted at 22:15 by Howard Bashman



Beyond the Dale: Law Professor Ann Althouse has a post entitled "Analogizing law schools to the Boy Scouts."
Posted at 22:12 by Howard Bashman



"Justice Dept. Nixes Neb. Abortion Ruling": The AP provides this report on the federal government's appeal to the U.S. Court of Appeals for the Eighth Circuit in which the federal government seeks to vacate an injunction entered by a federal district judge in Nebraska against the federal ban on partial birth abortion. The federal government failed to include an electronic copy of its brief in its Eighth Circuit filing, which is why I cannot link to that brief at this moment.
Posted at 22:10 by Howard Bashman



"Harvard Law to Bar Military Recruiters": The Associated Press has issued this report. And you can access online here the statement of Harvard Law School Dean Elena Kagan.

The statement is premature in a sense, in that yesterday's ruling by the U.S. Court of Appeals for the Third Circuit won't take effect at the earliest until 52 days from yesterday, when the Third Circuit will issue its mandate to the district court. And if the federal government seeks and obtains a stay of that mandate pending a request for further review in the U.S. Supreme Court, the Third Circuit's mandate may never issue. For example, the Ninth Circuit's mandate in the Pledge of Allegiance case never issued (and thus that ruling never had any effect "on the ground" within the Ninth Circuit) before the U.S. Supreme Court issued its reversal.

On the other hand, Harvard Law School at all times (including now) has had the right to ban military recruiters from campus notwithstanding the existence of the Solomon Amendment -- the university simply had to pay the price in loss of federal funding. Dean Kagan's statement suggests that now that the price to be paid will soon be zero dollars, Harvard Law School can afford to exercise its right of association in the manner it prefers. On this very point, to the extent that the Solomon Amendment causes a law school to "speak" in any manner, it seems to me that a law school is forced to reveal that it finds the continuation of federal funding to have a greater value than the evenhanded application of the school's anti-discrimination policy. This "speech" -- which reveals that the exercise of rights sometimes comes at great cost; even at a cost that may be too great to bear -- would seem to teach law students a valuable lesson about how the real world often operates.
Posted at 22:00 by Howard Bashman



"Wide scope for Title IX meets resistance": Online at "SCOTUSblog," Lyle Denniston offers this report on a case argued today before the Supreme Court of the United States.
Posted at 20:50 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained a segment entitled "Supreme Court Hears Arguments on Title IX" featuring Nina Totenberg.

And today's broadcast of "Talk of the Nation" contained a segment entitled "Calls for States' Rights, from the Left."
Posted at 20:44 by Howard Bashman



Additional criticism of yesterday's Solomon Amendment ruling: Someone who reviews many judicial opinions for a living calls yesterday's Third Circuit ruling in the Solomon Amendment case "dead on arrival" at the U.S. Supreme Court. Read the full post online here at the "Power Line" blog.

Update: This post has been edited to conform to edits made to the original post to which I linked.
Posted at 20:10 by Howard Bashman



That was fun: I had a great time appearing this evening on MSNBC's "The Abrams Report" with Dan Abrams. A transcript should be available online tomorrow. My wife commented that I was the only guest who seemed to retain composure, but perhaps that's because Dan agreed with my assessment of the Third Circuit's ruling yesterday in the Solomon Amendment case.

My radio appearance tomorrow morning to discuss yesterday's Solomon Amendment ruling, on the Michael Smerconish show on WPHT 1210 AM in Philadelphia, has been pushed back to an 8 a.m. start time.
Posted at 20:02 by Howard Bashman



"Man, I Throw Like a Woman: The Supreme Court explores the subtleties of sex and basketball." Dahlia Lithwick has this Supreme Court dispatch this evening.
Posted at 19:55 by Howard Bashman



"Unsolomonic...and unfair": The blog "Power Line" posts an email from a reader in connection with yesterday's Third Circuit ruling.
Posted at 15:35 by Howard Bashman



"Slate's Jurisprudence: High Court's High Season." Today's broadcast of NPR's "Day to Day" contained this segment (RealPlayer required) featuring Dahlia Lithwick.
Posted at 15:25 by Howard Bashman



The U.S. Supreme Court is the likely next stop for the Solomon Amendment case decided yesterday in the U.S. Court of Appeals for the Third Circuit: Normally, once a three-judge panel of a U.S. Court of Appeals decides a case, the losing party has the option to seek rehearing en banc before all non-recused active judges (or, in the Ninth Circuit, before a panel of eleven judges). In the Third Circuit, however, rehearing en banc is not available if a majority of the judges in regular active service is recused from hearing a case.

A notice enclosed with the copy of yesterday's Third Circuit ruling that the court sent to me by mail indicates that a majority of the Third Circuit's active judges is recused from the case. As a result, the U.S. Supreme Court is the one and only place where the federal government will have any realistic possibility of getting yesterday's ruling by a divided three-judge Third Circuit panel overturned.

Often the U.S. Supreme Court will refrain from hearing cases that involve the grant or denial of a preliminary injunction, because that relief will be superseded once the trial court issues its final adjudication. In this instance, however, that usual reluctance may not exist, because yesterday's Third Circuit ruling leaves little doubt how the case must be resolved on the merits in the district court.
Posted at 15:00 by Howard Bashman



"Appeals Court Rules Against Pot Ad Ban": The Associated Press provides this report on a ruling that the U.S. Court of Appeals for the First Circuit issued yesterday.
Posted at 14:44 by Howard Bashman



"Federal appeals court to rehear Lynn desegregation plan": The Daily Item of Lynn, Massachusetts contains this article today.
Posted at 14:44 by Howard Bashman



"High Court Limits Lending Law Damages": Reuters provides this report.
Posted at 14:35 by Howard Bashman



Upcoming TV and radio appearances: In connection with yesterday's ruling of the U.S. Court of Appeals for the Third Circuit in the Solomon Amendment case, in which I had filed an amicus brief on behalf of three law student veterans' groups, I will be appearing this evening on the MSNBC program "The Abrams Report" with Dan Abrams, which will be televised from 6 p.m. to 7 p.m. eastern time. And tomorrow morning, those in the Philadelphia area can hear me interviewed on the Michael Smerconish show on WPHT 1210 AM at 7 a.m.
Posted at 14:25 by Howard Bashman



"Court Limits Damages for Misleading Loans": Gina Holland of The Associated Press provides this report.
Posted at 11:52 by Howard Bashman



"Court Asked To Drop China Spy Case; Lawyers Say Access to Key Witness Blocked": Josh Gerstein has this article today in The New York Sun.
Posted at 11:50 by Howard Bashman



"If Republicans change Senate rules, it could come back to bite them": This editorial appears today in The Austin American-Statesman.
Posted at 11:00 by Howard Bashman



"An Unsolomonic decision": This post about yesterday's ruling of a divided three-judge panel of the U.S. Court of Appeals for the Third Circuit in the Solomon Amendment case appears today at the "Power Line" blog. Earlier this morning, I collected press coverage of the ruling in a post you can access here.
Posted at 10:44 by Howard Bashman



The Supreme Court of the United States issued one opinion today: Justice Ruth Bader Ginsburg wrote the opinion of the Court in Koons Buick Pontiac GMC, Inc. v. Nigh, No. 03-377, and the judgment under review was reversed and remanded.

You can access the syllabus at this link; Justice Ginsburg's majority opinion at this link; the concurring opinion of Justice John Paul Stevens at this link; the concurring opinion of Justice Anthony M. Kennedy at this link; the opinion concurring in the judgment of Justice Clarence Thomas at this link; and the dissenting opinion of Justice Antonin Scalia at this link. And you can access the oral argument transcript at this link.
Posted at 10:00 by Howard Bashman



"Veterans willing to wait on plan to relocate cross": The San Diego Union-Tribune today contains an article that begins, "Most of the county's veterans are long removed from the battlefield, but a new twist in the dispute over the Mount Soledad cross shows they haven't lost their taste for a fight."
Posted at 09:55 by Howard Bashman



"Alabama clings to segregationist past; US state with racist history votes to keep 'separate schools for white and coloured children' as part of constitution": The Guardian (UK) contains this article today.
Posted at 09:52 by Howard Bashman



"U.S. judges await ruling on sentencing guidelines": This article appears today in The Pittsburgh Post-Gazette. Will today be the day? We shall learn the answer very soon.
Posted at 09:45 by Howard Bashman



"Supreme Court Examines Gender Equity Law": Hope Yen of The Associated Press provides this report.

And FindLaw columnist Joanna Grossman today has an essay entitled "Does Title IX Prohibit Retaliation Against Coaches Who Point Out Sex Discrimination? The Supreme Court Hears Argument On This Issue Today."
Posted at 09:40 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": The broadcast contained segments entitled "Supreme Court Case Tests Title IX Protections" (featuring Nina Totenberg) and "Court: Colleges May Ban Military Recruiters." RealPlayer is required to launch these audio segments.
Posted at 09:35 by Howard Bashman



C-SPAN's "Road to the White House" featuring Ana Marie Cox of Wonkette.com: On November 13, 2004, she delivered the keynote address at the Online News Association's annual conference in Hollywood, California. You can view the video by clicking here (RealPlayer required).
Posted at 08:40 by Howard Bashman



"Court hears medical marijuana case; Justices consider California statute vs. U.S. drug laws": Jan Crawford Greenburg has this article today in The Chicago Tribune. David G. Savage of The Los Angeles Times reports that "Justices Take On Medical Pot Law; There's no consensus as the high court debates whether U.S. antidrug policy supersedes California's medical marijuana exception." Michael McGough of The Pittsburgh Post-Gazette reports that "Medical marijuana case puts Supreme Court in curious spot." Bob Egelko of The San Francisco Chronicle reports that "Medical pot case in court; 2 California women plead their case before justices." And Josh Richman of The Oakland Tribune reports that "Pot case heard at the top; Oaklander finds a little sympathy on Supreme Court, but next year's ruling is tough to predict."

USA Today reports that "Justices doubtful about medical marijuana; Exception to federal anti-drug law could lead to abuse, Souter says." The Baltimore Sun reports that "Justices skeptical over patients' use; Court hears arguments in Calif. medical marijuana case." The Hartford Courant reports that "Marijuana Case Heard; Before Supreme Court, Lawyers Debate California Law On Medicinal Use." The San Jose Mercury News reports that "Medicinal marijuana gets court skepticism; Justices will rule on law for California pot use." The Sacramento Bee reports that "Justices debate medical pot; Supreme Court appears cool to 2 women's pleas to uphold California law." And Financial Times reports that "Principle of states' rights challenged in marijuana case."
Posted at 07:30 by Howard Bashman



Death notice for Laury Gordon Estrada: The Washington Post contains this death notice today.
Posted at 07:20 by Howard Bashman



"Colleges Can Bar Army Recruiters": Adam Liptak has this article today in The New York Times. The Harvard Crimson contains an article headlined "Court: Solomon Rule Invalid; Federal appeals court sides with universities seeking to block military recruiters." Both of those articles contain quotes from me.

In other coverage, The Philadelphia Inquirer reports that "Court says colleges can bar military recruiters; Forcing universities to allow them or lose aid is a free-speech violation." The Los Angeles Times reports that "Campuses May Bar Military Recruiters; A federal appeals court rules that universities' free-speech rights are incompatible with the Pentagon's policy on gays and lesbians." The Boston Globe reports that "Pentagon ordered to halt law school recruiting tactics." CNN.com reports that "Court halts penalty for barring recruiters; Law allows government to withhold funds to colleges."

The Yale Daily News reports that "Court allows recruiter ban; Appeals court ruling may impact Yale lawsuit." The Daily Pennsylvanian reports that "Local court of appeals strikes controversial military recruiting law; U.S. Third Circuit Court of Appeals declares Solomon Amendment unconstitutional." And Washington Square News reports that "Solomon amendment overturned; Appeals court rules colleges can bar military recruiters."
Posted at 07:05 by Howard Bashman



Monday, November 29, 2004
Further reaction to today's ruling by the U.S. Court of Appeals for the Third Circuit holding that the Solomon Amendment should be preliminarily enjoined as unconstitutional: At "The Volokh Conspiracy," both Orin Kerr and David Bernstein have posted about the ruling. And the blog "Power Line" offers a post titled "Philosophizing disgrace."
Posted at 23:42 by Howard Bashman



In Tuesday's issue of The New York Times: Linda Greenhouse will report that "States' Rights Defense Falters in Medical Marijuana Case." And Neil A. Lewis will have an article headlined "Red Cross Finds Detainee Abuse in Guantanamo."
Posted at 23:28 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Justices Dubious of Medical Marijuana." Marcia Coyle has an article headlined "High Court Press: Coach seeks to expand civil rights reach of Title IX."

Shannon P. Duffy reports that "3rd Circuit Voids Law School Funding Restriction." Jonathan Ringel reports that "Giant Suit Against Car Insurers Broadsided by 11th Circuit."

And in other news, "Guantanamo Detainee Cases Torn Between Two Judges; The DOJ wanted one judge to handle motions in the cases, but it ended up with both a Carter appointee and a Bush appointee."
Posted at 23:05 by Howard Bashman



In Tuesday's edition of The Washington Post: Charles Lane will report that "High Court Not Receptive to Marijuana Case; Medical Use Seen As Subject to Regulations." In other news, "U.S. Loses Ruling Over College Bans on Military Recruiters." An article will report that "Rights Groups Urge Scrutiny Of Gonzales." And a front page article will bear the headline "Luring Pro Bono Lawyers For Death Row's Forgotten."
Posted at 22:55 by Howard Bashman



"Colleges Can Bar Army Recruiters": Adam Liptak will have this article in Tuesday's issue of The New York Times. And Tuesday's issue of The Philadelphia Inquirer will report that "Law putting military recruiters on campus invalidated."
Posted at 22:30 by Howard Bashman



"Peterson's bid for new jury, change of venue rejected": The San Francisco Chronicle provides this news update.
Posted at 21:50 by Howard Bashman



"Calif. Court: No New Peterson Jury." The Associated Press reports here that "The California Supreme Court on Monday rejected a request from Scott Peterson's lawyers that a new jury be selected to decide whether he should get the death penalty. The ruling clears the way for the penalty phase to start on Tuesday."
Posted at 21:10 by Howard Bashman



This evening's broadcast of the PBS program "The NewsHour with Jim Lehrer" reports on today's U.S. Supreme Court oral argument in the medical marijuana case: You can play the audio from this evening's report by clicking here (RealPlayer required).
Posted at 20:55 by Howard Bashman



Funeral arrangements for Laury Estrada: Reported here, at the blog "Southern Appeal."
Posted at 20:24 by Howard Bashman



Law Professor Eugene Volokh comments on today's ruling by the U.S. Court of Appeals for the Third Circuit holding that the Solomon Amendment should be preliminarily enjoined as unconstitutional: Professor Volokh, who knows a thing or two about the First Amendment, writes that "I think the court was likely mistaken, for complicated reasons that I'm too swamped to go into right now."

But unlike Pierre de Fermat, who observed that "I have discovered a truly remarkable proof which this margin is too small to contain," Professor Volokh goes on to opine that "I think this is an important case, and I predict that, if the Third Circuit doesn't hear it en banc (I have no prediction on whether it will or it won't, since I don't know how the Third Circuit operates), the U.S. government will ask the Supreme Court to hear the case, and the U.S. Supreme Court will agree to hear it."
Posted at 19:44 by Howard Bashman



Available online at "SCOTUSblog": Lyle Denniston has a post entitled "The federalism revolution -- revisited." And Marty Lederman has a related post entitled "Further Thoughts on Ashcroft v. Raich."
Posted at 19:42 by Howard Bashman



"Federal Appellate Court Strikes Solomon Amendment; Military May Not Force Law Schools to Give Access to Military Recruiters": The law firm of Heller Ehrman White & McAuliffe LLP has issued this press release today.

And I have had the pleasure this afternoon of giving several interviews to members of the press about today's ruling of the U.S. Court of Appeals for the Third Circuit in this case, in which I filed this amicus brief as counsel for several law student veterans' groups.
Posted at 19:22 by Howard Bashman



"Supreme Court Hears Arguments on Medical Use of Marijuana": Linda Greenhouse has this news update online at the web site of The New York Times.
Posted at 19:15 by Howard Bashman



"Justices appear unlikely to OK medical use of marijuana": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 19:04 by Howard Bashman



"Justices appear unlikely to OK medical use of marijuana": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 19:04 by Howard Bashman



"Dude, Where's My Integrity? Medical marijuana tests the Supreme Court's true love of federalism." Slate has just posted online this Supreme Court dispatch by Dahlia Lithwick.
Posted at 19:00 by Howard Bashman



"A test of how far Title IX protections reach: The Supreme Court Tuesday considers the case of a fired coach who had railed against conditions for female athletes." Warren Richey will have this article in Tuesday's issue of The Christian Science Monitor.
Posted at 18:03 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": The broadcast contained segments entitled "Supreme Court Hears Arguments on Medical Marijuana" (featuring Nina Totenberg) and "Analysis: Legal Use of Medical Marijuana."
Posted at 17:55 by Howard Bashman



"Schools Win Battle Over Campus Recruiting": The Associated Press reports here that "A federal appeals court Monday barred the Defense Department from withholding funds from colleges and universities that deny access to military recruiters."
Posted at 17:33 by Howard Bashman



"Court Weighs Challenge to Medical Marijuana": David G. Savage of The Los Angeles Times provides this news update.

Online at law.com, Tony Mauro has an update headlined "Justices Dubious of Medical Marijuana" that begins, "The Supreme Court on Monday appeared ready to accept Bush administration arguments that California's medical marijuana law interferes too much with federal efforts to combat illicit drugs."

And Law Professor Lawrence Solum, at his "Legal Theory Blog," offers this very detailed account of today's U.S. Supreme Court oral argument.
Posted at 17:30 by Howard Bashman



"Federal court strikes down military recruitment on campuses": The Philadelphia Inquirer provides a news update that begins, "A divided federal appeals court in Philadelphia today invalidated the Solomon Amendment, the 10-year-old federal law that requires universities to give campus access to military recruiters or forfeit federal funding."
Posted at 15:42 by Howard Bashman



"The trouble with press accounts of Supreme Court cases": Law Professor Eugene Volokh offers this post today. While Eugene's criticism of the news account that he examines has much to recommend it, I am struck by the fact that every early report on today's U.S. Supreme Court oral argument involving medical marijuana states that the Court appears inclined to rule in favor of the federal government. Even if this were not in line with my earlier prediction, I'd still think that the unanimity of veteran observers' impressions is noteworthy.
Posted at 15:20 by Howard Bashman



Fifty-nine percent of adults in the United States don't know what job or political office is now held by William H. Rehnquist: The Associated Press is continuing to publicize the results of its latest poll, now in an article headlined "Poll: Americans Want Roe v. Wade Upheld." A related graphic can be accessed here. The underlying data, which give rise to the title of this post, can be found in an item headlined "Supreme Court Retirement Poll Method."
Posted at 15:06 by Howard Bashman



"Supreme Court Considers Medical Marijuana Case": James Vicini of Reuters provides this report. And Bloomberg News reports that "Medical Marijuana Draws Skepticism at U.S. Top Court."
Posted at 14:45 by Howard Bashman



BREAKING NEWS -- Divided three-judge panel of the U.S. Court of Appeals for the Third Circuit directs the entry of a preliminary injunction against enforcement of the Solomon Amendment: You can access today's ruling at this link. As today's majority opinion explains at its outset, "The Solomon Amendment, 10 U.S.C. §983, requires the United States Department of Defense ('DOD') to deny federal funding to institutions of higher education that prohibit military representatives access to and assistance for recruiting purposes."

Third Circuit Judge Thomas L. Ambro wrote the majority opinion, in which Senior Third Circuit Judge Walter K. Stapleton joined. Senior Third Circuit Judge Ruggero J. Aldisert wrote a dissenting opinion.

This is a major First Amendment free speech victory by various law schools against the U.S. Department of Defense. The U.S. Congress, meanwhile, fervently continues to support the Solomon Amendment. It will be interesting to see whether the federal government will seek en banc review from the Third Circuit or will seek to have the U.S. Supreme Court reverse the Third Circuit's ruling. Much more information about this litigation can be accessed via this link.
Posted at 14:02 by Howard Bashman



"UR denied Supreme Court review": The Rochester Democrat and Chronicle provides a news update that begins, "The U.S. Supreme Court today denied the University of Rochester's request for a review of rulings that invalidated the university's patent on a class of drugs that include the multimillion-dollar Celebrex."
Posted at 13:55 by Howard Bashman



"Take Our Ninth Circuit Court--Please!" Last Tuesday, The Wall Street Journal published a letter to the editor from Ninth Circuit Judges Diarmuid F. O'Scannlain and Richard C. Tallman responding to the op-ed entitled "Don't Split the Ninth Circuit!" written by Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas published in The Wall Street Journal on November 10, 2004.

The op-ed is freely available online to all, while the letter to the editor is available only to paid subscribers of The WSJ's online content. To allow the letter to the editor to reach additional readers, one of its co-authors has sent along its text, which I am now posting online:
Take Our Ninth Circuit Court–Please!

Congress has a strategic opportunity to do what it has been discussing since long before we were appointed circuit judges by Presidents Reagan and Clinton: reorganize the Ninth Circuit. Compared with the other federal appellate courts, the Ninth Circuit Court of Appeals employs more than twice the average number of judges, handles almost triple the average number of appeals, and is fast approaching three times the average population served.

Last month the House passed and sent to the Senate a bill to restructure this goliath into three: a Mountain Circuit comprised of Arizona, Nevada, Montana and Idaho; a Pacific Northwest Circuit of Oregon, Washington and Alaska; and a new Ninth Circuit of California and Hawaii, which, as reduced, would still be the largest circuit in the country in population, caseload and judges. Nevertheless, in a Nov. 10 Rule of Law commentary ("Don't Split the Ninth Circuit!"), two of our colleagues, Judges Alex Kozinski and Sidney R. Thomas, spied skullduggery afoot. Congressional progress, they say, was "by stealth and procedural manipulation." House passage last month, they say, was a "surprise move before the Nov. 2 election." And the purpose of the split, they say, was for the "increased convenience of a few judges."

Contrary to our colleagues' challenge, this largest federal judicial circuit in the nation has been the subject of lengthy and repeated hearings in the current as well as prior sessions, congressionally mandated study commissions, white papers and even passage in certain sessions by one body of Congress or the other; now is the time for the Senate to act. A substantial number of circuit and district judges support the legislation. More importantly, in statements to the White Commission, four justices of the Supreme Court have advocated restructuring as well. In any event, Congress ordains the creation and structure of federal courts; judges don't get to do that under the Constitution.

By any measure, the circuit is too big to handle its caseload effectively and efficiently. This point is underscored by its consistent ranking at the bottom of all federal appeals courts in the length of time it takes to process appeals. More importantly, size adversely affects not only the speed with which justice is administered, but also the quality of judicial decision making. Consistent interpretation of the law by an appellate court requires a reasonably small body of judges who have the opportunity to sit and to confer together frequently, and who can read, critique and, when necessary, correct each others' decisions. That kind of collegiality is no longer possible in a circuit of this size.

The 47 judges who hear and decide Ninth Circuit cases sit on three-judge panels together so infrequently that judges often go for years without sitting with each of the judges with whom they serve. We also deliberate without the benefit of a thorough command of the developing law of our own circuit. An estimated 14,000 appeals are expected to be docketed this year, and it is simply impossible for even the most diligent judge to read critically his or her colleague's dispositions while simultaneously resolving one's own assigned cases.

Smaller circuits would allow us to correct more of our mistakes. The Ninth has grown to such a size that it cannot perform the en banc (or full court) review process that is an important error-reviewing function for every other court of appeals. Even the roughly two-dozen cases that are reheard each year are not subject to a true en banc process. The Ninth Circuit is simply too big to rehear an erroneous three-judge panel decision as a full court. Instead, we are the only circuit to sit on "limited" eleven-judge en banc panels drawn by lot, so that a "majority" consists of six judges who may actually represent the minority view of the full court. It is unacceptable in a democracy that a mere six judges could potentially override the views of the other twenty-two active judges.

Diarmuid F. O'Scannlain
Richard C. Tallman
U.S. Judges for the Ninth Circuit
Portland, Ore.
The op-ed to which this letter responds can be accessed here.
Posted at 12:50 by Howard Bashman



"Wary Court Considers Medical Marijuana": Gina Holland of The Associated Press provides this report.
Posted at 12:24 by Howard Bashman



"Once a Felon, Is Man Now a Victim? Steven Gates' new life was shattered by a TV show years after he left prison; His case pits his right to privacy against the 1st Amendment." Maura Dolan has this article today in The Los Angeles Times.
Posted at 12:00 by Howard Bashman



In Kansas, man will soon stand trial "as the first person in America whose DNA was charged with a crime": This article appeared Saturday in The Wichita Eagle.
Posted at 11:45 by Howard Bashman



"My Name is Angel Raich": The web site of Drug Policy Alliance offers this open letter today. Ms. Raich is one of the parties in the medical marijuana case argued today before the U.S. Supreme Court.
Posted at 11:40 by Howard Bashman



"The Becker-Posner Blog": A former colleague of mine forwards this link, which a Google search has revealed. I've added the site's feed to my Bloglines account.
Posted at 11:35 by Howard Bashman



"Justices Could Decide Officer's Right to Make Pornography": Josh Gerstein of The New York Sun has this article today in that newspaper.
Posted at 10:40 by Howard Bashman



Today's U.S. Supreme Court Order List: Today's Order List can be viewed at this link. The Court granted review in only one case and summarily affirmed in another.

In early press coverage, Gina Holland of The Associated Press reports that "Court Declines to Hear Gay Marriage Case." Hope Yen reports that "Court Sidesteps Campaign Spending Case." And The AP reports that "Ruling on Hitler Artwork to Stand."
Posted at 10:00 by Howard Bashman



"High court departures may not pose threat to affirmative action": This article appears today in The Michigan Daily. And The Daily Bruin reports today that "Professor's study on race stirs debate."

Meanwhile, on a related topic, The Washington Post today contains an editorial entitled "Diversity Stymied."
Posted at 09:58 by Howard Bashman



"High Court to Hear Medical Marijuana Case": Gina Holland of The Associated Press provides this report.
Posted at 09:40 by Howard Bashman



"High Court to Rule on Medical Marijuana": Today's broadcast of NPR's "Morning Edition" contained this segment (RealPlayer required) featuring Nina Totenberg.
Posted at 09:33 by Howard Bashman



In sympathy: The Charlotte Observer today reports that "U.S. District Judge Brent McKnight dies; Former prosecutor; also winner of Morehead, Rhodes honors." He was 52 years old.

Also in our prayers is former D.C. Circuit nominee Miguel A. Estrada, whose wife passed away this weekend.
Posted at 09:24 by Howard Bashman



"A Defeat In Illinois for Suits Asking the Gun Industry to Better Screen Customers: Why It Was the Right Decision." FindLaw columnist Anthony J. Sebok has this essay today.
Posted at 07:00 by Howard Bashman



"Bush High Court Choice Should Back Abortion Rights, Poll Shows": Bloomberg News provides this report.
Posted at 06:50 by Howard Bashman



"Supreme Court to hear marijuana case; Power of Congress to override Calif. law under review": This article appears today in The Boston Globe. The Baltimore Sun reports today that "Drug case highlights power struggle; Local, federal authorities split on medical marijuana; Supreme Court to hear case today." And today in The Los Angeles Daily News, Gary Galles had an op-ed entitled "Clause can make state laws go to pot; Government: medical marijuana is violation of commerce statute."
Posted at 06:40 by Howard Bashman



Sunday, November 28, 2004
"Preserving the Power of Congress": Monday's issue of The New York Times will contain an editorial that begins: "The Supreme Court is hearing arguments today in a case involving two important, but very different, legal issues: medical marijuana and federalism."
Posted at 23:50 by Howard Bashman



"Bribery trial to begin, developer Sabri defiant": This article will appear Monday in The Minneapolis Star Tribune.
Posted at 23:48 by Howard Bashman



In Monday's edition of The Los Angeles Times: Tomorrow's newspaper will contain articles headlined "Vaccine Injury Claims Face Grueling Fight; Victims increasing view a federal compensation program as adversarial and tightfisted" and "The People's Verdict: Going to Court in China Pays Off."
Posted at 23:44 by Howard Bashman



"Chipping Away at Roe vs. Wade": This editorial appears today in The Los Angeles Times.
Posted at 23:40 by Howard Bashman



Charles Lane is reporting: In Monday's issue of The Washington Post, he will have articles headlined "Court to Hear Marijuana Case; Legality of Cultivating Plant for Medical Use Is at Issue" and "In Leak Case, Reporters Lack Shield For Sources."
Posted at 23:32 by Howard Bashman



Here come the Justices: The San Diego Union-Tribune reports today that "High court to be in session in San Diego; State justices to hear arguments at USD."
Posted at 21:52 by Howard Bashman



"Sons' court cases pose dilemma for 2 judges; The state's practice raises questions about objectivity, experts say": This article appears today in The Honolulu Star-Bulletin.
Posted at 21:50 by Howard Bashman



"A Mother's Torment Resumes; A young Huntington Beach girl was slain in 1979; Her mother now awaits the ordeal of a retrial of man twice convicted in death": Claire Luna of The Los Angeles Times has this article today.
Posted at 21:48 by Howard Bashman



"Inmate finds hope in Supreme Court ruling": This article appears today in The Lincoln (Neb.) Journal Star.
Posted at 21:45 by Howard Bashman



"Justices to Hear Arguments on Interstate Wine Sales": Monday's edition of The New York Times will contain this article. And Monday's edition of Financial Times contains an article headlined "Wine bar means limited choice in land of free."
Posted at 21:44 by Howard Bashman



"Now free, immigrant's fate in court's hands; Daniel Benitez, a Mariel refugee whose case is before the U.S. Supreme Court, has spent more than half his life in the United State behind bars; He has been released--though still under immigration control": This article appears today in The Miami Herald.
Posted at 21:42 by Howard Bashman



"Shock and Awe In the Senate: The filibuster protects minority rights, enabling government to measure and respect not merely numbers but intensity in political disputes." Columnist George F. Will will have this essay in the December 6, 2004 issue of Newsweek.
Posted at 21:40 by Howard Bashman



"Ensley High coach takes discrimination fight to D.C.": The Birmingham News today contains this article about a case to be argued before the U.S. Supreme Court on Tuesday. And in other coverage, The Hartford Courant reports today that "Coach's Title IX Case Pivots On Retribution."
Posted at 21:10 by Howard Bashman



On this date in 1975: Twenty-nine years ago today, President Gerald R. Ford nominated John Paul Stevens to serve on the Supreme Court of the United States.
Posted at 20:45 by Howard Bashman



The one year anniversary of the mysterious death of Assistant U.S. Attorney Jonathan Luna is on the horizon: The Associated Press reports that "A year later, federal prosecutor's death still a mystery." The federal prosecutor's dead body was discovered in Lancaster County, Pennsylvania on December 4, 2003. The Baltimore Sun has collected here its coverage of the Jonathan Luna matter.
Posted at 20:15 by Howard Bashman



"To Break the Stalemate, Give Judges Less Than Life": Norman Ornstein has this op-ed today in The Washington Post.
Posted at 19:45 by Howard Bashman



"Terry Nichols confessed": This article appears today in The Oklahoman. For those unwilling to register to access articles over that newspaper's web site, "TalkLeft" offers more details here.
Posted at 19:38 by Howard Bashman



"Medical Marijuana, Sex Bias on Justices' Agenda": This evening's broadcast of NPR's "All Things Considered" included this segment (RealPlayer required) featuring Nina Totenberg.
Posted at 18:22 by Howard Bashman



In Monday's issue of The Christian Science Monitor: Warren Richey will have an article headlined "Showdown over medical marijuana: The Supreme Court hears a California case Monday that could become a signature decision of the Rehnquist era."

And in other news, "Political battles over gay marriage still spreading; 12 more states may vote on banning it in 2006."
Posted at 18:15 by Howard Bashman



"Poll: Most Support Justice Retirement Age." The Associated Press reports here that "Six in 10 Americans say there should be a mandatory retirement age for Supreme Court justices, according to an Associated Press poll." A related item is headlined "Supreme Court Retirement Poll Method."

Earlier this year, the Virginia Law Review published an article titled "Saving this Honorable Court: A proposal to replace life tenure on the Supreme Court with staggered, nonrenewable eighteen-year terms." I'm fond of the article because one of my "20 questions for the appellate judge" interviews is cited as a source in footnote 74.
Posted at 15:00 by Howard Bashman



"Full Court Press: How the Supreme Court is going to be Reaganized." The New Republic Online today recycles this essay by Fred Barnes. The piece first appeared in the June 10, 1985 issue of that magazine. (Via "Crescat Sententia.")
Posted at 13:20 by Howard Bashman



Sending birthday wishes: Denise Howell's pioneering blawg "Bag and Baggage" turns three years old today. And her adorable son turned one yesterday.
Posted at 13:15 by Howard Bashman



"Asbestos injury bill is gaining; GOP Senate wins spur business hopes, but fund issues remain": This article appears today in The Sacramento Bee.
Posted at 13:10 by Howard Bashman



"Mr. Smith Goes Under the Gavel": The New York Times today contains an editorial that begins:
Republicans control the White House, both houses of Congress and the Supreme Court. But the greater their power, the more they have focused on one of its few limits: the Senate filibuster. They are so concerned that Democrats will use the filibuster to block a few far-right judicial nominees that they are talking about ending one of the best-known checks and balances in government. Rather than rewrite the rules of government for a power grab, Republicans should look for ways to work with Democrats, who still represent nearly half the country.
You can access the entire editorial at this link.
Posted at 13:04 by Howard Bashman



"Senate Republicans threaten to go 'nuclear' to end judicial filibusters; Legislative weapon would end delays over some Bush nominations": This article appeared yesterday in The Austin American-Statesman.
Posted at 09:20 by Howard Bashman



"Minority whip discusses role in federal judgeships": The St. Louis Post-Dispatch yesterday posted online the text of an interview with U.S. Senator Richard J. Durbin (D-IL).
Posted at 09:10 by Howard Bashman



"High Court Cases Show 2 Sides of Conservatism; It's law and order vs. limited government in medical marijuana and wine-shipping disputes": David G. Savage has this article today in The Los Angeles Times. The LATimes also reports today that "California Women Make a New Case for Medical Marijuana; Aghast at federal agents' raids after 9/11, they sue the government, saying the commerce clause of the Constitution doesn't apply to the pot they use."

Meanwhile, in The San Francisco Chronicle, Bob Egelko today has articles headlined "Medical marijuana before Supreme Court; Federal power to control drug use vs. states' health care laws" and "Coping with a life full of pain; Plaintiff uses medical marijuana every 2 hours, but doesn't get high."
Posted at 09:04 by Howard Bashman



"Rehnquist to miss court session": Michael McGough of The Pittsburgh Post-Gazette has this article today.
Posted at 09:00 by Howard Bashman



Saturday, November 27, 2004
"Foreseeing Greatness? Measurable Performance Criteria and the Selection of Supreme Court Justices." Via SSRN, you can download this paper by Law Professor James J. Brudney.
Posted at 23:40 by Howard Bashman



In Sunday's edition of The Washington Post: A front page article reports that "Alabama Vote Opens Old Racial Wounds; School Segregation Remains a State Law as Amendment Is Defeated."

And in other news, a front page article is headlined "'04 Voting: Realignment -- Or a Tilt? Political Parties Look for Answers."
Posted at 22:55 by Howard Bashman



"ACLU supports suit filed by Falwell critic; Group files brief in trademark dispute involving Web site": The Associated Press provides this report from Richmond, Virginia.
Posted at 20:12 by Howard Bashman



"Evidence at Issue as Woman's Execution Nears; Lawyers for Frances Newton, convicted of killing her family in Houston, seek new tests": This article appears today in The Los Angeles Times.
Posted at 20:05 by Howard Bashman



ACLU files appeal in Colorado "Howling Pig" case: The Denver Post reports today that "ACLU appeals case challenging libel law." And late last month, The Greeley Tribune published an article headlined "Weld DA's office cleared in 'Howling Pig' case" reporting on the ruling of the U.S. District Court for the District of Colorado that is the subject of the ACLU's appeal.
Posted at 19:50 by Howard Bashman



"Courting justice in God's country; Rural Dolores County needs a judge; law degree not a requirement": This article appeared yesterday in The Denver Post.
Posted at 19:45 by Howard Bashman



"Chief Justice's absence will continue": Lyle Denniston online at "SCOTUSblog" reprints here the latest official statement from U.S. Supreme Court spokesperson Kathleen L. Arberg.
Posted at 19:40 by Howard Bashman



"We all need some compensation; Kids on 70s Pink Floyd song in royalties battle": The Mirror (UK) contains this article today. The Times of London reports that "Payout after Pink Floyd leaves them kids alone." The Guardian (UK) offers an article headlined "Royalties bid by Pink Floyd school chorus." The Telegraph (UK) reports that "Pink Floyd singers can cash in at last." And BBC News reports that "Pink Floyd pupils claim royalties."
Posted at 19:30 by Howard Bashman



"Gay-rights dispute lingers in Boyd schools": The Courier-Journal of Louisville, Kentucky contains this article today.
Posted at 19:15 by Howard Bashman



"Enlisting Law Schools in Campaign for Animals": This article appears today in The New York Times.
Posted at 19:11 by Howard Bashman



"Toddler's testimony won't be heard; State Supreme Court won't allow videotapes of child as evidence": The Salem (Ore.) Statesman Journal today contains this article reporting on a decision that the Supreme Court of Oregon issued yesterday.
Posted at 10:35 by Howard Bashman



"Widowed gays win survivor pensions; Toronto activist led 1,300 others in 18-year battle; Appeal court ruling could cost $80M in pension payments": This article appears today in The Toronto Star. And The Toronto Globe and Mail reports today that "Same-sex couples win pension fight; Ottawa violated rights in denying CPP benefits, Ontario Court of Appeal rules."
Posted at 10:30 by Howard Bashman



Lesbians win on appeal: The Indianapolis Star today contains an article headlined "Court extends rights to gay mom; Judges prod lawmakers to address family issues raised by new social reality and reproductive technology" reporting on a decision that the Court of Appeals of Indiana issued on Wednesday.

And The Daily News of Galveston County, Texas reports today that "Appeals court upholds lesbian adoption." You can access online both the memorandum opinion and a concurring memorandum opinion that the Court of Appeals for the First District of Texas issued on Tuesday.
Posted at 10:20 by Howard Bashman



"Leaders support required jail time; As other states mull '3 strikes' laws, Florida officials tout mandatory terms": This article appears today in The Orlando Sentinel. And The Indianapolis Star today contains an editorial entitled "Guilty of sentencing beyond evidence."
Posted at 10:15 by Howard Bashman



"GOP isn't a lock for Senate rule": The New York Daily News yesterday contained an article that begins, "Republican dreams of forging a filibuster-proof Senate majority in 2006 are unlikely to succeed despite the party's solid gains this year, according to political analysts."
Posted at 10:05 by Howard Bashman



"Pickering's fate uncertain; White House mum on renomination; Judge's recess appointment to 5th Circuit coming to an end": The Clarion-Ledger of Jackson, Mississippi contains this article today.
Posted at 10:04 by Howard Bashman



"Hatch is upbeat in waning days of chairmanship": This article appears today in The Deseret Morning News.
Posted at 10:02 by Howard Bashman



"Shaw on recovery path with new job": Sunday's edition of The Sun-Herald of Australia contains an article that begins, "Former Supreme Court judge Jeff Shaw has begun rebuilding his legal career as a consultant to a leading city law firm."
Posted at 10:00 by Howard Bashman



"Touring Commandments make a symbolic stop; Alabama tablet pulls up alongside contested display outside courthouse": This article appears today in The Houston Chronicle.
Posted at 09:50 by Howard Bashman



"Local Time: Will the Supreme Court save federalism from the conservatives?" Reason yesterday posted online this essay by Jacob Sullum. And syndicated columnist James J. Kilpatrick has an essay entitled "Doctors and the Law." Both of these essays discuss the medical marijuana case to be argued Monday before the Supreme Court of the United States.
Posted at 08:20 by Howard Bashman



Friday, November 26, 2004
"Chief Justice Won't Return to the Court This Year": Linda Greenhouse will have this article in Saturday's edition of The New York Times.
Posted at 23:40 by Howard Bashman



"Terror Case Hinges on a Wobbly Key Player": This lengthy article will appear in Saturday's issue of The New York Times.
Posted at 22:50 by Howard Bashman



"Rehnquist Will Be Absent Again; No Specifics Given; Chief Justice Still Being Treated for Cancer": Charles Lane will have this article in Saturday's edition of The Washington Post.
Posted at 22:45 by Howard Bashman



"Cruel and Unusual: The end of the Eighth Amendment." Joan Dayan has this essay in the October/November 2004 issue of Boston Review.
Posted at 21:10 by Howard Bashman



"Gays, lesbians win pension decision; Denying retroactive CPP benefits to widowed gays unconstitutional, court rules": The Canadian Press provides this report on a ruling that the Court of Appeal for Ontario issued today.
Posted at 21:04 by Howard Bashman



"Rehnquist to Miss Sixth Week of Work": Hope Yen of The Associated Press reports here that "Chief Justice William H. Rehnquist will be absent from the Supreme Court on Monday, beginning a sixth week of missed work caused by thyroid cancer. The 80-year-old has been receiving chemotherapy and radiation treatment at home and plans to skip the two-week cycle of arguments that starts Monday, a court spokesman said Friday. No other information was available."
Posted at 18:05 by Howard Bashman



"One hack shot, two torn lives and golf in chaos": Saturday's edition of The Sydney Morning Herald contains an article that begins, "It was a shot heard around the world. It ruined one man's life, almost ended another and is sending shivers up the spines of golfers from Sydney to Scotland's St Andrews."
Posted at 17:55 by Howard Bashman



"More Than Mud-Free Courts": This editorial appears today in The Los Angeles Times.
Posted at 17:52 by Howard Bashman



Not the medical marijuana case: Keen observers will note that more than one case is being argued Monday before the Supreme Court of the United States. The other case is the subject of an article headlined "Fayetteville lawyers take case before Supreme Court" published today in The Fayetteville (N.C.) Observer.
Posted at 17:50 by Howard Bashman



"Supreme Court to weigh states' legalization of marijuana for medical use": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 17:00 by Howard Bashman



"Supreme Court to Hear Gender-Equity Case": The Associated Press provides this report.
Posted at 15:15 by Howard Bashman



"The Constitutional Doctrines that Won't Change, Even If the Supreme Court Does": Vikram David Amar and Alan Brownstein today have this essay online at FindLaw.
Posted at 15:00 by Howard Bashman



"Hey, Teacher! We All Need Some Compensation." Reuters reports here that "A group of former London schoolchildren who sang on Pink Floyd's 1979 classic 'Another Brick In The Wall' have lodged a claim for unpaid royalties." The plaintiffs are said to oppose dark sarcasm in the courtroom.
Posted at 13:24 by Howard Bashman



"Congress Bestows Honor on Judge James R. Browning": The U.S. Court of Appeals for the Ninth Circuit (which is also open for business today) issued this news release earlier in the week.
Posted at 13:15 by Howard Bashman



"Cities ignore ban, sanction 'oppressive regimes'": This article appears today in The Washington Times.
Posted at 12:20 by Howard Bashman



So much for one person, one vote: In news from Ohio, The Associated Press reports that "2 double voters hold key to school income tax's fate." The article begins, "A couple in a neighboring county who admitted to voting twice on Election Day could be forced to reveal how they cast their ballots in the disputed, single-vote defeat of a proposed school income tax, the school district's attorney said."
Posted at 12:00 by Howard Bashman



The U.S. Court of Appeals for the Eighth Circuit appears to be open for business today: It has issued this unpublished opinion. And the always-open U.S. Court of Appeals for the Fifth Circuit would appear to be open too, if this earlier post remains accurate.

Update: The D.C. Circuit also isn't taking the day after Thanksgiving off; it has issued this published opinion today.
Posted at 11:38 by Howard Bashman



Identifying non-"girlie man" judicial nominees proves time-consuming: The Sacramento Bee on Wednesday reported that "Governor lags on state judicial picks; Aides say he is still devising a process for filling the posts."
Posted at 11:12 by Howard Bashman



"Penalty Showdown in Peterson Trial; The jury deciding if the convicted murderer lives or dies can expect passion on both sides": This article appears today in The Los Angeles Times.
Posted at 11:10 by Howard Bashman



"Gov't Urges Upholding of Stewart Verdict": The Associated Press reports here that "The government urged a federal appeals court to uphold the conviction of Martha Stewart, arguing that 'overwhelming evidence' supported the guilty verdict against the celebrity homemaker."

If anyone wishes to email to me a copy of the federal government's appellate brief (preferably in PDF format) so that I can post it online, my email address can be found toward the top of the right-hand column on this page.
Posted at 10:20 by Howard Bashman



"Leaving USA proves tricky for dispirited gays; Concerned about 'poisonous environment,' some opt to emigrate": This article appears today in The Washington Blade.
Posted at 10:14 by Howard Bashman



"School fights for gun ban; University of Utah duels with officials who say it must submit to law that ordered it to allow concealed arms": The Chicago Tribune contains this article today.
Posted at 10:12 by Howard Bashman



"Can't we just let it be? asks Beatle-riffing judge": This article appears today in The New York Daily News.

Meanwhile, in news coverage from overseas, The Telegraph (UK) has an article headlined "Something in the way he judged me." The Guardian (UK) offers an article headlined "And the defendant gently weeps." The Mirror (UK) contains an article headlined "John, Paul, Judge and Ringo; Justice in Beatle lyrics." And BBC News offers a report headlined "Lyrical US judge's poetic ruling: An American judge has proved that even the law can be lyrical." For additional news coverage of this matter, see this post of mine from yesterday.
Posted at 10:05 by Howard Bashman



"Hope for healing: Medical marijuana users will take on the federal government before the Supreme Court." Claire Cooper, legal affairs writer for The Sacramento Bee, today has this article in that newspaper. And The Santa Cruz Sentinel reports today that "Supreme Court to hear medical pot case; Ruling could legalize local marijuana farm."
Posted at 09:30 by Howard Bashman



"Bush Impact on Supreme Court Unclear": Voice of America News provides this report today.
Posted at 07:45 by Howard Bashman



"Abortion foes put faith in Congress; Both sides prepare for legislative fight": This article appears today in The Chicago Tribune.
Posted at 07:42 by Howard Bashman



"The scary right: Religious zealots riding high after W's win." Columnist Errol Louis has this essay today in The New York Daily News.
Posted at 07:40 by Howard Bashman



In news from Canada: The Toronto Globe today contains an article headlined "Supreme Court agrees to hear Cotler case" that begins, "The Supreme Court of Canada has agreed to hear allegations by Quebec City lawyer Guy Bertrand that his clients, former Rwandan political activist Leon Mugesera and his family, are the victims of a plot hatched by Justice Minister Irwin Cotler to deport them to Rwanda."
Posted at 07:35 by Howard Bashman



"Officials Try to Stop Removal of Cross; Congressmen seek to designate the Mt. Soledad landmark, on city-owned land in San Diego, as a national veterans memorial": This article appeared Tuesday in The Los Angeles Times.
Posted at 07:32 by Howard Bashman



"Sizing Up Man Who Would Be Atty. Gen.": The Los Angeles Times contains this article today. And The Washington Times reports today that "Liberals vow to fight Gonzales nomination."
Posted at 07:25 by Howard Bashman



"Medical-pot fight goes to justices; Patients say they need it; feds say it does no good": This article appears today in USA Today. And in related coverage, The New York Sun reports today that "Marijuana, Federalism on the Docket."
Posted at 07:15 by Howard Bashman



Thursday, November 25, 2004
"Big battle brewing over new judges": Syndicated columnist William Rusher has this essay today in The Telegraph of Nashua, New Hampshire.
Posted at 23:55 by Howard Bashman



"Bride and Prejudice: The Senate's most zealous Christian conservative loses his seat to a Democrat who favors near-gay-marriage." Today's edition of The New Haven Advocate contains this article.
Posted at 23:52 by Howard Bashman



"Sjodins to sue state; Civil lawsuit says state should never have released Rodriguez": This article appears today in The Grand Forks (N.D.) Herald. The St. Paul Pioneer Press reports today that "Sjodin family to sue state; Rodriguez's release led to woman's death, letter says." And The Minneapolis Star Tribune reports that "Sjodin's family to sue Minnesota."
Posted at 23:48 by Howard Bashman



"It's the pro-lifers' moment: Bush's re-election, the Peterson case and other factors show that the right has gathered steam." Columnist James P. Pinkerton has this essay in today's edition of Newsday.
Posted at 23:45 by Howard Bashman



"Poor felons may face debt order; Justices: Trial costs may be assessed." Today's edition of The Cleveland Plain Dealer contains an article that begins, "Destitute prison inmates got handed another reason not to be thankful on the eve of Thanksgiving." You can access yesterday's ruling of the Supreme Court of Ohio at this link.
Posted at 23:44 by Howard Bashman



"Justices toss out $77.5M jury award; Businessman from Hazlehurst had won case in Copiah County in 2001": The Clarion-Ledger of Jackson, Mississippi today contains an article that begins, "The state Supreme Court, with the help of two special justices, has thrown out a $77.5 million jury award in the oldest case remaining on the court's docket." You can access Monday's ruling of the Supreme Court of Mississippi at this link.
Posted at 23:35 by Howard Bashman



"Court to review briefs in Limbaugh case": The South Florida Sun-Sentinel today contains an article that begins, "The Florida Supreme Court on Wednesday ordered prosecutors and attorneys for Rush Limbaugh to state why the high court should hear his case."
Posted at 23:33 by Howard Bashman



"High court to rule on venue change; Media coverage has tainted jurors, Geragos says": Bob Egelko has this article today in The San Francisco Chronicle. The Modesto Bee reports that "Geragos appeals to highest state court; Judges have rejected his requests twice this week." And The San Jose Mercury News reports that "Appeal for new jury before top state court; Changes unlikely, analysts believe."
Posted at 23:32 by Howard Bashman



"Affirmative action foes say effort on track; Michigan Civil Rights Initiative says petition deadline will be met": The Ann Arbor News contains this article today.
Posted at 23:30 by Howard Bashman



"Media giants ponder FCC appeal; Firms hope U.S. will join case on ownership rules": This article appears today in The Chicago Tribune.
Posted at 23:28 by Howard Bashman



"Detainee wants justices to hear plaint against military tribunals": Michael McGough of The Pittsburgh Post-Gazette has this article today.
Posted at 23:25 by Howard Bashman



"Teacher: God on history's side; Cupertino schools sued over ban on founding father excerpts invoking religion." This article appears today in The Oakland Tribune. And Friday's issue of The Telegraph (UK) reports that "Christian teacher sues his school." My earlier coverage of this matter can be accessed here.
Posted at 23:20 by Howard Bashman



"Why Democrats Lose at the Polls When They Win In the Courts: Judicial Decisions' Influence on Recent Presidential Elections." FindLaw columnist Edward Lazarus has this essay online today.
Posted at 23:15 by Howard Bashman



Recount here, recount there: Earlier today, I collected both at this link and the next few posts above it news reports regarding the recount in the race for Governor of Washington State.

The Birmingham News today contains an article headlined "Automatic recount commences Monday" that begins, "Alabama voters rejected a proposal to strip Jim Crow language from the state constitution by just 1,850 votes, triggering a statewide recount that will begin Monday, Secretary of State Nancy Worley said."

And The Orlando Sentinel yesterday reported that "In Puerto Rico, election workers balk at recount."
Posted at 23:10 by Howard Bashman



"Relatively low salaries are driving state's judges away from the bench": This article appears today in The Fort Worth Star-Telegram.
Posted at 23:00 by Howard Bashman



In appellate news from the Ukraine: Financial Times reports in Friday's issue that "World waits to hear from judges known for their independence." And Friday's edition of The New York Times will contain an article headlined "Ukraine Court Delays Results in Vote Dispute."
Posted at 22:24 by Howard Bashman



In Friday's edition of The New York Times: An article reports that "After Victory, Crusader Against Same-Sex Marriage Thinks Big." In other news, "Rule Change in Oregon May Alter the Landscape." And in regional news, "Legal Precedent Doesn't Let Facts Stand in the Way."
Posted at 22:05 by Howard Bashman



"Both sides gearing up for battles over abortion": This article will appear Friday in The Chicago Tribune.
Posted at 22:02 by Howard Bashman



"Courthouse waits on Bush; Bill allows Arkansas cases to be heard in Texas courtroom": The Texarkana Gazette today contains an article that begins, "All that is needed for Texarkana's federal courthouse to have cross-jurisdiction status is a signature by President Bush. U.S. Sen. John Cornyn, R-Texas, announced that the Senate and the House of Representatives passed a measure giving special status to the downtown federal building that straddles the Texas-Arkansas state line."

The Third Branch newsletter in June 2004 contained this article about the U.S. District Court in Texarkana, and you can view additional images of the courthouse here and here.
Posted at 21:52 by Howard Bashman



"High Court to Weigh Medical Marijuana Laws": David Kravets of The Associated Press provides this report. Josh Richman of The Oakland Tribune reports today that "Top court hears local pot case; Oakland woman's lawyers will argue free medical marijuana not 'interstate commerce.'" And The Contra Costa Times on Tuesday reported that "Cannabis fight enters U.S. high court."
Posted at 21:50 by Howard Bashman



"Judge 'Something' else! Harrison-case ruling diagnoses doc in verse." The New York Daily News today contains an article that begins, "My sweet law? While My Gavel Gently Weeps? Here Comes the Judge? A frustrated songwriter who doubles as a Staten Island judge has issued a bizarre ruling in a case involving George Harrison's controversial cancer doctor -- writing his decision in a parody of the late Beatle's classic 'Something.'"

In other coverage, The New York Post today contains an article headlined "Rock and Rule." And from overseas, The Times of London reports that "Judge's ruling in style of Beatle song earns rebuke." The Sun (UK) offers a report headlined "La la la la, hey Judge." And The Scotsman (UK) reports that "Judge Rules in Style of George Harrison Song."
Posted at 12:02 by Howard Bashman



"Chief Justice Scalia": Kevin Ring has this op-ed today in The Washington Times.
Posted at 11:05 by Howard Bashman



"Charge against Fieger dropped; Attorney Discipline Board throws out misconduct complaint over 1999 remarks": This article appeared yesterday in The Detroit News. My earlier coverage of this matter can be accessed here.
Posted at 09:02 by Howard Bashman



"Woman gets access to abortion file; She says she was a confused teen during hearing": The Detroit Free Press contains this article today. Both the majority opinion and a dissenting opinion issued Tuesday by a divided three-judge panel of the Michigan Court of Appeals are available online.
Posted at 09:00 by Howard Bashman



"Recount in Washington State Shows 42-Vote Margin; Republican candidate for governor declares himself the winner, but his Democratic rival deems it a tie; A hand tally may be next": This article appears today in The Los Angeles Times.
Posted at 08:55 by Howard Bashman



The New York Times is reporting: Today's newspaper contains an article headlined "Margin Now Just 42 Votes in Washington State Race." And yesterday's newspaper contained an article headlined "When Plagiarism's Shadow Falls on Admired Scholars."
Posted at 08:45 by Howard Bashman



In news from Washington State: Concerning the race for governor, The Seattle Post-Intelligencer reports that "Recount gives Rossi a 42-vote victory; But Gregoire vows to press for manual tally." The Seattle Times offers an article headlined "A governor by Christmas?" And The Olympian reports that "It's Rossi...by 42 votes; Gregoire says she wants hand recount; Results will take weeks."

An obituary in The Seattle Times is headlined "James Dolliver, 1924-2004: High-court justice helped guide state with fairness, wit." And The Olympian reports that "Ex-chief justice Dolliver dies; Supreme Court judge was known for commitment to his community."

Finally, The Seattle Post-Intelligencer reports that "Snipers won't be charged in woman's death; Muhammad, Malvo have already been penalized, prosecutor says." And The News Tribune of Tacoma reports that "County prosecutors decline to file charges against snipers."
Posted at 08:40 by Howard Bashman



Wednesday, November 24, 2004
Decalogue blog: In news from Texas, "Man sues to keep 10 Commandments monument."

And from North Dakota, The Forum of Fargo reports that "Ten Commandments hearing is scheduled."
Posted at 22:34 by Howard Bashman



Available online from The Associated Press: Hope Yen reports that "Study Examines Sentencing Guidelines." And in other news, "White House Criticizes High Court Appeal."
Posted at 22:30 by Howard Bashman



Available online from law.com: In news from California, "Lawyer Says High-Stress Career Led Him to Have Sex With Minor" and "Scientology Settlement Puts IRS in a Kosher Pickle." And Law Professor Steven Lubet has an essay entitled "The Clinton Miscalculus: If the president had trusted his lawyer, history itself might be different."
Posted at 22:24 by Howard Bashman



"Scalia in shul: State must back religion." This article appears today in The Jerusalem Post.
Posted at 20:10 by Howard Bashman



"Judge Pickering's 5th Circuit appointment coming to an end": The Associated Press provides this report. My two posts on this subject from earlier today can be accessed here and here.
Posted at 20:00 by Howard Bashman



"The Next Phyllis Schlafly: A longtime Republican operative wants to sell herself as a grass-roots leader; Her target -- the Supreme Court." The American Prospect Online today has posted this profile of the president of Coalition for a Fair Judiciary.
Posted at 17:00 by Howard Bashman



Let the recount by hand begin in the Washington State governor's race: The Seattle Times offers a news update headlined "Rossi wins in recount of governor's race" that begins, "When the final votes in the race for governor in the state were tallied shortly after noon today, Republican Dino Rossi won the election by just 42 votes over Democratic challenger Christine Gregoire."
Posted at 16:50 by Howard Bashman



Allowing two essential witnesses to testify at defendants' criminal trial in Alabama via two-way video teleconference from Australia violated defendants' Sixth Amendment confrontation clause rights: You can access today's ruling of the U.S. Court of Appeals for the Eleventh Circuit at this link. And don't miss the opinion concurring in the result, which questions whether administering the oath from Alabama to a witness in Australia suffices to place the witness under oath.
Posted at 16:40 by Howard Bashman



"Declaration of Independence Banned at Calif School": Reuters reports here that "A California teacher has been barred by his school from giving students documents from American history that refer to God -- including the Declaration of Independence."

Yesterday, the Alliance Defense Fund issued a press release entitled "California teacher censored; School district forbids teacher from providing handouts that reference significant documents in U.S. history because they mention God." You can access at this link the complaint initiating suit that the teacher filed against the school district this week in the U.S. District Court for the Northern District of California.
Posted at 16:30 by Howard Bashman



"Blue Hawaii: When liberal states get tough on crime." Slate has just posted online this jurisprudence essay by David Feige.
Posted at 15:52 by Howard Bashman



"Rules Differ for Penalty Phase of Criminal Cases": This segment (RealPlayer required) featuring Dahlia Lithwick appeared on today's broadcast of NPR's "Day to Day."

Among other things, Dahlia comments on yesterday's development in the Scott Peterson trial. As Bob Egelko reports today in The San Francisco Chronicle, "State appeals court rejects venue change; Geragos expected to make plea to California top court." The Modesto Bee reports today that "Appeal for new jurors denied; State court rejects request to change panel, cities for Peterson sentencing phase." The San Mateo County Times reports today that "Appeals court denies Geragos' move to delay trial; Defense lawyer likely will approach the California Supreme Court to retain new jury, location" and "Scott to dine alone on turkey day." And The San Jose Mercury News reports today that "Request for new jury during penalty phase rejected in state court."

You can access the docket entries for the proceeding before California's Court of Appeal for the First Appellate District at this link.
Posted at 15:15 by Howard Bashman



U.S. Court of Appeals for the First Circuit affirms decision declaring unconstitutional New Hampshire's Parental Notification Prior to Abortion Act applicable to unemancipated minors: You can access today's ruling at this link.
Posted at 15:05 by Howard Bashman



The U.S. Court of Appeals for the Ninth Circuit delivers more good news for especially dangerous aliens: Over the dissent of five judges, the Ninth Circuit today denied rehearing en banc in a case in which the three-judge panel's opinion begins:
This case requires us to consider whether 8 U.S.C. §1231(a)(6), as construed by the Supreme Court in Zadvydas v. Davis, 533 U.S. 678 (2001), authorizes the continued and potentially indefinite detention of an alien based on a determination that the alien's mental illness makes him specially dangerous to the community. We conclude that the statute does not provide such authority.
Circuit Judge Alex Kozinski wrote a dissent from the denial of rehearing en banc. It will be interesting to see whether the U.S. Supreme Court will find this case to be of interest.
Posted at 15:00 by Howard Bashman



"Daimler to Appeal $101.75 Million Verdict": Reuters provides this report.
Posted at 14:40 by Howard Bashman



"ACLU enters gay-rights shirt case": This article appears today in The Kansas City Star. And, as I noted here last night, The New York Times today contains an article headlined "Battle on Gay Pride Shirts Leads to Suit Against School."

The Joplin Globe has provided extensive coverage of this matter. Today's newspaper contains articles headlined "School district, student headed for legal showdown" and "Suit called 'unfortunate,' 'appropriate'; Reaction mixed on ACLU decision." And earlier coverage, listed in reverse chronological order, was headlined "ACLU to announce if lawsuit to be filed; Webb City board stands firm, says T-shirts violate dress code"; "Most readers say shirts should be curbed"; "Dress-code quandary: Residents weigh in on both sides of T-shirt issue at high school"; "School district awaits next move; Dress-code dispute discussed in meeting behind closed doors"; "Teenager refuses to hide his pride; Issue pitting school district against civil-liberties group"; "Controversy: Is freedom just another word? An individual's right to express opinions versus school rules"; and "Pride and prejudice: Webb City school's T-shirt controversy attracts plan for protest." The Globe also published an editorial entitled "School must prove T-shirt is disruptive" and an essay by columnist Edgar Simpson entitled "First Amendment covers all."

The ACLU yesterday issued a press release entitled "ACLU Sues Missouri High School for Censoring Gay Student." Also available online are the complaint that the ACLU filed in federal court yesterday initiating suit on the student's behalf against the school district and a brief in support of the student's request for a preliminary injunction.
Posted at 11:20 by Howard Bashman



Where to begin? The brand new post up at the blog "Underneath Their Robes" has much to offer. For starters, Seventh Circuit Judge Richard A. Posner will be officially entering the blogosphere soon as co-author of a new blog. The post also links to an Associated Press report from Bucharest headlined "Judge 'starred in adult video'; Resigns after state crime lab identifies her in X-rated movie." And for those with a little free time over the holiday weekend, here's a heaping helping of movie reviews from Ninth Circuit Judge Alex Kozinski. I'm glad to see that he and I share the same views about the new "Dawn of the Dead" remake, recently released on DVD.
Posted at 11:00 by Howard Bashman



In the words of Cyndi Lauper, "Money changes everything": In response to my post from earlier this morning about the impending expiration of Circuit Judge Charles W. Pickering, Sr.'s recess appointment to the U.S. Court of Appeals for the Fifth Circuit, a reader emails:
The situation with Judge Pickering is interesting. It involves not only the constitutional language but some statutory provisions as well.

As you say, he is able to serve until the Senate adjourns (or maybe it is when the last of the two houses adjourns, I'm not sure). But, if he has not resigned (retired) before the moment at which adjournment occurs, he loses the pay for life that he has earned by being an Article III judge whose age plus years of service (district and circuit) exceed 80. So, he has to make sure he resigns in time, if it appears he will not be confirmed during the current session. Because his son is a member of Congress, he should have a reliable source of information as to what the adjournment date will be.

At such time as he resigns, he will not be a senior judge (district or circuit); he will cease to be a judge at all. He does not have the option of becoming a senior-status judge. He will then have the same status as, for example, Abner Mikva or any other Article III judge who has retired completely from the judiciary to pursue other interests. That will entitle him to his current pay for life, and he will be free to go practice law, engage in politics, or play golf, or tend to grandchildren, or whatever.

It is interesting that Judge Pryor is able to serve as a circuit judge until next year's Congress adjourns. That is apparently because his recess appointment occurred a few weeks after Judge Pickering's.
I thank the author of this email for sending this information along.
Posted at 10:30 by Howard Bashman



"Top court: Legal fees legit in transsexuals' case against toy giant." The Associated Press reports here from Albany, New York that "The state's top court ruled Tuesday that Toys 'R' Us must pay the legal fees for three transsexuals who won a 'moral victory' in their discrimination lawsuit against the retail giant."

In January 2004, the U.S. Court of Appeals for the Second Circuit certified to the New York Court of Appeals the question whether New York City's Human Rights Law, which generally allows the recovery of attorneys' fees by a prevailing plaintiff, allowed recovery of attorneys' fees in this case, in which only $1 in damages was awarded. The Second Circuit's certification opinion can be accessed here. And you can access yesterday's ruling of New York State's highest court at this link.

Update: law.com also covers this news today in an article headlined "N.Y.'s High Court Adopts Standard for Fees in Civil Rights Cases; Justices rule that the money award or legal impact must be significant."
Posted at 10:25 by Howard Bashman



"Professor's Lawyers Challenge Evidence": The Associated Press reports here from Tampa, Florida that "Defense attorneys for a former professor accused of terrorism want a federal judge to throw out virtually all the government's evidence, saying improper searches and inappropriate surveillance violated their client's constitutional rights." The Tampa Tribune offers detailed background about the case at this link.
Posted at 10:05 by Howard Bashman



The next impact from judicial filibusters is just right around the corner: As expected, much attention in the media has already been devoted to the impact, if any, that the U.S. Senate's strengthened Republican majority in January 2005 will have on the issue of judicial filibusters. But the effect of judicial filibusters will once again come starkly into focus even before the new Senate takes office on January 4, 2005.

The recess appointment of Charles W. Pickering, Sr. to the U.S. Court of Appeals for the Fifth Circuit will expire before the end of 2004. Precisely when the recess appointment will expire cannot yet be determined. The relevant language of the U.S. Constitution states, in the final paragraph of Article II, Section 2, "The President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." The use of the word "their" may strike modern readers as ungrammatical, because "the Senate" today is viewed as a singular noun. But, in any event, this provision of the Constitution states that Judge Pickering's recess appointment will expire at the end of the U.S. Senate's current session, which apparently will conclude sometime in December 2004.

At that point, Judge Pickering will no longer be a member of the federal judiciary. And President Bush will have to choose between giving Judge Pickering a second recess appointment (thereby further enraging Judge Pickering's opponents) or accepting defeat at the hands of Senate Democrats who filibustered this judicial nomination. If the latter course is chosen, no doubt Judge Pickering would seek to ameliorate matters by claiming that he has decided to retire from the federal judiciary. But, if Judge Pickering were now permanently to depart from the federal judiciary, it would clearly be a defeat for President Bush, and another victory for the judicial filibuster, no matter how the Administration and Judge Pickering attempt to portray it.
Posted at 09:00 by Howard Bashman



If only this were true: "ScrappleFace" reports that "Hidden Clause Would Force Lawmakers to Read Legislation."
Posted at 08:50 by Howard Bashman



"New Legal Papers Reveal Charges Against Detainee; The Guantanamo Bay prisoner whose case has halted tribunals alleges mistreatment": This article appears today in The Los Angeles Times. The Washington Post reports that "Justices Asked to Rule on Detainees; Yemeni's Attorneys Want to Bypass Federal Appeals Court." The Miami Herald reports that "Terror inmate takes case straight to Supreme Court; The Supreme Court was asked to quickly review the lower-court ruling that halted military commissions for Guantanamo inmates accused of war crimes." And Financial Times reports that "Lawyers for Bin Laden's driver ask court to act."
Posted at 07:45 by Howard Bashman



Bob Egelko is reporting: In The San Francisco Chronicle, today he has an article headlined "Couples use Lockyer's words against him; Judge to decide if ban on gay marriage is unconstitutional." And in yesterday's newspaper he reported that "Guardsman will go with unit to Iraq; Ninth Circuit passes on soldier's challenge of Army's stop-loss policy; judge to review."
Posted at 07:40 by Howard Bashman



"Specter flap could hurt Santorum": This article appears in today's issue of The Hill. And in The Providence Journal, columnist Philip Terzian has an essay entitled "Specter gets the message."
Posted at 07:10 by Howard Bashman



Have an enjoyable and safe Thanksgiving holiday: Regular posting will occur throughout the day today because we are having Thanksgiving dinner tomorrow relatively close to home, at my brother-in-law's mother-in-law's near Princeton, New Jersey.
Posted at 07:00 by Howard Bashman



"Future of 9th Circuit Under Review": FOX News provides this report.
Posted at 00:00 by Howard Bashman



Tuesday, November 23, 2004
"Dickey to stay 2 more years on high court; Huckabee appoints her to serve out the remainder of associate justice's term": The Arkansas Democrat-Gazette contains this article today.
Posted at 23:28 by Howard Bashman



"Battle on Gay Pride Shirts Leads to Suit Against School": This article will appear in Wednesday's edition of The New York Times.
Posted at 23:05 by Howard Bashman



"Take Our Ninth Circuit Court--Please!" That's the heading of a letter to the editor from Ninth Circuit Judges Diarmuid F. O'Scannlain and Richard C. Tallman published today in The Wall Street Journal. The letter is accessible only to WSJ online subscribers, so I either will need to get a pass-through link or a copy of the letter from one of its authors in order to make it available to this blog's readers. The letter responds to the op-ed entitled "Don't Split the Ninth Circuit!" written by Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas published in The Wall Street Journal on November 10, 2004.
Posted at 22:45 by Howard Bashman



"Defeating Judicial Filibusters: The 'Conventional Warfare Option.'" The blog "Patterico's Pontifications" offers this post today proposing a potential non-nuclear solution on judicial filibusters.
Posted at 18:00 by Howard Bashman



"Implied consent law gets scrutiny; Is license revocation without conviction unconstitutional?" This article appears today in The St. Paul Pioneer Press.
Posted at 17:55 by Howard Bashman



"ACLU tries to overturn amendment in Hawaii; The suit in high court addresses a law that targets sex assault": The Honolulu Star-Bulletin contains this article today.
Posted at 17:48 by Howard Bashman



His two dads: Back on Sunday, November 14, 2004, The Times-Picayune of New Orleans contained an article headlined "Everyday dads: Dale and Chris Liuzza are typical first-time parents in every respect except one."
Posted at 17:42 by Howard Bashman



"Runoff today for seat on appeals court": This article appears today in The Atlanta Journal-Constitution.
Posted at 17:40 by Howard Bashman



"Painting with print: Incorporating concepts of typographic and layout design into the text of legal writing documents." The U.S. Court of Appeals for the Seventh Circuit today posted this document to its web site. And the Seventh Circuit's own typography suggestions, which I praised in my monthly appellate column of February 2002 under the subheading "Make your brief visually appealing," remain available online here.
Posted at 17:15 by Howard Bashman



"Guantanamo Detainee Asks Supreme Court to Intervene; Hamdan's Lawyers Ask Justices to Rule on Legality of Military Commissions": The Washington Post provides this news update. Thanks to "SCOTUSblog," you can access the cert. petition here and an amicus brief here.
Posted at 16:33 by Howard Bashman



"Money woes plague legacy of Rosa Parks; Family wary of her caregivers' motives": This article appears today in The Detroit Free Press.
Posted at 16:14 by Howard Bashman



"Revolting," "vile," and protected by the First Amendment: The Associated Press reports here from Lansing, Michigan that "The state Attorney Discipline Board has dismissed a charge of professional misconduct against Geoffrey Fieger, ruling that his 'revolting' and 'vile' out-of-court remarks about appeals court judges are protected by the First Amendment."

This isn't the only bit of good news attorney Geoffrey Fieger has received in recent days. The Cleveland Plain Dealer reported on Saturday that "Judge reinstates $30 million verdict."

Update: The ruling of the Attorney Discipline Board of the State of Michigan in this matter can be accessed at this link.
Posted at 15:45 by Howard Bashman



"Bench Pressed: When the judge's hands are tied." My Legal Affairs magazine colleague Emily Bazelon has this jurisprudence essay online at Slate.
Posted at 15:11 by Howard Bashman



In re Baby Wipes Trademark Litigation: The U.S. Court of Appeals for the Second Circuit today issued an opinion in a trademark dispute between the maker of "Wet Ones" pre-moistened wipes and the maker of "Quilted Northern Moist-Ones" pre-moistened wipes. Is it surreal for an appellate court to be discussing the dilution of pre-moistened wipes? See for yourself.
Posted at 14:45 by Howard Bashman



Non-bobblehead-related Justice Sandra Day O'Connor news: Last Thursday, Justice O'Connor traveled to Philadelphia to attend a dinner at The Union League, where she was honored as the League's first female recipient of the "Gold Medal Award" for exceptional public service.

At least one "How Appealing" reader was present at the dinner and sends along this report:
Justice O'Connor wound up saying absolutely nothing controversial. Ten minutes on the need to encourage the younger generation to devote themselves to public service, particularly in government. Big Union League-type establishment crowd.

Justice O'Connor received the League's "gold medal" (for exceptional public service). First awarded in 1863 to Pres. Lincoln, and given 38 times in the 141 years since. She's the first female recipient. As best I could tell perusing the list of past winners, the only non-Republican ever to receive it was Andrew Johnson. Recent recipients include Gerald Ford, Alexander Haig, George HW Bush, Dick Cheney, and Tom Ridge. Only past judicial recipients appear to be Warren Burger and William Rehnquist. She was introduced by Walter Stapleton, and the presence of First Lady Midge Rendell was also noted. Justice O'Connor, by the way, looked and sounded strong and quite well.
I thank my reader for this report.
Posted at 12:20 by Howard Bashman



"Lawyer runs amok in court": This article appears today in The New York Post. And The AP reports that "Lawyer arrested after charging judge's bench."
Posted at 12:18 by Howard Bashman



"Guantanamo Trials Appealed at High Court": Gina Holland of The Associated Press provides this report.
Posted at 11:45 by Howard Bashman



eBay auction of Justice Sandra Day O'Connor bobblehead doll to end within two hours from now: The current high bid is $265.00. One week ago today, another Justice O'Connor bobblehead sold on eBay for more than $300.00 (details here).
Posted at 11:35 by Howard Bashman



"Court Documents Not Fit for Web?" Wired News provides this report.
Posted at 11:12 by Howard Bashman



Don't confuse us with our colleagues in the Nation immediately to our south: The Toronto Globe and Mail today contains an article headlined "Judges aren't activists, Chief Justice says; Courts are not pursuing own agendas, McLachlin tells law dinner meeting." The article begins, "The Chief Justice of Canada's Supreme Court rejects the notion that judges have become activists who make decisions based on their own political or social agendas."
Posted at 10:30 by Howard Bashman



"Judge rejects Sell's request for trial": The St. Louis Post-Dispatch today contains an article that begins:
Dr. Charles "Tom" Sell begged a federal judge on Monday to put him on trial next week and end his seven years of waiting behind bars.

U.S. District Judge Donald J. Stohr rejected Sell's request and said he will decide later whether the once-successful Creve Coeur dentist is mentally capable of standing trial on charges of Medicaid fraud, mail fraud and murder conspiracy.

Sell stood in court in St. Louis, defying his lawyers and prosecutors who agreed that he is once again mentally unfit. That label has caused the delays and led prosecutors to demand all the way to the U.S. Supreme Court that he be forcibly medicated with anti-psychotic drugs.
The article goes on to report that Sell claims to have been the victim of abuse in federal prison and that videos may exist to substantiate his assertion.

The U.S. Supreme Court's opinion in this case, from June 2003, can be accessed at this link. And my summary of that ruling can be accessed here (second item).
Posted at 10:24 by Howard Bashman



"Puerto Rico's recount begins; The tedious process to decide the gubernatorial race is under way": This article appears today in The Orlando Sentinel.
Posted at 10:22 by Howard Bashman



"Hicksville-area teen loses appeal over disqualified hog; No basis for claims, judge rules": In porcine-related appellate news from Ohio, The Toledo Blade today contains an article that begins, "A Hicksville-area teenager lost her appeal yesterday over the disqualification of her grand champion hog at the Defiance County Fair three years ago."
Posted at 10:20 by Howard Bashman



"Lynn superintendent says he won't stop school desegregation plan": The Daily Item of Lynn, Massachusetts today contains an article that begins, "Although a federal appeals court ruled against the city's desegregation plan, Superintendent of Schools Nicholas Kostan said the plan will not change until all appeals are heard."
Posted at 10:15 by Howard Bashman



A devilish development: Wednesday's edition of The Mercury of Australia contains an article that begins, "Labor is backing away from its pledge to make Tasmania's next Supreme Court judge a woman, say the Liberals and the Law Society."
Posted at 09:52 by Howard Bashman



"Capital case is first of sorts; Man scheduled to be executed for murder in which body was never found": This article appears today in The News & Observer of Raleigh, North Carolina.
Posted at 09:40 by Howard Bashman



Available at National Review Online: This morning, U.S. Senator John Cornyn (R-TX) has an essay entitled "Injudicious Battles: Is there any stopping the judge madness in the Senate?" And David Lewis Schaefer has an essay entitled "Newdow's New Cause: The 'under God' challenger campaigns for parents' rights."
Posted at 09:35 by Howard Bashman



An email from #19: A reader who works near the Capitol in Washington, DC emails to draw to my attention one more reason why Senior Ninth Circuit Judge James R. Browning deserves to have a federal courthouse named in his honor -- Browning was the thirteenth Clerk of the Supreme Court of the United States, serving from 1958 to 1961. More information about Judge Browning, whose name as I reported here last night will now adorn the Ninth Circuit's San Francisco Courthouse, can be accessed in a Ninth Circuit news release from 2001 entitled "Ceremony Planned to Honor Senior Circuit Judge James R. Browning."
Posted at 09:20 by Howard Bashman



"Federal Judge: Keystroke Logging Isn't Wiretapping." This discussion thread appeared on Slashdot early this morning.
Posted at 07:25 by Howard Bashman



"Oakland woman battles for medical pot; Case before U.S. Supreme Court claims Prop. 215 right to smoke": Howard Mintz has this article today in The San Jose Mercury News.
Posted at 07:15 by Howard Bashman



"Ruling in lawsuit over anti-gay shirt appealed": The North County Times of San Diego County, California offers this article today.
Posted at 07:10 by Howard Bashman



"The muzzling of Arlen Specter": This editorial appears today in The St. Petersburg Times. And in Newsday, columnist Marie Cocco has an essay entitled "A senator enables a retreat to the past."
Posted at 07:00 by Howard Bashman



"Angleton plea deal delayed; Both sides await justices' rulings in sentencing cases": This article appears today in The Houston Chronicle. And in somewhat related news, The Associated Press reports that "Texans fill federal judicial posts; Senate confirms judge, panel chief and U.S. attorney."
Posted at 06:54 by Howard Bashman



Seventh Circuit Judge Richard A. Posner spoke yesterday at Columbia Law School: PG of the "de novo" blog attended the talk and offers this summary.
Posted at 06:50 by Howard Bashman



"Talking Sense On Court Choices": Columnist E.J. Dionne Jr. has this op-ed today in The Washington Post.
Posted at 06:40 by Howard Bashman



Monday, November 22, 2004
"Military tribunal case swiftly reaches Supreme Court": Lyle Denniston has this post tonight at "SCOTUSblog."
Posted at 23:25 by Howard Bashman



"Some want relief from Goofy votes": The La Crosse (Wis.) Tribune today contains an article that begins, "Mickey Mouse and Donald Duck repeatedly rank among Wisconsin's favorite write-in candidates, but Brett Favre, Elvis and JFK also pulled in a few votes for a variety of offices on Nov. 2. Even Beavis received a vote for coroner in one county. And God received a vote to fill the seat held by U.S. Rep. Mark Green, R-Green Bay, said Appleton City Clerk Cindi Hesse."
Posted at 23:02 by Howard Bashman



"Who guarantees what?" Columnist James J. Kilpatrick has an essay that begins, "At its closed-door conference [this] Wednesday, the Supreme Court will decide whether to hear the great gay marriage case from Massachusetts."
Posted at 23:00 by Howard Bashman



"Nomination could bridge divide": Law Professor Neil S. Siegel today has an op-ed in The South Florida Sun-Sentinel that begins, "A Supreme Court appointment seems likely in the near future."
Posted at 22:55 by Howard Bashman



In news from Washington State: The Seattle Post-Intelligencer reports today that "Judge allows hand recount in King County; Ballots that can't be scanned will be included." And The Seattle Times reports that "Judge says no to GOP, won't halt recount."
Posted at 22:50 by Howard Bashman



The James R. Browning United States Courthouse in San Francisco: The following email has just arrived from a law professor:
Buried within the massive omnibus appropriations bill that Congress passed on Saturday is a provision naming the U.S. Court of Appeals building in San Francisco after former Chief Judge James R. Browning. The legislation was a last-minute addition, as you can see if you go to this link at the Library of Congress's Thomas web site and visit page 224 (the last page) of the document. But the honor is well deserved. Judge Browning was a great leader of the circuit, and he remains an inspiration to everyone who knows him. It is especially gratifying that the courthouse will get its new name while Judge Browning is working there and will see it.
This honor has been in the works for quite some time it appears. Thanks much to this law professor and the other readers who emailed today to draw this information to my attention.
Posted at 22:44 by Howard Bashman



"Is the workplace kiss always remiss? Presidential smooches open door for discussion about what's OK at office." This article appears today in The Charlotte Observer.
Posted at 22:42 by Howard Bashman



No more talk about group sex -- Justice Antonin Scalia is now speaking in churches and synagogues: The Associated Press reports from New York City that "Scalia says religion infuses U.S. government and history."
Posted at 20:58 by Howard Bashman



"Campus mourns law scholar; NYU Law alumna and fellow Kim Barry dies at 35 after Mercer St. accident": This article appears today in Washington Square News. In earlier coverage, on Saturday The New York Daily News reported that "Mystery victim ID'd." The New York Post reported that "NYU Prof is ID'd in Accident." And Newsday reported that "Injured woman identified, still critical."

Update: Yesterday, New York University School of Law posted online this "memorandum from Dean Revesz to the NYU School of Law Community" about Kim Barry.
Posted at 17:32 by Howard Bashman



Twenty hours and counting: A little after 1:30 p.m. eastern time tomorrow, an eBay auction of a Justice Sandra Day O'Connor bobblehead doll will end. As of this moment, the high bid is just $189.00.
Posted at 17:25 by Howard Bashman



In news from Canada: The Toronto Globe and Mail today contains an article headlined "Recusal not the norm, Cotler says; It's unlikely Abella, a new judge on the Supreme Court, will remove herself from future cases to avoid accusations of bias, minister says."
Posted at 16:50 by Howard Bashman



"Ninth Circuit Will Take Another Look at RICO Claim Filed by Yagman Against Police Department": On Friday, the Metropolitan News-Enterprise published this article.
Posted at 16:45 by Howard Bashman



Further proof that Dahlia Lithwick exists: Two months after I began "How Appealing," I had the very good fortune to receive fan mail from Dahlia Lithwick. That caused some other readers to email seeking confirmation that Dahlia really exists, because they had never crossed paths with her despite many attempts to do so.

More recently, of course, Dahlia has been pictured online at The New York Times, her microsoft.com email address has been published for all the world to see by American Lawyer Media, her voice has been heard many times on NPR's "Day to Day" program, and she has appeared online at Slate as the Stay Puft Marshmallow Man.

Now, thanks to C-SPAN's "America & the Courts," you can see Dahlia (suffering from a bad cold, sorry to say) along with Walter E. Dellinger III, Nina Totenberg, and Stuart Taylor Jr. discussing "What Does the Election Mean for the Supreme Court?" by clicking here (RealPlayer required).
Posted at 16:25 by Howard Bashman



Available online from The New Republic: In the November 29, 2004 issue of the magazine, Jeffrey Rosen has an essay entitled "How to Judge: A guide to strict constructionists." Rosen's essay concludes:
Democrats have to be realistic about a Bush nominee to the Supreme Court rather than be distracted by Roe v. Wade. Their best hope lies in a principled conservative judge as opposed to an activist eager to undermine Congress's power in the name of the Constitution in Exile. By this measure, Alito, Brown, Clement, or Garza may be worth a Senate fight. Luttig, McConnell, Roberts, or Wilkinson, by contrast, could well be distinguished appointments.
Also available online at TNR today, Avi Schick has an essay entitled "Bill of Rights: A bill Kerry sponsored suggests how Dems can handle religion."
Posted at 16:20 by Howard Bashman



In today's issue of The Washington Times: An article reports that "Medicinal pot before high court." And Nat Hentoff has an op-ed entitled "Adhering to rule of law."
Posted at 16:12 by Howard Bashman



"Scalia addresses suburban lawyers, judges, government leaders": This article appears today in The Daily Herald of suburban Chicago. And as I noted here this morning, The Chicago Tribune today covers the same speech in an article headlined "Faith isn't foolish, Scalia tells group; Justice honored by Catholic lawyers."
Posted at 16:00 by Howard Bashman



"Court Says Both in Gay Union Are Parents": The Washington Post today contains an article that begins, "A Vermont family court has ruled that both parties in a same-sex civil union are legal parents of a child, a contradiction of an earlier Virginia court ruling that awarded custody to the biological parent." In coverage from Vermont, The Times Argus reported yesterday that "Landmark ruling made in civil union custody battle." And last week, The Chicago Tribune published an article headlined "Ties that unwind: Legal cases and some state laws threaten to undo lesbian couples' adoptions, parental arrangements."
Posted at 15:40 by Howard Bashman



"Peterson Judge Reschedules Penalty Phase": The Associated Press reports here that "The judge in the Scott Peterson murder trial denied defense motions Monday for a new jury and a new venue for the penalty phase of the case, and rescheduled the process to begin Nov. 30."
Posted at 14:22 by Howard Bashman



"Mr. Gonzales's Record": This editorial appears today in The Washington Post.
Posted at 13:15 by Howard Bashman



"Door on early release closes tightly; Even inmates near death often find sentencing law unyielding": This article appears today in The Milwaukee Journal Sentinel, part two in a four-part series entitled "Locked In: The Price Of Truth In Sentencing." That newspaper today also includes a related article headlined "Inmates less motivated, wardens find; With no way to earn time off, desperation is more common, they say."
Posted at 10:10 by Howard Bashman



"do ads subtract? big ones sure do!" David Giacalone has this post about the law.com blog network.
Posted at 09:25 by Howard Bashman



"NRA has gun lawsuits in cross hairs": The Denver Post contains this article today.
Posted at 09:22 by Howard Bashman



"Judge Van Graafeiland, 89, dies; His thorough knowledge of law, talents as a mentor remembered": This obituary of Senior Second Circuit Judge Ellsworth Van Graafeiland appears today in The Rochester Democrat and Chronicle. The Second Circuit's web site offers this biography.
Posted at 09:10 by Howard Bashman



"What Does Bush Want From The Supreme Court?" Stuart Taylor Jr. has this essay in today's issue of National Journal.

Stuart, along with Nina Totenberg, Dahlia Lithwick, and Walter E. Dellinger III, last week participated in a panel discussion on this issue and other related issues. On Saturday, C-SPAN's "America & the Courts" program televised the discussion. Once the video from Saturday's broadcast becomes available online, I will link to it. For now, you can access a clip from the program in both Windows Media and QuickTime formats.
Posted at 07:54 by Howard Bashman



"A terrorism case that went awry": This lengthy article, about the prosecution of Sami al-Hussayen in Idaho, appears today in The Seattle Times.
Posted at 07:02 by Howard Bashman



"Law challenges union benefits for gay pairs; Ban on same-sex marriages could hurt five pending contracts for domestic partners": Yesterday's issue of The Detroit News contained this article.
Posted at 07:00 by Howard Bashman



"Faith isn't foolish, Scalia tells group; Justice honored by Catholic lawyers": This article appears today in The Chicago Tribune.
Posted at 06:58 by Howard Bashman



"Congress acts to save cross; Mt. Soledad icon is slipped in federal legislation": Yesterday's issue of The San Diego Union-Tribune contained this article.
Posted at 06:52 by Howard Bashman



"Hatch comes up short on judgeship; BYU counsel Thomas Griffith can't allay Democrats' doubts": This article appears today in The Salt Lake Tribune. And The Detroit Free Press contains an editorial entitled "Some important questions about Thomas Griffith."

Meanwhile, from Mississippi, The Associated Press reports that "Starrett confirmed as federal judge."
Posted at 06:44 by Howard Bashman



"Specter not on Chabot's favorites list": The Cincinnati Enquirer contains this article today. The Salt Lake Tribune contains an editorial entitled "Independent Specter." And in The Chicago Sun-Times, columnist Robert Novak has an essay entitled "Putting a scare into Specter."
Posted at 06:40 by Howard Bashman



"4th Circuit's Luttig said potential high-court pick": This article appears today in The Richmond Times-Dispatch.
Posted at 00:02 by Howard Bashman



Sunday, November 21, 2004
"The President's Yes Man": Alan Berlow has this op-ed today in The Washington Post.
Posted at 23:59 by Howard Bashman



"Smells like privacy invasion": This editorial appears today in The St. Petersburg Times.
Posted at 23:58 by Howard Bashman



"Circumstantial evidence may avert death sentence": The Contra Costa Times today contains this article about the Scott Peterson case.
Posted at 23:57 by Howard Bashman



"Death penalty losing its grip": This editorial appears today in The Denver Post. And The Associated Press reports that "Tennessee's death penalty at a standstill."
Posted at 23:54 by Howard Bashman



In today's edition of The Salt Lake Tribune: The newspaper contains an article headlined "Victims of medical mistakes: Utah's malpractice cap is a hardship on the family of 7-year-old Athan Montgomery." And columnist Paul Rolly has an essay entitled "Amendment 3 hurts women who want to flee polygamy."
Posted at 23:50 by Howard Bashman



"Bill allows refusal of morning-after pill": This article appears today in The San Antonio Express-News.
Posted at 23:46 by Howard Bashman



"Final battle to rid the US of 'barbaric' cockfighting": The Guardian (UK) contains this article today.
Posted at 23:45 by Howard Bashman



"Tiny turnout expected for appeals court runoff": The Atlanta Journal-Constitution contains this article today. And The Athens Banner-Herald today reports that "Two runoffs to be decided Tuesday; Third time¹s a charm in appeals court race."
Posted at 23:40 by Howard Bashman



"Tougher sentencing law carries hefty price; Estimated $1.8 billion through 2025": This article, the first in a four-part series, appears today in The Milwaukee Journal Sentinel. And a related article, also published today, is headlined "Still seeking truth in sentencing; Even with law, victims' families find no guarantee that entire prison term is served in custody."
Posted at 22:50 by Howard Bashman



"Appellate Courts Inside and Out": Law Professor Maxwell Stearns has a quite interesting book review that you can download via this link at SSRN. The book review is not newly posted there, but I just stumbled across it for the first time and found it to be well worth a look.
Posted at 22:20 by Howard Bashman



"Giving the Law a Religious Perspective": Adam Liptak will have this article in Monday's issue of The New York Times.
Posted at 22:15 by Howard Bashman



Not the alleged enemy combatant: Last night, my wife and I finished watching "Bus 174" on DVD. The movie (reviewed here) was directed by José Padilha. Next up, "The Saddest Music in the World" (reviewed here).
Posted at 22:00 by Howard Bashman



"What's behind decline in death sentences? Americans are using the ultimate punishment less and less; But that doesn't mean it's on the way out." Monday's issue of The Christian Science Monitor will contain this article.
Posted at 19:24 by Howard Bashman



"Bring on anti-filibuster 'nuke'": Jay Ambrose has this op-ed today in The Journal Gazette of Fort Wayne, Indiana.
Posted at 15:20 by Howard Bashman



"Patient Keeps Medical Marijuana Fight Alive": The Hartford Courant today contains an article that begins, "Angel McClary Raich smokes marijuana every two hours when she is awake."
Posted at 15:18 by Howard Bashman



"Abortion Restrictions Were Efforts Long on the Rise; Imposing bans through healthcare providers has been a movement in the making; Now many say a new measure could have far-reaching effects": This article appears today in The Los Angeles Times.
Posted at 15:15 by Howard Bashman



In today's edition of The Philadelphia Inquirer: Today's newspaper contains articles headlined "Activist fights to stop team from using Redskins name" and "Pa. town puts Darwin on notice."
Posted at 15:14 by Howard Bashman



In today's issue of The Chicago Tribune: An article reports that "U.S. seeks to bury Oregon suicide law; Act letting doctors help end lives could go to high court."

And columnist Steve Chapman has an essay entitled "Activism on guns? Judges resist urge."
Posted at 15:10 by Howard Bashman



And now for some especially important appellate news: The Bristol (Va.) Herald Courier reports today that "Grayson County Fraser fir to adorn U.S. Supreme Court."
Posted at 14:50 by Howard Bashman



"Recount Ordered in Puerto Rico Election": The Associated Press reports here that "Puerto Rico's two highest courts ordered election authorities in separate rulings Saturday to immediately begin recounting votes cast in the extremely tight Nov. 2 gubernatorial elections."
Posted at 14:45 by Howard Bashman



"Falwell's School Joins Others in Teaching Law to Their Flocks; The legal program at the reverend's university represents the latest effort by the religious right to change American society": This article appears today in The Los Angeles Times.
Posted at 14:40 by Howard Bashman



"Rehnquist's Status Still a Mystery": Hope Yen of The Associated Press provides this report.
Posted at 12:50 by Howard Bashman



"Get the Wrong Answer, Ask Another Lawyer": The business section of today's issue of The New York Times contains this article.
Posted at 12:40 by Howard Bashman



"Despite contrasts, Santorum, Specter's political fortunes linked": This article appears today in The Pittsburgh Post-Gazette. The Philadelphia Inquirer reports that "Power prevails for Specter, DeLay; Despite criticism aimed at each man, their colleagues in Congress quickly closed ranks." And The Allentown Morning Call contains an editorial entitled "Sen. Specter all but signs loyalty oath, but confirmation process still is thorny."
Posted at 08:44 by Howard Bashman



In today's edition of The Maine Sunday Telegram: Bart Jansen has a Viewpoints essay entitled "Senate moderates feeling squeezed." And an editorial is entitled "Overturn sentencing guidelines and create a fairer system."
Posted at 08:40 by Howard Bashman



"Chief Justice Thomas?" Columnist Robert Novak has this essay today in The Chicago Sun-Times.
Posted at 08:38 by Howard Bashman



"Supremes to Texas appeals court: You still don't get it." Columnist Cragg Hines has this essay today in The Houston Chronicle.
Posted at 08:35 by Howard Bashman



"'Roe' under fire but is thought likely to stand": Gail Gibson has this article today in The Baltimore Sun. And today's issue of The Philadelphia Inquirer reports that "Key battles brewing over abortion; Judges, legislation are likely to be flash points in the coming months."
Posted at 08:33 by Howard Bashman



"On the short list for high court? J. Harvie Wilkinson III is seen as possible pick if openings occur." This article appears today in The Richmond Times-Dispatch. Of course, many have been making the observation that's the subject of this article for quite some time (see, for example, my monthly appellate column from June 2003).
Posted at 08:24 by Howard Bashman



Saturday, November 20, 2004
Be one of the few to listen to a discussion of the federal Sentencing Guidelines on the radio: A Boston public radio station aired this program (audio accessible in RealPlayer, Windows Media, and QuickTime formats) last night.

The guest on the program were Senior Eighth Circuit Judge Donald P. Lay (author of this recently-published New York Times op-ed); Stephen Henderson, who covers the U.S. Supreme Court for the Knight Ridder Newspapers; and Law Professor Douglas A. Berman, proprietor of the "Sentencing Law and Policy" blog.
Posted at 23:40 by Howard Bashman



What about the house that Scott and Laci Peterson owned? The Modesto Bee today contains an article headlined "Legalities hold site captive; Scott Peterson still retains stake, but mother-in-law's lawsuit, loan cloud division."
Posted at 23:35 by Howard Bashman



"Federal ruling limiting public prayers stirs the South": The Associated Press provides this report.

And in news from Texas, The Brenham Banner-Press reports today that "10 Commandments monument will be on display here Monday."
Posted at 23:35 by Howard Bashman



"Lawyers to challenge election in Ohio": The Cleveland Plain Dealer today contains an article that begins, "A trio of activist lawyers armed with mysteriously wrong exit polls and hundreds of voter horror stories announced plans Friday to contest Ohio's presidential election as soon as the vote is official."
Posted at 23:30 by Howard Bashman



"High court to hear fake cocaine case": The Canton Repository today contains an article that begins, "The Ohio Supreme Court will decide whether selling a fake illegal drug is the same as selling the real thing. The state's top court will examine the issue by hearing the case of a Massillon man convicted of cocaine trafficking in 2003. In June, the 5th District Court of Appeals reversed Kenyan Chandler's conviction and tossed out an 11-year prison sentence. In a 2-1 ruling, the judges said that Chandler couldn't be convicted of trafficking cocaine because the white powder he offered a police informant was really baking soda."
Posted at 23:28 by Howard Bashman



"GOP: Rules are for others." This editorial published today in The Palm Beach Post discusses, among other things, the issue of judicial filibusters.
Posted at 23:25 by Howard Bashman



"Informant's Fire Brings Shadowy Tale; Yemeni Man Helped, Squabbled With FBI": Sunday's issue of The Washington Post will contain this lengthy article.
Posted at 23:24 by Howard Bashman



"High court oversight is vital in death cases": This editorial appears today in The San Antonio Express-News.
Posted at 23:22 by Howard Bashman



"High court contenders are strong conservatives": This article from the Gannett News Service appears today in The Lancaster (Ohio) Eagle-Gazette.
Posted at 23:20 by Howard Bashman



"John Ashcroft's Achievements: The fearsome attorney general is leaving, but his legacy, and the resistance, remain." Yesterday evening, The Village Voice posted online this essay by Nat Hentoff.

The December 6, 2004 issue of The Nation will contain an essay entitled "Gonzales: Wrong Choice" by Law Professor David Cole. And the November 29, 2004 issue of The Nation contains an editorial entitled "Ashcroft and After."
Posted at 23:15 by Howard Bashman



"Filibuster Under Fire: Henry Clay Hated It; So Does Bill Frist." This article will appear in the Week in Review section of tomorrow's edition of The New York Times.
Posted at 22:46 by Howard Bashman



The New York Times is reporting: Sunday's newspaper will contain an article headlined "Broad Influence for Justice Dept. Choice." And in today's newspaper, a profile of White House Counsel nominee Harriet Miers is headlined "Low-Profile Woman, High-Powered Job."
Posted at 21:05 by Howard Bashman



"Anti-abortion group wants judges' views; Alaska Right to Life sues to let judicial candidates reveal opinions": This article appears today in The Anchorage Daily News.
Posted at 17:04 by Howard Bashman



"What Bush Really Means About Supreme Court Choices": Yesterday, Bloomberg News posted online this essay by columnist Ann Woolner.
Posted at 17:00 by Howard Bashman



"Conn. senator pushes journalism shield law; Inspired in part by Jim Taricani's conviction, Sen. Christopher Dodd introduces a bill backing First Amendment rights, although its passage may face long odds": This article appears today in The Providence (R.I.) Journal.
Posted at 16:57 by Howard Bashman



"Court decides to file opinions more frequently": The Des Moines Register today contains an article that begins, "The Iowa Supreme Court on Friday abandoned an old practice and will now file opinions on a more frequent basis. The court has traditionally announced rulings once a month, usually on a Wednesday in the middle of the month. The result has been that dozens of rulings, from divorces to constitutional cases, are made public at one time. Under the change, opinions will be spread through the month and will appear almost weekly."
Posted at 16:55 by Howard Bashman



"Tribes lament election of Johnson to high court; They were focused on defeating I-892": This article appears today in The Seattle Post-Intelligencer.
Posted at 16:52 by Howard Bashman



"Deadbeat dad gets new sentence; Paying support helps reduce his probation": The Cleveland Plain Dealer contains this article today. And The Akron Beacon Journal reports that "Judge lifts procreation ban on man; Prolific father Sean Talty says he's made all support payments since unusual sentence in 2002."
Posted at 16:50 by Howard Bashman



"Gay group fights for right to adopt; A new coalition of 20 organizations was formed with the goal of lobbying to repeal the state's ban on adoptions by gays": This article appears today in The Miami Herald. The South Florida Sun-Sentinel reports today that "Gay adoption ban under attack." And The Orlando Sentinel reports today that "Couples adopt as gays protest; Activists want to repeal law they call unfair."
Posted at 16:30 by Howard Bashman



"In first such trial, man guilty of underage-sex tourism; Garden Grove widower set up rendezvous with Filipino girls": The Orange County Register contains this article today. And The Los Angeles Times reports today that "O.C. Man, 86, Guilty in Sex Tourism Case; Widower bound for the Philippines is first in the nation to be convicted under the new federal act; He faces 10 to 180 years in prison."
Posted at 14:40 by Howard Bashman



"Where Execution Feels Like Relic, Death Looms": This article will appear in Sunday's edition of The New York Times.
Posted at 13:10 by Howard Bashman



"What's the Use of this Weblog?" Evan Schaeffer has this introspective post today at "Notes from the (Legal) Underground." And Denise Howell at "Bag and Baggage" last night had a post titled "Watching The Blawgs Go By."
Posted at 12:44 by Howard Bashman



"Specter avoids a Borking -- for now": Columnist George McEvoy has this essay today in The Palm Beach Post. And The Montgomery Advertiser today contains an editorial entitled "Specter's promises reflect obligation."
Posted at 12:40 by Howard Bashman



"The Dancing Queen of the Ninth Circuit": In a post you can access here, the blog "Underneath Their Robes" nominates Ninth Circuit Judge Consuelo M. Callahan to replace Justice Sandra Day O'Connor on the U.S. Supreme Court.

And while I'm on the subject of whimsy, "ScrappleFace" has a post entitled "Daschle Filibuster Blocks His Departure from Senate."
Posted at 12:35 by Howard Bashman



"Embattled judge to weigh rape sentence": This article appears today in The Lawrence (Kan.) Journal-World.
Posted at 12:20 by Howard Bashman



"Ensign on board to stop filibusters": From Nevada, The Pahrump Valley Times contained this article yesterday.
Posted at 12:15 by Howard Bashman



"Bush nominee's work for Enron at issue; Proposed attorney general may recuse self in prosecution": This article appears today in The Houston Chronicle.
Posted at 12:10 by Howard Bashman



The San Francisco Chronicle is reporting: Today's newspaper contains an article headlined "Geragos faces thorny situation; Insisting on client's innocence may hurt in penalty phase."

In other news, "Teen sues over strip search at Juvenile Hall; Class-action filing seeks end to such checks of minors."

And Bob Egelko reports that "Extradition-torture case rendered moot; Appeals court frees him when Mexico drops murder charge."
Posted at 11:55 by Howard Bashman



"Students win pay in prison suit; UC Davis law school clinic members helped Muslim inmates seeking worship rights": This article appears today in The Sacramento Bee. Congratulations to "How Appealing" reader Carter White and his crew on their impressive victory.
Posted at 11:45 by Howard Bashman



New blog called "Media Law": Congratulations to Robert J. Ambrogi on the launch of his newest blog, which he describes as "A blog about freedom of the press." Bob's original blog, "Robert Ambrogi's LawSites," yesterday celebrated its two-year anniversary.
Posted at 11:40 by Howard Bashman



Here's a place where the children might be expected to spell that 310-letter word: From Lake Chargoggagoggmanchauggagoggchaubunagungamaugg, Massachusetts, The New York Times today has an article headlined "What's the Name of That Lake? It's Hard to Say." A map showing the location of the town can be viewed at this link, and you can listen to a surprisingly catchy song about the lake by clicking here.
Posted at 11:14 by Howard Bashman



Friday, November 19, 2004
"Students see how hard court case can be": The Courier & Press of Evansville, Indiana contains this article today.
Posted at 23:10 by Howard Bashman



In Saturday's issue of The New York Times: Tomorrow's newspaper will contain articles headlined "Negotiators Add Abortion Clause to Spending Bill" and "Man, 86, Convicted Under New Law Against Americans Who Go Abroad to Molest Minors."
Posted at 23:05 by Howard Bashman



"Appeals Courts Flooded with Immigration Cases": This segment (Real Player required) appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 23:00 by Howard Bashman



"James Dobson focuses on the Supreme Court; Now that Election Day is over, the Christian leader is rallying supporters for 'moral' Supreme Court appointees": This article will appear in Saturday's issue of The Baltimore Sun.
Posted at 22:58 by Howard Bashman



High Court: "SCOTUSblog" has posted online here the federal government's reply brief in the medical marijuana case from the Ninth Circuit. I expect the U.S. Supreme Court to reverse the Ninth Circuit's ruling in the case, and this earlier Ninth Circuit ruling in a child pornography prosecution may help motivate the reversal.
Posted at 22:50 by Howard Bashman



Only seven judges on the U.S. Court of Appeals for the Fifth Circuit find this case "enbancworthy": The question presented is whether a federal appellate court is required to consider, on a State's interlocutory appeal from the denial of Eleventh Amendment immunity, the State's argument that the federal statute under which it has been sued is unconstitutional. Today's dissent from the denial of rehearing en banc, in which seven judges joined, can be accessed here. The original ruling by a divided three-judge panel can be accessed here. Because the Fifth Circuit currently has a total of sixteen judges in active service, nine votes were needed to take the case en banc. By the way, the Fifth Circuit appears to be the only federal appellate court to use the term "enbancworthy."
Posted at 22:42 by Howard Bashman



Available online from law.com: Tony Mauro reports on "The World According to the Supreme Court."

In other news, "Court Secrecy Practices at Center of Drug Boss's 11th Circuit Appeal; Appeal focuses on 'super-sealed' court documents that hide cases' existence."

And if you missed it when it ran last week in The Wall Street Journal, law.com has republished the essay by Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas originally entitled "Don't Split the Ninth Circuit!"
Posted at 22:30 by Howard Bashman



"Specter Resurrected: Sworn fealty to the president as answer to everything." Slate has just posted online this jurisprudence essay by Dahlia Lithwick.
Posted at 18:10 by Howard Bashman



"Lawsuit may cut prison terms": This article appears today in The Rocky Mountain News.
Posted at 17:52 by Howard Bashman



"Justices uphold visitation rights; State Supreme Court backs Peoria County case": The Peoria Journal Star today contains this article reporting on an interesting grandparents' visitation ruling that the Supreme Court of Illinois issued yesterday.
Posted at 17:51 by Howard Bashman



"Court says no to cities' curfews; The Florida Supreme Court determines that citywide teen curfews in Tampa and Pinellas Park are unconstitutional": This article appears today in The St. Petersburg Times. And The Miami Herald reports that "Justices overturn two youth curfews; The state Supreme Court struck down two curfew laws in Southwest Florida, placing others in doubt."

You can access yesterday's 4-3 ruling of the Supreme Court of Florida (note the snazzy new web site) at this link.
Posted at 17:45 by Howard Bashman



Year and a day: The Boston Globe reports today that "Gay-marriage backers, opponents vow fights." The Providence (R.I.) Journal reports today that "A year later, Mass. stands alone on gay marriages; Just weeks before the first anniversary of the legalization of same-sex unions in the Bay State, 11 states overwhelmingly approved bans on the practice."

The Oregonian reports today that "Gay marriage suit shifts to benefits rights; Gay-rights advocates turn to civil unions and legal equality in a case before the state high court."

The Deseret Morning News today contains an article headlined "Who should defend Utah ban on gay marriage? Walker says AG's office; Buttars says otherwise." And The Salt Lake Tribune reports today that "Amendment 3 backers form legal advice group; Group wants to fight gay marriage nationally."
Posted at 17:40 by Howard Bashman



"Ginsburg Judges Moot Court": The Harvard Crimson today contains an article that begins, "One year after a landmark Massachusetts court decision declared that limiting marriage to heterosexual couples is unconstitutional, students at Harvard Law School (HLS) argued the issue before Supreme Court Justice Ruth Bader Ginsburg."
Posted at 17:15 by Howard Bashman



Oats, Joyce Carol, shan't be fed to the deer, New Jersey appellate court rules: The Newark (N.J.) Star-Ledger reports today that "Judges uphold Princeton's ban on feeding deer." And The Princeton Packet reports that "Judges rule no infringement on property owner rights." According to The Star-Ledger, Princeton resident Joyce Carol Oates was among the plaintiffs who sued alleging that a township ordinance banning the feeding of deer on public and private property "unreasonably deprives [the plaintiffs] of their property right to feed wild deer on their land."

Yesterday's ruling of the Superior Court of New Jersey, Appellate Division, can be accessed at this link. Even in the aftermath of the ruling, New Jersey citizens retain their inherent right to have their motor vehicles collide with deer.
Posted at 15:40 by Howard Bashman



Lawyers, guns, and money: The Chicago Sun-Times reports today that "Gun makers score big win in court." The Chicago Tribune reports that "Daley loses 6-year fight to make gunmakers pay." And The Washington Times reports that "Supreme Court in Illinois frees gun makers of liability." Meanwhile, from Indiana, The Post-Tribune reports that "Gary will continue to press gun suit."

Yesterday's ruling of the Supreme Court of Illinois can be accessed at this link.
Posted at 15:20 by Howard Bashman



"One Wednesday afternoon, several students at Colonial Elementary School reported to their teacher that M.D., a ten-year-old classmate, had brought a gun to school." So begins an opinion that Circuit Judge J. Harvie Wilkinson III issued today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit. The reports of a gun on school property appear to have been false, and the girl known as M.D. and her mother thereafter brought a civil suit in federal court against various school and law enforcement officials. Today's Fourth Circuit ruling affirms the dismissal of that lawsuit.
Posted at 15:05 by Howard Bashman



"An ominous cloud behind couple's fight for pet squirrel": In today's issue of The Philadelphia Inquirer, "How Appealing" reader Mitchell Sommers has an op-ed that begins, "There are two stories in the saga of Nutkin the squirrel. The first is sweet, fluffy and cute. The second is more ominous." My earlier mention of this matter can be accessed here.

Update: Yesterday in The York Daily Record, columnist Mike Argento had a hilarious essay entitled "A happy ending to a squirrelly tale" that begins, "When we last checked in with Nutkin, she was influencing the race for state Superior Court Justice."
Posted at 14:40 by Howard Bashman



"Volokh Conspiracy Sells Out": Eugene Volokh writes here that "I'm pleased to report that American Lawyer Media's law.com has invited us to join the Law.com Blog Network, and we accepted." On behalf of the Legal Affairs magazine blog network, let me say that it's nice to see the law.com blog network up and running.

But seriously, the law.com blog network already has seven law-related blogs in it, and you can even learn the identity of the mysterious author behind the "Crime & Federalism" blog.
Posted at 14:30 by Howard Bashman



"Specter 'Just Kidding' About Support for Abortion": The latest from "ScrappleFace" is available here.
Posted at 12:50 by Howard Bashman



"The Ames Moot Court Competition": The blog "Waddling Thunder" offers this report from Harvard Law School. Justice Ruth Bader Ginsburg presided, and the question presented involved same-sex marriage.
Posted at 12:45 by Howard Bashman



"Maui pays church to settle land use case": The Honolulu Advertiser contains this article today. And The Maui News reported yesterday that "Pukalani church gets its permit." On Tuesday, The Becket Fund for Religious Liberty issued a press release entitled "Hawaiian Church Wins Decade-Long Battle to Build Sanctuary."
Posted at 12:30 by Howard Bashman



"Combatant lawyer speaks about habeas corpus": This article appeared yesterday in The Gamecock, the student newspaper of the University of South Carolina.
Posted at 12:25 by Howard Bashman



Attention Judges Selya and Fernandez: First Circuit Judge Bruce M. Selya and Senior Ninth Circuit Judge Ferdinand F. Fernandez may be interested to hear that The Randolph (N.J.) Reporter on Wednesday contained an article headlined "Boy wins challenge to spell mammoth word." Because the 310-letter word probably would cause nothing but grief to readers of "How Appealing" if I were to set it forth here, you can find the word at the beginning of the article linked in the preceding sentence.
Posted at 12:20 by Howard Bashman



"McDermott appealing court order to pay $600,000 over cellphone leak": The Seattle Times contains this article today. And The Seattle Post-Intelligencer reports that "McDermott to appeal judge's order to pay $600,000 in cell phone case."
Posted at 12:15 by Howard Bashman



"Official Allegedly Hinted at Saudi Torture of Va. Man; Lawyer's Affidavit Attributes Remark To U.S. Prosecutor": This article appears today in The Washington Post.
Posted at 12:14 by Howard Bashman



"GOP Determined to Stop Judicial Filibusters": Robert B. Bluey has this essay today at Human Events Online.
Posted at 12:08 by Howard Bashman



"Santa Clara County judge receives award": The San Jose Mercury News today contains an article that begins, "Santa Clara County Superior Court Judge Leonard Edwards received the prestigious William H. Rehnquist Award for Judicial Excellence on Thursday, but the ailing chief justice for whom the award is named was unable to attend the ceremony. Supreme Court Justice Anthony Kennedy filled in for Rehnquist at the award dinner in the court's historic marble-columned building."
Posted at 12:04 by Howard Bashman



"Fire destroys justice's sons' apartment; Sons unharmed; officials probe cause of fire": This article appears in Saturday's issue of The Pacific Daily News of Guam.
Posted at 11:24 by Howard Bashman



"Law prof to Supreme Court: federal government, butt out of medical marijuana." The B.U. Bridge provides this report.
Posted at 11:20 by Howard Bashman



"Yale Law School looks to expand; Possible sites include Hall of Graduate Studies": This article appears today in The Yale Daily News.
Posted at 11:11 by Howard Bashman



"Cruel, but Not That Unusual": The Los Angeles Times today contains an editorial that begins, "A 25-year-old Utah man sold eight-ounce bags of marijuana on three occasions to an undercover officer. This week he was sentenced to 55 years in prison because he had a pistol strapped to his ankle during the deals."
Posted at 11:00 by Howard Bashman



"Blakely Invalidates State Sentencing Scheme--Court of Appeal; This District's Div. Seven Follows Fourth District in Ruling on Issue Currently Before State High Court": Yesterday's issue of The Metropolitan News-Enterprise contained this article. Tuesday's ruling of the California Court of Appeal for the Second Appellate District, Division Seven, can be accessed at this link.
Posted at 10:55 by Howard Bashman



"Mail-order bride wins damage award": This article appears today in The Baltimore Sun.
Posted at 10:40 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 10:34 by Howard Bashman



"Abortion Rights Said To Be at a Crossroads; Mont. Ex-Legislator Takes NARAL Helm": The Washington Post contains this article today.
Posted at 08:20 by Howard Bashman



"Specter wins panel's backing; The judiciary post is his as GOP members are unanimous in support, ending his 2-week ordeal": This article appears today in The Philadelphia Inquirer, along with an editorial entitled "Arlen Specter: Survival at what cost?" The Pittsburgh Post-Gazette reports that "Specter survives 'toughest' battle of career; Gains backing of fellow Republicans to chair judiciary panel." The Los Angeles Times reports that "GOP Colleagues Rule for Specter; The senator is endorsed for judiciary post despite conservative outrage; He vows not to hinder Bush." The Washington Times reports that "Specter nails enough votes to be judiciary panel chief." And The Atlanta Journal-Constitution reports that "Specter wins panel backing."

Meanwhile, in commentary, John Young of The Waco Tribune-Herald yesterday had an op-ed entitled "The Specter of a 'Borking.'"
Posted at 08:10 by Howard Bashman



Thursday, November 18, 2004
"Judiciary Panel Backs Specter; GOP Senators Elicit Pledge Not to Block Antiabortion Judges": This article will appear Friday in The Washington Post. And Friday's issue of The New York Times will contain an article headlined "Judiciary Panel Backing Specter as Its Chairman."
Posted at 23:20 by Howard Bashman



In news and commentary from Australia: The Australian Associated Press reports that "Judge charged with drink-driving." And in Friday's issue of The Sydney Morning Herald, columnist Richard Ackland has an essay entitled "Frailties of a system more than of a man."
Posted at 22:30 by Howard Bashman



Recount! The Seattle Post-Intelligencer today contains articles headlined "It's Rossi, by 0.0093%; Trailing by 261 votes, Gregoire won't concede; recount coming" and "Democratic suburbs abandon Gregoire." And The Seattle Times reports that "It's Rossi by 261; recount is next."
Posted at 22:20 by Howard Bashman



"Specter secures judiciary chairmanship after issuing statement": This article will appear Friday in The Philadelphia Inquirer. And The Los Angeles Times offers a news update headlined "GOP Judiciary Panel Members Back Specter for Chairman." And you can access here a transcript of this afternoon's press conference by Republican members of the Senate Judiciary Committee.
Posted at 22:00 by Howard Bashman



"Why exciting news distorts reality": Heidi Bond of the blog "Letters of Marque" has one more post about Justice Antonin Scalia's visit to Ann Arbor, Michigan.
Posted at 21:55 by Howard Bashman



"Hypnotized girl who got hurt can't sue; Crestwood district has immunity in case of a former student who fell off a stage": The Detroit News today contains this article reporting on an unpublished decision that the Michigan Court of Appeals issued on Tuesday.
Posted at 21:05 by Howard Bashman



"Judiciary Republicans pledge unanimous support for Specter": The Hill provides this news update.
Posted at 19:24 by Howard Bashman



"ACLU threatens to file lawsuit over abstinence program; Despite settlement, Web site cites God": The Times-Picayune contains this article today.
Posted at 17:58 by Howard Bashman



"HLS Forum Discusses Religion": This article published today in The Harvard Crimson is more interesting than its headline would suggest.
Posted at 17:52 by Howard Bashman



"Limbaugh case sent to state's Supreme Court": The South Florida Sun-Sentinel contains this article today. The Palm Beach Post reports that "Appeals court bumps Limbaugh case to state Supreme Court." And The Palm Beach Daily News reports that "Limbaugh case sent to Florida high court; Fourth District Court of Appeal hands up issue in medical records privacy case, denies request for rehearing."
Posted at 17:50 by Howard Bashman



"Plaques trace lineage of appellate judges": This article appears today in The Knoxville News Sentinel.
Posted at 17:48 by Howard Bashman



"Bates participants reflect on landmark case": David L. Hudson Jr. has this essay online today at the First Amendment Center.
Posted at 17:45 by Howard Bashman



Federal court to determine whether WingHouse restaurant is too Hooters-like: The St. Petersburg Times reports today that "Hooters defends wings-and-winks turf; In court, the chain says Largo-based WingHouse is getting a little too close to its business model."
Posted at 17:38 by Howard Bashman



"Town wasting money in high court appeal, legal experts contend": The Herald of Rock Hill, South Carolina today contains an article that begins, "The town of Great Falls is likely fighting a losing battle in its effort to keep the name of Jesus Christ in its council meeting prayers, several legal experts say."
Posted at 17:35 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "Specter Effectively Wins Senate Judiciary Chair"; "Court Ends Suits Against Gun Industry in Illinois"; and "Both sides claim upper hand in U.S. tobacco trial."
Posted at 17:32 by Howard Bashman



"Twenty Questions for the Law Clerk: Scott from L-cubed." The blog "Begging The Question" has today launched the feature "Twenty Questions for the Law Clerk," and you can access the first installment at this link. Some other potential recurring appellate interview segments that remain available are "20 questions for the appellate judge's secretary" and "20 questions for the cleaning crew assigned to the appellate judge's chambers." Anyhow, I'd be curious to know whether anyone can guess on which court today's interviewee is clerking based on the information disclosed in the interview.
Posted at 17:20 by Howard Bashman



"Specter Wins Support for Chairmanship": Jesse J. Holland of The Associated Press reports here that "Sen. Arlen Specter on Thursday won the support of the Senate Judiciary Committee's Republicans to be their chairman next year, surviving complaints from abortion opponents who lobbied to skip over him in favor of a conservative." You can access the statement that Senator Arlen Specter (R-PA) issued today regarding the Senate Judiciary Committee at this link.
Posted at 16:50 by Howard Bashman



"The Secrets of Flight: Why Transportation Security Administration guards don't have to tell you what they won't tell you." Slate has just posted online this jurisprudence essay by Steven Aftergood.
Posted at 16:33 by Howard Bashman



"Mail can be late, court rules, but not FedEx": The St. Louis Post-Dispatch today contains a sad tale of woe that begins:
If only a lawyer had used the U.S. Postal Service instead of Federal Express, his client in Perryville, Mo., might have saved $17,310.

That's because all mail is not created equal under Missouri law.

Papers appealing a worker's compensation ruling could have been accepted even if they had arrived a year late, as long as the envelope bore the proper U.S. mail postmark. But papers arriving by FedEx -- or for that matter, UPS or DHL or other carriers -- have to be in hand by the official deadline or they're out of luck, the Missouri Court of Appeals at St. Louis ruled this week.
You can access Tuesday's ruling of the Missouri Court of Appeals, Eastern District, at this link.
Posted at 15:40 by Howard Bashman



"Judge finds part of books law illegal": The Arkansas Democrat-Gazette today contains this article reporting on a ruling that the U.S. District Court for the Eastern District of Arkansas issued on Tuesday.
Posted at 15:33 by Howard Bashman



"Rehab Justice": Senior Eighth Circuit Judge Donald P. Lay has this op-ed today in The New York Times.
Posted at 14:28 by Howard Bashman



U.S. Court of Appeals for the Ninth Circuit grants rehearing en banc in RICO case involving dispute over whether the plaintiff has sufficiently asserted an injury to "business or property": The underlying facts arise from the Los Angeles Police Department's Rampart scandal. Today's order granting rehearing en banc can be accessed here. Back in January 2004, the original three-judge panel issued a unanimous opinion affirming the trial court's dismissal of the RICO claim. In August 2004, the three-judge panel issued an amended opinion reaching the same result that was accompanied by a dissent from Circuit Judge Barry G. Silverman, who in the interim concluded that the trial court's judgment should be reversed.
Posted at 13:40 by Howard Bashman



"Is it knee-jerk reaction or necessary tool?" The Forum of Fargo, North Dakota today contains an article that begins, "The anti-terrorism Patriot Act is getting a closer, more critical look three years removed from the 9/11 attacks, a federal judge in Fargo said Wednesday." The remarks are attributed to Eighth Circuit Judge Kermit E. Bye, with whom I had the pleasure of visiting during my recent trip to St. Louis.
Posted at 13:30 by Howard Bashman



The Associated Press is reporting: An article headlined "Ill. Court Dismisses Gunmakers Lawsuit" reports on this decision that the Supreme Court of Illinois issued today. Despite the somewhat ambiguous headline, the ruling is a big victory for gun manufacturers in a lawsuit brought by the City of Chicago.

In other news, "Specter May Pledge Quick Judicial Votes."

An article reports that "Peterson Seeks New Jury for Penalty Phase."

And in news from North Dakota, "Supreme Court rejects proposal for appeals bond limit."
Posted at 13:22 by Howard Bashman



Coming soon to Yale Law School: On Tuesday in the Ceremonial Courtroom of the U.S. Courthouse in Philadelphia, a portrait of Senior Third Circuit Judge Edward R. Becker that was commissioned by Yale Law School alumni to hang at Yale (in the renovated room that was bombed) was officially presented to the law school.

According to a "How Appealing" reader who was present:
Four Deans of Yale Law were among the speakers (Pollak and Calabresi, along with H. Koh and his predecessor Tony Kronman). It was frequently claimed by the speakers that ERB's YLS class of '57 holds the record for most Art. III judges (8) in any one graduating class from any school, all the more remarkable because it was a class of 150. (Of course, they do have a boost from classmate A. Specter, who sponsored quite a few of them.) Frankly, I doubt that it's actually a record (Harvard is so much larger, after all.) Interested in running a reader quiz to try to top it? (The YLS '75 class has 5 U.S. Court of Appeals judges presently; I wonder if that's a record? W. Fletcher & R. Clifton on CA9, D. Benton on CA8, R.G. Cole on CA6, S. Alito on CA3.)
Congratulations to Judge Becker on this well-deserved honor.
Posted at 11:45 by Howard Bashman



"Little-known case was landmark for Hispanics; 50 years ago, a Texan's trial helped bring Latinos equal treatment by law": This article appears today in The Houston Chronicle. The U.S. Supreme Court's ruling from 1954 in Hernandez v. Texas can be accessed at this link.
Posted at 11:35 by Howard Bashman



One year ago today: On November 18, 2003, the Supreme Judicial Court of Massachusetts issued a decision requiring that same-sex couples be allowed to marry.

In news coverage of the one-year anniversary of that ruling, The Boston Herald reports that "Court gave gays green light a year ago." The Republican of Springfield, Massachusetts reports that "Future of gay marriage unsettled." And The Boston Globe offers articles headlined "Activists seek wider gay-marriage rights; Sticking to goals despite impact on US election" and "Fewer gay couples seek marriage licenses."

Elsewhere, The Seattle Times reports today that "Poll shows most in state back current marriage law."
Posted at 10:20 by Howard Bashman



"Grandparents' visits at issue after slaying": This article appears today in The Chicago Tribune.
Posted at 10:15 by Howard Bashman



"Right to lawyer in civil cases sought; Supreme Court asked to decide constitutionality": The Milwaukee Journal Sentinel today contains an article that begins, "Attorneys with Legal Action of Wisconsin asked the state Supreme Court Wednesday to consider whether poor people in civil cases have the constitutional right to an attorney, similar to that of defendants in criminal cases."
Posted at 10:00 by Howard Bashman



"Put Ashcroft on the bench?" Linda Campbell has this op-ed today in The Fort Worth Star-Telegram. And The Boston Globe today contains an editorial entitled "An answer to Ashcroft."
Posted at 09:45 by Howard Bashman



"Bush names Texan White House counsel; Miers, longtime aide to president, is ex-chairwoman of the state lottery": This article appears today in The Houston Chronicle. The Los Angeles Times reports that "President Names Close Advisor as White House Counsel; Bush promotes Deputy Chief of Staff Miers and nominates Margaret Spellings as Education secretary; Both worked with him in Texas." And The Fort Worth Star-Telegram reports that "Bush taps 2 longtime confidantes for posts."
Posted at 09:35 by Howard Bashman



The Fifth Circuit delivered a thorough spanking: The San Antonio Express-News reports today that "Appeals court tosses 10-year fraud term." You can access my earlier coverage of this ruling by Circuit Judge Jerry E. Smith of the U.S. Court of Appeals for the Fifth Circuit at this link.
Posted at 09:25 by Howard Bashman



"1st-time dealer gets 55 years; judge assails mandatory term": This article appears today in The Philadelphia Inquirer.
Posted at 09:22 by Howard Bashman



"Suit contests Kentucky marriage amendment": The Louisville Courier-Journal contains this article today. And The Lexington Herald-Leader reports that "Suit objects to marriage amendment; Plaintiffs: Ballot measure addressed too many topics."
Posted at 09:14 by Howard Bashman



"Breyer Touts 'Active Liberty'": This article appears today in The Harvard Crimson, accompanied by this photograph. A draft of the text of Justice Stephen G. Breyer's remarks can be accessed via this earlier post.
Posted at 08:15 by Howard Bashman



"A Federal Appeals Court Says A Religious Group Can Import Illegal Drugs: The Religious Freedom Restoration Act Shows Its True Colors." FindLaw columnist Marci Hamilton has this essay today.
Posted at 08:14 by Howard Bashman



In today's issue of The Washington Post: An article reports that "Court Panel Skeptical About Penalty Sought Against Tobacco Companies."

In other news, "Retrial Date Set For Lentz in Ex-Wife's Death."

And an editorial is entitled "Guantanamo Troubles."
Posted at 07:04 by Howard Bashman



"Supreme Court justice opposes 'living Constitution'": The State News of Michigan State University contains this article today. And columnist Laura Berman of The Detroit News today has an essay entitled "Justice Scalia gives few critics a lesson in art of civility, civics."

The blog "Glorfindel of Gondolin" offers this post on Justice Antonin Scalia's appearance yesterday in Ann Arbor, Michigan, and much additional blog coverage of that visit can be accessed via my earlier post here.
Posted at 06:50 by Howard Bashman



"Specter gains support in talks with full caucus": This article appears today in The Philadelphia Inquirer. The Pittsburgh Post-Gazette reports that "Specter hoping to calm critics." The Washington Times reports that "Specter satisfies caucus concerns." The Associated Press reports that "Specter Struggling to Maintain Image." The Sun-Herald of Biloxi, Mississippi offers an article headlined "Lott: Specter a good choice." And The Des Moines Register reports that "Grassley holds back on Specter."

In commentary, The Fort Worth Star-Telegram offers an editorial entitled "Specter under siege." In The Boston Globe, columnist Ellen Goodman has an op-ed entitled "The Specter spectacle." And online at OpinionJournal, Peggy Noonan has an essay entitled "'Ssssshhhhhhhh': Condi Rice! Porter Goss! Arlen Specter! Settle down and take a breath."
Posted at 06:40 by Howard Bashman



Wednesday, November 17, 2004
"The Loyalist: With devotion to the president and the office, Alberto Gonzales '82 tackles the complications and controversies of the White House counsel's job." This profile appeared in the Spring 2003 issue of the Harvard Law Bulletin.
Posted at 23:30 by Howard Bashman



"Minister fires new shot at judges": Thursday's edition of The New Zealand Herald contains this article. And the New Zealand Press Association reports that "Mallard on his own on Supreme Court comments."
Posted at 23:28 by Howard Bashman



"Pressure Seen Rising On Judicial Wars; High stakes could force centrist Jewish groups into altering tack on High Court": This article appears in the current issue of The Jewish Week.
Posted at 23:24 by Howard Bashman



Available online from law.com: An article reports that "9th Circuit Feels Pro Se Pressure; A 39 percent increase in cases has the circuit's officials looking for solutions." And in news from California, "PETA Cries Over Cow-Filled Milk Board Ads; Lawyers for state say it's immune from suit."
Posted at 23:22 by Howard Bashman



"Breyer: High court can build democracy." The Associated Press provides this report. Today through Friday, Justice Stephen G. Breyer is delivering the Harvard University Tanner Lectures on Human Values 2004-2005. You can access a preliminary draft of Justice Breyer's lectures at this link.
Posted at 23:14 by Howard Bashman



"Supreme Court hears contract support case": Last Friday's issue of Indian Country Today contained this article.
Posted at 23:10 by Howard Bashman



"GOP May Go 'Nuclear' On Judges": David Paul Kuhn, CBSNews.com's chief political writer, provides this report.
Posted at 23:08 by Howard Bashman



Recount! The Associated Press reports from Washington State that "Rossi apparent winner in governor's race; recount next." The current margin of victory -- 261 votes out of 2.8 million ballots cast.
Posted at 23:05 by Howard Bashman



"A monumental visit": The Longview News-Journal today contains an article that begins, "Spring Hill Independent School District became a part of living history Tuesday morning when the Ten Commandments monument rolled into the high school parking lot on a flat-bed trailer."
Posted at 23:02 by Howard Bashman



In Thursday's issue of The New York Times: Tomorrow's newspaper will contain articles headlined "Democrats Expect Gonzales to Be Confirmed for Justice Post" and "Appeals Court Hears Issue in U.S. Case on Smoking."
Posted at 22:54 by Howard Bashman



"Bush Names His Former Personal Attorney to Top Post": The Los Angeles Times provides this news update.
Posted at 22:50 by Howard Bashman



"Isle nominee gets Senate hearing": The Associated Press reports here that "The U.S. Senate Judiciary Committee held a hearing yesterday on President Bush's nominee to the Hawaii federal court, but no action on the nomination is in sight as Congress works toward adjourning for the year."
Posted at 22:44 by Howard Bashman



"Kansas anti-abortion groups hope to banish Specter": This article appears today in The Lawrence Journal-World.
Posted at 22:40 by Howard Bashman



"High court reality check": Tony Mauro will have this op-ed in Thursday's issue of USA Today.

And today in The Washington Post, Al Kamen's "In the Loop" column is entitled "If You're Available Jan. 20...." In a post that you can access here, I previously touched on the issue that Kamen considers.
Posted at 22:33 by Howard Bashman



"Clinton's pardon saved me, but what about the others?" Kemba Smith has this federal sentencing guidelines-related op-ed today in USA Today.
Posted at 22:28 by Howard Bashman



"55-year sentence for marijuana seller assailed": This article will appear in Thursday's issue of The Philadelphia Inquirer. I previously collected other press coverage of this ruling in a post you can access here.
Posted at 22:22 by Howard Bashman



Lactose intolerance? The Yale Daily News today contains an article headlined "Yale profs claim no role in milk case; University's involvement in dairy farmer case is not confirmed." The article begins, "Louisiana dairy farmers may believe that Yale professors are helping the U.S. Department of Justice in an antitrust battle against the Dairy Farmers of America cooperative -- but at Yale, professors say they are not involved in the investigation."
Posted at 22:11 by Howard Bashman



"Miers Picked As White House Counsel": Terence Hunt of The Associated Press reports here that "President Bush on Wednesday named Harriet Miers, a longtime Texas associate, as White House counsel." She and I worked on the same appellate matter in Texas, for the same client, many years ago.
Posted at 22:04 by Howard Bashman



In Thursday's issue of The Hill: The newspaper will contain articles headlined "Sen. Specter says he'll be team player on torts" and "Frist gains new powers; Majority leader will control half of 'A' panel seats." And columnist Byron York will have an essay entitled "Don't start a new GOP era by hanging Specter."
Posted at 20:15 by Howard Bashman



"Specter gets Frist's backing in effort to win judiciary chairmanship": Thursday's edition of The Philadelphia Inquirer will contain this article.

And David Shuster has an essay online at MSNBC headlined "Is the GOP at war with itself? Republican Sen. Specter has been on the hot seat with conservatives for saying that anti-abortion judges would be unlikely to be confirmed."
Posted at 20:10 by Howard Bashman



"Specter flap rallies the right; Emboldened by fresh victories, conservatives have used his remark to press a larger agenda": This article will appear in Thursday's issue of The Christian Science Monitor.
Posted at 18:05 by Howard Bashman



"Specter May Not Bar Anti-Abortion Nominees": Jesse J. Holland of The Associated Press reports here that "After two days of appealing to fellow GOP senators, embattled Arlen Specter of Pennsylvania said he would make a public statement to assure Republicans at large he would not block anti-abortion judicial nominees from President Bush."

And Tom Curry, national affairs writer for MSNBC, has a report headlined "What's behind the Specter spectacle: Struggle over Senate Judiciary chairman's job has implications for GOP '08 presidential landscape."
Posted at 17:50 by Howard Bashman



Nationwide PACER access fee to rise to eight cents per page on January 1, 2005: This notice to the bar is available via the web site of the U.S. Court of Appeals for the Third Circuit. The current PACER access fee is seven cents per page. I bet this extra one cent per page actually adds up to a pretty penny in terms of the overall money that the increase will generate.
Posted at 17:30 by Howard Bashman



Second Circuit ditches "in" banc and greatly relaxes requirements to become a member of its bar: These local rule amendments became effective yesterday in the U.S. Court of Appeals for the Second Circuit.
Posted at 17:24 by Howard Bashman



"No checks -- Goal of the right: Ideological judges who will outlaw abortion but give president free rein." This editorial appears today in The Houston Chronicle. And today in The Providence Journal, columnist Philip Terzian has an essay entitled "Here come the judges."
Posted at 17:20 by Howard Bashman



Auctions of U.S. Supreme Court Justice bobblehead dolls should be unaffected by this news: Reuters is reporting that "EBay Agrees to Limit Racial Slurs on Auction Site." And on the heels of yesterday's auction of a Justice Sandra Day O'Connor bobblehead doll, another SO'C bobblehead has already gone up for auction on eBay.
Posted at 16:22 by Howard Bashman



"Specter closes in on Judiciary chair; Hatch endorses the Pennsylvania senator for key slot": This article appears in today's edition of The Hill.
Posted at 16:20 by Howard Bashman



Law students blog about Justice Antonin Scalia's visit to Ann Arbor, Michigan: The blog "Letters of Marque" offers posts entitled "Waiting for Scalia"; "Scalia's talk"; "One more Scalia-related post before I go to bed"; "Okay, let's make it semi-official"; "No good answer yet"; and "Live blogging Scalia."

"The Visible Hand" offers this report on Justice Scalia's speech yesterday.

And the blog "Glorfindel of Gondolin" offers a report titled "Scalia's originalism."

Meanwhile, the blog "Notes from the (Legal) Underground," which is operated by a former law student, has a post today titled "Justice Antonin Scalia To Get Own Reality TV Show."

If I've overlooked any other Michigan law student bloggers who are covering Justice Scalia's visit, please let me know.
Posted at 16:15 by Howard Bashman



Judges who understand the work required of appellate lawyers evaluate an attorneys' fee request for work performed on appeal: Circuit Judge Andrew J. Kleinfeld issued this interesting opinion today on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit. The fee request at issue arises from the appellate litigation that ensued after the Democratic, Republican, and Libertarian Parties sued the Secretary of State of the State of Washington to eliminate Washington's "blanket primary" system.
Posted at 16:00 by Howard Bashman



Governors' races keep Washington State and Puerto Rico in suspense: The Seattle Post-Intelligencer today contains an article headlined "And our governor is... Anticipated recount could take days." The Seattle Times offers a news update headlined "Governor's race in turmoil"; an article headlined "'Sudden' county ballots were there all along"; and this amazing chart showing how the lead has shifted over time back and forth between the two major-party candidates. And The Los Angeles Times yesterday contained an article headlined "Waiting for a Governor in Washington: Elections officials are still counting the votes in the tight race; The state is hopeful that the results will be final by Wednesday."

Meanwhile, from Puerto Rico, The New York Times reports today that "Governor's Race Keeps Puerto Rico in Suspense."
Posted at 15:33 by Howard Bashman



"Republican Senators Back Specter on Chairmanship": This segment (Real Player required) appeared on today's broadcast of NPR's "Morning Edition." In related commentary, The Arizona Republic today contains an editorial entitled "GOP could raise a Specter: Denying Pa. senator the Judiciary chair would create a bitter atmosphere."
Posted at 15:15 by Howard Bashman



Say hello to yourself: The AP has issued an article erroneously headlined "Gonzales Meets With Attorney General Pick."
Posted at 15:10 by Howard Bashman



"Appeals Judges Have Doubt About Tobacco Penalty": Reuters provides this report on an appeal argued today before the U.S. Court of Appeals for the D.C. Circuit. And The Associated Press reports that "Tobacco Wants Federal Decision Thrown Out."
Posted at 15:08 by Howard Bashman



"Budget Cuts Leave 6 Percent of Federal Court Jobs Vacant": The Administrative Office of the U.S. Courts issued this press release today. In news from earlier in the month, "Number of Authorized District Court Judgeships Dropped in 2004" (plus more details here).

Finally, the cost of getting admitted to practice before any and all of the various U.S. Courts of Appeals is about to skyrocket. More specifically, as my friend Michael E. Gans points out here, "Effective January 1, 2005, all of the United States Courts of Appeals will begin collecting a national $150 fee for new bar memberships. This national fee will be in addition to whatever local fee may be required to join the circuit's bar." You can avoid the fee by getting admitted before the end of this year, or you can help the federal judiciary raise needed funds by waiting until next year to get admitted.
Posted at 15:00 by Howard Bashman



What is Justice Antonin Scalia quoted as having said now? The Detroit News reports today that "Scalia stands firm on his U-M ruling; The Supreme Court justice still dismisses affirmative action policy." The Detroit Free Press reports that "Blunt-speaking Scalia draws protests at U-M." The Ann Arbor News offers an article headlined "Scalia: Let voters rule on individuals' rights; He also says Constitution should be easier to amend." The Michigan Daily offers an article headlined "Original Justice: Scalia defends his legal theory" and a mighty big close-up photo. And The Associated Press reports that "Scalia talks about Constitution at U-M; Justice believes document is not a 'living' record."
Posted at 14:44 by Howard Bashman



Sometimes you can't avoid the criminal element: I had an oral argument before the Superior Court of Pennsylvania late this morning in a civil case involving claims for breach of contract and slander of title.

While awaiting the oral argument in my case, I observed various other oral arguments, including argument in two criminal cases that involved quite unusual facts. One of the two cases was simply sickening: the defendant was appealing from a conviction on animal cruelty charges after having stabbed and killed ten cats because one of the cats allegedly scratched him when he went to pet it. One of the judges on the panel seemed ready herself to impart justice on the defendant had he been present in the courtroom.

The other notable criminal case involved a defendant who was convicted of attempted murder after shooting and rendering a quadriplegic a previously healthy teenage boy. Some five years later, the victim died by suffocating in his own vomit, and the shooter was then tried and convicted of murder. The question presented was whether the defendant's murder conviction violated the double jeopardy clause of the U.S. Constitution. The lawyer for the prosecution argued that there was no double jeopardy issue because the defendant's sentence on the murder conviction ran concurrently with the earlier sentence for attempted murder (which the defendant remained in the process of serving), and therefore the defendant received credit for time already served. One of the judges asked whether, had the victim lived to 65 years of age and then died in the same manner, the prosecution would still argue that the defendant was guilty of murder. The prosecutor said no. An even more interesting question would be how if at all the double jeopardy inquiry would be affected by whether the defendant had completed serving his sentence for attempted murder before the victim died. Even in that situation, the defendant could still receive credit for time served on the attempted murder conviction, but would bringing the defendant back to prison to serve the balance of a sentence for murder affect the double jeopardy analysis? No one asked that hypothetical question at oral argument, however.

After my clients and I left the courtroom at the end of my oral argument, I stopped to retrieve my raincoat that I had left in the cloak room outside the courtroom. The cloak room is unattended, and for the first time ever in my experience someone else had already decided to depart with my quite old and certainly out-of-style outer garment. I guess that puts me on the market for a new raincoat. Or, in the words of Avril Lavigne, "So much for my happy ending" (video available in Real Player, Windows Media, and QuickTime formats).
Posted at 14:11 by Howard Bashman



"Specter Supported for Judiciary Committee": Jesse J. Holland of The Associated Press reports here that "Sen. Arlen Specter of Pennsylvania picked up fresh support Wednesday in his bid to become Judiciary Committee chairman as he prepared to make his case to Republican senators worried about whether he'll support President Bush's judicial nominees."
Posted at 14:00 by Howard Bashman



Programming note: I will be presenting an appellate oral argument this morning in Philadelphia to a three-judge panel of the Superior Court of Pennsylvania. The next update is likely to appear online here sometime early this afternoon.
Posted at 06:25 by Howard Bashman



"Fed court nominee Griffith defends lapsed law license": This article appears today in The Salt Lake Tribune. The Deseret Morning News reports that "Demos no-show at Griffith hearing." And, as I noted here last night, The Washington Post today contains an article headlined "Court Nominee Gave False Data, Text Shows; Law License Was Suspended Despite Early Denial."
Posted at 06:24 by Howard Bashman



"Specter wins crucial OK from Hatch": Michael McGough has this article today in The Pittsburgh Post-Gazette. The Philadelphia Inquirer reports that "Key senators back Specter for panel post; He pleaded his case to a meeting of GOP members of the panel he seeks to head." The Los Angeles Times reports that "Tradition-Bound Senators Rally Around Specter; The Pennsylvania Republican, in line to head the Judiciary Committee, holds a 'constructive' meeting with GOP colleagues." The Boston Globe reports that "Specter projected to lead panel; Hatch gives him nod; move likely to enrage conservative groups." USA Today reports that "Specter appears to have gained support in bid to chair Judiciary panel." The Washington Times reports that "Hatch backs Specter for judiciary post." The Salt Lake Tribune reports that "Hatch throws support to Specter." And The St. Petersburg Times reports that "Conservatives build up campaign against Specter; The Pennsylvania senator is in line to become chairman of the Judiciary Committee."

Meanwhile, in commentary, The Seattle Times today contains an editorial entitled "Specter: independent and right for Judiciary."
Posted at 06:15 by Howard Bashman



"Judge assails sentencing laws; He reluctantly imposes a 55-year prison term": This article appears today in The Deseret Morning News. And The Salt Lake Tribune reports that "Sentence 'unjust,' judge says; Even the judge is unhappy as he gives a drug dealer 55 years." You can access yesterday's opinion by U.S. District Judge Paul G. Cassell of the District of Utah at this link.

Update: In other coverage, The New York Times today reports that "Judge Questions Long Sentence in Drug Case."
Posted at 06:04 by Howard Bashman



Tuesday, November 16, 2004
"9th Circuit Gives Boies Firm Reprieve Over Mistake Termed 'Lawyer's Nightmare'": law.com's Jeff Chorney provides this report.
Posted at 23:55 by Howard Bashman



"Ending Judicial Filibusters": The American Center for Law and Justice today posted online this news release, along with this detailed memo discussing the so-called "nuclear option" and this short memo addressing possible rule changes.

Relatedly, you can access here the text of the address that Senate Majority Leader Bill Frist (R-TN) delivered last Friday to the Federalist Society Convention. In response, "The Online Beat" hosted at the web site of The Nation offers an essay entitled "Frist's Fury Over Filibusters."

The Associated Press reports today that "Nevada's Reid Tapped to Lead Dem. Caucus."

And The Pittsburgh Post-Gazette today contains an editorial entitled "Specter's moment: Republicans must beware their own hubris."
Posted at 23:40 by Howard Bashman



"Court Nominee Gave False Data, Text Shows; Law License Was Suspended Despite Early Denial": Wednesday's edition of The Washington Post will contain an article that begins, "Thomas B. Griffith, President Bush's nominee to the U.S. Court of Appeals for the District of Columbia Circuit, appeared to provide inaccurate information to Utah bar officials about his legal work and lapses in obtaining law licenses over the past year, according to documents released yesterday at his nomination hearing."
Posted at 23:33 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "Congress Turns to Post-Election Business" and "Critics Raise Privacy Concerns over DNA Database."

And today's broadcast of "Talk of the Nation" contained a segment entitled "Reid Is New Senate Minority Whip; Specter Eyes Post."
Posted at 23:28 by Howard Bashman



U.S. Court of Appeals for the Tenth Circuit rejects constitutional challenge to federal statute requiring that insanity acquittees who have committed an especially serious offense prove their entitlement to release by a clear and convincing burden of proof: Today's ruling, by a unanimous three-judge panel, can be accessed at this link. The statute in question is 18 U.S.C. §4243.
Posted at 23:22 by Howard Bashman



"Man Who Burned Himself at White House Is Called Central to Terror Case": Wednesday's edition of The New York Times will contain this article.
Posted at 23:14 by Howard Bashman



"Specter Seeks, Gets Support; GOP Senators Expected to Approve Chairmanship": This article will appear in Wednesday's edition of The Washington Post. The Philadelphia Inquirer will report on Wednesday that "Hatch among Judiciary members backing Specter for chairman." The McClatchy Newspapers report that "As Congress returns, Specter's in the hot seat." And in Wednesday's issue of The New York Times, the second half of an article headlined "House Republicans Move to Protect Their Leader From Effects of Possible Indictment" reports on this matter.
Posted at 23:10 by Howard Bashman



"Hatch Predicts Specter Will Chair U.S. Senate Panel": Reuters provides this report.
Posted at 21:03 by Howard Bashman



"Specter Gets Hatch Support to Chair Panel": The Associated Press provides this report.
Posted at 19:14 by Howard Bashman



Newsworthy cert. denieds: The Boston Globe reports today that "Supreme Court declines to hear Boston police hiring case."

The Denver Post reports that "Court lets Arvadans keep baby, for now; U.S. justices refuse adoption challenge," while The Rocky Mountain News reports that "Ruling aids adoption hopes; U.S. Supreme Court won't hear challenge to Arvada couple."

And The Oklahoman reports that "Supreme Court declines cockfighting ban appeal."
Posted at 17:20 by Howard Bashman



Drunk judge equals expensive justice: The Australian reports in Wednesday's issue that "State to pay costs of Shaw retrials." And Wednesday's edition of The Sydney Morning Herald contains articles headlined "State agrees to pick up tab for compromised hearings" and "Police cleared, so it's Shaw back in the dock."
Posted at 17:15 by Howard Bashman



In news from Wyoming: The Casper Star-Tribune reports today that "Governor taps Burke for Supreme Court."
Posted at 17:14 by Howard Bashman



No ruling yet on the crumpets: The Albuquerque Journal today reports that "Court Affirms Church Tea OK." You can access my report on last Friday's en banc ruling of the U.S. Court of Appeals for the Tenth Circuit at this link.
Posted at 17:10 by Howard Bashman



"Talk About Your Overrated Job: Why would anybody want to be chief justice?" Slate has just posted online this jurisprudence essay by Dahlia Lithwick. And today's broadcast of NPR's "Day to Day" contains an audio segment (Real Player required) entitled "Slate's Jurisprudence: Role of Supreme Court Chief Justice" featuring Dahlia Lithwick.
Posted at 16:10 by Howard Bashman



"Specter Makes Headway in Bid for Chair--Aides": Reuters provides this report.

And The Village Voice yesterday posted online an essay by Sharon Lerner entitled "Grim Specter of Things to Come: The first battle in the new war against Roe."
Posted at 15:35 by Howard Bashman



"Attorney's Delegation of Calendaring No Bar to Relief From Late Filing, Ninth Circuit En Banc Panel Rules": The Metropolitan News-Enterprise today provides this report on yesterday's en banc ruling of the U.S. Court of Appeals for the Ninth Circuit. You can access my coverage of that ruling at this link.

You can access the en banc oral argument audiotape, in Windows Media format, by clicking here. Circuit Judge Alex Kozinski has lots of questions at the start of the oral argument. And David Boies argues the appeal on behalf of the appellees. Are the appellate advocates equally talented at oral argument? Listen to the audiotape and decide for yourself.
Posted at 15:32 by Howard Bashman



"FBI Faulted in Arrest of Ore. Lawyer; Study by Forensic Experts Cites Mistakes in Fingerprint Identification": The Washington Post contains this article today. And The Oregonian reports that "FBI blamed in print error; A new report outlines the events that led the agency to detain a Portland-area Muslim in a Spanish bombing."
Posted at 15:30 by Howard Bashman



"Transsexual marriage license trial opens in Leavenworth": This article appears today in The Lawrence (Kan.) Journal-World.
Posted at 15:28 by Howard Bashman



"Town to fight prayer ruling; Great Falls to appeal case involving Wiccan before U.S. Supreme Court": The Herald of Rock Hill, South Carolina today contains an article that begins, "Great Falls will appeal to the U.S. Supreme Court in its fight against a woman who opposes official prayers to Jesus Christ at Town Council meetings."
Posted at 14:55 by Howard Bashman



"High court urged to overturn Janklow's manslaughter conviction": The Associated Press provides this report from South Dakota.
Posted at 14:47 by Howard Bashman



"Fired Flight Attendant Finds Blogs Can Backfire": This article appears today in The New York Times.
Posted at 14:45 by Howard Bashman



"Going Nuclear: Will the GOP change the filibuster rule for judicial nominees?" Andrew C. McCarthy has this essay today at National Review Online. And at Townhall.com, Jack Kemp yesterday had an essay entitled "Force a real filibuster, if necessary."
Posted at 14:30 by Howard Bashman



"Specter Battles for Judiciary Chairmanship; Senator Works to Overcome Attempt to Deny Him Position": The Washington Post provides this news update.
Posted at 14:22 by Howard Bashman



"Ten Commandments monument tour visits Bossier City": This article appears today in The Shreveport Times.
Posted at 14:19 by Howard Bashman



"A Jew defends the cross": Dennis Prager has this essay online today at Townhall.com about the battle over the County Seal of Los Angeles.
Posted at 14:15 by Howard Bashman



"Specter Draws Anti-Abortion Protesters": Jesse J. Holland of The Associated Press provides this report.
Posted at 14:12 by Howard Bashman



"2 state court rulings squash right to know": Douglas Lee has this essay online today at the First Amendment Center.
Posted at 14:10 by Howard Bashman



"A toxic fight over court nomination?" Columnist Robert Landauer has this op-ed today in The Oregonian.
Posted at 12:22 by Howard Bashman



Sex-for-rent trial begins in federal court in Nebraska: The Omaha World-Herald reports today that "Tape played at sex-for-rent trial."
Posted at 12:20 by Howard Bashman



"Polanski Asks UK Lords to Let Him to Sue from Afar": Reuters provides this report.
Posted at 12:18 by Howard Bashman



"Schumer Says He Won't Run for Governor": This article appears today in The New York Times. The New York Daily News reports that "Chuck nixes run at Pataki." The New York Post contains an article headlined "Gov Bid Chucked" and an editorial entitled "Mr. Schumer Stays in Washington." The New York Sun reports that "Schumer Clears Way For Spitzer to Make His Bid For Governor."

Newsday contains an article headlined "Schumer to lead NY Dems, skip gov. race." The Buffalo News reports that "Schumer won't run for governor in 2006." And The Rochester Democrat and Chronicle reports "Schumer to stay in Senate; He accepts influential post, won't run for governor in 2006."
Posted at 12:14 by Howard Bashman



No Democratic Senators are attending the second portion of today's Senate Judiciary Committee hearing on judicial nominees: The hearing has just resumed, and you can view it live at this link.
Posted at 11:20 by Howard Bashman



"Accidental Age Discrimination?: The Supreme Court Considers the Viability of 'Disparate Impact' Claims." FindLaw columnist Joanna Grossman has this essay online today.
Posted at 11:05 by Howard Bashman



"Judge Stays Own Ruling in UPS Lawsuit": The Associated Press reports here that "A federal judge on Monday stayed his own ruling that UPS must give hearing impaired workers the same employment opportunities as others to become truck drivers."
Posted at 10:58 by Howard Bashman



"A Real-Life High Court: Bush should look for justices from beyond the bench." Jim Newton has this op-ed today in The Los Angeles Times.
Posted at 10:50 by Howard Bashman



"Smith backs Specter for judiciary panel chair; Says 'litmus test' opposition extends to Senate leaders": Bend.com of Bend, Oregon provides this report.

And today's broadcast of NPR's "Morning Edition" contained segments entitled "Specter: 'I Am Not for a Litmus Test'" and "Frist on Advancing the Bush Second-Term Agenda."
Posted at 10:44 by Howard Bashman



Justice Sandra Day O'Connor bobblehead doll bargain? With under one hour to go before the auction ends, the current price on eBay for the item is a mere $217.53. Update: Whew! Within moments after this post appeared, the usual insanity returned to the bidding process. Already the high bid is over $300.00.
Posted at 10:40 by Howard Bashman



Time change: The Senate Judiciary Committee's hearing for judicial nominees, including D.C. Circuit nominee Thomas B. Griffith, started at 9 a.m. today. President Bush nominated Griffith for the D.C. Circuit after Miguel A. Estrada had his nomination to that court withdrawn. You can view the hearing live online by clicking here (RealPlayer required). Update: The hearing has recessed until 11 a.m.
Posted at 09:25 by Howard Bashman



"Inside Man: As attorney general, would Gonzales stand up to the White House?" law.com offers this report.
Posted at 07:44 by Howard Bashman



Justice Antonin Scalia and group sex: If you thought you'd heard the last of it, you were wrong. Today in The Washington Post, The Reliable Source by Richard Leiby has an item headlined "Justice Scalia, At His Best In a Crowd." And at the blog "Southern Appeal," Verity offers this report.
Posted at 07:40 by Howard Bashman



"Specter Hopes to Save Senate Chairmanship": Jesse J. Holland of The Associated Press provides this report. The Philadelphia Inquirer today reports that "Specter decision could come today; After 2 weeks of limbo on the judiciary post, he and senators will meet." The Arizona Republic reports that "Kyl could end up as Judiciary chairman." The Washington Times reports that "Specter likely to lead Judiciary Committee." And The News & Observer of Raleigh, North Carolina reports that "Burr wades into abortion debate."

In related commentary, The Montgomery Advertiser today contains an editorial entitled "Senators owe duty to Constitution." The Baltimore Sun contains an editorial entitled "Tyranny of the minority." The Pittsburgh Tribune-Review contains an editorial entitled "The case against Specter: A critical week." In The Washington Post, columnist E.J. Dionne Jr. has an op-ed entitled "Will the Moderates Speak Up?" In The Los Angeles Times, John R. Lott Jr. and Sonya D. Jones have an op-ed entitled "Breaking the Siege in the Judge War; New rules could end the long fights over nominees." In The Washington Times, Bruce Fein has an op-ed entitled "Judiciary quandary." And Bloomberg News columnist Andrew Ferguson has an essay entitled "GOP Confronts the Specter of Chairman Specter."
Posted at 07:33 by Howard Bashman



"Whatever Happened to the Lone Ranger? Chief Justice William Rehnquist, once a conservative firebrand, has become the Invisible Man; In the end, one of his most impressive legacies may be his sheer longevity." Newsweek yesterday posted online this essay by Cliff Sloan.
Posted at 07:25 by Howard Bashman



"High court reverses 2 Texas death cases; Justices say mitigating factors were disregarded": This article appears today in The Houston Chronicle. In The Dallas Morning News, Allen Pusey reports that "Dallas death sentence thrown out." And in The New York Times, Linda Greenhouse reports that "Supreme Court Rebukes Texas Again Over a Death Sentence."
Posted at 07:15 by Howard Bashman



Monday, November 15, 2004
"Juveniles and the Death Penalty": That's the subject of this week's broadcast of NPR's "Justice Talking." You can listen to the entire program by clicking here (Windows Media Player required).
Posted at 21:08 by Howard Bashman



In news from Boston: "AP Interview: chief justice unfazed by 'activist judges' label."
Posted at 21:05 by Howard Bashman



In Tuesday's issue of The Christian Science Monitor: Warren Richey will have an article headlined "One justice's vision of role of the courts." And in other news, "Growing introspection in death-penalty capital."
Posted at 20:35 by Howard Bashman



"'Friends' Makes an Enemy; Bawdy banter in the writers' room offended an employee, whose case pits free speech rights against sexual harassment laws": Maura Dolan had this article, about a case now pending on the merits before the Supreme Court of California, in Saturday's issue of The Los Angeles Times.
Posted at 17:40 by Howard Bashman



Alienation of affection, in the news: The Chicago Sun-Times contains this article today.
Posted at 17:10 by Howard Bashman



"Professor Assails Anti-Bias Program; An unlikely critic says his new study shows that affirmative action hurts black law students": This article appears today in The Los Angeles Times.
Posted at 17:00 by Howard Bashman



"Abuse suit seeks change in state law": The Portland (Me.) Press Herald today contains an article that begins, "A former altar boy who wants to sue the Roman Catholic Bishop of Portland takes his case to Maine's highest court Tuesday, asking the justices to change the way the state balances religious freedom and allegations of child sex abuse."
Posted at 16:33 by Howard Bashman



"Moderation a better course on federal court nominees": The Journal Times of Racine, Wisconsin contains this editorial today.
Posted at 16:30 by Howard Bashman



"Judge accused of stealing blood sample": This article will appear in Tuesday's edition of The Sydney Morning Herald, along with an article headlined "A night of bewildering drunkenness, hour by hour."
Posted at 16:02 by Howard Bashman



The irony: The Associated Press reports that "Sessions undecided on whether Specter should lead judges panel." Why is that ironic? Details here via The Mobile Register.
Posted at 15:55 by Howard Bashman



"NCAA Wins Right to Limit Tournaments": The Associated Press provides this report.
Posted at 15:40 by Howard Bashman



"Racicot for the high court?" Yesterday's edition of The Helena Independent Record contained this editorial. While I'm all for replacing one Justice whose last name is particularly difficult to spell with another such Justice, some may find it troubling that when you input racicot as a search term on The Helena Independent Record's home page, the first response asks "Did you mean: racist instead of racicot?"
Posted at 15:11 by Howard Bashman



"Breyer: Caseload puts premium on international law." This article appeared yesterday in The Washington Times.

For two divergent views on this issue, you can see Justice Antonin Scalia speak tomorrow at the University of Michigan and then see Justice Stephen G. Breyer speak on Wednesday through Friday at Harvard University.
Posted at 14:50 by Howard Bashman



"Justices Who Won't 'Run With the Wolves'": Law Professor Geoffrey R. Stone has this op-ed today in The Los Angeles Times.
Posted at 14:48 by Howard Bashman



"'Originalism' at issue as Washington girds for court battle; Federalist Society meets in capital, potential high court nominees on display": Tom Curry, national affairs writer for MSNBC, provides this report.
Posted at 14:45 by Howard Bashman



How much good news can David Boies endure in a single day? First, it was reported that he would be lead counsel for American Express in a lawsuit that is the subject of a press release entitled "American Express Sues Visa and MasterCard, Large Bank Card Issuers for Antitrust Violations; Suit seeks damages for lost business resulting from illegal restrictions of competition in the credit card market."

And now, an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit has, by a vote of 8-3, disagreed with a divided three-judge panel's ruling that had reversed a district court's decision that the Boies law firm's failure to file a timely appeal in a case could be excused under the "excusable neglect" doctrine. In other words, a district court had ruled that the Boies law firm's failure to file a timely appeal in a case was excusable; a divided three-judge Ninth Circuit panel had reversed that ruling; and today an eleven-judge en banc panel, by a margin of 8-3, has voted to affirm the district court's ruling, thereby allowing the untimely appeal to be heard on the merits.

You can access today's majority opinion here and Circuit Judge Alex Kozinski's dissenting opinion here. Ninth Circuit Judge Andrew J. Kleinfeld deserves much credit for today's ruling, because if not for his dissent from the three-judge panel's ruling, this case would have been an unlikely candidate for rehearing en banc. My coverage of the original three-judge panel's ruling can be accessed here.
Posted at 14:10 by Howard Bashman



"Are Law Reviews Really Rubbish?" That's the subject of this week's "Debate Club" online at legalaffairs.org. The participants this week are Richard A. Posner and Randy Kozel.
Posted at 13:00 by Howard Bashman



"Court Throws Out Texas Death Sentence": Gina Holland of The Associated Press provides this report.
Posted at 12:48 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "American Express Suing Visa, MasterCard" and "Schumer to Drop Governor's Race."
Posted at 11:40 by Howard Bashman



"Ouch! You're Hurting Us; How the Court Is Stifling Innovation at the State Level." Douglas T. Kendall had this op-ed yesterday in The Washington Post.
Posted at 11:30 by Howard Bashman



"Christian soldier, legal battefield: Mathew Staver left behind his celebrity clients and $20,000 copy machines to become one of the country's leading conservative lawyers; Today, his goal is to fight gay marriage." Today's issue of The St. Petersburg Times contains this lengthy article.
Posted at 10:28 by Howard Bashman



"L.A. group demands cross back on county's seal": This article appears today in The Washington Times.
Posted at 10:25 by Howard Bashman



"Federalists Decry Democrats' Methods of Blocking Judicial Nominees; At Issue is the Filibuster, Which Republicans Lack the Necessary 60 Seats to Overcome in the Senate": Josh Gerstein has this article today in The New York Sun.
Posted at 10:20 by Howard Bashman



The U.S. Court of Appeals for the Sixth Circuit reverses decision holding that the NCAA's college basketball "Two in Four Rule" violates Section One of the Sherman Act: You can access today's ruling at this link. An all-female three-judge panel decided this antitrust challenge to a rather obscure practice affecting men's college basketball. You can learn more about the challenged practice in an article headlined "NCAA to fight hoop battle on Cincy court" published last year in Business First of Columbus.
Posted at 10:05 by Howard Bashman



Today's U.S. Supreme Court Order List: You can access the Order List at this link.

At "SCOTUSblog," Lyle Denniston reports here that no grants of review issued, no opinions in argued cases issued (although one per curiam opinion did issue in a death penalty case, with Justices Antonin Scalia and Clarence Thomas dissenting), and Chief Justice William H. Rehnquist was not in attendance.

In early coverage from the wire services, Gina Holland of The Associated Press reports that "Court Steers Clear of Cockfighting Case." And Hope Yen of The AP reports that "Court Declines to Step Into Kmart Dispute" and "Supreme Court Declines Adoption Dispute."
Posted at 10:00 by Howard Bashman



A most enjoyable visit to New York City has concluded: Last night, my family and I returned home from a wonderful weekend in New York City. My son saw his first Broadway show ("The Lion King") and took his first ride on a New York City subway. Sadly, we didn't have time to visit my undergraduate alma mater, but we'll be back before long.

I was in New York since last Wednesday, because I was among the presenters at DRI's fifth Appellate Advocacy Seminar. The entire program was a great success, and I personally was overjoyed to meet so many fans of "How Appealing" at a single event. In particular, it was wonderful to get to spend some time chatting with Senior Third Circuit Judge Ruggero J. Aldisert, Maureen E. Mahoney, and David C. Frederick. I also had the pleasure of chatting with one of President Clinton's Sixth Circuit nominees from Michigan whose nomination fell victim to a Republican-led blockade and who thus remains in the private practice of law.

Now that blog-related speaking engagements have brought me to the Midwest and up and down the East Coast, perhaps next I will venture out West to California, Alaska, and Hawaii on a Ninth Circuit-inspired tour.
Posted at 09:50 by Howard Bashman



"Specter trouble in GOP persists; Senate's Frist cites 'disheartening' remark on judges": Michael McGough has this article today in The Pittsburgh Post-Gazette.

In The Los Angeles Times, David G. Savage reports that "Frist Talks Tough on Senate Rules; The majority leader vows not to let Democrats block Bush's judicial nominees; He says limiting filibusters may be an option," while a related editorial is entitled "GOP Infighting in the Senate."

The Washington Times reports that "Frist withholds Specter support." And CBS News provides a report headlined "GOP Moderate On The Griddle."

In related coverage, The Boston Globe reports that "Moderate voices retain sway in bolstered GOP." And The Dallas Morning News offers an article headlined "The elephant in the room: GOP schism; Many moderates say they no longer feel invited to the party."

Finally, at National Review Online, Larry Pratt has an essay entitled "Specter's Second Amendment Surprise: Chairman Specter could be as antigun as he wanted to be."
Posted at 09:45 by Howard Bashman



"As Ashcroft resigns, he's both hero and nemesis in Oregon; John Ashcroft's war on terror tactics and challenges to physician-assisted suicide have proved divisive": This article appears today in The Oregonian.
Posted at 09:42 by Howard Bashman



"Conditions seem right for a fight on abortion": The Kansas City Star contains this article today.
Posted at 09:40 by Howard Bashman



"Schumer Warns of Fight Over Justice Thomas": This article appears today in The New York Sun.
Posted at 09:30 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined:
Posted at 09:22 by Howard Bashman



"Something borrowed: Should a charge of plagiarism ruin your life?" Malcolm Gladwell has this article in the November 22, 2004 issue of The New Yorker.
Posted at 09:15 by Howard Bashman



"The Problem With Alberto Gonzales": Stuart Taylor Jr. has this essay in today's issue of National Journal.
Posted at 09:14 by Howard Bashman



Access online the agenda for tomorrow's Senate Judiciary Committee hearing for judicial nominees: As recently noted here, here, and here, D.C. Circuit nominee Thomas B. Griffith is scheduled to testify at tomorrow's hearing. Tune in tomorrow for the very latest invocation of the always popular Steve Martin defense, "I forgot!"

And if that's not enough fun for one day, tomorrow afternoon the Senate Judiciary Committee's Subcommittee on Terrorism, Technology and Homeland Security will hold a hearing entitled "Towards a Balanced Approach to Enemy Combatants."
Posted at 09:10 by Howard Bashman



"And the Nominees Are... Here's a short list of who might be on deck for the Supreme Court." Melanie Kirkpatrick has this op-ed today in The Wall Street Journal.
Posted at 09:04 by Howard Bashman



"What's next for 4th Circuit? President may face decision on renaming of three nominees." The Richmond Times-Dispatch contains this article today.
Posted at 09:00 by Howard Bashman



Sunday, November 14, 2004
"For Specter, a Showdown Over Judiciary Chairmanship; GOP Senator Battles Conservatives Angered by His Comments": This article will appear in Monday's edition of The Washington Post.
Posted at 23:25 by Howard Bashman



Coming soon to a newsstand near you: The November 22, 2004 issue of Time magazine will contain an article headlined "Bush's Man From Humble: Is Alberto Gonzales, a self-made Hispanic lawman, a kinder, gentler version of John Ashcroft? The Democrats aim to find out" and an item headlined "Who Might Be Nominated? Bush may get to fill as many as three Supreme Court openings, remaking the court for a generation; Democrats have become experts at blocking nominees they oppose, but they can't stop them all."

The November 22, 2004 issue of U.S. News & World Report will contain an article headlined "Clubhouse catfight: Specter's struggle with conservatives has ominous overtones--even for the president."

And the November 22, 2004 issue of Newsweek will contain articles headlined "Why We Watched: There were no celebrities, no wealth, and not much glamour; So why did the Peterson murder case rivet the country? Behind the guilty verdict--and what lies ahead" and "Gonzales's Views on the Question of Torture."
Posted at 22:05 by Howard Bashman



"Alum Named Attorney General": This article appeared Friday in The Harvard Crimson.
Posted at 22:03 by Howard Bashman



"Court camera consultation starts; Arguments about the use of television cameras in English and Welsh courts is to begin on Monday with the publication of a government consultation paper": BBC News provides this report.
Posted at 21:59 by Howard Bashman



"Frist Sees Hurdles for Specter": This article will appear Monday in The New York Times.

In related commentary, The St. Petersburg Times today contains an editorial entitled "Specter deserves Bush's support." The New York Post today contains an editorial entitled "Sen. Specter's switcheroo." And The Pittsburgh Tribune-Review today contains an editorial entitled "The Specter affair."
Posted at 21:50 by Howard Bashman



In Ten Commandments-related news and commentary: The Texarkana Gazette reported yesterday that "Controversial monument to be displayed in Texarkana."

And today in The Fort Worth Star-Telegram, Texas Attorney General Greg Abbott has an op-ed entitled "Monument has a place in the public square."
Posted at 21:45 by Howard Bashman



"Putting the 'controversy' over Griffith's nomination in perspective": Senator Orrin G. Hatch (R-UT) has this op-ed today in The Salt Lake Tribune.
Posted at 21:40 by Howard Bashman



In news from Australia: Monday's issue of The Sydney Morning Herald contains an article headlined "Judge left hospital with both blood vials." And Monday's issue of The Daily Telegraph reports that "Shaw risks paying the supreme price" and "Two outstanding Shaw cases to be reheard."

Today's issue of The Australian reports that "Ex-judge may face prison." And The Sun-Herald reports today that "New evidence to rock inquiry into lost blood sample."

Those interested in law-related news from Australia may enjoy the new blog "The Third Branch," which describes itself as "The online arbour of the Australian judiciary."
Posted at 21:28 by Howard Bashman



"Ashcroft attacks court rulings that challenge antiterrorism strategies": Knight Ridder Newspapers offered this report yesterday.
Posted at 21:24 by Howard Bashman



"Abortion unlikely as confirmation test; Few potential high court nominees hold public views or have a written record on the issue": Stephen Henderson has this article today in The Philadelphia Inquirer. And the Ideas section of today's issue of The Boston Globe contains an article headlined "What happens if Roe is overturned?"
Posted at 21:20 by Howard Bashman



"Juries' duties could grow": The New Bern Sun Journal today contains an article that begins, "Juries in North Carolina could soon be given a few extra chores, thanks to a ruling by the U.S. Supreme Court earlier this year."
Posted at 21:04 by Howard Bashman



"Schumer: Thomas nomination for chief justice might lead to fight." The Associated Press provides this report.
Posted at 20:44 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained a segment entitled "Congress Set for Lame-Duck Session," the description for which explains that "Senate Republicans may try to do away with the current filibuster system, which Democrats have used to stall some judicial nominees."

And this morning's broadcast of "Weekend Edition - Sunday" contained a segment entitled "Specter and the Senate Judiciary Committee."
Posted at 20:40 by Howard Bashman



"Scientist awarded cyberlibel damages": Yesterday's edition of The Toronto Globe and Mail contained this article.
Posted at 20:30 by Howard Bashman



"Guilty until proven innocent: 21 years, 10 months, 23 days, for a crime he did not commit." This article appears today in The St. Petersburg Times.
Posted at 20:20 by Howard Bashman



"Specter in fight to chair Judiciary panel": Michael McGough has this article today in The Pittsburgh Post-Gazette. And The Pittsburgh Tribune-Review reports today that "Specter plagued by his abortion comments."
Posted at 20:10 by Howard Bashman



"Impending war over high court nominees: Ultraconservative Bush choices sure to draw filibusters." This article appears today in The San Francisco Chronicle.
Posted at 19:52 by Howard Bashman



"Who Are the Activists Now? Judges that rule for Bush escape that nasty label." Michael Kinsley has the same op-ed today in both The Los Angeles Times and The Washington Post.
Posted at 18:40 by Howard Bashman



"Specter's Judiciary Panel Post on the Line": The Associated Press provides this report. And Reuters offers a report headlined "Pro-Choice Senator Must Back Bush--Senate Leader."
Posted at 18:36 by Howard Bashman



Programming note: Today is a travel day, as the family and I return home from what has been and continues to be a lovely weekend in New York City. Additional updates will appear online tonight.
Posted at 10:45 by Howard Bashman



Saturday, November 13, 2004
In commentary regarding a possible vacancy on the U.S. Supreme Court: The November 22, 2004 issue of The Weekly Standard will contain an editorial entitled "Get It Right."

Newsday today contains an editorial entitled "Abortion foes are just one Supreme Court justice away from victory." The assertion that the right to abortion established in Roe v. Wade currently enjoys support from only five Justices is incorrect, as six of the currently-serving Justices have signaled their support for Roe's central holding.

And last Tuesday, Newsday columnist Marie Cocco had an essay entitled "Bush should see this film on abortion."
Posted at 17:15 by Howard Bashman



"Rehnquist Keeps Contact With Court During Illness": law.com's Tony Mauro provides this report.
Posted at 17:15 by Howard Bashman



"Ashcroft rips federal judges on national security": This article appears today in The Washington Times.
Posted at 17:12 by Howard Bashman



In news coverage of the Scott Peterson guilty verdict: The San Francisco Chronicle today contains articles headlined "Jury finds Peterson murdered wife, unborn son"; "Things looked bad for the prosecution until Amber Frey took the stand"; "'Lingering doubt' may save Peterson; Penalty phase could be difficult for both defense, prosecution"; "Whoops and hollers of joy at the news; Die-hard trial fans arrive for the finale"; "Drinks all around after verdict is read; Modesto bar jammed with pro-Laci throngs awaiting decision"; and "Celebrity attorney misses verdict." An editorial is entitled "A guilty verdict." And columnist C.W. Nevius has an essay entitled "Foreman's departure may have been key, expert says."

The Modesto Bee today contains articles headlined "Guilty: Jury next to decide if he'll be executed"; "Whooping, cheers greet the verdict at trial site"; "Reaction: In many places, the lunch hubbub hushes while people cluster around TVs to hear the jury's decision"; "Neighborhood: Once again, tide of visitors flows to La Loma street"; "TV tunes in for the verdict, reaction"; "Laci: Looking forward with joy to the birth of her first baby, the mother-to-be was thought to be the same outgoing, happy person she was as a child"; "Scott: Only a few, it seems, could at first believe this friendly, helpful boy and teen, this happily married young man -- capable of murder"; and "Missing on Christmas Eve: Young couple captivate nation from start to verdict." Also, columnist Jeff Jardine has an essay entitled "This wipes that smirk off his face."

The San Mateo County Times today contains articles headlined "Penalty of death? Scott Peterson will get lethal injection or spend rest of his life in prison"; "Stanislaus County prosecutors are hailed as heroes"; "Verdict relieves Modesto residents; Petersons' hometown has been glued to case for nearly two years"; "Crowd rejoices at guilty verdict; Announcement triggers cheers outside courtroom"; "Ousted juror: He's guilty; Woman who served said she would have voted for conviction"; and "No squabbles over Scott on East Bay 'jury'; Oakland, Alameda residents passionately present arguments supporting guilty verdict."

The San Jose Mercury News contains articles headlined "As Peterson is convicted, tears, cheers greet verdicts"; "Prosecutors face uphill fight to get death sentence"; "In Modesto, heartbreak, anger -- and relief"; "Dismissed juror agrees with verdicts"; and "Hundreds witness 'history.'" Also, columnist Scott Herhold has an essay entitled "Do we want finality in this case?"

Finally, The Washington Post today contains a front page article headlined "Peterson Convicted Of Double Murder."
Posted at 16:30 by Howard Bashman



"Give Bush his way on judicial nominees": Columnist Joseph Perkins had this essay in yesterday's issue of The San Diego Union-Tribune.
Posted at 16:22 by Howard Bashman



"Can Bush Deliver a Conservative Court?" Jeffrey Rosen will have this essay in Sunday's Week in Review section of The New York Times.
Posted at 16:20 by Howard Bashman



"Rehnquist replacement unlikely to change court": The Seattle Post-Intelligencer contains this news analysis today.
Posted at 08:44 by Howard Bashman



In today's issue of The New York Times: Neil A. Lewis reports that "Conservative Lawyers Voice Abundant Joy." And in other news, "Jury Finds Scott Peterson Guilty of Wife's Murder."
Posted at 08:42 by Howard Bashman



"Scalia to lecture at U-M; U.S. Supreme Court Justice outspoken about affirmative action": This article appeared yesterday in The Ann Arbor News, along with an item headlined "U.S. Supreme Court Justice Scalia's views on U-M affirmative action."
Posted at 08:42 by Howard Bashman



The Los Angeles Times is reporting: Today's newspaper contains articles headlined "Trials of Terror Suspects Halted; Bush administration is expected to reconsider procedures for detainees at Guantanamo as it appeals a ruling against the troubled tribunals" and "Peterson Found Guilty of Killing Pregnant Wife."
Posted at 08:40 by Howard Bashman



"Hooker fined for frivolous suits, faces screening of further filings": This article appears today in The Tennessean.
Posted at 08:30 by Howard Bashman



Friday, November 12, 2004
Divided en banc U.S. Court of Appeals for the Tenth Circuit affirms grant of a preliminary injunction under the Religious Freedom Restoration Act to enjoin the United States from prohibiting the sacramental use of the controlled and psychotropic substance hoasca by Uniao do Vegetal and its members: You can access the court's 137-page en banc ruling, issued today, at this link. As the separate opinion of Circuit Judge Michael W. McConnell explains, "We heard this case en banc to consider whether to jettison the heightened standard for preliminary injunctions that disturb the status quo." For those who cannot wait to learn the outcome, the Tenth Circuit has decided not to jettison the heightened standard after all.

The ruling by the Tenth Circuit's original, divided three-judge panel issued in September 2003, and you can access it at this link. My coverage of that ruling can be accessed here. Finally, the district court's decision granting the preliminary injunction that the Tenth Circuit has now twice affirmed can be accessed at this link.
Posted at 22:02 by Howard Bashman



"Patriot Act renewal up to Congress; Law's critics and supporters debate whether it undermines constitutional search rights": Tom Curry has this report online at MSNBC.
Posted at 21:48 by Howard Bashman



"Gonzales and civil liberties": This editorial will appear in Saturday's edition of The Milwaukee Journal-Sentinel.

And in today's issue of The Houston Chronicle, columnist Rick Casey has an essay entitled "Why I'd nix Gonzales as top attorney."
Posted at 21:45 by Howard Bashman



"Supreme Court sets date for oral arguments in Oneida Indian Nation tax case": The Associated Press provides this report.
Posted at 21:40 by Howard Bashman



"Senator's Response": National Review Online today published this letter to the editor from Senator Arlen Specter (R-PA).
Posted at 21:35 by Howard Bashman



"A Question For Gonzales: About that juror disclosure form." Timothy Noah has this chatterbox essay online at Slate.
Posted at 17:50 by Howard Bashman



"Conservatives see judicial goals now in reach; For the Federalist Society, the election advanced a long-held aim: Reshaping the federal bench." This article appears today in The Philadelphia Inquirer.
Posted at 17:25 by Howard Bashman



"Constitutional Law and Hot Dogs": This segment (Real Player required) appeared on this evening's broadcast of NPR's "All Things Considered."
Posted at 17:12 by Howard Bashman



"Closing arguments conclude in evolution suit": The Atlanta Journal-Constitution provides this news update.
Posted at 17:05 by Howard Bashman



The wire services are reporting: Reuters reports that "Sen. Specter's Critics Turn Fire on Tort Reform."

The Associated Press, meanwhile, offers articles headlined "Evolution Trial Lawyers Make Final Pleas"; "Gov't. Wants Moussaoui Trial to Proceed"; "More Abuse Allegations Surface at Gitmo"; and "Bush Sees Patriot Act Renewal As Key Goal."
Posted at 17:00 by Howard Bashman



"Ashcroft Condemns Judges Who Question Bush": The Associated Press provides a report that begins, "Federal judges are jeopardizing national security by issuing rulings contradictory to President Bush's decisions on America's obligations under international treaties and agreements, Attorney General John Ashcroft said Friday." And James Vicini of Reuters reports that "Ashcroft Warns of Judicial Meddling in Terror War."
Posted at 16:45 by Howard Bashman



BREAKING NEWS -- "Jury finds Peterson guilty": CNN.com provides this report. The Associated Press reports that "Scott Peterson Convicted of Murdering Wife." Reuters reports that "Calif. Jury Finds Peterson Guilty of Killing Wife." And The San Francisco Chronicle provides a news update headlined "Jury finds Scott Peterson guilty of murder; New panel deliberates only a few hours before reaching decision." According to The AP, "The jury of six men and six women were told to return Nov. 22 to begin hearing testimony on whether Peterson should die by lethal injection or get life in prison without parole."
Posted at 16:29 by Howard Bashman



"Republican Lawyers Basking In Glow of Bush Re-Election": Josh Gerstein has this article in today's edition of The New York Sun.
Posted at 11:40 by Howard Bashman



In news from Australia: Saturday's edition of The Sydney Morning Herald contains an article headlined "Judge quits -- four times over the limit" that begins, "The Supreme Court judge Jeff Shaw resigned suddenly last night after learning he was more than four times over the legal alcohol limit when he crashed his car. The judge said he was not well enough to continue on the bench." And a related item is headlined "'I am not well enough to discharge my duties.'"
Posted at 08:10 by Howard Bashman



In today's edition of The New York Times: Adam Liptak has an article headlined "Caution in Court for Gay Rights Groups." And in other news, "Fight in Alabama on Segregationist Language."
Posted at 08:05 by Howard Bashman



"Gay-marriage defeat puts legal arrangements in question": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 08:00 by Howard Bashman



"Textbook case puts spotlight on judge": The Atlanta Journal-Constitution today contains an article that begins, "Having spent his week in the crossfire between religious tradition and contemporary science, U.S. District Judge Clarence Cooper must now decide whether the two have been unlawfully mixed in Cobb County schoolbooks."
Posted at 07:55 by Howard Bashman



"Judicial nominee from BYU running out of time; Hatch says: I'm going to see if I can change some of these Democrats who have been so obnoxious about it." This article appears today in The Salt Lake Tribune. And The Charlotte Observer today reports that "Burr says he'll help 3 judges get OK'd; He'll work with Dole to back N.C. nominees blocked by Edwards."
Posted at 06:50 by Howard Bashman



"Newdow Discusses Merits of Pledge": The Hoya of Georgetown University contains this article today.
Posted at 06:45 by Howard Bashman



"What The New Court Will Look Like: Bush's model is Antonin Scalia; But nominees who share the justice's strict 'textualist' approach could set off a firestorm of opposition." This article will appear in the November 22, 2004 issue of BusinessWeek.
Posted at 06:42 by Howard Bashman



Available online from law.com: Marcia Coyle has an article headlined "Courts on the Edge of Financial Crisis; Latest crunch could cause a dire impact, say judges and scholars."

In news from Georgia, "Scientists Defend School Board's Use of Evolution Disclaimer Sticker; Professors say evolution disclaimer is 'reasonable.'"

An article reports that "Lynne Stewart Holds Up in Closing Testimony of Terrorism Case."

And in news from California, "Trio of Judges Bungles Case; Appeals Court Scolds."
Posted at 06:30 by Howard Bashman



"Now, Santorum's under fire; Right-wing groups push him to take up fight against Specter": This article appears today in The Pittsburgh Post-Gazette. The Collegian of Penn State University reports that "Specter's position concerns officials." Columnist Dimitri Vassilaros has an essay entitled "Specter's poetic justice" in The Pittsburgh Tribune-Review. And in The Washington Times, Thomas Sowell has an op-ed entitled "An ominous Specter: Part III."
Posted at 06:22 by Howard Bashman



"Choice of Gonzales May Blaze a Trail for the High Court": Elisabeth Bumiller and Neil A. Lewis have this article today in The New York Times. And in somewhat related news, "Frist Warns on Filibusters Over Bush Nominees."
Posted at 06:15 by Howard Bashman



Thursday, November 11, 2004
"Justice serves at ceremony": The Fort Worth Star-Telegram today provides a news update that begins, "Wallace B. Jefferson, the first African-American to preside over the nine-member Texas Supreme Court, received the oath of office Thursday from U.S. Supreme Court Justice Antonin Scalia."
Posted at 22:10 by Howard Bashman



"Study details how Bush might reshape U.S. Supreme Court; Kerry could have made 'historic' changes; Bush impact increases with Republican control of Senate": Washington University in St. Louis issued this news release today.
Posted at 22:08 by Howard Bashman



"Frist Urges Democrats to Stop Filibusters": Jesse J. Holland of The Associated Press provides this report. And Reuters reports that "Frist Says Filibusters of Bush Nominees Must End."
Posted at 22:05 by Howard Bashman



"Textbook argument nears end": This article appears today in The Atlanta Journal-Constitution.
Posted at 21:53 by Howard Bashman



"Lame Duck Judiciary Chair Hatch Pushes Appeals Court Slot for Friend Who Practiced Law without License in DC, Utah": The organization People For the American Way issued this press release today. Relatedly, today PFAW issued this letter in opposition to the confirmation of Thomas B. Griffith to the U.S. Court of Appeals for the D.C. Circuit.
Posted at 21:40 by Howard Bashman



"Bush picks chief counsel as next AG": This article appears today in The Boston Globe, along with a news analysis headlined "Pick would be no lightning rod; Tough grilling seen at hearings" and an editorial entitled "After Ashcroft."

The Washington Post, meanwhile, contains an editorial entitled "Change at Justice."
Posted at 21:33 by Howard Bashman



"Concluding that the district court's decision was fatally infected with antagonism toward the United States Sentencing Guidelines, we reverse and remand for resentencing by a different district judge." On behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith issued this opinion today.

Later into the opinion, Judge Smith writes: "This is far from the first time we have had to reverse this judge for blatantly electing to ignore the plain language of the guidelines. Accordingly, we remove the district judge from this case because he has breached the barrier between the rule of law and the exercise of personal caprice." Interestingly, the victor on appeal was the defendant, who had argued that the sentenced imposed was improperly harsh.
Posted at 21:20 by Howard Bashman



"A more moderate voice as AG; But nominee has terror-war baggage": This article will appear in Friday's issue of The Christian Science Monitor.
Posted at 17:40 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": The broadcast contained segments entitled "Longtime Bush Adviser Gonzales Succeeds Ashcroft" (featuring Nina Totenberg) and "Religious Conservatives Lose Ally in Ashcroft."
Posted at 17:32 by Howard Bashman



"Rehnquist's legacy shaped by efforts to limit federal powers, Roe dissent, Albert says": This article appears today in the University at Buffalo Reporter.
Posted at 17:30 by Howard Bashman



"Ashcroft and After": This editorial appears online today at The Nation.
Posted at 17:28 by Howard Bashman



"House OKs flag-pledge bill; Senate vote unlikely": The Patriot-News of Harrisburg, Pennsylvania contains this article today.
Posted at 17:25 by Howard Bashman



"The saga of Nutkin the squirrel has a happy ending; Pet facing state extermination gets new leash on life in Superior Court ruling": This article appeared in Saturday's issue of The Morning Call of Allentown, Pennsylvania. And The Philadelphia Inquirer yesterday reported that "Case was a tough nut to crack; A pet squirrel is out of the woods, legally."

Last Friday, a unanimous three-judge panel of the Superior Court of Pennsylvania issued an opinion that begins:
This appeal revolves around the life and times of Nutkin the squirrel.

Nutkin's early life was spent in the state of ferrae naturae, in the state of South Carolina, and, as far as we can tell, in a state of contentment. She apparently had plenty of nuts to eat and trees to climb, and her male friends, while not particularly handsome, did have nice personalities. Life was good.

Then one day tragedy struck: Nutkin fell from her tree nest!

But fate was kind. Nutkin was found and adopted by Appellant and her husband who, at that time, were residents of South Carolina. Appellant lovingly nursed Nutkin back to health, and Nutkin became the family pet. A large room-sized enclosure was built so Nutkin had plenty of room to run and climb. Life was good again.

Nutkin's captivity and domestication were perfectly legal in South Carolina, possibly a reflection of that state's long tradition of hospitality to all.

In 1994, Appellant and her husband moved to Pennsylvania and brought Nutkin with them. Life was full of promise.

Dark clouds began to gather, however, in November, 2002, when Appellant's husband phoned the Pennsylvania Game Commission concerning a hunter who he and Appellant believed was hunting near an area on their property where they had set out food for deer. In response to that complaint, a Wildlife Officer appeared at Appellant's property to investigate. At that time the Officer became aware that a deer had been illegally shot on Appellant's property and dragged to a neighboring property. Appellant and her husband requested that the Game Officer further investigate the poaching of the deer. The Officer refused to do so, but when he spotted Nutkin in her room-sized enclosure, he advised Appellant that it was a violation of the law to keep Nutkin in this manner. The Game Officer acknowledged that the squirrel was too old and too tame to be released to the wild (A situation akin to that of an old appellate judge, like the undersigned, attempting to return to the boiling cauldron of the trial court after being tamed by years of peace and quiet above the fray. Chances of survival of both species are poor.) He offered to forgo citing Appellant if she would relinquish Nutkin to his control. Appellant and her husband refused.
You can access the complete opinion at this link.
Posted at 17:15 by Howard Bashman



Available online from The Associated Press: Gina Holland reports that "Olson Predicts Firestorm for Next Justice." Her article begins, "Despite Republican gains, President Bush's picks for potential vacancies on the Supreme Court will face 'political firestorm' in the Senate, the Bush administration's former chief lawyer at the high court said Thursday."

Jesse J. Holland reports that "Gonzales to Face Questions From Senate."

And in other news, "Fla. Supreme Court Allows Foster Adoptions" and "Ga. Evolution Dispute Embarrasses Some."
Posted at 17:00 by Howard Bashman



"Loyal to a Fault? The Senate should hold Alberto Gonzales accountable for his bad legal advice." Online at Slate, Phillip Carter has this jurisprudence essay.
Posted at 16:55 by Howard Bashman



In today's issue of The Chicago Tribune: An article reports that "Lisa Madigan has day in high court; It's her 1st case before justices."

In other news, "Bush taps legal aide to replace Ashcroft; White House counsel longtime friend from Texas."

An article reports that "Tobacco firm allegedly knew risks in '80s."

And an editorial is entitled "Judges and Senate politics."
Posted at 13:20 by Howard Bashman



"Illinois high court considers appeal of $10 billion tobacco judgment": This article appears today in The St. Louis Post-Dispatch. The Chicago Tribune reports that "Philip Morris calls cigarette ruling invalid; Firm alleges judge ignored federal law." And The Chicago Sun-Times reports today that "Lawyers hold high noon in Marlboro Lights case."
Posted at 13:15 by Howard Bashman



Programming note: Today is Veterans Day. Most federal and state appellate courts, with the possible exception of the U.S. Court of Appeals for the Fifth Circuit, will be officially closed for business today.
Posted at 07:20 by Howard Bashman



"Nominee defended advice on prisoners": This article appears today in The Courier-Journal of Louisville, Kentucky.
Posted at 07:15 by Howard Bashman



"Bush May Pick Younger Justices to Shape High Court for Decades": Bloomberg News provides this report.
Posted at 07:14 by Howard Bashman



"Specter: Moderates in GOP must speak." The Philadelphia Inquirer contains this article today. And The Daily Pennsylvanian reports today that "Embattled senator still vying for judiciary chair."

In commentary, columnist Michael Smerconish today has an essay entitled "What Arlen really said" in The Philadelphia Daily News. In The Washington Times, Timothy P. Carney has an op-ed entitled "Specter's voting record." In The Los Angeles Times, Margaret Carlson has an essay entitled "Relax, Democrats -- It Won't Be That Horrible; The realities of governing will slow down the GOP juggernaut." And online at The Weekly Standard, Hugh Hewitt has an essay entitled "A National Party? What Zell Miller can teach Republicans about Arlen Specter."
Posted at 07:00 by Howard Bashman



"Bush nominates Gonzales; Houstonian is named to replace Ashcroft as U.S. attorney general": This article appears today in The Houston Chronicle, along with an article headlined "Local lawyers laud choice of Gonzales; Bush's pick for attorney general surprises and delights his friends."

The San Antonio Express-News contains articles headlined "S.A. native picked as AG" and "AG pick called loyal, competent, smart and quiet."

The Dallas Morning News reports that "Bush touts Texan for AG job; Longtime confidant Gonzales would become first Hispanic in post." The Fort Worth Star-Telegram reports that "Gonzales rose from poverty."

The Los Angeles Times offers articles headlined "Bush Names Close Ally for Justice Job; Alberto Gonzales is seen as more moderate than Ashcroft but advocates strong wartime powers" and "A Trusted Lawyer and Friend to the President; Alberto R. Gonzales, the son of Texas migrant workers, can be counted on to put the interests of the White House first, observers say."

USA Today reports that "Bush chooses counsel for attorney general; Would be first Hispanic in job" and "Gonzales nomination may signal shift in style; Bush's choice for attorney general is unlikely to get opposition Ashcroft did."

The San Francisco Chronicle reports that "Latino tapped to head Justice; Bush names longtime aide to be next attorney general." The Washington Times reports that "Bush names Gonzales attorney general." The Baltimore Sun reports that "Bush nominates his counsel as next U.S. attorney general; Gonzales would become first Hispanic in post." The Pittsburgh Post-Gazette reports that "Bush taps Gonzales to replace Ashcroft; Longtime Texas friend of president would be first Hispanic attorney general." And The New York Sun reports that "Gonzales Is Bush's Choice for Justice."
Posted at 06:30 by Howard Bashman



"Court to rule on relevance of killer's jailhouse conversion": Today's issue of USA Today contains an article that begins, "A convicted murderer should be allowed to present evidence of his jailhouse conversion to Christianity to jurors deciding whether he should be executed, the Supreme Court was told Wednesday."
Posted at 06:24 by Howard Bashman



"Top Justices See Benefits of Police Dogs; In oral arguments on an Illinois ruling that police must have evidence before using them, most of the Supreme Court agrees that a 'sniff is not a search'": David G. Savage has this article today in The Los Angeles Times. Michael McGough of The Pittsburgh Post-Gazette reports that "Justices consider limits for drug-sniffing dogs." The Seattle Post-Intelligencer reports that "Court considers if a sniff is a search."

The St. Louis Post-Dispatch reports that "Madigan argues for drug-sniffing dogs before high court." And The Chicago Sun-Times reports that "Madigan argues 1st Supreme Court case."
Posted at 06:20 by Howard Bashman



"Bush or bust: To comply with polling rules, woman strips down to bra to cast vote." Saturday's issue of The Times-Picayune contained this article.
Posted at 06:15 by Howard Bashman



"Man Takes Monkeys All the Way to the Supreme Court; Has Eight Pets in His Bronx Apartment and Wants Court to Allow Him to Keep Them": This article appeared yesterday in The New York Sun.
Posted at 06:00 by Howard Bashman



Wednesday, November 10, 2004
Available online from law.com: An article reports that "Gonzales to Face Hard Questions as Attorney General Nominee." And Marcia Coyle reports that "Supreme Court Weighs Disparate Impact in Age Law; Justices debate suits over neutral policies."
Posted at 23:55 by Howard Bashman



"Specter sees 'a battle for balance in the Republican Party'": Thursday's edition of The Philadelphia Inquirer will contain this article, and you can access here the "Transcript of Inquirer interview with Sen. Arlen Specter."

In related coverage, Reuters reports that "Specter Seeks Meeting with Fellow Republicans."
Posted at 23:44 by Howard Bashman



"President Taps White House Counsel to Head Justice Dept.": This segment (transcript here; RealAudio here) appeared today on the PBS program "The News Hour with Jim Lehrer."
Posted at 23:40 by Howard Bashman



In Thursday's issue of The Washington Post: Charles Lane will report that "Justices Hear Case on Drug-Detection Dogs; High Court Is Asked to Decide on Legality of Such Searches During Traffic Stops."

In other news, "Gonzales Named to Succeed Ashcroft; Senate Approval Seen as Likely" and "Bush Picks A Loyalist To Replace A Politician; Counsel Gonzales Often Clashed With Ashcroft."
Posted at 23:33 by Howard Bashman



The Knight Ridder Newspapers are reporting: Stephen Henderson reports that "Supreme Court hears case on drug-sniffing dogs' role in searches."

And in other news, "Bush nominates White House counsel Gonzales for attorney general" and "Gonzales has inspiring personal history, critics on left and right."
Posted at 23:30 by Howard Bashman



In Thursday's issue of The New York Times: An article will report that "Bork Hearings Resurface as Impediment to Specter."

In other news, "Bush Nominates His Top Counsel for Justice Post." Related items are headlined "Riding an Ideological Divide" and "Excerpts From Gonzales's Legal Writings."

And in news from California, "Judge Dismisses Foreman From Peterson Jury."
Posted at 23:20 by Howard Bashman



"Don't Split the Ninth Circuit!" Ninth Circuit Judges Alex Kozinski and Sidney R. Thomas have this op-ed today in The Wall Street Journal.
Posted at 19:20 by Howard Bashman



"Koh reflects on year as dean": The Yale Daily News today contains an article that begins, "In the year since Yale tapped Harold Hongju Koh to steer the Law School, he had been pegged as a potential Supreme Court appointee by Democratic Sen. John Kerry '66."
Posted at 19:15 by Howard Bashman



"The Truth About Cats and Dogs: Bark if you love Justice Souter!" Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 19:05 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "Gonzales Nominated as Ashcroft Successor" (featuring Nina Totenberg); "Cases Falter Against Suspected Spies in U.S. Military"; and "Couple Allowed to Maintain Squirrel Custody."

Today's broadcast of "Talk of the Nation" contained a segment entitled "Gonzales Tapped to Replace Ashcroft."

Today's broadcast of "Day to Day" contained segments entitled "Slate's Jurisprudence: Sniffer Dogs at Traffic Stops" (featuring Dahlia Lithwick) and "Gonzales Gets Nod to Replace Atty. Gen. Ashcroft."

And today's broadcast of "Morning Edition" contained segments entitled "High Court to Rule on Use of Dogs in Traffic Stops" (featuring Nina Totenberg); "Justice Department Takes on Oregon's Suicide Law"; "Assessing the Legacy of John Ashcroft"; and "Who Might Replace Ashcroft?" (also featuring Nina Totenberg).

Real Player is required to launch these audio segments.
Posted at 18:50 by Howard Bashman



"Conservative AL justices worry atheists": This article appears today in The Crimson White.
Posted at 18:40 by Howard Bashman



"A look at Bush's pick for next attorney general": The Scripps Howard News Service provides this report.
Posted at 18:40 by Howard Bashman



Anyone desire a 43-foot-tall cross? The San Diego Union-Tribune today contains an article headlined "Church won't be taking Mt. Soledad cross; City says landmark could be dismantled." The article begins, "A La Jolla church that agreed to take the Mount Soledad cross if it had to move has rescinded the offer, scrapping the option the city of San Diego planned to use to comply with a federal court order."
Posted at 18:35 by Howard Bashman



"Specter Wants to Make Case to Lead SJC": Jesse J. Holland of The Associated Press reports here that "Sen. Arlen Specter, R-Pa., wants to make his case to be chairman of the Senate Judiciary Committee directly to the panel's GOP members next week."
Posted at 18:32 by Howard Bashman



"Drug-sniffing dog gets day in court": The St. Louis Post-Dispatch provides this news update.
Posted at 18:30 by Howard Bashman



U.S. Court of Appeals for the First Circuit reinstates disgruntled law student's claim alleging fraudulent misrepresentation against the Southern New England School of Law: Circuit Judge Bruce M. Selya issued this opinion today on behalf of a unanimous three-judge panel.
Posted at 18:20 by Howard Bashman



"Army of Attorneys Against Merck Convenes on Coast": Josh Gerstein has this article today in The New York Sun.
Posted at 18:15 by Howard Bashman



The Associated Press is reporting: From the U.S. Supreme Court, Hope Yen reports that "High Court Considers Death Penalty Case," while Gina Holland reports that "Court Considers When Cops Can Use Canines." And in other news, "Philip Morris Challenges Fraud Ruling."
Posted at 16:48 by Howard Bashman



In news from the Scott Peterson trial: The San Francisco Chronicle provides a news update headlined "Peterson jury foreman dismissed; Second removal in two days, but judge gives no reason." And The Modesto Bee offers a news update headlined "Judge dismisses second juror." No word yet on how many tattoos or children today's replacement juror happens to have.
Posted at 16:45 by Howard Bashman



"Gonzales Chosen to Replace Ashcroft": The Los Angeles Times provides this news update.
Posted at 16:40 by Howard Bashman



"Remarks by the President and Attorney General Nominee Judge Alberto Gonzales": The White House has posted online this transcript.
Posted at 16:37 by Howard Bashman



"The Trouble with Roe: The Specter controversy is not about abortion; It's about democracy." Andrew C. McCarthy has this essay today at National Review Online.
Posted at 14:18 by Howard Bashman



"Gonzales to Succeed Ashcroft, Sources Say": The Associated Press provides this report. And Reuters reports that "Bush Picks Gonzales as New Attorney General." Congratulations to Judge Gonzales, whom I had the pleasure of meeting at the White House earlier this year. This development would seem to indicate that Judge Gonzales is not the likely replacement for Chief Justice William H. Rehnquist.
Posted at 14:12 by Howard Bashman



Programming note: I'll be in transit until sometime later this afternoon. First, I'll be hosting a luncheon of the Philadelphia Bar Association's Appellate Courts Committee, where today's speaker will be the President Judge of the Commonwealth Court of Pennsylvania. Then, I'll be heading up to New York City, where tomorrow I'll be one of the presenters at DRI's fifth "Appellate Advocacy Seminar." Additional posts may appear online from Times Square as early as later this afternoon.
Posted at 10:40 by Howard Bashman



"Feds push challenge to assisted suicide law; Supporters of Oregon's law say they don't expect the U.S. Supreme Court to take up the case based on federal drug rules": This article appears today in The Oregonian.
Posted at 08:50 by Howard Bashman



"No Litmus Test: I've backed pro-life judges before, and I'll do so again." U.S. Senator Arlen Specter (R-PA) has this op-ed today in The Wall Street Journal.
Posted at 08:45 by Howard Bashman



"Sentencing Guidelines: Court should fix a problem it created." This editorial appears today in The Philadelphia Inquirer.
Posted at 07:04 by Howard Bashman



"Jury: Enron sham cost $13.7 million; Amount could mean longer terms for five convicted." This article appears today in The Houston Chronicle.
Posted at 07:00 by Howard Bashman



Today's lesson -- Be nice to Gerry Spence: The Oregonian yesterday contained an article headlined "Mayfield jurist pulls out over comment; The famous attorney for the man wrongly accused in the Madrid bombings says a remark put him 'in a negative light.'"
Posted at 06:57 by Howard Bashman



"High court hears smuggling case involving liquor from Maryland; Justices consider issue of U.S. enforcing revenue laws on behalf of Canada": This article appears today in The Baltimore Sun.
Posted at 06:55 by Howard Bashman



"Ashcroft Wants Oregon Suicide Law Blocked; The attorney general urges the Supreme Court to let federal agents go after doctors in the state who help patients end their lives": David G. Savage has this article today in The Los Angeles Times. And The Statesman Journal of Salem, Oregon reports today that "High court asked to review assisted-suicide law; Ashcroft seeks to alter Oregon's law on the same day he resigns."
Posted at 06:50 by Howard Bashman



"GOP senators pushing for up-or-down vote; Conservatives aim to stop filibusters on judges": This article appears today in The Baltimore Sun. The Washington Times reports that "Judiciary panel seen as tinderbox." The Philadelphia Inquirer reports that "Specter presses campaign for chairmanship." The Los Angeles Times reports that "Majority Leader Faces Balancing Act in Senate."

In commentary, The Washington Post contains an editorial entitled "A New Start on Courts." The Denver Post contains an editorial entitled "Supreme Court battles loom." The Philadelphia Daily News contains an editorial entitled "The right abortion fight; Can the GOP really afford to be anti-choice?" and an essay by columnist John Baer entitled "Specter will win this fight, too." And Thomas Sowell has an essay entitled "An ominous Specter: Part II."
Posted at 06:44 by Howard Bashman



"Justices Rule in Immigrant's Favor; Drunken Driving Not a Reason for Deportation, Court Says": Charles Lane has this article today in The Washington Post. In The Los Angeles Times, David G. Savage reports that "High Court Rejects Deportation for DUI; The justices rule that drunk driving is not a 'crime of violence,' even if injuries occur, for which legal immigrants may be expelled." Michael McGough of The Pittsburgh Post-Gazette reports that "Deportation blocked in DUI injury case." The Houston Chronicle reports that "Court sides with immigrant deported over DWI wreck." The Miami Herald reports that "Ruling on Miami Haitian's DUI may halt automatic deportations; A Haitian living in Miami was deported after a 2000 DUI accident that hurt two people; But the Supreme Court ruled that his crime did not merit that penalty." And The South Florida Sun-Sentinel reports that "Supreme Court reverses deportation law."
Posted at 06:30 by Howard Bashman



Tuesday, November 09, 2004
"Calamity Judge: Richard Posner wants to scare the prudence out of you; He almost does." This review, written by John Schwartz, of Seventh Circuit Judge Richard A. Posner's new book appears in the current issue of The American Lawyer.
Posted at 23:00 by Howard Bashman



"Bush Judicial Picks: Not Always Playing to Type; Rulings by judges have been firmly conservative in environmental and employment arenas, but more liberal than expected in others." This article by Tony Mauro, which law.com posted online in a freely-accessible form yesterday, contains a quote or two from me.
Posted at 22:40 by Howard Bashman



"Death will be his witness: Bush's hand will be forced at home by Chief Justice Rehnquist's illness and abroad by Arafat's departure." Jonathan Freedland has this commentary in Wednesday's edition of The Guardian (UK).
Posted at 22:24 by Howard Bashman



"Justices Rule Drunken Driving Cannot Mean Automatic Deportation of Immigrants": Linda Greenhouse will have this article in Wednesday's issue of The New York Times.
Posted at 22:20 by Howard Bashman



"Tide runs against Specter; Uproar continues over comments on federal judges": This article will appear in Wednesday's edition of The Hill. And at National Review Online, Roger Clegg this afternoon has an essay entitled "Race-Card Arlen: For Specter, politics trumps the Constitution on race."
Posted at 22:00 by Howard Bashman



"Bootleg, Eh? The ineffable, unknowable mystery of the Canadian tax code." Dahlia Lithwick has this Supreme Court dispatch online at Slate.
Posted at 19:58 by Howard Bashman



News updates available from The Los Angeles Times: David G. Savage has a report headlined "Justices: DUI Not Grounds for Deportation."

And in other news, "Ashcroft, Evans Quit Cabinet Posts; Atty. Gen. John Ashcroft and Commerce Secretary Don Evans resign, White House says" and "Judge Replaces Peterson Juror; Jury in murder case is instructed to restart deliberations from the beginning."

You can read Attorney General John Ashcroft's letter of resignation at this link.
Posted at 19:30 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "DUI Not Grounds for Deportation, High Court Rules" (featuring Nina Totenberg); "Gay Marriage Proponents Take Fight to Courts"; "Amendment Would Allow Schwarzenegger to Run for President"; "Sheik's Lawyer Knew of Violent Background"; and "Ashcroft, Evans Resign."

And today's broadcast of "Talk of the Nation" contained a segment entitled "Guantanamo Bay Trials."

Real Player is required to launch these audio segments.
Posted at 19:20 by Howard Bashman



"Ashcroft, Evans Resign From Bush Cabinet": Terence Hunt of The Associated Press reports here that "Attorney General John Ashcroft and Commerce Secretary Don Evans resigned Tuesday, the first members of President Bush's Cabinet to leave as he headed from re-election into his second term."
Posted at 18:04 by Howard Bashman



"Bush Administration Appeals Over Oregon Suicide Law": James Vicini of Reuters provides this report.
Posted at 18:03 by Howard Bashman



Warren Richey is reporting: In Wednesday's issue of The Christian Science Monitor, he will have articles headlined "Can police dogs be used at routine stops? Court to decide whether canines can sniff for drugs during a traffic violation stop" and "Courts at odds in legal battle over felons and voting rights; Supreme Court, for now, watches west and east go opposite directions on alleged racial bias in voting laws."
Posted at 17:54 by Howard Bashman



In news from the Scott Peterson trial -- "Judge removes juror; orders panel to start over": The Modesto Bee has just posted online this news update. The report describes the alternate juror who will be joining deliberations as "a woman in her 30s who has four boys and nine tattoos." Jurors who have more tattoos than children are generally viewed as pro-defense.
Posted at 17:48 by Howard Bashman



The wire services are reporting: From The Associated Press, Gina Holland reports that "Chief Justice Rehnquist Working From Home." And in other news, "Guantanamo Review Tribunals Press Ahead."

Reuters, meanwhile, reports that "U.S. Court Upholds Beastie Boys' Musical Sampling." You can access today's amended ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. My coverage of the three-judge panel's original ruling, issued over a year ago, can be accessed here. Presumably today's amended ruling contains permissible sampling from the panel's original ruling.
Posted at 17:30 by Howard Bashman



"Court restricts warrantless searches": The Atlanta Journal-Constitution today contains an article that begins, "Police cannot enter a home to conduct a warrantless search if one spouse consents but the other does not, the Georgia Supreme Court ruled Monday. In a 4-3 ruling, the court threw out evidence of cocaine use by an Americus lawyer stemming from a July 2001 search of his home." You can access yesterday's ruling of the Supreme Court of Georgia at this link.
Posted at 17:02 by Howard Bashman



The Associated Press is reporting: Gina Holland reports that "White House Wants Suicide Law Blocked." And in news from Georgia, "Gay-Rights Supporters Sue Over Amendment."
Posted at 16:42 by Howard Bashman



And on the second day: The Atlanta Journal-Constitution provides a news update headlined "Cobb schools chief testifies against disclaimers."
Posted at 16:30 by Howard Bashman



"Under Fire, Specter Gets Only Tepid White House Support": The New York Times provides this news update. And NewsMax.com reports that "Bork Blasts Specter in Radio Duel."

Update: The supposedly "tepid" White House support can be viewed at this link to a transcript of today's White House press briefing.
Posted at 16:25 by Howard Bashman



"Esta undecision me molesta": On behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit, Judge Jerry E. Smith yesterday issued an opinion that begins, "Arrested after being found in a Greyhound bus station with cocaine strapped to his waist, Joseph Jackson was charged with possession of cocaine with intent to distribute."

Of particular note is footnote three of the opinion, which states:
Jackson was thus forced to ask himself what The Clash famously asked two decades ago: "Should I stay or should I go now?" Doubtless Jackson knew that if he stayed on the bus and the dog alerted to him "there would be trouble." But given the officers' ultimate discovery of the cocaine strapped to his waist, the trouble turned out to be "double," notwithstanding his decision to "go." See The Clash, Combat Rock (1982).
Perhaps we need more fans of The Clash in the federal judiciary.
Posted at 16:10 by Howard Bashman



On remand from the U.S. Supreme Court, the Second Circuit affirms dismissal of suit brought by Holocaust victims, their heirs, and beneficiaries against the French national railroad company: Today's opinion explains:
Plaintiffs allege that SNCF has committed war crimes and crimes against humanity, under customary international law and the law of nations, by knowingly transporting tens of thousands of French civilians to Nazi death and slave labor camps. During the time when these atrocities were committed, SNCF remained under independent civilian control. It has since been wholly acquired by the French government.
You can access today's ruling of the U.S. Court of Appeals for the Second Circuit at this link.
Posted at 16:00 by Howard Bashman



Justice Sandra Day O'Connor bobblehead dolls for sale on eBay: This auction will be wrapping up within the next hour and fifteen minutes or so, while this auction still has over six days left. Perhaps these two auctions prove the truth of the old adage, "Teach at George Mason University School of Law, get plenty of U.S. Supreme Court Justice bobblehead dolls." Details here, here, and here.

Update: Today's auction ended with a winning bid of $362.88, reinforcing my earlier observation "Who among us can afford not to subscribe to The Green Bag?"
Posted at 13:30 by Howard Bashman



"Supreme Court case tests lawyer": The Republican of Springfield, Massachusetts today contains an article that begins, "Linda J. Thompson, a Springfield criminal defense lawyer, held her own in what turned out to be a competitive game of verbal volleyball yesterday with U.S. Supreme Court justices about sending a defendant to prison for life without a jury trial."
Posted at 13:25 by Howard Bashman



"4 justices recuse selves from appeal; Judges cite influence of chamber's ads": The Toledo Blade today contains an article that begins, "Four Ohio Supreme Court justices, all victims or beneficiaries of corporate-bankrolled election ads, will not participate in decisions related to the Ohio Chamber of Commerce's attempt to prevent disclosure of its contributors."
Posted at 13:24 by Howard Bashman



"Race-based cell assignments should be struck down": This editorial appears today in The Detroit Free Press.
Posted at 13:22 by Howard Bashman



Decalogue blogging: The Oklahoman reports today that "Bible rules displayed in Stigler." And The Associated Press reports that "Haskell County Officials Post Ten Commandments; Commissioners Add Monument To County Courthouse."

Meanwhile, from Alabama, The Decatur Daily today contains an editorial entitled "Removing Commandments show strength, not weakness."

Update: In response to headline of the editorial in The Decatur Daily, a reader emails, "But it don't show subject-verb agreement, do it?"
Posted at 13:15 by Howard Bashman



"New judge won't discuss inquiry": The News & Observer of Raleigh, North Carolina today contains an article that begins, "Now that federal prosecutor Paul Newby of Raleigh has been elected to the state Supreme Court, he won't reveal what has happened with a federal investigation of his campaign."
Posted at 13:00 by Howard Bashman



"John Roberts Post #3": Tom Goldstein of "SCOTUSblog," in this brand-new post, continues his in-depth examination of the individual whom he views as the most likely replacement for Chief Justice William H. Rehnquist.
Posted at 11:22 by Howard Bashman



"Joyful and triumphant: The religious right is in heaven at the prospect of remaking the Supreme Court." Michelle Goldberg has this essay online today at Salon.com.
Posted at 11:10 by Howard Bashman



"Liberal judges boon to GOP": Today in The Rocky Mountain News, columnist Paul Campos has an essay that begins, "The best thing that could happen to the Democratic Party is for the Supreme Court to reverse Roe v. Wade. Liberal judicial activism in general -- and Roe in particular -- is the biggest gift the Republican Party has ever gotten."
Posted at 10:55 by Howard Bashman



"Supreme Court Strategy -- President Bush should give voters what they want: conservative Justices." This editorial appears today in The Wall Street Journal. Accompanying the editorial is a chart entitled "The Filibuster 10," which lists "Bush appeals-court nominees who have been blocked from a floor vote, and the number of Democrats who support them." The chart shows that none of these ten judges (seven of whom have been truly filibustered, and three of whom are embroiled in the Michigan Sixth Circuit blockade) individually has received more than four votes from Democratic Senators in favor of cloture.

The U.S. Senate that will convene in January 2005 will consist of 55 Republican Senators, which is still in the best-case scenario (or worst-case scenario, depending on your viewpoint) one vote shy of overcoming a filibuster. And one of the most reliable anti-filibuster Democratic votes belonged to U.S. Senator Zell Miller (D-GA), who is retiring from the Senate and has been replaced by one of the newly elected Republican Senators. Accordingly, Republicans are at least two votes shy of overcoming existing judicial filibusters, and in many instances the gap is somewhat larger.
Posted at 10:40 by Howard Bashman



"Study says aff. action is harmful": This article appears today in The Yale Daily News.

And The Harvard Crimson today contains an article headlined "Harvard Grad Gets 'Obnoxious' on FOX; Alum stars as billionaire."
Posted at 10:35 by Howard Bashman



"Slow to Execute, California Sees Death Row Swell": Reuters provides this report.
Posted at 10:15 by Howard Bashman



The Supreme Court of the United States issued two opinions in argued cases today: Chief Justice William H. Rehnquist was the author of the opinion in Leocal v. Ashcroft, and the judgment under review was reversed and remanded. You can access the oral argument transcript at this link.

And Justice Sandra Day O'Connor was the author of the opinion in Norfolk Southern R. Co. v. James N. Kirby, Pty Ltd., and the judgment under review was reversed and remanded. You can access the oral argument transcript at this link.

In early press coverage of today's rulings, Hope Yen of The Associated Press reports that "Court Rules for Immigrant in DUI Case." And Reuters offers a report headlined "Court: Drunken Driving Doesn't Warrant Deportation."
Posted at 10:00 by Howard Bashman



Justice Antonin Scalia to deliver ceremonial oath of office to first African-American Chief Justice of the State of Texas: The Supreme Court of Texas yesterday issued a news advisory entitled "Chief Justice Jefferson's investiture set; Justice Scalia to swear in recently appointed chief justice."

In somewhat related news, The Houston Chronicle reports today that "Perry aide to get high court nod; Former Houston judge would be governor's 2nd Hispanic appointee." And The Fort Worth Star-Telegram reports today that "Vacancies hinder top court."
Posted at 09:55 by Howard Bashman



"'Ladies' night' restoration goes to full Senate": This article appears today in The Philadelphia Inquirer.
Posted at 09:45 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": This morning's broadcast contained segments entitled "Guantanamo Terrorism Trial Comes to Abrupt Halt" and "Abortion-Rights Groups Worry of Post-Election Backlash" (Real Player required).
Posted at 09:40 by Howard Bashman



"The Right Man: The case for Chairman Orrin." This editorial is available today from National Review Online.
Posted at 09:30 by Howard Bashman



"U.S. Supreme Court will hear drug case; Use of drug-sniffing dogs in traffic stops at issue": This article appears today in The Peoria Journal Star.
Posted at 07:37 by Howard Bashman



"Supreme Court To Consider Cherokee Case": The Times Record of Fort Smith, Arkansas offers this preview of a case to be argued today in the U.S. Supreme Court.
Posted at 07:35 by Howard Bashman



"Supreme Court takes on judges' pay dispute; Principle of judicial independence clashes with legislators' right to allot public funds": The Toronto Globe and Mail contains this article today.
Posted at 07:34 by Howard Bashman



"Officials mum on Pryor for Cabinet": This article appears today in The Montgomery Advertiser.
Posted at 07:32 by Howard Bashman



"Orthodox Couple Seeks Tax Break; Parents See Scientology School Precedent": Josh Gerstein has this article today in The New York Sun. And The Associated Press reports that "Calif. Couple Seeks Religious Tax Break."
Posted at 07:30 by Howard Bashman



"Spat over Specter may be subsiding; Senator riled abortion foes with comments about Supreme Court nominees": The Pittsburgh Post-Gazette contains this article today.

The Philadelphia Inquirer today contains an article headlined "For Specter, the trouble may be mostly in timing; His abortion remarks weren't new, but they energized critics flushed with election victory"; an editorial entitled "Judiciary Committee: It's Specter's turn; he deserves a shot"; and an op-ed by columnist John Grogan entitled "The Far Right draws a bead."

The Providence (R.I.) Journal reports today that "Chafee ends speculation: He'll remain a Republican; After angering many in his party with Election Day comments, the senator says he was partly swayed by GOP leaders in the Senate."

The Daily Times of Delaware County, Pennsylvania contains an editorial entitled "Specter just being honest about his views."

The Manchester Union Leader contains an editorial entitled "Supplant Specter: Bush needs better judiciary chairman."

In The Boston Globe, columnist Thomas Oliphant has an op-ed entitled "Why the Specter flap matters."

And Thomas Sowell has an essay entitled "An ominous Specter."
Posted at 07:22 by Howard Bashman



"Bush faces heated battle to choose a chief justice": This article appears today in The Times of London. The Denver Post today contains an article headlined "Court crusade in Springs: Colo. groups lead national call for conservative justices." And The Washington Times today contains an op-ed by Bruce Fein entitled "Public confidence Supreme."
Posted at 07:20 by Howard Bashman



In news from Washington State: The Seattle Post-Intelligencer today contains articles headlined "Court to consider convicts' prison terms; Should sentences that exceeded guidelines be cut?"; "Court lets Syrian family stay in U.S.; Unanimous ruling comes after many legal mishaps"; "Microsoft makes antitrust deals"; "Ex-prosecutor charged with attempted murder; Joice accused of shooting Bellevue lawyer in his car"; and "A week later and the counting goes on...; Percentage margin narrows with about 200,000 votes left."

The Seattle Times, meanwhile, today contains articles headlined "Court panel halts family's deportation, blames lawyers for series of missteps"; "Microsoft settles two big fights"; "Police say attorney plotted shooting"; and "Provisional ballots may decide governor race."
Posted at 07:04 by Howard Bashman



Monday, November 08, 2004
"Supreme Court Strategy": This editorial (free access provided) will appear in Tuesday's edition of The Wall Street Journal.
Posted at 23:35 by Howard Bashman



"Tribunals Derail As Judge Invokes Geneva Convention": Jess Bravin will have this article (free access provided) in Tuesday's issue of The Wall Street Journal. Relatedly, at "SCOTUSblog" Lyle Denniston has a post titled "War on Terrorism -- Back to the Court?"
Posted at 23:33 by Howard Bashman



"Beyond 'Sweetie'": An article in the Education Life section of yesterday's issue of The New York Times begins, "Elena Kagan, the first female dean of Harvard Law School, had an epiphany in the women's bathroom at a conference hall in Cambridge, Mass., last year."
Posted at 23:32 by Howard Bashman



"Critics Assail Study of Race, Law Students": This article (free access provided) appeared in Friday's issue of The Wall Street Journal. The study's author is guest-blogging about the study this week at "The Volokh Conspiracy." His most recent post can be accessed here.
Posted at 23:28 by Howard Bashman



"Critics say Specter's timing, tone set off political firestorm": An article that will appear in Tuesday's issue of The Philadelphia Inquirer begins, "Sen. Arlen Specter set off the controversy jeopardizing his Judiciary Committee chairmanship by saying little that was new."
Posted at 23:11 by Howard Bashman



"Evolution textbooks row goes to court": Tuesday's issue of The Guardian (UK) contains this article.
Posted at 23:10 by Howard Bashman



"The gay marriage debate": This segment (transcript here; RealAudio here) appeared on this evening's broadcast of the PBS program "The NewsHour with Jim Lehrer."
Posted at 23:05 by Howard Bashman



"Judge Says Detainees' Trials Are Unlawful; Ruling Is Setback For Bush Policy": Tuesday's edition of The Washington Post will contain this front page article.
Posted at 23:04 by Howard Bashman



"Applying Lessons of Korematsu to the War on Terror": Senior Ninth Circuit Judge A. Wallace Tashima, whom I had the pleasure of meeting in Philadelphia not too long ago, delivered this speech on Saturday night at a conference commemorating the 60th anniversary of landmark legal cases challenging the internment of Japanese American citizens during World War II.
Posted at 23:00 by Howard Bashman



The Rainbow People minus Judge Dave: The U.S. Court of Appeals for the Ninth Circuit issued this decision today.
Posted at 22:58 by Howard Bashman



"Taking on thyroid cancer": Tuesday's edition of USA Today will contain an article that begins, "Supreme Court Chief Justice William Rehnquist's diagnosis of thyroid cancer, announced late last month, comes at an time when research in the malignancy -- which experts say was stalled for many years -- is suddenly taking off."
Posted at 22:55 by Howard Bashman



In Tuesday's edition of The New York Times: Linda Greenhouse will have an article headlined "Supreme Court Declines to Hear 2 Cases Weighing the Right of Felons to Vote."

Neil A. Lewis will report that "U.S. Judge Halts War-Crime Trial at Guantanamo."

And in news from Georgia, "Stickers Put in Evolution Text Are the Subject of a Federal Trial."
Posted at 22:50 by Howard Bashman



Available online from law.com: Tony Mauro reports on "Mixed Signals From Supreme Court on Felon Voting Rights."

Marcia Coyle reports that "Supreme Court Reviews Taxes on Contingency Fees; Justices suggest plaintiffs may have to pay tax."

In news from Georgia, "Evolution vs. Creation Trial Starts With a Big Bang; ACLU calls biology textbook disclaimer 'an endorsement of religion.'"

And an article reports that "GOP Gains Could Revive Class Action Reform; Med-mal, asbestos, other issues among the formerly lost causes moving off the back burner since the national election."
Posted at 22:33 by Howard Bashman



"Coach Humbled by Attention Over Title IX": The Associated Press provides a report that begins, "An Alabama high school coach says he was just trying to get equality for his girls' basketball team when he complained about its treatment. His legal battle to regain his job will reach the Supreme Court at the end of the month."
Posted at 20:45 by Howard Bashman



Reuters is reporting: Now available online are articles headlined "Moderate Senator Fights for Top Judiciary Post" and "Georgia School Board in Court Over Evolution Flap."
Posted at 20:44 by Howard Bashman



"AGs, artists urge top court to hear P2P case": c|net News.Com reports here that "A broad list of copyright owners, artists, law professors and state attorneys general on Monday asked the Supreme Court to hear a controversial case on the legality of file-swapping software." And The Associated Press reports that "Court Urged to Hear File-Sharing Case."
Posted at 20:40 by Howard Bashman



News updates available online from The Los Angeles Times: Now available are articles headlined "Government Suffers Setback in Guantanamo Trials; A judge rules the military short-circuited the rights of Osama bin Laden's driver, who is a detainee at the Cuba base" and "Judge Rejects Peterson's Bid for Mistrial."
Posted at 20:30 by Howard Bashman



Available online at "SCOTUSblog": Lyle Denniston reports on "Moussaoui's planned appeal to the [U.S. Supreme] Court." And Tom Goldstein has a post titled "John Roberts Post #2."
Posted at 19:24 by Howard Bashman



"Specter: 'I'm pro-choice ... But I don't make the decisions.'" CNN.com has posted online this transcript of an interview with U.S. Senator Arlen Specter (R-PA) today on CNN's "Judy Woodruff's Inside Politics."

In related commentary, The Kalamazoo Gazette today contains an editorial entitled "Specter flap bodes ill for any real unity."
Posted at 19:10 by Howard Bashman



Available online from National Public Radio: This evening's broadcast of "All Things Considered" contained segments entitled "Specter Comments Cause GOP Controversy"; "Judge Stops Pretrial Hearing for Guantanamo Prisoner"; "Suit Challenges Evolution Disclaimers on Textbooks"; and "Microsoft Makes Concessions in Antitrust Case."

And today's broadcast of "Morning Edition" contained segments entitled "Guantanamo Prisoners Challenge their Detention" and "Details About Guantanamo Detainees Begin to Unfold."

Real Player is required to launch these audio segments.
Posted at 17:44 by Howard Bashman



"Judge Rules Guantanamo Trials Unlawful; Combatant Trials Cannot Continue in Current Form, Judge Order": The Washington Post provides this news update. And The Miami Herald offers a news update headlined "U.S. war crimes hearing suddenly halted."
Posted at 17:35 by Howard Bashman



"Supreme Court Considers Bad Arrests Case": Hope Yen of The Associated Press provides this report.
Posted at 17:05 by Howard Bashman



"Trial of Guantanamo Prisoner Put on Hold by Judge": James Vicini of Reuters provides this report.
Posted at 16:12 by Howard Bashman



Available from National Review Online: Deroy Murdock has an essay entitled "His Own Worst Enemy: This isn't about liberal Republicans, it is about Arlen Specter." And Kathryn Jean Lopez has an essay entitled "'A Man of His Word': Listen to what Specter said."
Posted at 16:04 by Howard Bashman



In news from the Scott Peterson trial: The Modesto Bee provides a news update headlined "Jurors appear to be at an impasse." And The San Francisco Chronicle provides a news update headlined "Peterson jury appears to be having difficulty reaching verdict." Today's print edition of The SFChronicle contains an article headlined "When tea leaves become headlines; As Peterson jury is sequestered, pundits frantic for clues."
Posted at 15:57 by Howard Bashman



"Specter haunts Judiciary": This editorial appeared yesterday in The Mobile Register.
Posted at 14:42 by Howard Bashman



BREAKING NEWS -- U.S. District Court for the District of Columbia holds that Guantanamo military commission procedures are unlawful: You can access today's ruling at this link. U.S. District Judge James Robertson issued today's ruling in a case involving Salim Ahmed Hamdan, who is alleged to have been Osama bin Laden's bodyguard and driver between 1996 and 2001. In early press coverage, The Associated Press is reporting that "Court Ruling Halts Guantanamo Hearings."
Posted at 14:34 by Howard Bashman



Tort reform in action? The Associated Press reports that "Bryant Accuser May Move Suit to Calif." And yesterday, The Denver Post contained articles headlined "Lawyer: Calif. suit eyed to escape damage caps" and "Trial preparation upset Bryant's accuser; The woman's civil-case lawyer has said the grueling but standard mock cross-examination was likely key in her decision not to go forward."
Posted at 14:22 by Howard Bashman



"Ten Commandments Monuments Violate First Amendment": Law Professor Paul Finkelman has this guest post online at "ACSblog."
Posted at 14:20 by Howard Bashman



"Trial begins over Cobb's evolution disclaimers": The Atlanta Journal-Constitution provides this news update.
Posted at 14:18 by Howard Bashman



Attention Senator Santorum: Online at Slate today, Emily Yoffe has an essay entitled "Go Ahead, Sleep With Your Dog; And, no, we don't mean it that way." Or, as a reporter for The Associated Press once observed, "I'm sorry, I didn't think I was going to talk about 'man on dog' with a United States senator, it's sort of freaking me out."
Posted at 12:40 by Howard Bashman



Dot-sucks: The U.S. Court of Appeals for the Eighth Circuit today issued a decision affirming the dismissal of a libel claim that a home builder brought against two individuals who, after moving in to a home built by the plaintiff, set up a web site "describing their dissatisfaction with the condition of the home and making unflattering statements about [the builder] and its business practices." In somewhat related news, the proposed "dot-sucks" top level domain appears to be going nowhere fast. See here, here, and here.
Posted at 12:20 by Howard Bashman



The "O'Kennedy Court": In yesterday's issue of The Washington Post, Edward Lazarus had an op-ed entitled "The Supreme Court: Why the Scales Won't Tip."
Posted at 11:20 by Howard Bashman



"Turning Out Trial Lawyers, Inc.; Election Day brought good news for tort reform": Jim Copland has this essay today at National Review Online.
Posted at 10:30 by Howard Bashman



Today's U.S. Supreme Court Order List: It is available online at this link. The Court did not grant review in any cases today. And at "SCOTUSblog," Marty Lederman is reporting the Court's announcement that one or more opinions in argued cases will issue tomorrow. Will it be time to say goodbye to the Federal Sentencing Guidelines? We shall see.

In early press coverage of today's developments at the Court, Hope Yen of The Associated Press reports that "Court Won't Consider Felon Voting Case" and "High Court Passes on Chiropractor Lawsuit." In other news, The AP reports that "Court Will Not Consider Coast Guard Case." And James Vicini of Reuters reports that "Justices Refuse to Review Inmate Voting Rights."
Posted at 10:00 by Howard Bashman



On the agenda: At 10 a.m. today, the Supreme Court of the United States is scheduled to issue an Order List.

Tomorrow evening at 6:30 p.m., the University of Pennsylvania Law School's chapter of the American Constitution Society hosts a "Federal Judges Panel" featuring Circuit Judges Theodore A. McKee of the U.S. Court of Appeals for the Third Circuit; Diana Gribbon Motz of the U.S. Court of Appeals for the Fourth Circuit; Ilana Diamond Rovner of the U.S. Court of Appeals for the Seventh Circuit; and Charles R. Wilson of the U.S. Court of Appeals for the Eleventh Circuit.

This Wednesday evening, Seventh Circuit Judge Richard A. Posner will be on the radio promoting his newest book. For details, please consult this earlier post.

On Thursday and Friday of this week at the Westin New York at Times Square, DRI will be hosting its fifth "Appellate Advocacy Seminar." The event has a top-notch faculty, and I'll even be making a presentation on Thursday afternoon.

And beginning this Friday and lasting through the weekend in Dallas, Texas, the Council of Appellate Lawyers of the ABA Judicial Division's Appellate Judges Conference will co-host a program titled "Council of Appellate Lawyers & Appellate Judges Summit."
Posted at 09:55 by Howard Bashman



"Should the Ninth Circuit be Divided?" That's the subject of this week's "Debate Club" feature online at legalaffairs.org. The participants in this week's debate are Jennifer Spreng and Carl Tobias.
Posted at 09:50 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Georgia Evolution Case Heads to Court"; "Hinckley Asking Judge for More Freedom"; and "Microsoft Announces Legal Settlements."
Posted at 09:45 by Howard Bashman



"Scientologist Tax Trial to Open Today": In today's issue of The New York Sun, Josh Gerstein has an article that begins, "A California accountant who sends his children to Orthodox Jewish schools is to appear in federal court this morning to attempt to force the Internal Revenue Service to grant him the same tax deduction for religious instruction that it accords to members of the Church of Scientology."
Posted at 09:40 by Howard Bashman



"State Supreme Court would put a veil over courtroom proceedings": The Morning Call of Allentown, Pennsylvania contains this editorial today.
Posted at 07:02 by Howard Bashman



"New death penalty case allows for further limits": This editorial appears today in The Republican of Springfield, Massachusetts.
Posted at 07:00 by Howard Bashman



USA Today is reporting: Today's newspaper contains articles headlined "Guantanamo proceedings full of challenges; Military officers stumble through first tribunal since World War II" and "Hearings highlight frustration, differences."
Posted at 06:58 by Howard Bashman



In today's edition of The News & Observer of Raleigh, North Carolina: The newspaper contains articles headlined "Deeper anxiety may fuel same-sex marriage bans" and "Friends, critics size up Burr; Senate win puts him on new stage."
Posted at 06:56 by Howard Bashman



"Judiciary's ethics lost in Supreme Court race": Columnist Pat Gauen has this essay today in The St. Louis Post-Dispatch.
Posted at 06:55 by Howard Bashman



"ABQ's Campaign Spending Case Gets Attention": The Albuquerque Journal today contains an article that begins, "The city of Albuquerque has caused a sensation with its request for a U.S. Supreme Court review of local campaign-spending limits."
Posted at 06:54 by Howard Bashman



"Military panels hear captives' side of story; U.S. military officers are holding hearings at Guantanamo Bay to try to distinguish between innocents and enemies among the 550 captives": The Miami Herald contains this article today.
Posted at 06:32 by Howard Bashman



"Bill Pryor to replace Ashcroft?" This article appears today in The Mobile Register.
Posted at 06:27 by Howard Bashman



"Speculation and the Art of Silence": Joyce Purnick's "Metro Matters" essay published today in The New York Times focuses on U.S. Senator Charles Schumer (D-NY).
Posted at 06:24 by Howard Bashman



"Tort Reform: Is The Road Clear At Last? The President's reelection is likely to bring some of the victories against trial lawyers that business longs for." This article appears in the November 15, 2004 issue of BusinessWeek magazine.
Posted at 06:18 by Howard Bashman



"The Scalia Court": FindLaw columnist Joanne Mariner has this essay today.
Posted at 06:17 by Howard Bashman



"Courting only politics?" This editorial appears today in The Palm Beach Post.
Posted at 06:16 by Howard Bashman



"Election's effect on abortion uncertain": This article appears today in The Minneapolis Star Tribune.
Posted at 06:15 by Howard Bashman



"Specter Defends Record on Judiciary; The GOP senator who backs abortion rights counters opposition to his chairmanship": The Los Angeles Times contains this article today. The Washington Times reports that "Specter denies pro-choice litmus test." And The New York Daily News contains an article headlined "Specter: I'd OK abort-foe judge."

In commentary, The Morning Call of Allentown, Pennsylvania today contains an editorial entitled "Sen. Specter's post-election warning could cost him on Judiciary Committee." And in The Chicago Sun-Times, columnist Robert Novak has an essay entitled "Specter blunders on Roe vs. Wade."
Posted at 06:10 by Howard Bashman



Sunday, November 07, 2004
"Furor Continues Over Specter Comments on Nominees": This article will appear Monday in The Washington Post.
Posted at 22:54 by Howard Bashman



In Monday's edition of The New York Times: Neil A. Lewis will have an article headlined "Guantanamo Prisoners Getting Their Day, but Hardly in Court."

And in other news, "Even With Campaign Finance Law, Money Talks Louder Than Ever."
Posted at 22:34 by Howard Bashman



"What lies ahead for Roe v. Wade?" This article appears today in The Intelligencer of Doylestown, Pennsylvania.
Posted at 21:52 by Howard Bashman



"Conservative leader targets Specter; Senator says opponents misconstrued his remarks on abortion": CNN.com provides this report.
Posted at 20:40 by Howard Bashman



In today's issue of The Washington Times: An article reports that "New marriage laws facing court tests." And Thomas Sowell has an op-ed entitled "A narrow escape" in which he looks at the issue of federal judicial appointments.
Posted at 19:20 by Howard Bashman



In today's edition of The Boston Globe: An article reports that "Gay-marriage ruling pushed voters; Mobilized Bush, left Kerry wary." Columnist Thomas Oliphant has an op-ed entitled "The gay marriage deception." Columnist Eileen McNamara has a related essay entitled "Inoffensive, ineffective."

And in other news, "Court's decision leaves Lynn in a predicament; School system faces future without race-based policy."
Posted at 19:14 by Howard Bashman



"Dirty driving: a distraction or a right?" Paul K. McMasters, the First Amendment Center ombudsman, has this essay today.
Posted at 19:08 by Howard Bashman



"Court to weigh in on evolution feud; Parents sue Cobb schools for putting disclaimers in books that teach the theory": This article appears today in The Atlanta Journal-Constitution.
Posted at 19:05 by Howard Bashman



In news from Wisconsin: The Milwaukee Journal Sentinel reports today that "Court to consider if parents should be at interrogations."

And last Tuesday, the Supreme Court of Wisconsin announced here the adoption of a new code governing judicial elections. The Associated Press reports that "Rules for judicial candidates divide Wisconsin high court."
Posted at 18:22 by Howard Bashman



Choose litigation: United Press Syndicate columnist James J. Kilpatrick has this essay about the litigation surrounding "Choose Life" license plates. In the essay, he writes that "It seems to me likely that the Supreme Court will accept the state's appeal in the South Carolina case."
Posted at 18:16 by Howard Bashman



"Rape Suspect Hospitalized Until Hearing; Former O.C. lawman's teenage son will get psychiatric care as he awaits a Nov. 15 session on possible bail violations": This article appeared yesterday in The Los Angeles Times.
Posted at 18:14 by Howard Bashman



In today's edition of The Los Angeles Times: An article is headlined "Spirited Fight Over Wine Sales; The Supreme Court will hear arguments in a bitter war between smaller vintners and national liquor wholesalers on interstate commerce rules."

And in other news, "Rights a Victim of Terror War, U.S. Judge Says; A. Wallace Tashima, in a talk in L.A., decries the courts' failures when he was interned in World War II and warns 'it's happening...again.'"
Posted at 18:12 by Howard Bashman



"In Hart, county up, city down on Commandments displays": This article appears today in The Athens (Ga.) Banner-Herald. And The Associated Press reports that "Hartwell city council votes against Ten Commandments display."

In tangentially-related news, the attorney who sued to have a large, granite Ten Commandments monument removed from the rotunda of Alabama's Judicial Building is reported to be under criminal suspicion.
Posted at 16:45 by Howard Bashman



Fifth Circuit recess appointee Charles W. Pickering, Sr., in the news: The Hattiesburg American reports today that "Rabbi gains U.S. citizenship."
Posted at 16:35 by Howard Bashman



From the transcript of today's broadcast of the NBC News program "Meet the Press": The following passage is from Tim Russert's interview this morning of Karl Rove:
MR. RUSSERT: Let me turn to the issue of abortion. As you know, Arlen Specter, the Republican senator from Pennsylvania, is on line to be the next chairman of the Judiciary Committee. He said some things on Election Night, and this is how they were reported: "'When you talk about judges who would change the right of a woman to choose, overturn Roe v. Wade, I think that is unlikely,' Arlen Specter said. `The president is well aware of what happened when a bunch of his nominees were sent up, with the filibuster,' referring to Senate Democrats' success over the past four years in blocking the confirmation of many of Bush's conservative judicial picks. '...And I would expect the president to be mindful of the considerations which I am mentioning.'"

What's your reaction to that?

MR. ROVE: Well, I saw his letter statement where he said he was not applying the litmus test and then he upheld his commitment to the president that if he were to become chairman of the Senate Judiciary Committee, there would be quick hearings, a vote within a reasonable period of time, and that the appellate nominees would be brought to the floor for an up or down vote by the entire Senate. And Senator Specter is a man of his word. We'll take him at his word.

MR. RUSSERT: Is the president comfortable with Arlen Specter being chairman of the Judiciary Committee?

MR. ROVE: That's up to the United States Senate to decide, not the president of the United States. And just as we wouldn't like them to decide who are the staff assistants of the White House, they certainly do not want us determining who's committee chairman on the Hill.

MR. RUSSERT: Is the president obligated to his support from the evangelical Christians to nominate people for the Supreme Court who would overturn Roe v. Wade?

MR. ROVE: The president said during the campaign that in virtually every speech that he gave that he would continue to nominate men and women to the bench who are well-qualified and who would strictly interpret the law, who knew the difference between personal agendas and personal views on the one hand and the strict interpretation of the law. He'll continue to uphold that commitment. He has sent forward some terrific nominees, men and women of tremendous intellectual and legal abilities. And they are people who share his philosophy that judges are to be impartial umpires, not activists, not legislators who just happen to be wearing robes, but to be impartial umpires who strictly interpret the Constitution and apply it.

MR. RUSSERT: Does he think that Roe v. Wade was properly decided?

MR. ROVE: He's going to pick people for the bench and will strictly interpret the law. He's not going to have a litmus test. He's not going to ask judges--potential judges in advance how they would determine cases that might come before them. He thinks that violates the fundamental principle of what judicial nominations ought to be about. He believes that he ought to pick people who will impartially apply--interpret and apply the law, not people who have a political agenda or a personal agenda that they want to pursue on the court.

MR. RUSSERT: Does he think a right of privacy exists under the Constitution?

MR. ROVE: Griswold vs. Connecticut, I'm not sure. I've never discussed Griswold vs. Connecticut with the president.
You can access the complete transcript of today's broadcast at this link.
Posted at 16:28 by Howard Bashman



"Oregon Couples Fret Over Gay Marriage Ban": The Associated Press provides this report.
Posted at 16:17 by Howard Bashman



Chief Justice John G. Roberts, Jr.: Tom Goldstein offers his thoughts on whom President Bush is likely to nominate to be the next Chief Justice of the United States.
Posted at 12:40 by Howard Bashman



"Bennett, Massachusetts, and the jihad against the judiciary": Steve Sanders, at his brand new "Reason & Liberty" blog, offers these thoughts.
Posted at 12:30 by Howard Bashman



The wire services are reporting: The Associated Press offers an article headlined "Rove: Specter Vows Fairness for Nominees." And Reuters reports that "Bush to seek gay-marriage ban in new term."
Posted at 12:20 by Howard Bashman



"Bush and the high court": The Washington Times contains this editorial today. And Charles Bierbauer has an op-ed entitled "Supreme Court does not change its course hastily" in today's issue of The State, a newspaper based in Columbia, South Carolina.
Posted at 12:12 by Howard Bashman



"Specter steams the local Right; Stand on judges, Roe v. Wade a slap in face, says one; 'Nobody can say they weren't warned ...' says opponent Jim Clymer": This article appears today in The Sunday News of Lancaster, Pennsylvania.

And The Pittsburgh Tribune-Review today contains an editorial entitled "Specter's shot" that begins, "Arlen Specter has been many things in his 24 years in the U.S. Senate. An opportunist. A hypocrite. Arrogant. Befuddling. And he hasn't been much of a Republican. Now, add ingrate, obstructionist and master prevaricator."
Posted at 12:10 by Howard Bashman



"The Peterson trial: Modesto residents eager to leave media spotlight." The San Francisco Chronicle contains this article today.
Posted at 12:08 by Howard Bashman



Saturday, November 06, 2004
"Guantanamo Prisoners Continue Dubious Tribunal Parade": This article will appear Sunday in The Los Angeles Times.
Posted at 22:35 by Howard Bashman



"Anti-abortionists protest over Supreme Court line-up": Sunday's edition of The Telegraph (UK) contains an article that begins, "A row over abortion rights and the complexion of the United States Supreme Court is threatening to become the first significant showdown for George W Bush's administration since the President's re-election."
Posted at 19:44 by Howard Bashman



In the November 15, 2004 issue of U.S. News & World Report: The new issue of that magazine will contain articles headlined "Reordering the court: Bush may have the opportunity to name several new justices" and "Keeping a watch on cancer and the court."
Posted at 19:40 by Howard Bashman



In news pertaining to the Supreme Court of Utah: Elizabeth Neff of The Salt Lake Tribune has three such articles today. An article headlined "Medical malpractice cap upheld; The justices defer to lawmakers in ruling for the limit in a case of birth damage" reports on this 3-2 ruling issued yesterday.

An article headlined "Search warrant upheld, even though a previous illegal entry was made" reports on this unanimous decision issued yesterday.

And an article headlined "Reporter's celebrity a court issue" covers a case pending for decision before Utah's highest court.
Posted at 19:30 by Howard Bashman



"The American people have said give us a United States Supreme Court with more people like Clarence Thomas and Antonin Scalia." So writes Boulder Daily Camera columnist Chris Brauchli in an essay published today in that newspaper.
Posted at 15:00 by Howard Bashman



In news from Australia: The Weekend Australian reports in Sunday's issue that "Judge at home on $1200 a day." And Sunday's edition of The Sun-Herald reports that "Shaw signs on at alcohol clinic."
Posted at 14:52 by Howard Bashman



"Abortion Notification Law Debated; New amendment requires parents be told when teens seek procedure": The Ledger of Lakeland, Florida contains this article today.
Posted at 14:50 by Howard Bashman



"Ruling on age case awaited by employers": This article appears today in The Tennessean.
Posted at 14:28 by Howard Bashman



The Sacramento Bee is reporting: Today's newspaper reports that "Soldier's injunction bid denied; Judge will decide lawsuit over extended Guard tour." And in other news, "Rebuked judge transfers case."
Posted at 13:22 by Howard Bashman



In Sunday's edition of The New York Times: Linda Greenhouse will have an article headlined "While Rehnquist Is Treated, Life at the Court Proceeds, but With Sadness and Uncertainty."

An article in the Week in Review section is headlined "On Capitol Hill, the Majority Doesn't Always Rule," while a related graphic is entitled "Some Democrats Perched on the Filibuster Fence."

And in the Sunday Book Review, Christopher Hitchens reviews Law Professor Geoffrey R. Stone's new book, "Perilous Times: Free Speech in Wartime, From the Sedition Act of 1798 to the War on Terrorism."
Posted at 13:04 by Howard Bashman



"Arguments Heard in Hawaiian Schools Case": The U.S. Court of Appeals for the Ninth Circuit has issued this news release. The audio file of Thursday's oral argument is available online at this link (Windows Media Player required). I previously collected press coverage of the oral argument at this link.
Posted at 13:00 by Howard Bashman



"Lawsuit over anti-gay shirt can proceed, judge decides; Student who wore it was taken out of class": This article appears today in The San Diego Union-Tribune. The North County Times reports that "Judge agrees to let student sue Poway district." And The Los Angeles Times offers a newsbrief headlined "Ban on Anti-Gay Shirt Is OK, Court Says."
Posted at 12:55 by Howard Bashman



Newz from New Zealand: As "How Appealing" has previously reported (see here and here), in recent months both Justice Antonin Scalia of the U.S. Supreme Court and Judge Diarmuid F. O'Scannlain of the U.S. Court of Appeals for the Ninth Circuit have visited New Zealand. By clicking on their names in the preceding sentence, you can view photos of them taken during their respective visits made available online via the web site of the United States Embassy in New Zealand.
Posted at 11:00 by Howard Bashman



Available online from law.com: Tony Mauro has an article headlined "Will Bush's New Term Bring More Battles Over Judicial Nominees?" And Shannon P. Duffy has an article headlined "3rd Circuit: Taking of Hair Sample Not a 'Search'" reporting on this recently-issued non-precedential ruling of the U.S. Court of Appeals for the Third Circuit.
Posted at 10:55 by Howard Bashman



"The Case Against Kobe Bryant Unraveled in a Mock Trial; The accuser, already frustrated by court errors and strife in the legal team, buckled under tough practice questioning": This lengthy article appears today in The Los Angeles Times.
Posted at 10:50 by Howard Bashman



The Houston Chronicle is reporting: Today's newspaper contains an article headlined "Gonzales considers Supreme Court's future; Bush counsel is listing potential justice nominees, but he won't say if he's one of them." And Mary Flood reports that "Jury to continue deliberations on sentences of 3; Judge asks panel to weigh in on 7 factors used to help decide fates."
Posted at 10:12 by Howard Bashman



"Bush has a chance to remake high court": Michael McGough of The Pittsburgh Post-Gazette has this article today. The Fort Worth Star-Telegram today contains an article headlined "Texan may be high court choice" and an editorial entitled "Unclear road ahead." And The St. Petersburg Times today contains an editorial entitled "Bush's bench: With Democratic opposition in the Senate weakened, the president will use his next term to leave a lasting mark on the federal judiciary."
Posted at 07:44 by Howard Bashman



"Hatch to no longer lead Senate judiciary panel": This article appears today in The Salt Lake Tribune.

In related coverage, The New York Times reports today that "Abortion Remark by G.O.P. Senator Puts Heat on Peers." The Washington Times reports that "Judiciary chairmanship looms as abortion issue." And The Chicago Tribune contains articles headlined "Senate can limit Bush plans; Oil drilling, tort reform face hurdles despite GOP gains" and "Durbin to be Senate whip; Democrats choose Illinois' senior senator for 2nd-ranking post."
Posted at 07:34 by Howard Bashman



Friday, November 05, 2004
In news from Australia: The Australian reports in Saturday's edition that "Shaw gives in to blood pressure" and "A drink-drive conviction may not cost judge his job." And in today's issue of that newspaper, Brad Norington has a comment entitled "Ethics and obligation ... Shaw's vial dilemma."

Saturday's issue of The Sydney Morning Herald contains articles headlined "I'll face the music, says Justice Shaw, as he hands over blood sample"; "Waiting for his toughest judgment; A faultless legal and political reputation won't save Jeff Shaw from coming under scrutiny"; and "Powerful watchdog -- with limited bite." And today's issue of that newspaper contains an article headlined "Police watchdog seizes judge crash case" and an essay by columnist Richard Ackland entitled "Old Mates Act needs judging, too."
Posted at 22:00 by Howard Bashman



"Supreme Court fight starts early: What are the odds of reversing Roe v. Wade?" NBC News Justice correspondent Pete Williams provides this report.
Posted at 21:40 by Howard Bashman



"Student can file federal suit over T-shirt ban, court says": The San Diego Union-Tribune provides a news update that begins, "A Poway High School student who claims his free speech rights were violated when school officials suspended him for wearing an anti- gay T-shirt can go forward with a federal lawsuit, a judge ruled today."
Posted at 21:20 by Howard Bashman



"Lawsuit over courthouse quote withdrawn": The North County Times of San Diego and Riverside Counties, California today contains an article that begins, "A Temecula law firm has withdrawn its lawsuit to stop judges from covering up a presidential quote in a Riverside County courthouse, a display that a civil rights group found objectionable."
Posted at 21:18 by Howard Bashman



In other news relating to Alabama: The Birmingham News reports that "Moore speaks to controversial church group; Photographed at event with Texas segregationist." And CNN.com reports that "Alabama faces recount over segregationist laws; Amendment would remove long-unenforced provisions."
Posted at 21:11 by Howard Bashman



"GOP vote success may ease Mich. judge confirmations": The Detroit News today contains an article that begins, "President George W. Bush's re-election and an increased Republican majority in the U.S. Senate have the potential to end the long wait for four Michigan judges nominated to the U.S. 6th Circuit Court of Appeals whose confirmation has been blocked by Democratic Sens. Carl Levin and Debbie Stabenow. But then again ... maybe not." This is among the issues I discuss in my monthly appellate column tentatively headlined "Edith H. Jones for Chief Justice" to be published Monday in The Legal Intelligencer.
Posted at 21:10 by Howard Bashman



"Sessions hoping Pryor gains permanent U.S. judgeship; Renomination of state's ex-attorney general could re-ignite controversy over appointment": This article appears today in The Birmingham News.
Posted at 21:05 by Howard Bashman



"Ballots and the bench: The election's impact on the Supreme Court -- and abortion -- could be huge." The Medill News Service provides this report.
Posted at 21:02 by Howard Bashman



"Walker: Specter will survive." This article appears today in The Lancaster (Pa.) New Era. And in somewhat related coverage, the Newhouse News Service reports that "Senate Moderates Will Be the Brakes on Bush's Second Term."
Posted at 21:00 by Howard Bashman



"Jurors deliberate unorthodox Enron sentencing": Mary Flood of The Houston Chronicle provides this news update.
Posted at 20:50 by Howard Bashman



"Guantanamo Trials Proceed with New Rules": This evening's broadcast of NPR's "All Things Considered" included this report (Real Player required).
Posted at 20:40 by Howard Bashman



"Supreme Court unlikely to make a wild swing to the right, experts say": Stephen Henderson of Knight Ridder Newspapers provides this report. I agree that in replacing Chief Justice William H. Rehnquist it will be difficult for the U.S. Supreme Court to swing to the right. What remains to be seen is whether President Bush accidentally, or Democrats in the U.S. Senate on purpose, will cause the Court to swing to the left.
Posted at 20:08 by Howard Bashman



"Judge Will Not Block Guardsman's Return to Iraq": Reuters reports here from Sacramento, California that "A U.S. federal judge declined on Friday to release an Army National Guardsman from an order returning him to Iraq, despite a complaint that his time under arms was extended wrongly without his consent."
Posted at 20:04 by Howard Bashman



Available online from Slate: Dahlia Lithwick and Alex Lithwick have an essay entitled "Moving to Canada, Eh? Let Slate help you decide if it's really for you." Slate's explainer addresses "Could the Blue States Secede? Is there a legal way to opt out of the Union?" And Paul Freedman has an essay entitled "The Gay Marriage Myth: Terrorism, not values, drove Bush's re-election."
Posted at 19:15 by Howard Bashman



U.S. Court of Appeals for the Federal Circuit warns that step-four brief in a cross-appeal must be limited solely to issues presented by the cross-appeal: See this per curiam order issued today.
Posted at 16:50 by Howard Bashman



In news from Washington State: The Daily Herald of Everett, Washington reports today that "Lawyer's arrest shocks friends; A former deputy prosecutor is charged with attempted murder in the shooting of a fellow attorney." The King County Journal reports today that "Witness I.D.'s rival attorney as shooter." The Seattle Post-Intelligencer reports today that "Lawyers in shooting case opposing counsel; Suspect represented couple sued by clients of victim." And The Seattle Times reports that "What led to shooting of lawyer still a puzzle."

In other news, The Seattle Times reports that "ACLU argues in court against U.S. no-fly list." The Seattle Post-Intelligencer offers an article headlined "ACLU: 'No-Fly List' discriminates against travelers stopped repeatedly." And The King County Journal reports that "Sammamish minister challenges no-fly list."

Finally, who won the post of Governor of Washington State at the polls this past Tuesday is still far from being established with certainty. The Seattle Times reports that "King County absentees widen lead for Gregoire." The Seattle Post-Intelligencer offers an updated report headlined "Governor's race: Slight lead for Gregoire." And The New York Times reports that "Washington State Governor's Race Is Still Squeaking."
Posted at 16:30 by Howard Bashman



Other rather obvious picks for the U.S. Supreme Court: Other bloggers suggest Richard A. Posner or Diarmuid F. O'Scannlain. As long as President Bush picks someone who has participated in this blog's "20 questions for the appellate judge" feature, I'll be satisfied.
Posted at 15:13 by Howard Bashman



"Fight Over Judicial Nominees Will Go On": Jesse J. Holland of The Associated Press provides this report, which states that Democrats "have no plans to go any easier on Bush's judicial nominations."
Posted at 15:05 by Howard Bashman



"Catastrophe: Risk and Response." Seventh Circuit Judge Richard A. Posner's latest book is now available for purchase, just in time for the holiday season.

On Wednesday, November 10, 2004 at 9:05 p.m. central time, Judge Posner will be interviewed about his new book on WGN-AM Radio in Chicago. The blurb for the program states:
Can you really predict catastrophes? What are the odds of a tornado? Is there are chance that an asteroid could hit the earth? Is it probable that we will have another nuclear disaster? Richard Posner, judge of the Seventh Circuit U.S. Court of Appeals, says that you can predict catastrophes and thus formulate a proper response. He expounds his theory in his new book Catastrophe: Risk and Response, and he joins the program tonight to discuss the possibility of the unthinkable and the best way to respond.
The broadcast can he heard live online via this link.

And for those willing to pay serious money to watch a lunch hour debate, on Friday, November 19, 2004 in New York City (assuming no asteroid has destroyed Earth by then), Judge Posner will debate Ninth Circuit Judge Alex Kozinski on the topic of "Fair Use After Eldred." (Final two links courtesy of the blog "Underneath Their Robes.")
Posted at 14:30 by Howard Bashman



¡Ay, Chihuahua! Seventh Circuit Judge Richard A. Posner today issued an interesting opinion deciding an insurance coverage dispute involving Taco Bell and the "Psycho Chihuahua."
Posted at 14:26 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "U.S. Report Details Guantanamo Abuses" and "Web Site for Complaints Sparks Lawsuit."
Posted at 14:18 by Howard Bashman



At least The Washington Post didn't call him Justice "Clearance" Thomas: This article published today in The Washington Post refers to Justice "Anton" Scalia.
Posted at 13:20 by Howard Bashman



Thus far, Sasquatch could not be reached for comment: Canadian Press reports that "Saskatchewan court rules traditional definition of marriage unconstitutional." And The Toronto Globe and Mail offers a news update headlined "Saskatchewan to allow same-sex marriages."
Posted at 13:00 by Howard Bashman



"The Door for Specter: Republicans should forgo tradition when determining the next judiciary chairman." This editorial appears today at National Review Online.

Also, at "The Volokh Conspiracy," Todd Zywicki has a post in which he responds to "Specter defenders."
Posted at 12:32 by Howard Bashman



"Christians See Court Appointments as Top Bush Aim": Reuters provides this report.
Posted at 12:29 by Howard Bashman



Death be not bifurcated? The Boston Globe today contains an article headlined "New juries must weigh sentence in capital case" that begins, "A federal judge in Boston has ruled that if juries convict two alleged gang members of murder next year, different juries must decide whether the men should get the death penalty." And The Associated Press reports that "Judge Orders Two Juries in Capital Case." Wednesday's ruling by U.S. District Judge Nancy Gertner can be accessed at this link.
Posted at 12:24 by Howard Bashman



In news from Hawaii: A three-judge panel of the U.S. Court of Appeals for the Ninth Circuit yesterday heard oral argument in a lawsuit challenging the Kamehameha Schools' century-old Hawaiian-preference admissions policy. In news coverage of the oral argument, The Honolulu Advertiser reports today that "Kamehameha Schools await ruling." And The Honolulu Star-Bulletin today contains articles headlined "Appeals court's queries leave trustee hopeful; The panel of three judges delves into the school's history and its source of funds" and "School supporters pray for a favorable ruling." As of this moment, the Ninth Circuit has yet to post online the audio recording from this oral argument.
Posted at 12:15 by Howard Bashman



You can't confirm a known opponent of Roe v. Wade to the U.S. Supreme Court? Here's my reply to some of the emails that have already arrived in response to the post located immediately below this one. Chief Justice William H. Rehnquist is on record as believing that Roe was wrongly decided. Nevertheless, the Court currently has six other Justices who have voted to uphold Roe's central holding. If Chief Justice Rehnquist cannot be replaced by someone else who is already on record as believing that Roe was wrongly decided, then what lesson is to be drawn from this past Tuesday's results?
Posted at 11:54 by Howard Bashman



"Edith H. Jones for Chief Justice": That's the working title of my monthly appellate column to be published on Monday, November 8, 2004 in The Legal Intelligencer.

In this month's column, I explain why President Bush is likely to nominate the next Chief Justice of the United States from among a group consisting of Fifth Circuit Judges Edith H. Jones and Jerry E. Smith and Fourth Circuit Judges J. Michael Luttig and J. Harvie Wilkinson III. On my list as longshots are Third Circuit Judge Samuel A. Alito, Jr. and California Supreme Court Justice Janice Rogers Brown.

The column also addresses how the U.S. Senate's new composition may affect judicial filibusters. And the column considers as likely nominees Miguel A. Estrada for Solicitor General and Eleventh Circuit recess appointee William H. Pryor, Jr. for Attorney General.
Posted at 10:01 by Howard Bashman



"Life After Daschle: Will a 55-seat majority be enough to end Senate obstructionism?" Kimberley A. Strassel has this op-ed today in The Wall Street Journal.
Posted at 09:00 by Howard Bashman



"How The High Court And The Media Aggravate Polarization": Stuart Taylor Jr. has this essay in the current issue of National Journal.
Posted at 08:50 by Howard Bashman



"Court gives judge stinging rebuke; The appellate panel publicly upbraids a capital jurist for putting pressure on a deadlocked jury": This article, reporting on a ruling of the California Court of Appeal for the Third Appellate District, appears today in The Sacramento Bee.
Posted at 08:45 by Howard Bashman



"Gay marriage ill-suited for kids, group argues": Bob Egelko of The San Francisco Chronicle today has an article that begins, "An organization defending California's ban on same-sex marriage sought to widen the scope of a court test of the marriage law Thursday by arguing that the purpose of marriage is procreation and that children do best when raised by a husband and wife."
Posted at 08:42 by Howard Bashman



"Killer's death sentence lifted; Supreme Court rules sight of man's shackles could have affected jurors": This article appears today in The Seattle Post-Intelligencer. The Seattle Times reports that "High court overturns killer's death sentence." Yesterday's ruling of the Supreme Court of Washington State can be accessed online at the following links: majority opinion; concurring opinion; partially dissenting opinion.
Posted at 07:25 by Howard Bashman



Available online from law.com: Tony Mauro reports that "Supremes May Consider Convicted Felons' Voting Rights." And in news from Georgia, "Evolution, Creation Collide in Federal Court (Again); Parents challenge disclaimer in biology textbook."
Posted at 07:20 by Howard Bashman



USA Today is reporting: Today's newspaper contains articles headlined "Rehnquist is away from workplace, not from work"; "Girls coach at center of critical Title IX clash; High court to decide if law protects whistle-blowers"; and "Ashcroft likely to resign as attorney general; Justice Dept. tenure marked by controversy."
Posted at 07:15 by Howard Bashman



"Despite G.O.P. Gain, Fight Over Judges Remains": This article appears today in The New York Times. In The Washington Post, Helen Dewar and Charles Lane report that "Specter Denies Warning Bush Over Court Nominees." The Los Angeles Times reports that "Judicial Remarks Stir Conservatives." The Philadelphia Inquirer contains an article headlined "Specter: His abortion remark puts panel leadership at risk." The Des Moines Register reports that "Lawmaker wants Grassley on judiciary panel; State Rep. Dan Boddicker says the senator should run the Judiciary Committee, instead of Arlen Specter."

And in commentary, The Washington Times contains an editorial entitled "All eyes on Sen. Specter."
Posted at 07:05 by Howard Bashman



"Court appointees likely in second Bush term; Speculation centers on ailing Rehnquist": CNN.com provides this report.
Posted at 07:00 by Howard Bashman



Thursday, November 04, 2004
"Specter's tough talk angers GOP": The Philadelphia Inquirer provides a news update that begins, "What seemed like a slam dunk for Sen. Arlen Specter (R., Pa.) -- the chairmanship of the potent Senate Judiciary Committee -- today veered into the realm of the unknown."
Posted at 22:04 by Howard Bashman



"Ruling May Limit Lawyer-Press Dealings": The Associated Press today issued this article reporting on a ruling (majority opinion here; dissenting opinion here) that the Supreme Court of Pennsylvania issued last month.
Posted at 21:29 by Howard Bashman



"Bush's chance to shape America's judiciary; With openings looming on Supreme Court, president may soon face a defining battle": Tom Curry of MSNBC provides this report.

Relatedly, Friday's issue of The Milwaukee Journal Sentinel contains an editorial entitled "Tell truth about Rehnquist." And Senator Arlen Specter (R-PA), when speaking yesterday to reporters, seemed to say that the condition of Chief Justice William H. Rehnquist's health is much worse than has been reported. You can view the pertinent remarks by Senator Specter at this link.
Posted at 21:15 by Howard Bashman



"Kamehameha Schools case raises rights issue": The Honolulu Advertiser provides this news update regarding a case argued today before a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit.
Posted at 19:58 by Howard Bashman



"Gay partner denied tax refund": This article appears today in The Minneapolis Star Tribune.
Posted at 19:52 by Howard Bashman



"Specter backtracks from advice on judges": United Press International provides this report. And Reuters reports that "Key Senator Denies Warning Bush on Abortion Issue."
Posted at 19:50 by Howard Bashman



"Taxes and land loom large in Supreme Court": Indian Country Today provides this report.
Posted at 19:45 by Howard Bashman



Linda Greenhouse appeared on this morning's broadcast of C-SPAN's "Washington Journal": You can view her appearance, during which she discussed Chief Justice William H. Rehnquist's illness and answered questions from viewers, by clicking here (Real Player required).
Posted at 19:32 by Howard Bashman



"Considering the Future of Gay Marriage": Today's broadcast of NPR's "Talk of the Nation" included this segment (Real Player required).
Posted at 19:28 by Howard Bashman



"Specter Comments on the Judicial Confirmation Process": Senator Arlen Specter (R-PA) issued this press release today. And The Corner prints a transcript of Senator Specter's comments to reporters yesterday that resulted in the controversial press coverage that I earlier noted here.
Posted at 17:32 by Howard Bashman



"Rehnquist More Likely to Step Aside Now": Gina Holland of The Associated Press provides this report. And The AP also provides this list of "Potential Supreme Court Nominees."
Posted at 17:15 by Howard Bashman



"Aides: Ashcroft Likely to Leave AG Post." The Associated Press reports here that "Attorney General John Ashcroft is likely to leave his post before the start of President Bush's second term, senior aides said Thursday." If true, those of us looking forward to President Bush's nomination and confirmation of a new Solicitor General can also look forward to the nomination and confirmation of a new Attorney General.
Posted at 16:45 by Howard Bashman



"Appeals court restores abortion law": The Oklahoman today contains an article that begins, "A Denver appeals court Wednesday restored an Oklahoma law that makes abortion providers liable for medical costs resulting from abortions performed on a minor without parental knowledge or consent." I first reported on yesterday's ruling of the U.S. Court of Appeals for the Tenth Circuit in a post you can access here.
Posted at 16:40 by Howard Bashman



"Newby tops seven for seat; Republican won 23 percent of vote": The News & Observer of Raleigh, North Carolina today contains an article that begins, "After a close race on election night, federal prosecutor Paul Newby of Raleigh is the winner of an eight-candidate free-for-all election to a seat on the state Supreme Court, besting Judge James Wynn of the Court of Appeals." That contest included a blogging judicial candidate; she appears to have ended up in third place.
Posted at 16:35 by Howard Bashman



Another email regarding the likely composition of the Senate Judiciary Committee: A reader with particular insight into the question that I have posed writes:
For what it is worth, the e-mail suggesting that the Judiciary Committee ratio will be set at 10-8 is correct. Based on recent conversations I've had with Senate folks, this is precisely what is contemplated and likely to occur. Basically, the Senate will return to "regular order" under the Standing Rules now that a clear majority has been established.

On the suggestion that the Democrats place Senator Obama on the Committee, I think this unlikely. With only 8 seats, the current membership is set. Unless someone steps down (and the only one I could imagine would be Senator Kohl, since he's never had much appetite for the judge wars), there is no new seat. If Kohl or another member departs, I imagine that the Democrats could do worse than Obama, whose legal credentials are well established. However, given the coming SCOTUS battles, which are no place for a political novice, an interesting idea would be to place Hillary Clinton on the Committee. There is a huge question whether she and Senator Schumer would serve together, since it weakens New York's representation elsewhere in Senate committees. But, imagine any SCOTUS nominee facing successive questioning from Leahy, Biden, Kennedy, Feingold, Feinstein, Durbin, Schumer and Clinton. Quite a line-up....
Indeed.
Posted at 15:58 by Howard Bashman



"Slate's Jurisprudence: Supreme Court Vacancy?" Today's broadcast of NPR's "Day to Day" included this segment featuring Dahlia Lithwick (Real Player required).
Posted at 15:26 by Howard Bashman



In news from Washington State: This lawyer on lawyer violence must stop. The Daily Herald of Everett, Washington reports today that "County lawyer held in shooting; A former Snohomish County deputy prosecutor is suspected in the shooting of a Bellevue attorney outside his office, police say." The King County Journal reports that "Attorney shot; ex-prosecutor detained." The Seattle Post-Intelligencer reports that "Ex-prosecutor jailed in lawyer's shooting." And The Seattle Times reports that "Attorney in Bellevue critically wounded by gunfire."

Meanwhile, those who hoped to see an election for chief executive drag on indefinitely have had their wish granted in Washington State. The Seattle Post-Intelligencer reports today that "Governor's race is so close, no winner is likely for days." And The Seattle Times today offers reports headlined "Gregoire edges ahead of Rossi; potential for recount looms" and "Gregoire vs. Rossi: Why it's so close."
Posted at 15:12 by Howard Bashman



The U.S. Constitution prohibits excessive bail, but not excessively litigious bail bondsmen: Yesterday, Circuit Judge Richard A. Posner issued an opinion on behalf of a unanimous three-judge panel of the U.S. Court of Appeals for the Seventh Circuit affirming the denial of a preliminary injunction sought by a bail bondsman. The bail bondsman sued under the federal civil rights statute a judge, the city clerk and the city police chief, the judge's court, and the City of Hammond, Indiana, contending that the defendants have a policy of refusing to accept surety bonds.

In a particularly amusing paragraph that addresses the merits of the bail bondsman's cause of action, Judge Posner writes:
So everywhere Smith might turn, relief is blocked; and anyway his theory of liability--that by insisting on cash bonds Judge Harkin is arbitrarily depriving him of his license in violation of the due process clause of the Fourteenth Amendment--has no merit even on its own grounds, that is, even ignoring issues of immunity. Judge Harkin is not depriving Smith of his license, but merely reducing Smith's income from it. A provider of services to a court has no standing to challenge judicial rulings that reduce the demand for his services and hence his income. He is injured but he is not within the protected class. If a judge who is "soft" on crime releases arrested persons on their own recognizance, a bail bondsman cannot challenge the judge's ruling on the ground that it will reduce the bondsman's business. Manufacturers of shackles cannot sue when a judge decides that criminal defendants shall not be shackled in his courtroom. Smith could not sue the prosecutor for not bringing enough charges for violent crime (the sort that lead to surety bonds), or for charging too many poor defendants on the theory that the public fisc does not pay as handsomely as solvent defendants do. When the Federal Reserve juices up the economy, pawnbrokers cannot head to court to stop the undermining of their livelihoods.
Not surprisingly, given the above-quoted passage, at the close of the opinion Judge Posner suggests that the trial judge on remand dismiss the case on the merits.
Posted at 14:45 by Howard Bashman



"Gay-rights activists look to the courts": The Seattle Times contains this article today.
Posted at 14:00 by Howard Bashman



"Bush Re-Election Fuels Speculation Over Makeup of Supreme Court; Backers Claim 'Mandate' To Appoint Conservative Judges": This article appears today in The New York Sun.
Posted at 12:58 by Howard Bashman



Barack Obama: A reader who's had some first-hand experience with the Senate Judiciary Committee emails that the Democrats should put the newly-elected, soon-to-be junior Senator from Illinois on that committee. You can access a profile of Senator-elect Obama at this link. Meanwhile, The Chicago Tribune -- after reporting yesterday that "Obama to arrive with status" -- reports today that "After reaching heights, Obama lowers his sights."
Posted at 12:40 by Howard Bashman



"Court offers Bush supreme chance": BBC News provides this report.
Posted at 12:35 by Howard Bashman



Seals and Cross: The Los Angeles Times reports today that "Supervisors Won't Delay Removal of Cross" and reported yesterday that "Judge Allows Removal of Cross From County Seal."
Posted at 12:30 by Howard Bashman



In news from Alabama: The Birmingham News reports today that "Roy Moore's influence seen in 2 elections." The Montgomery Advertiser today contains articles headlined "Amendment Two close to defeat" and "Parker prepares for bench." And The Mobile Register reports today that "Lawyers meet to honor retiring Justice Houston."
Posted at 12:20 by Howard Bashman



"GOP Gains Could Help Pickering": NBC affiliate WDAM-TV of Laurel and Hattiesburg, Mississippi offers this report.
Posted at 12:15 by Howard Bashman



"Bet on Prez to reshape high court": This article appears today in The New York Daily News. And Robert S. Greenberger of The Wall Street Journal has a report headlined "Justice up for grabs."
Posted at 12:10 by Howard Bashman



Reader mail regarding the composition of the next Senate Judiciary Committee: A reader emails:
The answer to your question is that the membership ratio should be neither 11-8 nor 10-9, but 10-8. I have just pieced this together, partly from memory and partly from the online Congressional Record, but believe it is accurate (and I'm sure readers will point out if it's not).

During the 1990's, the Senate Judiciary Committee consisted of 18 senators. Senate Standing Rule XXV(2), available here, prescribes the number of members on each committee and continues unchanged from Congress to Congress unless amended.

During the 106th Congress (1999-2000), when the Senate contained 55 Republicans and 45 Democrats, the party ratio on the Judiciary Committee was 10-to-8.

In the 107th Congress (2001-02), the party split was initially 50-50, and the Senate was organized with equal party ratios. The Judiciary Committee thus was constituted with 9 Republicans and 9 Democrats. When Senator Jeffords changed from Republican to Independent caucusing with the Democrats, giving the Democrats a majority, the committees needed to be reorganized. A resolution was adopted providing that the Democrats would have a one-seat majority on each committee, but that no senator would lose an existing assignment. Thus, one additional Democratic member was added to each committee, and the membership of each committee was temporarily increased by one, "[n]otwithstanding the provisions of Rule XXV." Thus, for the balance of that Congress the Judiciary Committee consisted of 10 Democrats and 9 Republicans.

At the beginning of the 108th Congress (2003-04), the party split was 51 Republicans and 49 Democrats (including Jeffords). This unusually close Senate party ratio provoked substantial disagreement over fair committee ratios and delayed organizing the Senate (the Democrats threatened to filibuster the resolution appointing Republican committee members). The compromise was to continue the Republicans' one-member majority on each committee, requiring each committee to have an odd number of members. Therefore, the Judiciary Committee membership continued at 19, with 10 Republicans and 9 Democrats. Significantly, however, these appointments were also made "[n]otwithstanding the provisions of Rule XXV" which was not amended.

Unless I have missed some subsequent development, the Standing Rules of the Senate still provide for the Judiciary Committee to consist of 18 senators. Even though the rule was in effect suspended for the past three-and-a-half years, it should still be in force when the 109th Congress is organized. The rationale for changing the committee memberships over the past few years would no longer apply. Presumably, given a 55-45 split, the ratio would again be 10 Republicans and 8 Democrats.
If this reader's prediction is correct, then no new member of the Judiciary Committee would be needed to replace Senator John Edwards (D-NC).
Posted at 11:54 by Howard Bashman



A look ahead to the next Congress's Senate Judiciary Committee: Because Senator John Edwards (D-NC) will not be returning to the U.S. Senate in January 2005, the Judiciary Committee's current membership is guaranteed to change.

Readers are invited to send me an email for publication (which will be anonymously unless otherwise requested by the email's author) expressing their views on: (1) whether the Senate's new 55-member Republican majority will or should cause Republicans to have an 11-8 majority on the committee in place of the current 10-9 Republican majority; and (2) who the new Senator on the Judiciary Committee is likely to be.
Posted at 10:44 by Howard Bashman



"The Supreme Court in the Next Administration": This past Saturday's pre-election broadcast of C-SPAN's "America and the Courts" can be viewed at this link (Real Player required). The discussion features "How Appealing" reader Stephen Henderson, who covers the U.S. Supreme Court for the Knight Ridder Newspapers, and Kenneth Jost of Congressional Quarterly. At one point during the broadcast, Jost makes the common mistake of asserting that Third Circuit Judge Samuel A. Alito, Jr. clerked for Justice Antonin Scalia.
Posted at 10:32 by Howard Bashman



"I Hereby Nominate Miguel Estrada for the Supreme Court": The blog "Patterico's Pontifications" offers this post today.
Posted at 10:30 by Howard Bashman



"State Bans on Gay Marriage Galvanize Sides; Opponents of same-sex unions say a federal amendment is possible; Supporters say this is one battle in a long fight": This article appears today in The Los Angeles Times. And The Christian Science Monitor today contains an article headlined "A drubbing for same-sex marriage."
Posted at 10:27 by Howard Bashman



The Associated Press is reporting: Now available online are articles headlined "Oystermen Asks Court to Reconsider Ruling"; "Mass. Official Seeks U.S. Review of Case"; and "Ex-Prosecutor Arrested for Shooting Lawyer."
Posted at 10:14 by Howard Bashman



So help me God: Many reader emails arrived in response to my post from yesterday morning titled "Who on the U.S. Supreme Court will administer the oath of office for President Bush's second term?" All the emails said pretty much the same thing, so here's perhaps the most thorough one that I received:
The Constitution doesn't specify who must administer the oath to the President-elect (or anybody else). Tradition, of course, is that the Chief Justice does so, but it is not a legal requirement. I believe that when President Harding died, President Coolidge was sworn in by his father, who happened to be a notary public; and a District Judge administered the oath to President Johnson after the Kennedy assassination. Of course these were not pre-planned inauguration ceremonies.

Having done some Google-ing, it appears that since 1797, the Chief Justice has always administered the presidential oath at the January 20 (formerly March 4) inaugural ceremony. In 1789 of course there was no Chief Justice yet. I don't know why Chief Justice Jay was absent in 1793. On that occasion, the oath was administered by Justice Cushing, who was third in seniority (junior to the CJ and to Justice Wilson). It might just have been a matter of who was in Philadelphia that day, although one would have expected Wilson, who was from Pennsylvania, to be more available than Cushing.

A list of all inaugurations since 1789 (quadrennial and other), including the identity of the oath-givers, is available at this link. Photographs of inaugurations and related information, including many photos of Chief Justices administering the oath, can be found via this link.

Interestingly, the VICE President's oath was traditionally administered by someone other than a Justice (typically the outgoing Vice President or the Senate President pro tempore) until about 25 years ago, although there were a couple of exceptions. Recently, this oath has been administered by an Associate Justice. I am not sure how the Justice is picked but it is definitely not automatically given by the Senior Associate Justice. Details available here.
Thanks much to everyone who emailed in response to that post.
Posted at 10:00 by Howard Bashman



Not felony canned spiced ham: The Washington Post reports today that "Jury Finds 2 Guilty of Felony Spam; Loudoun Convictions Are First in Nation." The Associated Press reports that "Two Guilty in 1st Felony Spam Conviction." And Reuters reports that "North Carolina Man Gets 9 Years in Jail for Spam."
Posted at 09:45 by Howard Bashman



"Thinking of ways for Republicans to mess up": At "The Volokh Conspiracy," Todd Zywicki has a post that begins: "With Justice Rehnquist ailing, it is always fun to think of ways that Republicans can mess up their current situation, especially on judicial nominations."

Todd's discussion focuses on an Associated Press report headlined "Specter: Supreme Court lacks justices of 'giant' stature" that I linked to last night in a post titled "They're mostly elderly, stooped-over, tiny folk (and that's just the bobblehead doll depictions of them)."
Posted at 08:55 by Howard Bashman



A reader emails: The following email arrived this morning:
The new expanded majority begs the important question: Will the Senate Jud. Com. have more than a one member Republican margin (a 10-9 margin occurred in both 51-49 sessions)? This will make Chairman Specter's "warnings" less relevant if the GOP holds an 11-8 committee edge.

Also, could you address the fact that since Edwards is gone, Terrence Boyle's 13 year wait [to join the U.S. Court of Appeals for the Fourth Circuit] now might be over?
And I hope that the same can also be said for the longest-waiting U.S. District Court nominee, U.S. Magistrate Judge James C. Dever, III of the Eastern District of North Carolina.
Posted at 08:44 by Howard Bashman



"The Bush Mandate: Justice Miguel Estrada, and other second-term possibilities." This editorial appears today in The Wall Street Journal.
Posted at 07:35 by Howard Bashman



"The Next Supreme Court and the War on Terror": FrontPage magazine has posted online today this essay by Henry Mark Holzer.
Posted at 07:15 by Howard Bashman



In coverage of yesterday's U.S. Supreme Court oral arguments: Michael McGough of The Pittsburgh Post-Gazette reports today that "Supreme Court to consider whether a felon in Japan is a felon in U.S.; Westmoreland County man appeals conviction for possessing a firearm." And Ana Radelat of The Clarion-Ledger reports today that "Supreme Court hears Miss. age-discrimination lawsuit; Jackson police officers hope ruling will protect older workers."
Posted at 07:11 by Howard Bashman



"Supreme Court opening likely in Bush's 2nd term; With ailing and aging justices, vacancies could soon develop": This article appears today in The Houston Chronicle. The Times of London reports today that "Senate victories give Bush power to mould Supreme Court in his own image." Newsday reports today that "Vacancies could bring a more conservative Supreme Court" and "GOP adds to majority but still won't be able to force through agenda."

David G. Savage of The Los Angeles Times reports today that "Courts Are Poised to Take a Hard Right Term; Conservatives say the president should use his victory to push for changes on social issues; A Supreme Court vacancy is likely." Jan Crawford Greenburg of The Chicago Tribune reports today that "Bush in position to reshape entire federal judiciary."

The Philadelphia Inquirer today contains an article headlined "Caution: Specter says President has no mandate." The Rutland Herald reports that "Leahy's role is expected to increase as Democrats look to senior members."

FindLaw commentator Marci Hamilton today has an essay entitled "The Supreme Court Without Rehnquist? The Difference He Has Made, and What the Court Might Look Like Without Him." And The Detroit Free Press today contains an editorial entitled "Nation should hope justices will outlast Bush's 4 more years."
Posted at 07:00 by Howard Bashman



In news from Australia: The Sydney Morning Herald today contains articles headlined "Police turned away without judge's blood" and "Logbook lapse adds to problems in tracking down missing vial." And The Australian reports today that "Judge urged not to 'hide truth' on blood."
Posted at 00:12 by Howard Bashman



"President poised to reshape lineup of justices": Ken Foskett has this article today in The Atlanta Journal-Constitution.
Posted at 00:10 by Howard Bashman



"Karmeier win means big changes in Madison County, prosecutor says": The St. Louis Post-Dispatch today contains an article that begins, "The election of a Republican to the Illinois Supreme Court on Tuesday was a disaster for the Madison County plaintiff's bar, says longtime prosecutor Don Weber."
Posted at 00:08 by Howard Bashman



Wednesday, November 03, 2004
Available online from law.com: Jeff Chorney has an article headlined "Filibusters an Election Casualty? With a net loss of four seats, Democrats' ability to hold line on Bush's judicial picks questioned." Tony Mauro reports that "Key Trademark Dispute Leaves Justices Looking Perplexed." And in other news, "Fla. Justices Asked to Reinstate $145 Billion Award in Tobacco Suit."
Posted at 23:40 by Howard Bashman



"Supreme Court tackles age bias case; Older officers denied raises; ruling may affect millions of boomers": Allen Pusey will have this article in Thursday's issue of The Dallas Morning News.
Posted at 23:11 by Howard Bashman



"Same-Sex Bans Fuel Conservative Agenda": This article will appear Thursday in The Washington Post.
Posted at 23:10 by Howard Bashman



"Hicks trial delayed until March": The Australian Associated Press reports here that "The lawyers of Australian David Hicks, who is accused of fighting for Afghanistan's ousted Taliban regime, have won a two-month reprieve to give them more time to interview witnesses and review evidence. Army Colonel Peter Brownback, the presiding officer for the first US military commissions to be held since World War II, granted the delay to allow for 'full and fair' proceedings for Hicks."
Posted at 23:06 by Howard Bashman



In news from Alabama: The Associated Press reports that "Removed from Alabama bench, Roy Moore has impact on ballot." The Birmingham News reports that "GOP sweeps Alabama Supreme Court races." The Mobile Register reports that "GOP sweeps into Supreme Court." And The Montgomery Advertiser reports that "Roy Moore backer holds lead."
Posted at 22:10 by Howard Bashman



"Dodd clears path for Reid; Crushed Senate Democrats seek to regroup swiftly after Daschle's defeat": This article will appear in Thursday's issue of The Hill.
Posted at 22:00 by Howard Bashman



"The Supreme Court: Now in Session; Don't forget to keep an eye on the only unelected branch of government." Ashish Agrawal has this op-ed today in The Harvard Crimson.
Posted at 21:40 by Howard Bashman



"Mr. Chief Justice": This segment featuring Jan Crawford Greenburg appeared on Monday's broadcast of the PBS program "NewsHour with Jim Lehrer." Or you can click here to listen using Real Player.
Posted at 21:22 by Howard Bashman



"With victory, Bush may be more aggressive in reshaping nation's courts": Jan Crawford Greenburg will have this article in Thursday's issue of The Chicago Tribune.
Posted at 21:20 by Howard Bashman



"Oregonians vote against land rules, gay marriage": This article appears today in The Oregonian.
Posted at 21:12 by Howard Bashman



On this evening's broadcast of NPR's "All Things Considered": A segment featuring Nina Totenberg was entitled "Bush Could Soon Name Rehnquist Successor." And another segment was entitled "Gay Marriage Dominates State Initiatives."
Posted at 21:08 by Howard Bashman



"Ninth Circuit Sponsors Appellate Practice Workshop": That court's Public Information Office issued this press release yesterday.
Posted at 21:05 by Howard Bashman



Partially divided three-judge panel of the U.S. Court of Appeals for the Tenth Circuit vacates order enjoining Oklahoma law that seeks to discourage abortions performed on minors without parental consent or knowledge: The Oklahoma law in question provides that "Any person who performs an abortion on a minor without parental consent or knowledge shall be liable for the cost of any subsequent medical treatment such minor might require because of the abortion." A federal district court enjoined that law, but today a partially divided Tenth Circuit panel vacated the injunction, holding that the plaintiff lacked standing to bring the suit. You can access today's ruling at this link.
Posted at 20:40 by Howard Bashman



"Bush may have chance to leave mark on Supreme Court": Stephen Henderson of Knight Ridder Newspapers provides this report.
Posted at 20:35 by Howard Bashman



They're mostly elderly, stooped-over, tiny folk (and that's just the bobblehead doll depictions of them): The Associated Press has issued an article headlined "Specter: Supreme Court lacks justices of 'giant' stature." The article begins:
The Republican expected to chair the Senate Judiciary Committee next year bluntly warned the Bush administration Wednesday against nominating judges who would seek to overturn abortion rights or are otherwise too conservative to win confirmation.

U.S. Sen. Arlen Specter, fresh from winning a fifth term, also said the current Supreme Court lacks any legal "giants" on the bench.
The same article also appears under the headline "Likely new Senate judiciary chairman warns Bush against nominating anti-abortion judges." And today at National Review Online, Timothy P. Carney has this essay about the senior Senator from Pennsylvania.
Posted at 17:55 by Howard Bashman



Not only has Texas outlawed the marketing of sex toys (see here and here), but it has also criminalized the slicing off of someone's penis: The Associated Press reports that "Texas Woman Charged in Penis Attack." And today's issue of The Houston Chronicle contains an article headlined "Girlfriend surrenders to police; Woman accused of cutting man is expected to appear in court today."
Posted at 17:44 by Howard Bashman



"Karmeier wins Illinois Supreme Court race": The St. Louis Post-Dispatch today contains an article that begins, "Republican Lloyd Karmeier defeated Democrat Gordon Maag in the hotly contested race for the Illinois Supreme Court from the 5th District." The article proceeds to note that "The race set a national record in campaign contributions for a judicial contest."
Posted at 17:35 by Howard Bashman



In news from West Virginia: The Charleston Daily Mail reports that "Benjamin knocks Warren McGraw off Supreme Court." And The Charleston Gazette reports that "Benjamin takes seat."
Posted at 17:30 by Howard Bashman



To learn of Sasha Volokh's wedding, don't read "The Volokh Conspiracy": Rather, you can learn about it at the blog "Quare," written by Sasha's new wife, via this post at the "de novo" blog. I'm pleased to learn of this happy news, for reasons explained here. And if you haven't yet received your invitation to the wedding, don't worry.
Posted at 17:20 by Howard Bashman



"Muhammad influence over Malvo at issue; Before Virginia's high court, lawyers argue the validity of death sentence in sniper case": This article appears today in The Richmond Times-Dispatch. And The Washington Post reports today that "Sniper Case Goes Before Va. High Court; Muhammad's Defense Assails Anti-Terror Law."
Posted at 16:40 by Howard Bashman



"Embattled district judge stays on bench": The Lawrence (Kan.) Journal-World today contains an article that begins, "There was no bench-clearing Tuesday night in Douglas County. Voters overwhelmingly said ‘yes' to letting District Court Judge Paula Martin stay on the bench four more years, despite an effort to oust her because of her sentencing record."
Posted at 16:35 by Howard Bashman



"Embattled district judge to stay on bench; Effort to remove Neary over lesbians' divorce falls short": This article appears today in The Des Moines Register.
Posted at 16:32 by Howard Bashman



"Florida Top Court Focuses on Tobacco Class Action": Reuters reports here that "Florida Supreme Court judges on Wednesday questioned attorneys for smokers and cigarette companies on whether a case involving thousands of smokers can properly be tried as a class action." You can access the appellate briefs filed in this case, plus archived video and a transcript of this morning's oral argument in the Supreme Court of Florida, via this link.
Posted at 15:32 by Howard Bashman



The wire services report on today's U.S. Supreme Court oral arguments: Gina Holland of The Associated Press reports that "Court Debates Age-Discrimination Case." And The AP's Hope Yen reports that "High Court Ponders Gun Control Law."

Meanwhile, James Vicini of Reuters reports that "Supreme Court Considers Reach of Age Bias Law."
Posted at 15:23 by Howard Bashman



"Supreme Court: On free expression, record mixed -- and getting worse." Ronald Collins has this op-ed today in The Miami Herald.
Posted at 15:15 by Howard Bashman



Mother Nature vs. the U.S. Court of Appeals for the Ninth Circuit: The Honolulu Advertiser reports today that "Kamehameha case proceedings moved." And The Honolulu Star-Bulletin reports today that "Arguments in Kamehameha legal case move downtown."
Posted at 15:10 by Howard Bashman



"Lawyered Up: The legal nightmare that never materialized." Dahlia Lithwick has this jurisprudence essay online at Slate.
Posted at 15:00 by Howard Bashman



The preemptive force of federal Indian law: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit ruled that the preemptive force of federal Indian law precludes California police from enforcing State law to prohibit an Indian Tribe's use and display of emergency light bars on police vehicles when those vehicles are traveling on public roads in performance of the tribal officers' law enforcement functions. You can access the opinion at this link.
Posted at 14:45 by Howard Bashman



In news from South Dakota: The Argus Leader reports that "Thune wins; Late results clinch victory." And The Rapid City Journal reports that "Thune topples Daschle."
Posted at 11:50 by Howard Bashman



"High Court Reviews Age Discrimination Law": Gina Holland of The Associated Press provides this preview of a case argued today before the U.S. Supreme Court.
Posted at 11:42 by Howard Bashman



Missouri Supreme Court Judge Richard B. Teitelman wins retention election: You can access the election results online at this link. The St. Louis Post-Dispatch previously reported that "High court judge faces ouster effort." Judge Teitelman was the May 2004 interviewee in this blog's "20 questions for the appellate judge" feature.
Posted at 11:08 by Howard Bashman



BREAKING NEWS -- The Associated Press reports that Kerry calls Bush to concede election: Stay tuned for details. Update: Senator Kerry is expected to make a statement at 1 p.m. eastern time, followed by a statement from President Bush at 3 p.m. today. And The Washington Post has just posted online a news update headlined "Kerry Concedes Defeat; Bush Wins Second Term."
Posted at 11:05 by Howard Bashman



The ineluctable temptation of U.S. Supreme Court Justice bobblehead blogging: David Bernstein of "The Volokh Conspiracy" falls victim to it in a post that you can access here.
Posted at 10:42 by Howard Bashman



A momentous election for the United States Courts: As matters now stand, it appears certain that President Bush has won reelection, and Republicans appear poised to control a total of 55 seats in the U.S. Senate. At least two Justices serving on the U.S. Supreme Court are likely to retire from the Court before the end of President Bush's second term (the Chief Justice and Sandra Day O'Connor), and more vacancies are always a possibility.

Assuming that Republicans emerge with 55 seats in the Senate, it will be very interesting to see whether the Senate's new Democratic leadership will continue to use procedural maneuvers, such as filibusters, to block those judicial nominees that powerful liberal special interest groups view as most objectionable. On the one hand, I'm not entirely sure that any of the currently filibustered U.S. Court of Appeals nominees has previously won support from at least five Democratic Senators. Thus, while the Senate's new composition may move Republicans closer to defeating judicial filibusters, it may not be sufficient to do so. On the other hand, more moderate Democrats may view the use of filibusters to block judicial nominees as less desirable given the results of the recent election, including the defeat of Minority Leader Tom Daschle (D-SD) in a campaign in which the use of judicial filibusters was raised as an issue.

The list of U.S. Court of Appeals nominees who are currently the subject of a filibuster in the Senate is quite lengthy. It consists of Janice Rogers Brown, Brett M. Kavanaugh, Priscilla R. Owen, recess appointee Charles W. Pickering, Sr., Carolyn B. Kuhl, William Gerry Myers III, and recess appointee William H. Pryor, Jr. We may know by the end of this year whether the White House will continue to play hardball on judicial nominations. Look for whether the White House gives Judge Pickering a second recess appointment in anticipation of achieving his confirmation in 2005. And only time will tell whether the U.S. Court of Appeals for the Sixth Circuit will receive any new judges from Michigan in President Bush's second term.

When it comes to judicial nominations and confirmations, the next four years should continue to be quite interesting.
Posted at 10:15 by Howard Bashman



Who on the U.S. Supreme Court will administer the oath of office for President Bush's second term? If William H. Rehnquist is too ill or no longer serving as Chief Justice of the United States on January 20, 2005, does the duty to administer the Presidential oath of office transfer to the most senior Associate Justice (John Paul Stevens), or can the White House decide who among the Associate Justices will administer the oath? If it's the latter, I would expect that Clarence Thomas will administer the oath to President Bush and Sandra Day O'Connor will administer the oath to Vice President Cheney.
Posted at 10:05 by Howard Bashman



In news coverage from Ohio: The Cincinnati Enquirer reports that "Provisional ballots could decide election." The Akron Beacon Journal contains an article headlined "Down to Ohio: Bush leads Ohio vote; Kerry wins in Summit." The Dayton Daily News reports that "Bush holding on to narrow lead on Kerry." The Cleveland Plain Dealer reports that "At center of political storm, Blackwell remains calm, cool." And The Toledo Blade reports that "Court remedies ballot snafu, but probably too late."
Posted at 07:22 by Howard Bashman



"Final" Ohio election results: Available here.
Posted at 07:08 by Howard Bashman



"High Court Hears California Prison Case; New inmates are divided by race because of gang concerns; The Justice Department is opposed": David G. Savage has this article today in The Los Angeles Times. And online at law.com, Tony Mauro reports that "High Court Skeptical of Prison Segregation Policy."
Posted at 07:00 by Howard Bashman



"Measure to limit '3 strikes' sentencing barely passing": This article appears today in The San Francisco Chronicle. By contrast, The Sacramento Bee is reporting that "Change to 'three-strikes law' trailing."
Posted at 06:58 by Howard Bashman



"Legal challenges not likely to upset presidential election": Bob Egelko has this article today in The San Francisco Chronicle.
Posted at 06:54 by Howard Bashman



"No, This Is Not Over Just Yet": Law Professor Rick Hasen has this post at his "Election Law" blog.
Posted at 06:50 by Howard Bashman



"With Echoes of 2000 Vote, Ohio Count Is at Issue": This article appears today in The New York Times. That newspaper also reports today that "President Seems Poised to Claim a New Mandate"; "Daschle, Democratic Leader in Senate and Washington Fixture, Is Beaten"; "Rain, Lines and Litigation Slow Smooth Effort in Ohio"; and "Constitutional Bans on Same-Sex Marriage Gain Widespread Support in 10 States."

The Washington Post today contains articles headlined "Bush Takes Electoral Lead; Outcome Could Hinge on Ohio; Chief of Staff Says He is Convinced President Won Reelection"; "20 Crucial Electoral Votes May Be Stuck in Limbo; Clear Winner Could Take Weeks to Determine"; "GOP Adds to Majority With Wins in South; Senate Minority Leader Daschle Unseated in S.D."; and "Same-Sex Marriage Measures Succeed; Bans in Several States Supported By Wide Margins."

The Los Angeles Times reports that "Ohio Up for Grabs; Bush Has Slim Lead"; "This Time, Ohio Takes On Role of Florida; At least 150,000 provisional ballots must be examined; Kerry needs most of them to win the state and keep his hopes alive"; "Daschle Defeated in Reelection Bid; The Democrat falls to former Republican congressman John Thune, becoming the first party leader to lose a Senate race since 1952"; "11 States Back Bans on Gay Unions; Georgia, Ohio Bar Partner Benefits; Most measures draw robust support; One activist sees mandate for Congress to take heed"; and "Exit Polls Bog Down the Blogs."

And USA Today reports that "Presidential campaign comes down to Ohio"; "Republicans retain Senate and oust Daschle; Obama wins"; and "Voters in 11 states ban gay marriage."
Posted at 06:40 by Howard Bashman



Some elderly Republican Justices on the U.S. Supreme Court must be feeling a bit better now for more reasons than one: Instead of learning whom a President Kerry would nominate to the U.S. Courts of Appeals, we may soon be learning whom President Bush will be nominating to the U.S. Supreme Court. Only time will tell whether the Democratic leadership in the U.S. Senate will continue to employ filibusters and whether the White House will continue to propose nominees likely to elicit filibusters.
Posted at 01:08 by Howard Bashman



NBC News projects both Ohio and Alaska for Bush: Thus, another network projects at least an Electoral College tie. Kerry cannot collect the 270 electoral votes necessary to win the presidency.
Posted at 01:00 by Howard Bashman



Fox News Channel projects a Bush victory in Ohio: Details here. President Bush has won reelection, because he will win Alaska, which will guarantee at least an Electoral College tie, and Republicans control a majority of state delegations in the U.S. House of Representatives. Details of what happens with an Electoral College tie can be accessed here.
Posted at 00:45 by Howard Bashman



"Voters in 10 States OK Gay-Marriage Ban": The Associated Press provides this report. If the same result holds in Oregon, all States in which voters considered this issue will have reached the same outcome.
Posted at 00:44 by Howard Bashman



ABC News projects a Bush victory in Colorado: That increases the President's electoral vote total to 246, making Ohio a true must-win State for the Kerry campaign.
Posted at 00:23 by Howard Bashman



Tuesday, November 02, 2004
And now all attention focuses on Ohio: Live presidential election results from Ohio can be viewed at this link.
Posted at 23:57 by Howard Bashman



ABC News projects that Bush wins Florida: The current electoral vote count is Bush 237, Kerry 188. Bush is just 33 electoral votes away from winning reelection.
Posted at 23:38 by Howard Bashman



Current electoral vote tally -- Bush 210, Kerry 188: Those are the ABC News totals as of now.
Posted at 23:32 by Howard Bashman



What States remain entirely up for grabs? Alaska, Florida, Hawaii, Iowa, Michigan, Minnesota, Nevada, New Hampshire, New Mexico, Ohio, Oregon, and Wisconsin. In every other State, at least one major network has declared a victor.
Posted at 23:17 by Howard Bashman



Some additional projections: According to the Media Matters site, CBS is projecting a Bush win in Colorado and a Kerry win in Washington State. Also, NBC is projecting a Bush win in Arizona.
Posted at 23:06 by Howard Bashman



Kerry wins California, Bush projected to win Idaho: CNN's electoral vote total now is Bush 197, Kerry 188.
Posted at 23:03 by Howard Bashman



NBC News calls Pennsylvania for Kerry and Arizona for Bush: Meanwhile, as of this moment, President Bush continues to lead in Florida (live results available here) and Ohio (live results available here).
Posted at 22:53 by Howard Bashman



ABC News projects that Senator Arlen Specter wins reelection in Pennsylvania: He will either be the Chairman of, or the ranking Republican on, the Judiciary Committee.
Posted at 22:49 by Howard Bashman



"Colorado Rejects Winner-Take-All Ballot Issue": Reuters provides this report.
Posted at 22:23 by Howard Bashman



ABC News projects a Bush victory in Montana: Only three electoral votes, but the new tally is Bush 195, Kerry 112.
Posted at 22:20 by Howard Bashman



"High court hears arguments over prison segregation; Inmate's lawyer says automatic separation by race is wrong": Allen Pusey will have this article in Wednesday's issue of The Dallas Morning News.
Posted at 22:15 by Howard Bashman



"Voters in 7 States OK Gay-Marriage Ban": The Associated Press provides this report.
Posted at 22:09 by Howard Bashman



ABC News projects a Bush victory in Missouri: The Kerry campaign had given up on Missouri in August. The current electoral vote tally is Bush 192, Kerry 112.
Posted at 22:06 by Howard Bashman



Bush is projected to win Arkansas and Utah, but Iowa, Montana, and Nevada are too close to call: The current electoral vote tally is Bush 181, Kerry 112.
Posted at 22:00 by Howard Bashman



In the States in which polls will close at 10 p.m. eastern time, only 20 electoral votes are at stake: Every little bit helps, but that alone won't be enough to put either candidate over the top.
Posted at 21:58 by Howard Bashman



"Lawyers Challenge Guantanamo Charges": The Associated Press provides this report.
Posted at 21:45 by Howard Bashman



Louisiana and Mississippi are projected for Bush: The current electoral vote tally is Bush 170, Kerry 112. At this point, the question is whether Bush will string together another 100 electoral votes before Kerry gets an additional 158. Or, viewed another way, assuming that Kerry has a lock on California's 55 electoral votes, to win the election Bush must acquire almost half of the electoral votes that remain up for grabs.
Posted at 21:32 by Howard Bashman



In news from Colorado: The Rocky Mountain News reports that "State rejects splitting electoral votes." A whole bunch of potential post-election litigation has thereby been avoided.
Posted at 21:27 by Howard Bashman



"Gay-Marriage Bans Pass in Three States": The Los Angeles Times provides this news update.
Posted at 21:20 by Howard Bashman



"Race-Based Prison Policy Is Under Justices' Scrutiny": Linda Greenhouse will have this article in Wednesday's issue of The New York Times. And Stephen Henderson of Knight Ridder Newspapers reports that "Supreme Court ponders whether inmates can be segregated by race."
Posted at 21:18 by Howard Bashman



Current electoral vote tally -- Bush 155, Kerry 112: At 9 p.m. eastern time, Kansas, Nebraska, North Dakota, South Dakota, Texas and Wyoming have been projected for Bush. Kerry is projected to win New York and Rhode Island.
Posted at 21:03 by Howard Bashman



The Carolinas make it unanimous: ABC News has just projected South Carolina for President Bush. The current electoral vote tally is Bush 102, Kerry 77.
Posted at 20:38 by Howard Bashman



"High Court Won't Take Up Election Appeal": Anne Gearan of The Associated Press provides this report.
Posted at 20:37 by Howard Bashman



Bush is projected to win North Carolina and Virginia: The current electoral vote tally is Bush 94, Kerry 77.
Posted at 20:31 by Howard Bashman



Cool interactive map displaying election results: The Associated Press and C-SPAN have combined to produce this resource.
Posted at 20:29 by Howard Bashman



Current electoral vote tally -- Kerry 77, Bush 66: Of the States in which polls have closed at 8 p.m. eastern time, Connecticut, Delaware, the District of Columbia, Illinois, Maine, Maryland, Massachusetts, and New Jersey have been projected for Kerry. Bush is projected to win Alabama, Oklahoma, and Tennessee.
Posted at 20:01 by Howard Bashman



Tonight's election returns and the issue of judicial recess appointments: The two recess appointees currently serving on the U.S. Courts of Appeals -- Charles W. Pickering, Sr. and William H. Pryor, Jr. -- surely realize that their chances of achieving U.S. Senate confirmation to lifetime positions on their respective appellate courts will vanish if President Bush loses the election to John F. Kerry. Except, perhaps, if Republicans do the unexpected and somehow achieve a filibuster-proof majority in the Senate tonight.

The new Congress is seated in early January 2005, while the President's current term does not end until later that month. Judge Pryor's recess appointment does not expire until the end of 2005. Judge Pickering's recess appointment, by contrast, expires toward the end of this year. (More details on the timing available here.) After the Senate adjourns its current session, President Bush could conceivably give Judge Pickering a second recess appointment to the Fifth Circuit, allowing Judge Pickering to serve another year. Such repeat recess appointment have occurred in the past, as I previously reported here and here. And an end-of-presidency judicial recess appointment has happened as recently as the end of President Clinton's second term, in the case of Fourth Circuit Judge Roger L. Gregory.
Posted at 19:42 by Howard Bashman



"Ga., Ky. Vote to Ban Same-Sex Marriage": The Associated Press provides this report.
Posted at 19:40 by Howard Bashman



Ohio voters approve ban on same-sex marriage: So ABC News is projecting. Also at 7:30 p.m. eastern time, President Bush has won West Virginia. The current electoral vote tally is Bush 39, Kerry 3. Ohio -- no surprise -- is too close to call.
Posted at 19:30 by Howard Bashman



"Muhammad death sentence challenged": The Richmond Times-Dispatch offers a news update that begins, "The degree of influence of John Allen Muhammad over Lee Boyd Malvo appeared to be the key issue in arguments before the Virginia Supreme Court this morning on the validity of the death penalty imposed on Muhammad in Prince William County Circuit Court."
Posted at 19:29 by Howard Bashman



"Voting Continues in Ohio Amid Flurry of Legal Rulings": This evening's broadcast of NPR's "All Things Considered" included this report (Real Player required).
Posted at 19:15 by Howard Bashman



Current electoral vote tally -- Bush 34, Kerry 3: As polls in six States close at 7 p.m. eastern time, ABC News calls Georgia, Indiana, and Kentucky for President Bush. Senator Kerry has won Vermont. Too close to call at this time are South Carolina and Virginia.
Posted at 19:10 by Howard Bashman



"Second Election Appeal Reaches High Court": Anne Gearan of The Associated Press provides this report.
Posted at 18:02 by Howard Bashman



"Court ruling curtails police right to privacy; Videotaping of Sequim chief at issue in case": The Seattle Post-Intelligencer today contains this article reporting on an amended decision that the U.S. Court of Appeals for the Ninth Circuit issued last week.
Posted at 17:58 by Howard Bashman



"Forget Bush-Kerry. What About Scott-Laci? A Trial Galvanizes, and Polarizes, the Media." This front page article appears today in The Washington Post.

In coverage of yesterday's prosecution closing argument, The Modesto Bee today offers articles headlined "Prosecutor fires up court; Spirited Distaso hits hard on betrayal, list of 'coincidences'" and "Closing argument draws high marks from experts." The San Mateo County Times today contains an article headlined "Prosecutor: Scott Peterson was living two different lives; DA sums up his closing argument; defense begins today." The San Jose Mercury News reports today that "Prosecutor's closing called compelling." And The San Francisco Chronicle today contains an article headlined "Prosecutor sums up: 'There is no big secret'; Mesmerizing portrait of murder defendant."
Posted at 17:50 by Howard Bashman



"What Happens in a SCOTUS Tie? How the court operates with a justice out sick." Slate's explainer offers these thoughts.
Posted at 17:44 by Howard Bashman



U.S. Court of Appeals for the Sixth Circuit holds that Akron Beacon Journal is entitled to "reasonable access to any polling place for the purpose of newsgathering and reporting so long as Plaintiffs do not interfere with poll workers and voters as voters exercise their right to vote": The ruling by a divided three-judge Sixth Circuit panel can be accessed here. The newspaper reports on its victory in this news update.
Posted at 16:55 by Howard Bashman



"Judiciary Funding: Keep the wheels of justice moving." The Philadelphia Inquirer today contains an editorial that begins, "What if the legions of lawyers prepared to do battle over today's election results showed up at the federal courthouse, and found the doors locked?"
Posted at 16:30 by Howard Bashman



The en banc U.S. Court of Appeals for the Third Circuit stays New Jersey federal district judge's ruling that had barred the Ohio Republican Party from using a list of 23,000 newly registered voters to challenge their ability to cast ballots: The en banc order is available online here. This action by the en banc court overturns the decision that a divided three-judge panel issued yesterday.

Update: Third Circuit Judge Dolores K. Sloviter has issued this supplemental opinion in support of yesterday's now-vacated three-judge panel ruling.
Posted at 15:52 by Howard Bashman



"Court Overrules Tobacco Memo Decision": The Associated Press provides this report concerning a decision that the U.S. Court of Appeals for the D.C. Circuit issued today.
Posted at 15:48 by Howard Bashman



The Associated Press reports on today's U.S. Supreme Court oral arguments: Gina Holland reports that "Justices Debate Segregation in Prisons." And Hope Yen reports that "High Court Considers Attorney Standards."
Posted at 15:33 by Howard Bashman



"Kerry May Tap Kagan For Court": Today's issue of The Harvard Crimson contains an article that begins, "When voters cast their ballots today they may help to bring Harvard Law School Dean Elena Kagan one step closer to securing a seat on the Supreme Court."
Posted at 15:22 by Howard Bashman



"Legal Affairs gains official independence": The Yale Daily News contains this article today.
Posted at 15:20 by Howard Bashman



"Election 2000 redux? Unlike last time, the legal battle has already begun." Jeffrey Toobin has this essay online at CNN.com.
Posted at 15:12 by Howard Bashman



"House gets ready for 269-269; GOP ponders rule change in case the Electoral College ends up dead even": This article appears in today's issue of The Hill.
Posted at 15:08 by Howard Bashman



Access online the U.S. Court of Appeals for the Third Circuit's ruling yesterday in Democratic National Committee v. Republican National Committee: I haven't been following this matter closely enough to understand why a challenge involving an Ohio voter arose in New Jersey(!), but yesterday's ruling by a divided three-judge Third Circuit panel can be accessed here.
Posted at 14:45 by Howard Bashman



"Billions at Stake as U.S. Tobacco Appeals Gear Up": Reuters provides this report.
Posted at 14:15 by Howard Bashman



"Virginia Supreme Court hears arguments in sniper case": The Associated Press offers a report that begins, "Convicted sniper John Allen Muhammad cannot get the death penalty under a Virginia law because he was not the triggerman in the October 2002 killing spree, his lawyers argued to the Supreme Court of Virginia."
Posted at 14:14 by Howard Bashman



"Intimidation Nation: Who will watch the poll-watchers?" Slate has posted online this jurisprudence essay by Law Professor Richard Thompson Ford.
Posted at 14:01 by Howard Bashman



"Election Scorecard: Where the presidential race stands today." Today's updated tally from Slate shows a projected electoral vote split at 269-269.
Posted at 11:25 by Howard Bashman



"Uncertainty reigns at highest court": The Sydney Morning Herald provides this report from Hearst Newspapers.
Posted at 11:20 by Howard Bashman



Only a ten minute wait to vote at 10:45 a.m. this morning in my district in the northwestern suburbs of Philadelphia: Managed to go vote at probably the least crowded time of day, and still ran into a larger crowd than is usual for this point in the morning. My absentee ballot was retrieved by the poll judge, and thus I'll only be getting a single vote (assuming no malfunction of the touch-screen apparatus).
Posted at 11:05 by Howard Bashman



On remand from the U.S. Supreme Court, the U.S. Court of Appeals for the District of Columbia Circuit issues a decision in Empagran SA v. F. Hoffman-Laroche, Ltd.: Today's per curiam decision, which keeps the case alive pending further briefing on appeal, can be accessed at this link. Back on June 14, 2004, the Supreme Court issued this ruling in the case.
Posted at 10:25 by Howard Bashman



"Sentences delayed for ruling; Federal guidelines before high court": This article appears today in The Cincinnati Post.
Posted at 10:10 by Howard Bashman



"Police lose crash judge's blood sample": The Australian Associated Press provides this report. Wednesday's edition of The Sydney Morning Herald contains articles headlined "Fiasco of judge's lost blood sample" and "Riddle of the judge and the blood box." The Courier-Mail reports that "Judge's blood sample vanishes." And The Daily Telegraph contains an article headlined "Bloody disgrace."

Finally, The Australian Broadcasting Corporation provides reports headlined "Blood sample disappears from high profile case"; "NSW Police Minister concerned over missing blood sample"; and "Doctor recalls taking 'lost' blood sample."
Posted at 09:50 by Howard Bashman



On today's broadcast of NPR's "Morning Edition": Nina Totenberg reports that "High Court Considers Prison Segregation." This morning's broadcast also contained segments entitled "Numerous Election Legal Challenges Expected"; "Ohio Court Allows Voting Challenges at Polls"; and "Courts Rule on Voting Challenges at Polls."
Posted at 09:40 by Howard Bashman



Very heavy voter turnout reported in southeastern Pennsylvania: That's the case both in Philadelphia and in the surrounding suburbs, according to KYW Newsradio 1060. My wife, son, and I will be heading to the polls a bit later this morning in Montgomery County, Pennsylvania, after which I'll post a first-hand report.
Posted at 09:33 by Howard Bashman



"Cancer to keep justice off bench indefinitely": Jan Crawford Greenburg has this article today in The Chicago Tribune. Much additional coverage of this news can be found below in posts from last night and this morning.
Posted at 09:20 by Howard Bashman



Circuit Justice John Paul Stevens denies request to overturn Sixth Circuit's early morning ruling in Ohio voter challenge matter: You can access Justice Stevens' in chambers opinion at this link. It appears to have been a long night in at least one Justice's chambers at the U.S. Supreme Court. Coverage of the Sixth Circuit's ruling, which issued very early this morning, can be accessed here.
Posted at 08:24 by Howard Bashman



"Go shawty!" Drawing on this post by Law Professor Lawrence Lessig, Denise Howell bestows upon me the gangsta moniker "Thitty-Eight Cent." That Professor Lessig will be leading a discussion at the Stanford Law School on November 6, 2004 about the role of "How Appealing" and other law blogs proves that truth is indeed stranger than fiction. (This post's title courtesy of "In Da Club" by 50 Cent; you can view that song's video online via this link.)
Posted at 07:11 by Howard Bashman



One person, one vote: The Boston Globe reports today that "Legal armies ready to monitor voters" and "'00 debacle still fresh on many voters' minds." The New York Times reports today that "For Expert on Electoral College, Calls Never Stop." Bob Egelko of The San Francisco Chronicle today has an article headlined "Decision day: Huge vote expected; The legal fray: Judges could have last say." Newsday today offers an article headlined "The 'morning after' the last time." The Reno Gazette-Journal reports today that "Court won't hear couple's registration pleading." And The Chicago Tribune reported yesterday that "Legal fights expected if result is razor-thin; Lawyers poised in more than 1 state."
Posted at 07:00 by Howard Bashman



Me too: The Arizona Republic reports today that "Ariz. awaits ruling on teen death penalty."
Posted at 06:54 by Howard Bashman



"10 Commandments protesters may face charges in court; A magistrate will soon consider dismissing case": This article appears today in The Idaho Statesman.
Posted at 06:50 by Howard Bashman



In other news from the Supreme Court of the United States: Charles Lane reports today that "Court Will Rule on Town's Liability in Family Violence." David G. Savage of The Los Angeles Times reports that "Justices Take Restraining Order Suit; The Supreme Court will decide whether cities can be held liable if their police fail to provide protection in what can be a life-or-death matter." And USA Today reports that "Court accepts case about police negligence liability" and "Stakes high in age-bias case before court; How it defines discrimination may impact workers over 40."

Michael McGough of The Pittsburgh Post-Gazette reports that "Supreme Court hears case on taxability of some legal fees" and "Supreme Court may be cautious on vote crisis." Allen Pusey of The Dallas Morning News reports that "U.S. Supreme Court weighs tax on damages; Case could have broad impact on suits related to employment."

The Detroit Free Press reports that "U.S. Supreme Court says no to Kevorkian's appeal." The Detroit News reports that "Kevorkian loses appeal in top court; Assisted suicide advocate is not eligible for parole until June 2007."

The Louisville Courier-Journal reports that "Supreme Court lets stand electioneering law's ban."

And Hope Yen of The Associated Press reports that "Lawyer Conduct Eyed in Death Penalty Case."
Posted at 06:40 by Howard Bashman



"Experts say Rehnquist's cancer may be very bad": Michael McGough of The Pittsburgh Post-Gazette has this article today. David G. Savage of The Los Angeles Times reports today that "Cancer Keeps Rehnquist Home, Prolongs Concerns." The Baltimore Sun reports today that "Rehnquist absent from high court; Doctors say chief justice probably has aggressive form of thyroid cancer." Newsday reports today that "Ailing chief stays home; Based on treatment Rehnquist is getting, observers believe he has virulent, usually fatal, form of cancer." And USA Today reports today that "Chief justice undergoing radiation, chemo for cancer; Rehnquist a no-show as court reconvenes" and "Illness a delicate issue for court."
Posted at 06:30 by Howard Bashman



"Court OKs Voter Challengers at Ohio Polls": The Associated Press reports here this morning that "A federal appeals court has cleared the way for challengers to be present at polling places throughout Ohio, ruling early Tuesday that their presence on Election Day was allowed under state law." The Cincinnati Enquirer reports today that "Even rules go down to wire; GOP appeals barring of challengers." In The New York Times, James Dao and Adam Liptak report today that "G.O.P. in Ohio Can Challenge Voters at Polls." Henry Weinstein of The Los Angeles Times reports today that "Late Ruling Allows GOP to Challenge Ohio Voters." And USA Today reports today that "Campaigns wage 11th-hour battles in courts; Bush and Kerry make late visits to rally turnout."

The decision that the U.S. Court of Appeals for the Sixth Circuit issued early this morning can be accessed online at the following links: majority opinion; concurring opinion; and dissenting opinion.
Posted at 06:11 by Howard Bashman



"G.O.P. Blocked on Challenges at Ohio's Polls": James Dao and Adam Liptak have this report in Tuesday's issue of The New York Times. And a related graphic depicts "Legal Challenges on the Horizon."

Meanwhile, Monday's broadcast of NPR's "All Things Considered" included a report entitled "Judges Limit Challengers at Ohio Polls" (Real Player required).
Posted at 00:24 by Howard Bashman



Monday, November 01, 2004
Tony Mauro is reporting: Now available online at law.com are articles headlined "Rehnquist Still Absent Amid Signs of Disease's Severity" and "The Case That Could Have Altered 'Bush v. Gore'; Newly found 1912 in-chambers opinion says Court should stay out of election disputes until state courts have had their say."
Posted at 23:23 by Howard Bashman



"Rehnquist's Illness Forces Absence; Chief Justice's Treatment Suggests Thyroid Cancer at Its Most Serious": Shankar Vedantam and Charles Lane will have this article on the front page of tomorrow's issue of The Washington Post.
Posted at 23:05 by Howard Bashman



Tomorrow, I'll be voting early and often: Tomorrow is election day, and I urge all readers (especially those who support the same candidates that I do) to get out and vote! Because work ended up not keeping me away from home on election day, tomorrow I have the obligation under Pennsylvania law to vote in person even though I have already voted by absentee ballot. Will my vote therefore be counted twice? One can only hope.

On a more serious note, the best place to turn for law-related election news is the "Election Law" blog operated by Law Professor Rick Hasen.
Posted at 22:52 by Howard Bashman



Available online from Slate: Today, Dahlia Lithwick has a jurisprudence essay entitled "File Your Own Election Lawsuit: Slate's handy do-it-yourself pleadings for a more litigious Election Day." And Walter Dellinger has an essay entitled "Popularity Contest: In defense of the Electoral College."
Posted at 22:50 by Howard Bashman



In Tuesday's issue of The New York Times: Linda Greenhouse and Katharine Q. Seelye will have an article headlined "Rehnquist Fails to Return, and Speculation Increases." Lawrence K. Altman, M.D. will have an article headlined "Extended Absence of Chief Justice Hints at More Serious Cancer Than He First Indicated." And Linda Greenhouse will report that "Justices to Mull Rights of Those Seeking Police Protection."
Posted at 22:33 by Howard Bashman



"Supreme Mistake: Activists say this election will determine the future of the Supreme Court. And it will. But not in the way they think." Jeffrey Rosen has this essay in the November 8, 2004 issue of The New Republic.
Posted at 22:30 by Howard Bashman



The Associated Press is reporting: In news from the U.S. Supreme Court, Hope Yen reports that "High Court to Hear Restraining Order Case" and "High Court Allows New Trial Over Jury Bias." In other developments from that Court, "Court Won't Hear Appeal in Fen-Phen Case"; "Court Lets Child Neglect Conviction Stand"; and "High Court Won't Review Boxing Conviction."

In news from elsewhere, Anne Gearan reports that "Partisan Lawyers Ready Amid Rule Changes." Also available online, "Lawyers for Moussaoui to Seek Delays" and "2 Judges Bar Party Challengers at Polls."
Posted at 22:20 by Howard Bashman



"Questions Presented: Judge Kim McLane Wardlaw!!!" Instead of mourning the overdue demise of "20 questions for the appellate judge," you should be sure to enjoy this excellent interview published today at the blog "Underneath Their Robes."
Posted at 22:15 by Howard Bashman



Available online from law.com's regional sites: Two separate articles currently available online only via subscription-required law.com regional sites contain quotes from me. The Legal Intelligencer today contains an article headlined "Pa. High Court to Consider Grandparent Visitation Rights." I previously reported on that development in blog posts that you can access here and here.

And online at Legal Times, Tony Mauro has a very interesting article headlined "Bush Judicial Picks: Not Always Playing to Type; Rulings by judges have been firmly conservative in environmental and employment arenas, but more liberal than expected in others." Reporting from St. Paul, Minnesota, where Mauro recently went to observe some en banc oral arguments before the U.S. Court of Appeals for the Eighth Circuit, the article states: "'Even with a majority of George W. Bush appointees, [the Eighth Circuit] has not yet earned the distinction as the most conservative,' says Howard Bashman, whose How Appealing Web log monitors appellate decisions. Bashman, who addressed a gathering of 8th Circuit judges recently, adds, 'It takes a long time for a president to have impact on the courts.' The vagaries of judicial appointment politics -- each candidate needing the approval of home-state senators, for example -- make it hard to predict case outcomes based on who picked the judge, Bashman says."
Posted at 22:10 by Howard Bashman



"Rehnquist fails to show for Court session": Stephen Henderson of Knight Ridder Newspapers provides this report. David G. Savage of The Los Angeles Times provides a news update headlined "Rehnquist Announces Cancer Treatment, Remains at Home." Gina Holland of The Associated Press reports that "Rehnquist Undergoing Radiation and Chemo," while another AP article is headlined "Justice's Cancer Treatment May Be Critical." James Vicini of Reuters reports that "Ailing U.S. Chief Justice Unable to Return to Work." And Tuesday's issue of The Washington Post will contain an article headlined "A Case for Thyroid Research; Rehnquist News Spurs Hopes for Funds, Treatments."

At "SCOTUSblog," Lyle Denniston has a post titled "The Chief Justice's present plans." Online at Legal Times, Tony Mauro reports that "Rehnquist Absent, Taking Outpatient Treatment for Cancer" (subscription required). And on this evening's broadcast of NPR's "All Things Considered," Nina Totenberg reports that "Ailing Rehnquist Unable to Return to Court" (Real Player required).
Posted at 22:05 by Howard Bashman



I'm Howard J. Bashman, and I approve this message: I've made it back home to the northwestern suburbs of Philadelphia from Lancaster, South Carolina, and beginning tomorrow "How Appealing" will provide comprehensive law-related election coverage from the casting of the first vote until the U.S. Supreme Court declares a winner.
Posted at 21:40 by Howard Bashman



Programming note: My day job has me in Lancaster, South Carolina today. As a result, additional updates won't appear here until I return home to the battleground state of Pennsylvania late tonight.

"SCOTUSblog" is sure to offer complete coverage of today's developments from the U.S. Supreme Court. Those developments are likely to include an Order List (which should be available at this link once the Court posts it online) and the answer to the question will Chief Justice William H. Rehnquist be back in black with gold bars presiding from the bench.
Posted at 06:30 by Howard Bashman



"Kid Court": Ian Frazier has this essay in the November 8, 2004 issue of The New Yorker.
Posted at 06:28 by Howard Bashman



"Big-money race sets record for a U.S. judicial contest": The St. Louis Post-Dispatch contains this article today.
Posted at 06:22 by Howard Bashman



"Ten Commandments battle may be on hold": This article appears today in The Athens (Ga.) Banner-Herald.
Posted at 06:20 by Howard Bashman



"Justices Too Tightlipped on Their Health?" Charles Lane has this article today in The Washington Post. The Daily Pennsylvanian reports today that "Pres. could appoint 3 high court judges." And The Daily Nebraskan reports today that "Federalism highlight of law lecture by former chief justice aide."

Finally, The Union Leader of Manchester, New Hampshire today contains an editorial entitled "Electing a court: Another reason to vote Bush."
Posted at 06:10 by Howard Bashman



"Will We Know Who the Next President is by Wednesday?" Law Professor Rick Hasen has this post at his "Election Law" blog.
Posted at 06:05 by Howard Bashman







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