U.S. Supreme Court round-up: Linda Greenhouse of The New York Times reports here that “Justices to Rule on Immunity of States in Bankruptcy Suits.” Charles Lane of The Washington Post reports here that “High Court to Hear Appeal Involving Art; Ruling May Affect Other Nazi-Era Cases.” And David G. Savage of The Los Angeles Times reports here that “Justices to Hear L.A. Carjacking Case.”

Posted at 23:50 by Howard Bashman

Available online at law.com: Tony Mauro reports that “High Court Grants Review in 10 Cases.” In related news, Shannon P. Duffy reports that “Supreme Court to Review 3rd Circuit Ruling in Death Row Case.” And in other news, Jason Hoppin reports that “9th Circuit Tosses ‘Duffield’ in Dustbin.”

Posted at 23:30 by Howard Bashman

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

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

Posted at 23:11 by Howard Bashman

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

Posted at 23:09 by Howard Bashman

“Law student’s job hunt earns Web notoriety”: Law student Matthew S. Toll’s job search makes the news in Canada. Now if only he were looking to work north of the border. I previously noted his clever effort to find work in a post you can access here.

Posted at 23:04 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Deal Reached on Abortion Procedure Ban”; here “Mich. Bill Would Ban Certain Abortions”; here “Malvo Summoned for Muhammad’s Hearing”; here “U.S. to Revoke Alleged Nazi’s Citizenship”; and here “Synagogue Bookkeeper Convicted of Fraud.”

Posted at 23:00 by Howard Bashman

“Suddenly, prisons full of ‘retarded’; A high-court ruling brings a flood of death-row appeals.” This past Sunday’s edition of The Philadelphia Inquirer contained this report (via “Overlawyered“).

Posted at 21:03 by Howard Bashman

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

Posted at 20:56 by Howard Bashman

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

Posted at 19:40 by Howard Bashman

Reuters is reporting: You can access here an article headlined “Supreme Court to Decide Death Row Inmate’s Appeal”; here “U.S. Seeks to Implement Call List Despite Court”; and here “Rambus stock up after case not on Supreme Court list.”

Posted at 17:34 by Howard Bashman

“48-Hour Internet Outage Plunges Nation Into Productivity”: The brand new issue of The Onion contains this report.

Posted at 16:56 by Howard Bashman

“Fla. High Court Sets Aside DNA Deadline”: The Associated Press provides this report. Update: You can access today’s order of the Supreme Court of Florida at this link.

Posted at 16:37 by Howard Bashman

“San Francisco Jurist Confirmed to Ninth Circuit Bench”: The Metropolitan News-Enterprise today has this report.

Posted at 16:26 by Howard Bashman

Access online the Alabama Ten Commandments case petition for writ of certiorari: It’s available here, in PDF format.

Posted at 16:11 by Howard Bashman

“Court clerk improves world’s rule of law”: This past Sunday, The Salt Lake Tribune published this profile of Markus B. Zimmer, who serves as Clerk of Court for the U.S. District Court for the District of Utah.

Posted at 15:35 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Jordan Denied Funds in Lewinsky Probe”; here “FTC Not Adding People to Do-Not-Call List”; and here “N.C. Death-Row Inmate Seeks Clemency.”

Posted at 14:48 by Howard Bashman

“Senate Confirms Carlos T. Bea to Serve on Ninth Circuit Court of Appeals”: The U.S. Court of Appeals for the Ninth Circuit has issued this press release. One point that I neglected to mention last night when I noted Judge Bea’s confirmation is that the Ninth Circuit now only has one vacancy.

Posted at 14:37 by Howard Bashman

“You’re on Candid Cellphone! As Camera Phones Proliferate, Health Clubs, Courtrooms, Celebrity Haunts Ban Them.” The Wall Street Journal today contains this report (via “Obscure Store“).

Posted at 14:24 by Howard Bashman

“Lawyer making trip to court charged with drug possession”: Today’s edition of The Houston Chronicle reports here that “Houston lawyer Stanley Duane Wilkinson went into court last week to represent a defendant. But he became a defendant himself.”

Posted at 14:21 by Howard Bashman

What liberal Ninth Circuit? Today an eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued its long-awaited ruling in EEOC v. Luce, Forward, Hamilton & Scripps. The question presented was:

For the arbitration of employment discrimination disputes, did the U.S. Supreme Court decision in Circuit City v. Adams, 532 U.S. 105 (2001), overrule this court’s holding in Duffield v. Robertson Stephens & Co., 144 F.3d 1182 (9th Cir. 1998), which held that the 1991 amendments to Title VII of the 1964 Civil Rights Act preclude the enforcement of arbitration clauses entered into as a condition of employment with respect to Title VII causes of action?

Today, by a vote of 8-3, the en banc court concluded that Circuit City did not overrule Duffield but Duffield nonetheless was wrongly decided and thus is hereby overruled by the court en banc.

Circuit Judge Stephen Reinhardt was the author of one of two dissenting opinions that accompanied the ruling. Judge Reinhardt’s dissent, in which Circuit Judge Harry Pregerson joined, concludes:

Today’s decision by this en banc court constitutes a wilful judicial rebuke of Congress’s effort to protect the rights of American workers to trial by jury in race and sex discrimination cases. Contrary to the clear will of Congress, my respected colleagues invite employers to discharge (and/or not to hire) any woman, or any African American, Hispanic, Native American, or other minority group member, who has the courage to refuse to surrender his hard won right to confront, and thereby hold liable, his persecutor in the federal courts. After today, we have a little less of a dream. I dissent.

You can access the complete ruling at this link.

Posted at 13:29 by Howard Bashman

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

Posted at 13:29 by Howard Bashman

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

Posted at 13:15 by Howard Bashman

“High Court to Review Pa. Death Row Case”: Gina Holland of The Associated Press has this report.

Posted at 12:36 by Howard Bashman

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

The Harvard Crimson, meanwhile, reports that “Flynt Bashes Feminists, Lauds ACLU in Speech.” And Law Professor Alan M. Dershowitz has a letter to the editor that appears under the heading “Plagiarism Accusations Political, Unfounded.”

Posted at 12:20 by Howard Bashman

Today’s U.S. Supreme Court order list is now available online: You can access it at this link, via The Associated Press.

Posted at 12:05 by Howard Bashman

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

Posted at 11:42 by Howard Bashman

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

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

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

Posted at 11:20 by Howard Bashman

In news from Hawaii: The Honolulu Advertiser today reports that “Non-Hawaiians back school in lawsuits.” And The Associated Press reports here that “Judge Sets Trial for Marcos Plaintiffs.”

Posted at 11:20 by Howard Bashman

Not quite yet the end of an era: In response to this post from earlier this morning, someone in-the-know emails:

In response to your question about Emory Widener, he originally announced he would take senior status as of today. He recently sent in a letter modifying the effective date for taking senior status so that it would commence upon the qualification of his successor. I suppose he didn’t want there to be a gap between his tenure and that of his successor.

As I reported here last night, President Bush yesterday nominated the General Counsel of the Department of Defense to fill the vacancy that will be created when Judge Widener takes senior status.

Posted at 11:15 by Howard Bashman

The wire services are reporting: James Vicini of Reuters reports here that “High Court to Decide State Bankruptcy Immunity” and here that “Supreme Court to Hear Austria Appeal on Paintings.” And Gina Holland of The Associated Press reports here that “Supreme Court to Hear Stolen Art Suit.”

Posted at 11:08 by Howard Bashman

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

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

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

For those desiring even more details about the cases granted review today, a visit to “SCOTUSblog” is in order.

Posted at 10:00 by Howard Bashman

Available online at Town Hall: Dennis Prager has an essay entitled “Caucasian clubs and race-based cookies.” Mona Charen has an essay entitled “Free speech confusion.” And Debra Saunders has an essay entitled “Foie Gras work out.”

Posted at 09:52 by Howard Bashman

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

Posted at 09:48 by Howard Bashman

End of an era: Appellate advocate Roy T. Englert, Jr. emails:

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

The federal circuit judge who has been serving longest as a federal circuit judge without taking senior status is now Eleventh Circuit Judge Gerald Bard Tjoflat, nominated to the (pre-split) Fifth Circuit by President Ford in 1975. Next most long-tenured as active circuit judges are nine Jimmy Carter appointees (Edwards, Sloviter, King, Martin, Schroeder, Pregerson, Reinhardt, Seymour, and Anderson).

Englert’s email goes on to note that those Carter appointees may not be listed in order of appointment.

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

Posted at 09:39 by Howard Bashman

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

Posted at 09:29 by Howard Bashman

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

Posted at 06:55 by Howard Bashman

“Moore appeals to high court”: Today’s edition of The Montgomery Advertiser contains this report.

Posted at 06:53 by Howard Bashman

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

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

Posted at 06:30 by Howard Bashman

Coming soon? On Tuesday morning, the Supreme Court of the United States is expected to announce some grants of review from the many, many petitions for writ of certiorari that have accumulated over the summer months. Stay tuned for complete coverage.

Posted at 23:59 by Howard Bashman

“The Oregonian confuses issues on judicial nominations”: The Oregonian today published this guest commentary by Senate Judiciary Committee Chairman Orrin G. Hatch (R-UT).

Posted at 23:57 by Howard Bashman

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

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

In The Boston Globe, E.J. Graff has an op-ed entitled “California leads on civil unions.” And columnist Adrian Walker has a death penalty-related essay entitled “Latest turn on death.”

Posted at 23:40 by Howard Bashman

“Judge nominated for Eighth U.S. Circuit Court”: The Kansas City Star provides this report.

Posted at 23:36 by Howard Bashman

“Battling God’s ouster from government”: This article appears today in The Salt Lake Tribune.

Posted at 23:35 by Howard Bashman

“Attorney general charged; 6 misdemeanor charges filed in court”: Tuesday’s edition of The Pacific Daily News of Guam contains this article.

Posted at 23:34 by Howard Bashman

Judge Justice in the news: The San Antonio Express-News today provides this report.

Posted at 23:15 by Howard Bashman

“Cat blamed for courts power outage”: The Chicago Tribune provides this report. Sadly, according to the article, “The cat did not survived [sic].”

Posted at 23:00 by Howard Bashman

“Major challenge to Minnesota campaign laws headed to court”: Tuesday’s edition of The Minneapolis Star Tribune will contain this report.

Posted at 22:44 by Howard Bashman

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

Posted at 22:43 by Howard Bashman

“Newspaper at UF takes Earnhardt autopsy photos case to high court”: The Associated Press has this report. And the Knight Ridder news service reports that “College newspaper picks up fight for autopsy access.”

Posted at 22:42 by Howard Bashman

“Critics Say Frist, Republicans Not Tough Enough”: FOXNews yesterday had this report.

Posted at 22:36 by Howard Bashman

“Court cases mirror America’s tensions”: Michael Kirkland, who covers the U.S. Supreme Court for United Press International, has this look at the upcoming Term.

Posted at 22:34 by Howard Bashman

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

Posted at 20:46 by Howard Bashman

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

Posted at 19:55 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Bush Names Judges for 4th, 8th Circuits” and here an article headlined “Moussaoui Seeks Dismissal of Indictment.”

Posted at 19:54 by Howard Bashman

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

Posted at 19:13 by Howard Bashman

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

Posted at 18:43 by Howard Bashman

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

Posted at 17:32 by Howard Bashman

“Does ‘under God’ do justice to all? Briefs before high court show Americans divided over pledge.” Claire Cooper, legal affairs writer for The Sacramento Bee, today has this report.

Posted at 17:25 by Howard Bashman

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

Posted at 17:15 by Howard Bashman

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

Posted at 17:06 by Howard Bashman

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

Posted at 16:54 by Howard Bashman

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

Posted at 16:50 by Howard Bashman

“View from the Right: The Ninth Circus.” SF Gate, the Web site that hosts the content of The San Francisco Chronicle, today offers this essay by Adam Sparks.

Posted at 16:43 by Howard Bashman

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

Posted at 16:29 by Howard Bashman

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

Posted at 14:44 by Howard Bashman

“Fed directive may clog courts”: Today’s edition of The Rochester Democrat and Chronicle contains this report.

Posted at 14:39 by Howard Bashman

“FCC Says It Will Enforce Do-Not-Call List”: The Associated Press provides this report. You see, the federal government agency that’s been enjoined from enforcing the list is the FTC, not the FCC.

Posted at 14:36 by Howard Bashman

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

Posted at 14:20 by Howard Bashman

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

Posted at 14:03 by Howard Bashman

“Bush to sign ‘do-not-call’ bill”: CNN.com provides this report.

Posted at 13:50 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “New Law Passed to Block Concert Suicide” and here an article headlined “Amtrak Asks Court to Halt Planned Walkout.”

Posted at 13:38 by Howard Bashman

“Crescat Sententia” has a new address: And the blog is now powered by Movable Type. To inaugurate the new site, enjoy this interview with Election Law Professor and Blogger Rick Hasen.

Posted at 12:16 by Howard Bashman

“Drunk judge fined £800; A district judge has been fined a total of £800 following a drunken argument in a kebab shop.” BBC News provides this report.

Posted at 11:49 by Howard Bashman

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

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

Back before the Supreme Court of Mississippi’s current troubles arose, Mississippi Supreme Court Justice Kay B. Cobb participated in this Web log’s “20 questions for the appellate judge” feature. You can access the complete interview, and thereby learn a bit more about that court, via this link.

Posted at 10:55 by Howard Bashman

“Feeding tube case inflames emotions; As the date gets closer for disconnecting Terri Schiavo, testy messages are reaching those associated with the case.” The St. Petersburg Times today contains this report.

Posted at 09:48 by Howard Bashman

“Scholarship fight a lesson in resolve; UNC student’s battle aids Pacific Islanders”: This article appears today in The Denver Post.

Posted at 09:45 by Howard Bashman

“Leaders rally for religion; State Capitol event to support Ten Commandments displays”: Today’s edition of The Atlanta Journal-Constitution contains this report.

Posted at 09:38 by Howard Bashman

The law blog “Mellow-Drama” presents “Raising the Bar”: It’s described as a “collection of the best posts from around the blawg world” and is slated to appear every Monday. You can access the “Mellow-Drama” blog at this link.

Posted at 06:57 by Howard Bashman

In the October 6, 2003 issue of The New Yorker: Pulitzer Prize-winning author Louis Menand — one of my favorite writers, especially when he is writing about writing — reviews the fifteenth edition of The Chicago Manual of Style. The final paragraph of the book review shouldn’t be missed:

Some people will complain that the new “Chicago Manual” is too long. These people do not understand the nature of style. There is, if not a right way, a best way to do every single thing, down to the proverbial dotting of the “i.” Relativism is fine for the big moral questions, where we can never know for sure; but in arbitrary realms like form and usage even small doses of relativism are lethal. The “Manual” is not too long. It is not long enough. It will never be long enough. The perfect manual of style would be like the perfect map of the world: exactly coterminous with its subject, containing a rule for every word of every sentence. We would need an extra universe to accommodate it. It would be worth it.

Of course, the book review also mentions every lawyer’s favorite manual of citation, “The Blue Book.”

Elsewhere in the issue, Ben McGrath has a “Talk of the Town” essay entitled “A Lawyer Walks Into a Bar.”

Posted at 06:45 by Howard Bashman

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

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

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

Posted at 06:30 by Howard Bashman

“High Court to Weigh ‘One Nation, Under God’ Petition; Among many appeals before the justices looms a battle over the place of religion in America.” David G. Savage will have this article in Monday’s issue of The Los Angeles Times.

Posted at 23:50 by Howard Bashman

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

Today’s edition of The Boston Globe contains an editorial entitled “The politics of death.” Relatedly, Jeff Jacoby has an op-ed entitled “Execution saves innocents…,” while James Alan Fox has an op-ed entitled “…Foolproof or foolish?”

Posted at 23:32 by Howard Bashman

“Lawmakers brace for high court ruling on gay marriage”: This article appears in today’s edition of The Berkshire Eagle.

Posted at 23:21 by Howard Bashman

“Ten Commandments tour will end at Supreme Court”: Today’s issue of The Huntsville Times provides this report.

Posted at 23:20 by Howard Bashman

“Supremes are disarmingly wrong again”: So contends Cincinnati Enquirer columnist Peter Bronson in an essay you can access here.

Posted at 23:19 by Howard Bashman

“Life with concealed carry; Minnesota’s experience with new gun law has a Missouri ring”: This article appears in today’s edition of The Kansas City Star.

Posted at 23:17 by Howard Bashman

“A long haul for Enron grand jury”: Today The Houston Chronicle contains this report.

Posted at 23:15 by Howard Bashman

“Q&A: After ruling for Hearst, what’s next in newspaper fight.” A freelance writer hired on a special contract by The Seattle Times to cover events involving that newspaper’s joint operating agreement with The Seattle Post-Intelligencer today has this report.

Posted at 23:14 by Howard Bashman

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

Posted at 23:11 by Howard Bashman

“Lawsuit on profit in Laci slaying; Mother seeks to keep Peterson from benefiting”: Today’s issue of The San Francisco Chronicle contains this report.

Posted at 23:10 by Howard Bashman

“Castaneda Dispute Reaches State Supreme Court; Anthropologist suing another for defamation”: This article appears in today’s edition of The Santa Fe New Mexican.

Posted at 23:09 by Howard Bashman

“Peephole case gets national attention; lawyers disagree on motive of publicity”: The Midland Reporter-Telegram contains this report today.

Posted at 23:07 by Howard Bashman

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

Posted at 23:05 by Howard Bashman

“Voting machines taking heat; Critics say touch-screen systems lack a paper trail, among other things.” Today’s edition of The Sarasota Herald-Tribune contains this report.

Posted at 23:03 by Howard Bashman

“New judge — bad news for Everglades?” The Orlando Sentinel addresses that question in a report you can access here. And The South Florida Sun-Sentinel reports here that “New ‘Glades judge sets hearing.”

Posted at 23:02 by Howard Bashman

“Has three-strikes law made state’s streets safer? After 10 years on the books, opinion is divided on if it works.” Bob Egelko has this article in today’s issue of The San Francisco Chronicle.

Posted at 22:59 by Howard Bashman

“S.C. economy could profit from Gullah study; Study suggests taking advantage of cultural tourism possibilities with centers”: The State today provides this report.

Posted at 22:58 by Howard Bashman

In news from Utah: The Deseret Morning News today reports here that “ACLU suit in plaza dispute is called harmful” and here that “Plural wives plead case; Make polygamy legal in Utah, Shurtleff is told.”

Posted at 19:33 by Howard Bashman

“Judges’ phones ring off the hook”: Today’s edition of The Denver Post contains this article.

Posted at 19:29 by Howard Bashman

“Panel Launches Inquiry Into Miss. Judge”: The Associated Press reports here that “A judicial review board has launched an inquiry into allegations against a state Supreme Court justice, including claims that he threatened to ‘whip’ the chief justice and intentionally delayed cases as payback before his term on the court ends.”

Posted at 18:15 by Howard Bashman

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

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

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

Posted at 16:55 by Howard Bashman

CitizenLink presents an interview with Robert H. Bork: You can access the interview at this link.

Posted at 16:45 by Howard Bashman

“Muhammad, Malvo ties began with Antigua swap; Teen-age sniper suspect’s mother gave him to man for forged travel papers”: This article appears today in The Baltimore Sun.

Posted at 12:25 by Howard Bashman

“OK for voting machines relieves state officials”: The Atlanta Journal-Constitution today has this report.

Posted at 12:20 by Howard Bashman

“Gay marriage stirs conservatives again; Right wing braces for Mass. ruling”: This article appears in today’s edition of The Boston Globe.

Posted at 10:25 by Howard Bashman

“No more Mr. Nice Federal Prosecutor Guy”: The Fort Worth Star-Telegram today contains this op-ed by J.R. Labbe.

Posted at 10:23 by Howard Bashman

“‘Guide to clean living’ a national Ten Commandments drama”: Columnist Jan Jarboe Russell has this essay in today’s issue of The San Antonio Express-News.

Posted at 10:21 by Howard Bashman

“No single policy for racial data; Many inconsistencies in how it’s gathered; Prop 54 foes say information is still necessary.” The Sacramento Bee today contains this report. And John Rosenberg has a blog post entitled “Dramatic New Poll: Minorities Support Prop. 54!”

Posted at 09:36 by Howard Bashman

“News media may withhold gruesome images, but Internet sets them free”: This article appears in today’s edition of The Pittsburgh Post-Gazette.

Posted at 09:22 by Howard Bashman

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

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

Posted at 09:00 by Howard Bashman

“Wife sues to make casino ban husband; She says his bets are ruining family”: Today’s edition of The Cincinnati Enquirer contains this report.

Posted at 08:44 by Howard Bashman

“Senate should confirm Bill Pryor to 11th Circuit Court of Appeals”: Bob Martin, the editor and publisher of The Montgomery Independent, has written this op-ed. (Thanks to “Southern Appeal” for the pointer.)

Posted at 23:44 by Howard Bashman

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

Posted at 23:40 by Howard Bashman

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

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

Posted at 23:25 by Howard Bashman

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

Posted at 23:24 by Howard Bashman

“Lingle says jails need replacing”: This article appears today in The Honolulu Advertiser.

Posted at 23:06 by Howard Bashman

“Murder Appeal Centers On Technology”: The Hartford Courant today provides this report.

Posted at 23:01 by Howard Bashman

“UND law clinic can aid clients v. Fargo; Attorney general’s opinion affirms school’s right to take on ‘Ten Commandments’ suit”: Today’s edition of The Grand Forks Herald contains this report.

Posted at 22:56 by Howard Bashman

“Judge who admitted smoking pot at concert hit with six-month suspension”: This article appears today in The Detroit Free Press.

Posted at 22:46 by Howard Bashman

“Judges delay smoking ban. Lexington curbs won’t take effect Monday; ‘status quo’ remains until suits heard.” The Courier-Journal of Louisville, Kentucky today provides this report. And The Lexington Herald-Leader provides additional coverage here.

Posted at 22:33 by Howard Bashman

In news from Ohio: The Cincinnati Enquirer reports here that “Rape victim jailed; accused freed; Afraid or not, it’s her duty to testify, judge says.” And The Associated Press reports here that “ACLU sues over executions; Show entire process, civil rights group in Ohio says.”

Posted at 22:25 by Howard Bashman

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

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

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

Posted at 19:35 by Howard Bashman

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

Posted at 19:32 by Howard Bashman

“Euthanasia debate sweeps world”: BBC News provides this report.

Posted at 19:29 by Howard Bashman

“Smoker’s damages cut to $10.5 million”: Bob Egelko had this article yesterday in The San Francisco Chronicle.

Posted at 19:27 by Howard Bashman

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

Posted at 19:25 by Howard Bashman

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

Posted at 19:21 by Howard Bashman

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

Posted at 19:18 by Howard Bashman

“U.S. Uses Terror Law to Pursue Crimes From Drugs to Swindling”: Sunday’s edition of The New York Times will contain this report.

Posted at 19:08 by Howard Bashman

“Ruling: Patient names private.” The Associated Press today has this report from Montana. You can access Thursday’s ruling of the Supreme Court of Montana at this link.

Posted at 19:03 by Howard Bashman

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

Posted at 18:53 by Howard Bashman

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

Posted at 18:45 by Howard Bashman

“Appeals Court Smiles on ‘Do Not Call’ List”: Reuters has this report. And you can access today’s order of the U.S. Court of Appeals for the Tenth Circuit at this link.

Posted at 18:40 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Ban on Public Smoking in Ky. Halted” and here an article headlined “Farmer Convicted in D.C. Tractor Protest.”

Posted at 16:22 by Howard Bashman

Who would have thunk it? A judge’s ideology can affect the outcome of cases! On June 11, 2003, The New York Times published an op-ed by David A. Schkade and Cass R. Sunstein entitled “Judging by Where You Sit.” The op-ed begins:

Ideology matters when choosing judges — perhaps too much, as the battles between President Bush and Senate Democrats show. But how much does ideology matter once judges are on the bench?

As it turns out, it matters a lot. We have studied thousands of votes by federal appellate judges, who are randomly assigned to three-judge panels, which then make decisions by majority vote. According to our research, judges appointed by Republican presidents show more conservative voting patterns, while Democratic appointees are more liberal.

When I first noted the publication of this op-ed on June 11th, I wrote: “It will be interesting to see whether the evidence with which they support their opinions stands up to outside scrutiny.”

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

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

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

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

Posted at 15:30 by Howard Bashman

“Ex-Priest Geoghan’s Conviction Vacated”: The Associated Press reports here that “The Massachusetts Appeals Court vacated the child molestation conviction of former priest John Geoghan, who was killed in prison while his appeal was pending.”

Posted at 14:41 by Howard Bashman

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

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

Posted at 12:53 by Howard Bashman

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

Posted at 12:45 by Howard Bashman

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

Posted at 12:01 by Howard Bashman

What’s worse than telemarketers? People who are angry about telemarketers. Yesterday The Associated Press reported here that “Judge Who Backed Telemarketers Is Deluged.” Update: A reader provides this example of an editorial cartoon that appeared earlier this week in The Birmingham News.

Posted at 11:43 by Howard Bashman

BREAKING NEWS — Second Circuit decides appeal over how much insurance coverage is available to owners of World Trade Center: Today’s opinion from the U.S. Court of Appeals for the Second Circuit begins:

This case arises out of the devastating tragedy that occurred at the World Trade Center (“WTC”) in lower Manhattan, New York, on the morning of September 11, 2001. At issue in this case is the amount of insurance that is recoverable for the total destruction of the WTC that occurred after the buildings were struck by two fuel-laden aircraft that had been hijacked by terrorists. The appellants are numerous entities that have varying property interests in the WTC, including the Port Authority of New York and New Jersey (the “Port Authority”), which owns the property in fee simple, and Silverstein Properties, Inc. and several related entities (“Silverstein Properties”).

Later, the opinion explains that “The broad question presented in this case is whether the events of September 11, 2001 constituted one or two ‘occurrences.’ The answer will determine whether the Silverstein Parties can recover once, up to $3.5 billion, or twice, up to $7 billion, under the insurance coverage.” You can access the complete opinion at this link.

Posted at 11:25 by Howard Bashman

Lesson one for identity thief — don’t pretend to be a convicted sex offender: Today’s edition of The New Haven Register reports here that “Clinton man picks wrong person in identity theft.” And The Associated Press reports here that “Man Steals ID of Sex Offender.”

Posted at 11:16 by Howard Bashman

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

Posted at 10:53 by Howard Bashman

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

Posted at 10:44 by Howard Bashman

“Deal on definition prevents abortion fight; Wasserman’s language for ‘live birth’ lets bill pass Assembly, 95-0”: This article appears in today’s issue of The Milwaukee Journal Sentinel.

Posted at 10:18 by Howard Bashman

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

Posted at 10:14 by Howard Bashman

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

Posted at 10:01 by Howard Bashman

“Discipline for Internet threats proves difficult for school; Cyberspeech site key to situation”: This article appears in today’s issue of The Florida Times-Union.

Posted at 09:41 by Howard Bashman

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

Posted at 09:30 by Howard Bashman

“Vote on Pickering blocked; Democrat Leahy’s move delays committee’s vote for a week”: This article appears in today’s issue of The Clarion-Ledger.

Posted at 06:59 by Howard Bashman

“Hearing delayed for 6th Circuit; Bush nominees moved ahead by Senate committee” The Detroit News today contains this article.

Posted at 06:57 by Howard Bashman

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

Posted at 06:56 by Howard Bashman

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

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

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

Finally, online at OpinionJournal you can access an editorial entitled “The Grove and Academe: Liberal law schools want to defy federal policy while taking federal money.”

Posted at 06:33 by Howard Bashman

Do state laws exist against masturbation? In response to this blog post of mine from the other day, a reader emails:

The 80-page district court opinion in Williams v. Pryor includes this assertion by plaintiffs: “In the states surveyed, no laws were passed in the nineteenth century (or later) banning or regulating private acts of masturbation. Judge Posner writes that no such law has ever been passed in the United States.” Slip op. at 44. Plaintiffs’ citation is to Judge Posner’s Sex and Reason, 207.

Where two such titans as Posner and Scalia disagree, what can mere mortals think? Perhaps the best solution is to construe Justice Scalia as wishing to preserve the future prospect of anti-onanism legislation? Certainly, in adopting Justice Stevens’ Bowers-dissent position that intimacy between married, or even unmarried, couples is protected, Lawrence did not address non-couple sexual behavior.

I appreciate my reader’s attempt to square what Judge Posner apparently has written with the language from Justice Scalia’s dissent in Lawrence that “State laws against … masturbation … are likewise sustainable only in light of Bowers’ validation of laws based on moral choices. Every single one of these laws is called into question by today’s decision; the Court makes no effort to cabin the scope of its decision to exclude them from its holding.” Lawrence v. Texas, 123 S. Ct. 2472, 2490 (2003) (Scalia, J., dissenting). Justice Scalia can only be understood as saying that laws against masturbation exist now. As I pointed out in the post to which this reader’s email is responding, the Alabama law in question cannot be characterized as a law against masturbation because it prohibits the distribution — but not the use — of “any device designed or marketed as useful primarily for the stimulation of human genital organs.” So, I’m afraid we are no closer to figuring out what existing laws Justice Scalia had in mind.

Posted at 23:19 by Howard Bashman

From the Supreme Court of Indiana, rulings on Medicaid coverage for abortions and dog bites postman: Marcia Oddi of “The Indiana Law Blog” has the details here.

Posted at 23:06 by Howard Bashman

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

Posted at 22:34 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Gov’t Ordered to Account for Indian Money”; here “Man Tied to al-Qaida Wants Plea Withdrawn”; and here “Fla. Judge Delays Flag-Flying Home Sale.”

Posted at 22:28 by Howard Bashman

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

Posted at 20:51 by Howard Bashman

“Ala. Justice Moore to Get Nov. 12 Trial”: The Associated Press provides this report.

Posted at 20:41 by Howard Bashman

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

Update: Reuters now has an updated report bearing the headline “Congress OKs, Judge Knocks Down Do-Not-Call List.”

Posted at 19:13 by Howard Bashman

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

Posted at 17:27 by Howard Bashman

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

Posted at 17:12 by Howard Bashman

“The Pied Sniper: Was Lee Boyd Malvo brainwashed into a killing machine?” Dahlia Lithwick has this essay just posted online at Slate.

Posted at 16:58 by Howard Bashman

Yikes indeed! “Plainsman” and “D” may now be blogging separately, but that doesn’t mean they can’t continue to converse (about events yesterday at “How Appealing,” no less), as their posts here and here demonstrate.

Posted at 16:26 by Howard Bashman

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

Posted at 15:26 by Howard Bashman

To have and to hold:

The question presented by this appeal is whether U.S. currency is “tangible” or “intangible” personal property within the meaning of an Indiana statute that places some of the property of a bankrupt or other judgment debtor beyond the reach of his creditors.

Seventh Circuit Judge Richard A. Posner today delivered an opinion that begins with the above-quoted sentence, and you can be sure the opinion makes for quite an entertaining read in the course of reaching a most pragmatic result.

Posted at 14:28 by Howard Bashman

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

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

Update: Charles Breckenridge Faris was commissioned to join the Eighth Circuit at the age of 70.

Posted at 14:07 by Howard Bashman

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

Posted at 13:38 by Howard Bashman

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

Relatedly, someone who identifies himself as a law clerk to a Ninth Circuit judge emails:

The Ninth Circuit handles something like twelve thousand cases a year. I don’t know how many of those cases resulted in petitions for cert to the Supreme Court (nearly 8000 cases were filed with the Court in 2001), but of all the petitions filed in cases out of the Ninth Circuit, only twenty-four cases were accepted by the Supreme Court. Of those, only eighteen were reversed.

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

My research was only cursory, but a more in depth analysis, I am sure, would bear this out with accuracy.

Several other readers have also sent along emails expressing thoughts similar to those set forth in this law clerk’s email. You can access statistics showing the various circuits’ caseloads as of the end of 2002 here and here.

Posted at 13:31 by Howard Bashman

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

Update: Of course, this news reminds me of the ruling of the U.S. Court of Appeals for the Tenth Circuit that I reported on here in June 2002 under the heading “Tenth Circuit allows Columbine High School to ban ‘God is Love’ tiles.”

Posted at 11:44 by Howard Bashman

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

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

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

Posted at 11:24 by Howard Bashman

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

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

Posted at 10:52 by Howard Bashman

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

Posted at 10:41 by Howard Bashman

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

Posted at 10:18 by Howard Bashman

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

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

Posted at 10:14 by Howard Bashman

“Patent Politics: A legal challenge to the Internet Explorer browser prompts rivals to set aside their differences with Microsoft.” c|net News.Com today contains this report.

Posted at 10:06 by Howard Bashman

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

Posted at 10:00 by Howard Bashman

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

Posted at 09:52 by Howard Bashman

“SMU halts race-based bake sale; Anti-affirmative action group used ethnicity, gender to set prices”: Today’s edition of The Dallas Morning News contains this report. The SMU Daily Campus, that university’s student newspaper, so far appears to contain no coverage of this news.

Posted at 09:44 by Howard Bashman

“California spam law may face court challenge”: Declan McCullagh of c|net News.Com has this report.

Posted at 09:43 by Howard Bashman

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

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

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

Posted at 06:35 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Commandments Moved From Mont. Courthouse”; here “Texas University Shuts Down Bake Sale”; and here “Fatal Pa. No-Knock Search Trial Begins.”

Posted at 06:32 by Howard Bashman

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

Yesterday’s seemingly one-sided account of the oral argument concerning the constitutionality of Alabama’s law banning the distribution of sex toys was written by a correspondent who admitted in that description to having left the courtroom before the attorney for the State of Alabama finished his initial presentation to the court. Today’s summary of yesterday’s oral argument comes from someone who observed the entire event from start to finish. Indeed, the following email is from Nathan A. Forrester, Solicitor General for the State of Alabama:

Let me start by saying that your blog is the homepage for a number of us here who do appellate work for the State of Alabama. It is an amazing resource and I constantly marvel at how you are able to keep it up and maintain a law practice at the same time.

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

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

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

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

P.S. The “high school” students that your “correspondent” mentions as being in the audience at the OA were actually college students from a political science class at nearby Huntingdon College in Montgomery.

I sincerely thank Alabama’s Solicitor General for taking the time to send along this detailed description of yesterday’s oral argument.

Posted at 23:30 by Howard Bashman

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

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

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

Finally, Law Professor Lawrence Solum, at his “Legal Theory Blog,” takes a close look at the substance of yesterday’s ruling and concludes that “the rule of law prevailed.”

Posted at 23:01 by Howard Bashman

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

Someone at the University of Oregon Law School emails:

Regarding Judge Hawkins’s email, the four circuits with a 100% reversal rate all had three cases or fewer taken by the Supreme Court. Two of those circuits had only 1 case taken up by the Supreme Court. In contrast, the Ninth Circuit had 24 cases taken by the Supreme Court, 18 of which were reversed. The following links provide the numbers and a little perspective.

Someone with an email address at the D.C. Circuit writes:

Part of the reason that the 74% number of reversal rate is so high is that the inclusion of the 9th Circuit’s high number of reversal decisions inflates that number. I think it would be in the low 60s otherwise. Thus the true comparison is 75% to the low 60 percents. Still not a huge difference however.

With all due respect for the brilliance that is required to earn one a D.C. Circuit email address, Judge Hawkins’s email explained that the Ninth Circuit’s reversal rate was 75 percent while the overall reversal rate was 74 percent. As one would expect from those two numbers, if you remove the Ninth Circuit’s numbers from the calculation, the overall reversal rate becomes 73 percent, and not a percentage in the “low 60s.”

Another longtime reader emails:

The data that M. Estrada was suggesting be compiled, regarding summary reversal rates for various circuits including the Ninth, have actually been compiled and discussed a couple of years ago — and by one of your (and my) favorite authors, no less. See (immediately) Richard A. Posner, Is the Ninth Circuit Too Large: A Statistical Study of Judicial Quality, 29 J. Legal Stud. 711 (2000). (I believe the article is reprinted in Posner’s book FRONTIERS OF LEGAL THEORY, but I don’t have a copy handy.)

I am also reminded of the following email that I received (and originally posted here) in response to my April 2003 monthly appellate column entitled “When Considering A Split Of The Ninth Circuit, The Question Is Not Whether But How”:

I must disagree with one point you made in your article on splitting the 9th Circuit: the 9th Circuit’s size does not contribute to the extremity of its decisions. It is a mathematical fact that if you hold the percentage of extreme judges on a court constant, the probability of randomly selecting at least two extreme judges on a panel of three judges increases as the number of judges on the court increases. For example, on a court of 10 judges, three of which are extreme (30%), the chance of selecting a panel of three that includes at least two extreme judges is 18.3%. By contrast, on a court of 20 judges, six of which are extreme (30%), the chance of selecting a panel of three that includes at least two extreme judges is 20.2%. Although a 2% increase may not seem like much, when you multiply it over the hundreds of panels selected by the Ninth Circuit every year, it makes a difference.

Those interested in this comment can read the full post here and learn the identity of its author and my reaction to it.

Update: Here’s a direct link to the Wall Street Journal editorial that kicked-off this coversation this morning (link via Rick Hasen’s “Election Law” blog.

Posted at 22:40 by Howard Bashman

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

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

Posted at 22:25 by Howard Bashman

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

Posted at 22:03 by Howard Bashman

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

Posted at 20:51 by Howard Bashman

“Bill Pryor, the Man in the Middle”: Christianity Today magazine has posted online an interview with Eleventh Circuit nominee William H. Pryor, Jr. It’s a must read. Thanks to Stuart Buck for the pointer.

Posted at 19:04 by Howard Bashman

In response to the post immediately below: Miguel A. Estrada emails:

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

Interesting point.

Posted at 18:44 by Howard Bashman

Don’t let facts get in the way of your disdain for the Ninth Circuit, part two: Ninth Circuit Judge Michael Daly Hawkins emails, in connection with this earlier post in which I quoted from an editorial that The Wall Street Journal published today:

The actual numbers are available for the rate at which the Supreme Court “slapped down” the lower courts in the last Term. The average reversal rate was 74%. The rate for the Ninth Circuit was 75% (same as the Sixth); four circuits had 100% reversal rates (Second, Fourth, Fifth & Tenth); and state supreme courts were reversed 81% of the time. In Desert Palace, Inc. v. Costa, 123 S. Ct. 2148 (2003), the Ninth Circuit was affirmed unanimously on an employment law issue where four other circuits had gone the other way.

Thanks much for sending that along.

Posted at 16:41 by Howard Bashman

Even in prison, Shiite Muslims don’t get along with Sunni Muslims: Brand new Second Circuit Judge Richard C. Wesley issued this opinion today on behalf of a unanimous three-judge panel.

Posted at 15:37 by Howard Bashman

“Judicial Conference Seeks Restoration of Judges’ Sentencing Authority”: The Administrative Office of the U.S. Courts issued this press release yesterday.

Posted at 14:22 by Howard Bashman

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

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

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

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

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

Posted at 13:40 by Howard Bashman

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

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

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

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

Using this method, I have been able to restore direct links to each of my “20 questions for the appellate judge” interviews, because the full text of all previous interviews can be found on the main page of that blog.

Posted at 13:35 by Howard Bashman

Do call: Yesterday’s ruling of the U.S. District Court for the Western District of Oklahoma blocking the national “do not call” list is accessible here, via FindLaw. Additionally, you can access a report on the ruling from The Associated Press at this link.

Posted at 13:23 by Howard Bashman

“Agreement forces driver in fatal crash to visit grave of her victim”: Today’s edition of The Pittsburgh Post-Gazette contains this report.

Posted at 12:32 by Howard Bashman

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

Posted at 12:01 by Howard Bashman

“U.S. Court Blocks Anti-Telemarketing List”: Reuters provides this news (link has been updated to a more detailed report).

Posted at 11:50 by Howard Bashman

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

Posted at 11:27 by Howard Bashman

Don’t let facts get in the way of your disdain for the Ninth Circuit: Today’s edition of The Wall Street Journal contains an editorial entitled “Ninth Circuit slapdown.” The editorial, whose contents are available online only to subscribers, states in relevant part:

Lost too [now that the en banc Ninth Circuit has allowed California’s recall election to occur on its original schedule] is an excellent opportunity for the Supreme Court to continue its public tutorial on Ninth Circuit shenanigans and the modern liberal judicial mind. We console ourselves with the thought that there will be other educational opportunities, starting with the Ninth Circuit’s ban on the Pledge of Allegiance, which the Supremes will hear this term.

While chances are favorable that the U.S. Supreme Court will agree to hear the Pledge cases, in fact no decision has yet been made, and those cases remain pending as of today before the Court on petition for writ of certiorari. Thus, when the WSJ’s editorial writers say that the Supreme Court “will hear” the Pledge case in the upcoming Term, they are jumping the gun just a little bit.

Those who do look at the U.S. Supreme Court’s docket entries should be sure to note several recent filings that presumably pertain to the issue that journalist Tony Mauro recently wrote about here.

Posted at 11:14 by Howard Bashman

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

You can access the ruling of the Supreme Court of Ohio at this link. And Clayton Cramer comments on the ruling here.

Posted at 10:44 by Howard Bashman

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

Posted at 10:36 by Howard Bashman

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

Posted at 10:29 by Howard Bashman

Onan he arbarian: A reader who is in the midst of a judicial clerkship in New Mexico emailed yesterday:

Reading today’s (excellent) posting on oral arguments in the Eleventh Circuit over Alabama’s attempt to ban the distribution of sex toys not only left me howling, but answered the burning question in my mind (and I’m sure others’) as to what on earth Justice Scalia was talking about in Lawrence when he warned that:

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

“What laws against masturbation?” I have naively wondered for the past several months. Now I know.

Thanks so very much for the interesting email and your kind words.

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

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

Posted at 10:11 by Howard Bashman

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

Posted at 10:05 by Howard Bashman

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

Posted at 09:59 by Howard Bashman

“Crematory trial costs escalate; Marsh pleads poverty, wants new venue”: Today’s edition of The Atlanta Journal-Constitution contains this report.

Posted at 09:52 by Howard Bashman

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

Posted at 09:51 by Howard Bashman

“Univision foes challenge FCC ruling”: TheDeal.com reports here today that “Activists are poised to ask a federal appeals court to overturn a Federal Communications Commission order allowing Univision Communications Inc. to buy Hispanic Broadcasting Corp.”

Posted at 09:46 by Howard Bashman

Available at National Review Online: Law Professor Douglas W. Kmiec has an essay entitled “Law, Resurrected! A victory for law and restraint.” And speaking of the Ninth Circuit, Andrew J. and Judith S. Kleinfeld have an essay entitled “Freedom for Iraq? Iraqis’ choice.”

Posted at 09:32 by Howard Bashman

“‘Demons’ name lands school in court”: The Associated Press has this report from Alabama.

Posted at 06:59 by Howard Bashman

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

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

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

Posted at 06:35 by Howard Bashman

“Justices in for the long haul”: William O’Rourke had this essay in Sunday’s issue of The Chicago Sun-Times.

Posted at 06:33 by Howard Bashman

“Panel expected to OK Pickering; Bush nominee for court of appeals could face filibuster on Senate floor”: Today’s edition of The Clarion-Ledger contains this report. Elsewhere, The Washington Times today reports that “Senate GOP to revive Pickering nomination.” Yesterday, The Hill reported here that “GOP sees ‘obstruction’ of Bush nominees as 2004 campaign issue.”

Posted at 06:30 by Howard Bashman

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

Posted at 06:15 by Howard Bashman

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

Posted at 20:44 by Howard Bashman

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

Posted at 17:15 by Howard Bashman

Law Professor Laurence H. Tribe reacts to today’s loss in the Ninth Circuit: The blog “Waddling Thunder,” written by a Harvard Law student, has the details here.

Posted at 17:13 by Howard Bashman

Reno, in Kansas, backs removal of Alabama monument: The Associated Press has this report.

Posted at 17:10 by Howard Bashman

From the September 24, 2003 issue of The Onion:

Church, State Joyfully Reunite After 230-Year Trial Separation

WASHINGTON, DC—Following a two-and-a-quarter-century-long trial separation, Church and State reunited in the U.S. Department of Justice press room Monday. “Even through all the bad times, I knew there had to be a way to get these two old friends back together,” Attorney General John Ashcroft said. “With a little counseling and faith-based intervention, I knew Church and State would work it out. It was meant to be.” Effective Oct. 15, prayer will be mandatory in public schools and congressional sessions will open with Holy Communion.

You can access the entire brand new issue online here.

Posted at 16:38 by Howard Bashman

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

Posted at 16:29 by Howard Bashman

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

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

Lately it seems that an appellate courtroom that lacks a “How Appealing” reader is a rare occurrence, and today is no different. Via email, the following report from a courtroom observer entirely unconnected with this case has arrived:

The state (Deputy S.G. somebody, with Attorney General Pryor nowhere to be seen) argued first. Though he had saved 5 or so minutes out of his 15 for rebuttal, his 10 minute opening was going strong at about 30 minutes when I finally had had enough.

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

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

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

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

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

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

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

The courtroom, by the way, was full of high school students. Don’t know if they knew what was on the docket and came on purpose in connection with some class, or if they just luckily stumbled in to a day full of cases that involved child porn, vibrators, and a high school principal seeking qualified immunity despite having severely beaten a student with a metal walking stick for no good reason.

Thanks much to my correspondent for this very interesting description of today’s oral argument.

Posted at 16:05 by Howard Bashman

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

Posted at 15:46 by Howard Bashman

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

Posted at 15:37 by Howard Bashman

Salon.com looks at “the potential for serious flaws in electronic voting systems”: Farhad Manjoo today has this report.

Posted at 15:34 by Howard Bashman

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

Posted at 15:18 by Howard Bashman

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

Posted at 15:09 by Howard Bashman

“Ruling That Delayed California Recall Vote Is Overturned”: The New York Times provides this news update.

Posted at 15:05 by Howard Bashman

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

Posted at 14:33 by Howard Bashman

“The Silveira Threat: How long will the Second Amendment live?” Dave Kopel has this essay today at National Review Online.

Posted at 14:21 by Howard Bashman

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

Posted at 14:01 by Howard Bashman

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

As I wrote in my monthly appellate column entitled “Appellate Court Web Sites: Some Are Excellent, But Many Others Could Easily Be Improved,” originally published in February 2002:

Both the Seventh and Eighth Circuits, at their Web sites, provide access to the full text of appellate briefs filed with the court and to audiotapes of appellate oral arguments. An employee of the Eighth Circuit has told me that approximately 1,000 users listen online to that court’s oral arguments each month. The U.S. Supreme Court makes written transcripts of its oral arguments available online, and the Supreme Court of Florida provides live and archived video access to its oral arguments.

It would be wonderful if more federal and state appellate courts began to provide online access to audiotapes of oral arguments.

Posted at 13:59 by Howard Bashman

“9th Circuit gives green light to Oct. 7 election”: Bob Egelko of The San Francisco Chronicle has this update. The Los Angeles Times reports here that “U.S. Court Reverses Recall Postponement.” And The Sacramento Bee reports here that “Oct. 7 election on schedule after judges’ ruling.”

Posted at 13:50 by Howard Bashman

Election Law Professor Rick Hasen offers his analysis of today’s en banc Ninth Circuit ruling: You can access Rick’s thoughts at this link. And Law Professor Larry Solum provides his views here.

Posted at 13:42 by Howard Bashman

“Appeals court unanimously reinstates Oct. 7 recall vote date, citing California constitution”: David Kravets of The Associated Press has this early report. And Reuters reports here that “Court Clears Way for California Oct. 7 Recall Vote.”

Posted at 12:48 by Howard Bashman

For those who cannot access the Ninth Circuit’s en banc ruling via the Ninth Circuit’s Web site: Try this link to the opinion, provided by FindLaw.

Posted at 12:43 by Howard Bashman

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

Posted at 12:38 by Howard Bashman

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

Posted at 11:59 by Howard Bashman

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

William and Mary, by the way, appears to have been hit very hard by Hurricane Isabel. A link to the law school’s Web site currently takes one to a hurricane-related page entitled “Emergency Information Center.”

Posted at 11:33 by Howard Bashman

“Courts take on too many political issues”: Tony Mauro today has this op-ed in USA Today.

Posted at 10:44 by Howard Bashman

“1973 plaintiff seeks reversal of abortion law”: The Atlanta Journal-Constitution today has this report about the woman once known as “Mary Doe.”

Posted at 10:35 by Howard Bashman

Law Professor Michael Froomkin now has a blog: You can access “Discourse.net” at this link.

Posted at 10:30 by Howard Bashman

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

In the meantime, you can listen here (Real Player required) to very interesting coverage of yesterday’s oral argument from yesterday’s edition of the PBS program NewsHour with Jim Lehrer. Law Professors Pamela S. Karlan and Douglas W. Kmiec both provided extensive commentary about the oral argument. And today, National Public Radio‘s “Morning Edition” provided this coverage of yesterday’s en banc oral argument.

Posted at 10:05 by Howard Bashman

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

Posted at 10:00 by Howard Bashman

Dick’s: Today brings news of a change at the very top of my law firm.

Posted at 09:27 by Howard Bashman

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

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

Posted at 06:55 by Howard Bashman

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

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

Posted at 06:40 by Howard Bashman

“Judges expected to make recall decision Tuesday; At issue: Whether to hold vote in October or March.” CNN.com provides this report.

Posted at 06:35 by Howard Bashman

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

Posted at 00:00 by Howard Bashman

Day two of “Liberty in the balance”: Today is day two of the “Liberty in the balance” series of articles being published in The Sacramento Bee. Today’s lead article appears under the headline “Librarians step up: They prepare for ‘knock on the door.'” And in related coverage, “Libraries were focus of dubious Cold War probe.”

Posted at 23:52 by Howard Bashman

A big antitrust win for Big Tobacco: Today the U.S. Court of Appeals for the Eleventh Circuit issued this decision.

Posted at 23:50 by Howard Bashman

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

A former law clerk to a Ninth Circuit judge emails:

First, thanks for your great coverage of this whole circus — screwy rulings are bad for democracy (because they leave most citizens with anger, confusion or despair, or some combination of all three!), but they are great for us law geeks.

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

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

If I’m right re the result, this will not mean the 9th Circuit has redeemed itself (remember, the Court’s six most baldly partisan judges — Reinhardt, Pregerson, Wardlaw, Berzon, Thomas and Fletcher — were not on the en banc panel) — it only means that fair-minded judges operating under the scrutiny of public attention and with a healthy concern for reputation will occasionally do the right thing.

A lawyer who recently argued a case before a Ninth Circuit panel that included Circuit Judge Alex Kozinski writes:

I argued a case before a panel which included Judge Kozinski in early July. He gave my opponent, a deputy attorney general, a very hard time, asking questions similar to the “what if a county decided to count every other vote.” The AG had trouble with his questions, and tried to evade them without success. An observer would’ve thought she was in big trouble.

Three weeks later, the court issued a two sentence per curiam affirmance, with no mention of the serious problems addressed at argument.

Law Professor Eugene Volokh, who clerked for Judge Kozinski, expresses some similar thoughts here.

Additional blog commentary can be had here from “Fritz Feds,” here from “Right on the Left Beach”; and here from “Legal Theory Blog.”

Posted at 23:30 by Howard Bashman

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

Posted at 23:21 by Howard Bashman

“Appeals Court Weighs California Punch-Card Issue”: This article will appear on the front page of Tuesday’s edition of The Washington Post.

Posted at 23:20 by Howard Bashman

“Recall Supporters Confident After Appeals Court Hearing”: Tuesday’s edition of The New York Times will contain this report.

Posted at 22:13 by Howard Bashman

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

Posted at 21:03 by Howard Bashman

“Federal appeals court judges, lawyers discuss punch-card ballots”: Claire Cooper, legal affairs writer for The Sacramento Bee, provides this report.

Posted at 20:44 by Howard Bashman

Election Law Professor Rick Hasen offers his thoughts on today’s en banc Ninth Circuit oral argument: You can access Rick’s analysis at this link.

Posted at 20:42 by Howard Bashman

“Center Ring at the 9th Circus: Things get even weirder in the California recall litigation.” Slate has just posted online this essay by Dahlia Lithwick.

Posted at 19:55 by Howard Bashman

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

Posted at 19:24 by Howard Bashman

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

The Ninth Circuit itself, meanwhile, provides an audio file (Windows Media Player required) of this afternoon’s argument, but instead of streaming across the Web, you’ll need to download the file first before it will play.

Posted at 19:17 by Howard Bashman

“Court Considers Oct. 7 California Recall Date”: Reuters now offers this revised report and this photo in which you can see most of the Ninth Circuit judges on today’s eleven-judge en banc panel. Additional photos from this afternoon’s oral argument are available via this link.

Posted at 19:10 by Howard Bashman

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

Posted at 18:50 by Howard Bashman

“How a patent suit by a technological David brought a Goliath judgment”: Today’s edition of The Seattle Times contains this report.

Posted at 17:32 by Howard Bashman

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

Posted at 17:26 by Howard Bashman

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

Posted at 17:11 by Howard Bashman

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

Posted at 16:25 by Howard Bashman

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

Posted at 16:14 by Howard Bashman

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

Posted at 16:01 by Howard Bashman

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

Posted at 15:20 by Howard Bashman

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

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

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

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

Posted at 14:30 by Howard Bashman

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

Relatedly, The Detroit Free Press today contains an op-ed by Dawson Bell entitled “Marriage Amendment? Please, don’t mention it.” And on a different topic altogether, Freep columnist Brian Dickerson today has an op-ed entitled “Justice knows Fieger’s not the problem.”

Posted at 12:55 by Howard Bashman

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

Posted at 12:41 by Howard Bashman

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

Posted at 12:36 by Howard Bashman

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

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

Posted at 12:13 by Howard Bashman

“Muslim chaplain’s arrest prompts U.S. probe; U.S. official: Captain had classified Guantanamo Bay documents.” CNN.com provides this report.

Posted at 11:55 by Howard Bashman

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

Tomorrow, in Montgomery, Alabama, the U.S. Court of Appeals for the Eleventh Circuit will hear oral argument in a case challenging the constitutionality of Alabama’s ban on the distribution of sex toys. My preview of that oral argument is accessible here.

Posted at 11:24 by Howard Bashman

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

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

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

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

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

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

Posted at 06:35 by Howard Bashman

“Case reflects great need for, rewards of free legal service; Center City firm’s pro bono work frees Louisiana man on death row.” This article appeared in yesterday’s edition of The Philadelphia Inquirer.

Posted at 06:25 by Howard Bashman

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

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

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

Finally for now, The Washington Post reports here that “After Historic Flight, Wrights Went to Court.”

Posted at 06:15 by Howard Bashman

“Justice Criticizes Mandatory Sentences”: The Associated Press has this report on remarks that U.S. Supreme Court Justice Stephen G. Breyer delivered today.

Posted at 22:11 by Howard Bashman

“California recall on the docket: the two sides’ legal arguments; Monday’s televised hearing will explore Bush v. Gore and the potential for setting a precedent.” Monday’s edition of The Christian Science Monitor will contain this article by Warren Richey.

Posted at 20:41 by Howard Bashman

“Witnesses recant testimony, but death row appeal stymied”: This article appears today in The Atlanta Journal-Constitution. And the newspaper provides additional background material here.

Posted at 18:20 by Howard Bashman

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

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

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

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

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

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

I plan to watch tomorrow’s en banc oral argument online via C-SPAN just like many of you, and I will undoubtedly have more to say about this case before, during, and after the oral argument.

Posted at 17:40 by Howard Bashman

“Ninth-Circuited”: Yesterday The Weekly Standard posted online this editorial by Terry Eastland (via “PrestoPundit.com“).

Posted at 17:08 by Howard Bashman

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

Posted at 14:19 by Howard Bashman

“Election date hinges on ‘Votomatic’ ruling”: This article appears in today’s edition of The Imperial Valley Press.

Posted at 13:51 by Howard Bashman

“Callahan settles in as federal appeals court judge”: Yesterday’s issue of The Lodi News-Sentinel contained this report about one of the Ninth Circuit‘s newest judges.

Posted at 13:47 by Howard Bashman

Twenty-two years ago today, the U.S. Senate confirmed the nomination of Sandra Day O’Connor to serve on the U.S. Supreme Court: Details here.

Posted at 13:37 by Howard Bashman

“This Guy’s Gone Wild: His racy flicks earned him a mint–and a world of legal woe.” The September 29, 2003 issue of Newsweek will contain this article.

Posted at 13:32 by Howard Bashman

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

Posted at 09:58 by Howard Bashman

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

Posted at 09:54 by Howard Bashman

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

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

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

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

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

Posted at 09:20 by Howard Bashman

“Eatery Joins Battle With ‘The Bulge’; Obesity Lawsuits Spur Dessert Protest”: Yesterday’s issue of The Washington Post contained this report.

Posted at 09:14 by Howard Bashman

“Suit asks: Who will pay for stillborn? Reservist and wife file lawsuit against government, insurer in death benefit denial.” This article appears in today’s edition of The Indianapolis Star.

Posted at 08:13 by Howard Bashman

Dewey Decimal system sues New York City’s Library Hotel: The Associated Press has this report. Fortunately, no one quoted in the article says “This will be one for the books.”

Posted at 08:11 by Howard Bashman

“Somos Estupidos, We Are Stupid”: Raoul Lowery Contreras had this essay posted online Thursday at CalNews.com addressing the three-judge Ninth Circuit panel’s decision to postpone California’s recall election.

Posted at 23:55 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Judge: La. Can’t Ban Foreigners From Bar Exam” and here an article headlined “Law Schools Sue Defense Dept. Over Policy.”

Posted at 19:58 by Howard Bashman

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

Posted at 19:44 by Howard Bashman

Ten Commandments news: From Alabama, The Birmingham News reports here today that “Deadline extended in Moore case.” From Wyoming, The Associated Press reports here that “Casper residents seek removal of Commandments from park.” And from Ohio, The AP reports that “Motion aims to defend commandments.”

Posted at 19:38 by Howard Bashman

“The Problem Isn’t the Punch Cards. It’s the People.” This article will appear in the Week in Review section of The New York Times tomorrow.

Posted at 19:31 by Howard Bashman

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

Posted at 16:29 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Ashcroft Takes Offensive Against Critics”; here “Texas Executes White Man for Killing Black”; and here “Army Islamic Chaplain Detained in Probe.”

Posted at 15:38 by Howard Bashman

“Texas family sues over ‘under God’ reference in pledge”: The Associated Press has this report from Abilene.

Posted at 13:50 by Howard Bashman

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

Posted at 10:20 by Howard Bashman

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

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

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

Posted at 10:04 by Howard Bashman

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

Posted at 09:53 by Howard Bashman

“Suit charges Hispanic churches are ‘false Catholics’; Atlanta Archdiocese seeks injunction, warns of confusion”: Today’s edition of The Atlanta Journal-Constitution contains this report.

Posted at 09:52 by Howard Bashman

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

An article by Henry Weinstein published in today’s edition of The LATimes under the headline “Court to Reconsider Delay of Recall Vote; A panel of 11 appellate jurists will hear arguments Monday; Some experts expect the original decision to be overturned” reports:

The makeup of the new panel caused one of the original three judges to predict their decision would be overturned.

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

* * * * *

“Judge Paez, Judge Thomas and I — we did the right thing,” Pregerson said. “We’re there to protect people’s rights under the equal protection clause of the Constitution, no matter who’s involved, and a lot of people don’t like it. That’s their problem, not mine.”

It is extraordinarily unusual for a judge to speak to the press about the merits of a matter currently pending before his court. Indeed, whichever party loses before the eleven-judge en banc panel could ask for rehearing en banc before all twenty-three non-recused judges on the Ninth Circuit, and Judge Pregerson is in that group. On the other hand, this is not the first time that Judge Pregerson has behaved in a manner quite different from the way that every other federal appellate judge would behave, as my Los Angeles Times op-ed published on June 1, 2003 explains.

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

Second update: Attorney William J. Dyer of Texas comments “I’m almost speechless that Judge Pregerson isn’t.” See also the comments from Law Professor Eugene Volokh and “Ernie the Attorney.”

Posted at 09:24 by Howard Bashman

And speaking of mentions: Thanks to Mickey Kaus and Daniel Weintraub for their mentions of this Web log today.

Posted at 23:43 by Howard Bashman

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

Posted at 23:41 by Howard Bashman

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

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

Posted at 23:38 by Howard Bashman

Know your Ninth Circuit en banc panel judges: Two of the eleven Ninth Circuit judges who will decide the California recall election case have taken part in this Web log’s “20 questions for the appellate judge” feature. From my interview with Circuit Judge Diarmuid F. O’Scannlain (my questions are in italics, and his answers follow in plain text):

7. In April 1998, in your prepared testimony before the Commission on Structural Alternatives for the Federal Courts of Appeals [“the White Commission”], you stated that “When a court grows too large, it is more likely to resemble a legislative body in which strong-willed individuals are prone to developing policy rather than, to paraphrase Chief Justice Marshall, saying what the law is.” Can you explain more fully what you mean, and are you intending to suggest that the view an individual judge reaches on the merits of a case may depend on the size of the court on which he or she serves?

Maintaining consistency of appellate law requires an environment in which a reasonably small body of judges has the opportunity to sit together frequently. Interaction enhances understanding of one another’s reasoning and decreases the possibility of misinformation and misunderstandings. The White Commission concluded that a court with more than eleven to seventeen judges lacks the ability to render consistent decisions. The Ninth Circuit currently has 45 active and senior judges, and it is soon to be 50. On a court with 50 judges, 19,600 different three-judge panels are possible. Combine this with our huge output of published decisions and maintaining consistency becomes a serious problem. The point is that our size, and our size alone, jeopardizes our decision-making consistency. As the counter-majoritarian branch of our government, precedent is the most important limitation on our judicial discretion. When our precedent is inconsistent, that limitation is lacking, and our decisions can start to resemble those of a legislative rather than judicial body.

8. Some may believe that the Ninth Circuit is unfairly maligned in the popular press, especially when the press reports on the latest U.S. Supreme Court reversal or the latest Ninth Circuit ruling to provoke a public outcry of one sort or another. What are your views on the press coverage that the Ninth Circuit has been receiving, and would you characterize the coverage, generally speaking, as fair or unfair?

The press coverage of the U.S. Court of Appeals for the Ninth Circuit is most welcome, so far as I am concerned. It is true that the coverage has not always been accurate or incisive and frequently tends to be somewhat superficial. Our batting average before the Supreme Court should not, by itself, be an indicator of a dysfunctional court. On the other hand, when the Supreme Court reaches out to take 29 cases in one Term only to reverse 28 of them, perhaps it is telling us something. And, when the Supreme Court takes three of our cases and reverses them, unanimously, without oral argument, on the same day, as it did just a few months ago, I believe it is telling us something. It is reasonable to expect the press to cover such developments as well as our less controversial decisions.

9. The Ninth Circuit is the only federal appellate court to hear and decide cases en banc using panels that consist of fewer than all of the court’s active judges. More specifically, the Ninth Circuit uses eleven–judge en banc panels, which would allow a mere six judges to declare what the law of the circuit should be in cases decided en banc. As you know, the White Commission concluded that the Ninth Circuit’s limited en banc system is not functioning effectively. Do you agree with that conclusion, why or why not, and what changes to the present system would cause the en banc process to work more effectively?

I agree with the White Commission and I sense an increasing concern within our court about the 11-judge limited en banc device. The principal problem is that the result will always depend on the luck of the draw. There have been quite a number of 6 to 5 or 7 to 4 decisions on important issues which might not necessarily represent the views of the full court. While it is true that we do have the authority to rehear a case with the full court (24 judges at the moment or 28 if we were at full strength), there have only been two times during my tenure when such calls have been made and in neither event did the call receive a majority. I think there is very deep-seated reluctance on the part of our court to sit as a full en banc, notwithstanding the fact that we have a very elegant en banc courtroom in Pasadena with three tiers of benches and 28 chairs. Indeed, we also have a less elegant en banc courtroom with four tiers of benches and 28 chairs in San Francisco.

10. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.

I won’t identify a living judge but among those that I admire historically are Justice Felix Frankfurter and Judge Learned Hand. I studied Constitutional Law under Professor Paul Freund at Harvard and came through that experience with an enormously high appreciation of the craft of judging as exemplified by Judge Hand and Justice Felix Frankfurter. Apart from Judge Hand’s superb craftsmanship, I admire his skepticism with respect to his proper role as an unelected judge in a democratic society, which led to his modest approach to judging, and to his advocacy of judicial restraint. On the Supreme Court, of course, Justice Frankfurter was the leading proponent of judicial self-restraint. I have always adhered to a more restrained notion of the judiciary, as did Justice Frankfurter.

And from my interview with Circuit Judge Andrew J. Kleinfeld:

4. In a letter that you submitted in May 1998, you endorsed a division of the Ninth Circuit that would place the States of Alaska, Idaho, Montana, Oregon, and Washington into a new Twelfth Circuit. Do you continue today to view that proposed split as the best possible division, if not what proposed split do you favor today, and please explain the reasons for your answer.

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

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

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

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

* * * * *

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

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

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

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

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

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

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

I don’t use the term “judicial activism” myself, because I am uncomfortable with the imprecision of its definition.

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

As judges, we are just as bound by the law as everybody else in society. The people are entitled, except where they are barred by constitutional limitations, to make the law through democratic processes, and they are entitled to have us follow it. As I wrote in Compassion in Dying, this is a democratic republic, and the people are entitled to have their elected legislators and executives, not us, make policy judgments. If we don’t like the laws and regulations, we can vote for the other guy, just like other citizens. To my mind, the judge who simply decides upon the outcome he or she prefers rather than deciding upon an intellectually honest application of the law, is himself or herself an outlaw. “The courts must declare the sense of the law; and if they should be disposed to exercise Will instead of Judgment, the consequence would equally be the substitution of their pleasure to that of the legislative body.” The Federalist No. 78 (Alexander Hamilton). Also, there just isn’t the satisfaction of a craft performed well, if we substitute our policy preferences for the law. Judging like that is just an exercise in despotism, rather than the intriguing, difficult and satisfying craft that an honest judge practices.

You can access my complete interviews with these (and many other) appellate judges at this link (scroll down the page as necessary because the perma-links to some of the interviews aren’t currently functioning).

Posted at 23:06 by Howard Bashman

“Full Court to Reconsider Calif. Recall Delay”: This evening’s edition of NPR‘s “All Things Considered” had this report (Real Player required).

Posted at 22:52 by Howard Bashman

The Associated Press is reporting: An article headlined “Peltier Seeks Hearing for ’75 FBI Murders” reports on an oral argument that occurred before the U.S. Court of Appeals for the Tenth Circuit today. And in other news, “Man Jailed in Obscene Journal Case Freed.”

Posted at 22:48 by Howard Bashman

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

Posted at 22:43 by Howard Bashman

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

Posted at 20:53 by Howard Bashman

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

Posted at 19:48 by Howard Bashman

Peculiar yet surprisingly effective: The first petition for rehearing en banc to cite both “How Appealing” and “The Volokh Conspiracy” (details here) also became the first such petition as to which rehearing en banc was granted.

Posted at 19:36 by Howard Bashman

On the verge: “How Appealing” may be on the verge of announcing its first “20 questions for the appellate judge” participant from the U.S. Court of Appeals for the Tenth Circuit.

Posted at 19:28 by Howard Bashman

“Commandments’ defender to speak at forum”: The South Florida Sun-Sentinel today contains this report.

Posted at 19:25 by Howard Bashman

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

Posted at 19:23 by Howard Bashman

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

Posted at 19:17 by Howard Bashman

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

Posted at 18:56 by Howard Bashman

“Legal Showdown Looms on Calif. Recall Vote”: Reuters has this report.

Posted at 18:12 by Howard Bashman

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

Posted at 16:59 by Howard Bashman

Some former Ninth Circuit law clerks lend their insights: One emails:

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

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

The only exception to this imprecise science would be if some left-leaning judges adopted the viewpoint, criticized by Judge Reinhardt in his concurrence to the denial of rehearing in the pledge case, that the case would be en banc-worthy because of its importance, even if the panel got it right. In my experience, few judges actually vote on that basis, and given the Court’s need to expedite this decision, I tend to doubt that judges comfortable with the panel result would have voted for en banc.

Another writes:

As a former clerk for Judge Thomas, I find this en banc draw fascinating. Kozinski and Thomas have sparred in the past, and while they respect each other, I think Kozinski will seize an opportunity to overturn a significant opinion like this one — and I think we all know now that Judge Thomas probably wrote it.

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

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

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

Call me a conspiracy theorist, but I think this really could happen.

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

Posted at 16:40 by Howard Bashman

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

Posted at 16:10 by Howard Bashman

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

Perhaps Judge Kozinski sums it up best in this paragraph from an article that appeared in USA Today back in February 2003:

Four of President Clinton’s 14 appointees to the 9th Circuit have turned out to be “really excellent, conservative jurists,” says Kozinski, who was appointed by President Reagan, a Republican. After Congress expanded the court by 10 seats in 1978 and President Carter, a Democrat, filled them, “the court was dominated by liberals,” Kozinski says. “But now it’s really quite balanced. Any notion that there is a conservative wing or a liberal wing or a consensus or an embattled minority on one side, I think is total hokum.”

You can access the complete article at this link.

Posted at 15:24 by Howard Bashman

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

Two of these eleven judges — Diarmuid F. O’Scannlain and Andrew J. Kleinfeld — have participated in this Web log’s “20 questions for the appellate judge” feature, and you can access their interviews via this link (simply scroll down the page because the perma-links directly to the interviews aren’t currently working).

Posted at 14:58 by Howard Bashman

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

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

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

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

Posted at 14:07 by Howard Bashman

“State will appeal ruling on blanket primary”: Washington State officials are apparently none too happy with the Ninth Circuit‘s other voting-related decision from this past Monday, The Associated Press reports here.

Posted at 13:50 by Howard Bashman

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

Posted at 13:28 by Howard Bashman

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

Posted at 13:02 by Howard Bashman

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

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

Posted at 12:09 by Howard Bashman

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

Posted at 11:02 by Howard Bashman

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

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

Posted at 10:47 by Howard Bashman

Those who support Brett M. Kavanaugh‘s nomination to the D.C. Circuit shouldn’t unjustifiably demean the qualifications of previous nominees to that court: Stuart Buck makes the argument here in a post that’s must reading for followers of the Nation’s so-called “second highest court.”

Posted at 10:32 by Howard Bashman

“Zero Reassurance: The crucial snooping powers that have never been used.” Jacob Sullum has this essay online today at Reason.

Posted at 10:27 by Howard Bashman

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

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

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

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

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

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

Posted at 09:05 by Howard Bashman

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

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

Finally for now, The Christian Science Monitor reports here that “Delay leaves recall campaigns in awkward limbo.”

Posted at 08:49 by Howard Bashman

Washington Post editorial cartoonist Tom Toles imagines a U.S. Supreme Court ruling on whether California’s recall election should be postponed: You can access here his cartoon published today.

Posted at 08:45 by Howard Bashman

“One arguably ‘appellate’ effect of Isabel”: A longtime reader emails:

Howard, for what it’s worth… One arguably “appellate” effect of Isabel: I’m attending the annual meeting of the Federal Bar Association in Northern Virginia. We were scheduled for what would have been an interesting and enjoyable reception last evening at the Supreme Court with a promised appearance by Chief Justice Rehnquist. Not surprisingly, it was cancelled. Instead, we gathered in the hotel ballroom for karaoke and drinks (most, including me, ordered hurricanes). No chief justice. Just a bunch of rummed-up lawyers who think they have singing voices.

You can learn more about the Federal Bar Association here and more about its annual meeting here.

Posted at 08:39 by Howard Bashman

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

In appellate news, today the U.S. Court of Appeals for the Ninth Circuit is expected to announce whether it will grant rehearing en banc to reconsider a three-judge panel’s decision to postpone California’s recall election. Stay tuned to “How Appealing” throughout the day for more details and full coverage of any decision on rehearing en banc.

Posted at 06:56 by Howard Bashman

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

Posted at 06:55 by Howard Bashman

Today’s FindLaw columnist: Law Professor Vikram David Amar has an essay entitled “The Ruling Postponing the California Recall Election: Why It Is Questionable, and Why It Was Not Compelled by Bush v. Gore.”

Posted at 06:45 by Howard Bashman

“Schumer’s shameful assault on Law and reality”: Adam White had this essay in yesterday’s issue of The Harvard Law Record. Additionally, Adam’s blog offers some related photos, including “Schumer’s law-school yearbook photo (Class of ’74).”

Posted at 06:43 by Howard Bashman

“The Law’s Conscience: How Judge Harry Pregerson of California’s 9th Circuit, rules with his heart instead of his head.” Hugh Hewitt today has this essay online at The Weekly Standard.

Posted at 06:39 by Howard Bashman

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

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

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

Posted at 00:08 by Howard Bashman

Election Law Professor Rick Hasen receives the “Third Degree”: No, I’m not referring to the treatment Rick’s been receiving lately from highly-paid blogger Mickey Kaus. Rather, I’m referring to this interview with Rick that appeared in yesterday’s issue of the Los Angeles City Beat.

Posted at 00:07 by Howard Bashman

Harvard Law School is popular, and nevertheless student life remains a priority: The Harvard Crimson today reported here that “Record Number of Applicants Vie for Law School Spots” and here that “Law School Dean Says Student Life a Priority.”

Posted at 23:58 by Howard Bashman

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

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

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

The Boston Globe reports here that “Selection of jury pool set to begin for Sampson.” At issue is whether the defendant should receive the death penalty. And in unrelated news, “Seeing race bias, judge tosses evidence.”

Posted at 23:14 by Howard Bashman

“As Judges Ponder Recall Decision, California Candidates Continue Stumping”: Friday’s edition of The New York Times will contain this report.

Posted at 23:12 by Howard Bashman

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

Posted at 23:01 by Howard Bashman

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

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

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

Posted at 22:40 by Howard Bashman

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

Posted at 22:16 by Howard Bashman

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

Posted at 19:32 by Howard Bashman

President Bush nominates “Antiterrorism Coordinator” for Southern District of New York judgeship: Details here, here, and here (in an article that identifies the nominee as the lead prosecutor in the federal government’s criminal case against Zacarias Moussaoui).

Posted at 19:26 by Howard Bashman

The Associated Press is reporting: You can access here an article headlined “Suspended Ala. Justice Seeks Court Delay” and here an article headlined “Judge in ‘Roadless’ Case Cleared.”

Posted at 18:55 by Howard Bashman

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

Posted at 18:51 by Howard Bashman

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

Posted at 16:45 by Howard Bashman

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

Posted at 16:35 by Howard Bashman

“Caucasian Club meets resistance”: This article appeared in yesterday’s edition of The Contra Costa Times.

Posted at 16:29 by Howard Bashman

Yay! This afternoon the Atlanta Braves clinched first place in the National League East, courtesy of a win by the Philadelphia Phillies over the Florida Marlins.

Posted at 16:00 by Howard Bashman

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

Posted at 15:26 by Howard Bashman

“Medical pot pitch: right to ease pain; Court hears new case for legal marijuana.” In today’s edition of The San Francisco Chronicle, Bob Egelko has this report on yesterday’s Ninth Circuit oral argument.

Posted at 15:22 by Howard Bashman

Bring back the fava beans? The “California Insider” blog that The Sacramento Bee operates contains a post from yesterday afternoon that reads:

Don’t look now Could the March election be postponed, too? This case, set to be heard Oct. 8 by the 9th Circuit court, challenges the use of electronic voting machines that do not provide a verifiable paper trail. It was filed by a Libertarian activist and has nothing to do with the recall. But there it is.

For the source of my fava bean reference, see page six of the three-judge Ninth Circuit panel’s ruling that postponed California’s recall election.

Posted at 15:06 by Howard Bashman

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

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

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

Posted at 14:28 by Howard Bashman

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

Posted at 12:56 by Howard Bashman

Kids today: The Cincinnati Enquirer reports here that “Like most college students, Tori Traficante wanted to make a little money – and she did, police say, with a computer and printer.”

Posted at 12:52 by Howard Bashman

“Bush rips treatment of judicial nominees”: Yesterday’s edition of The Fort Worth Star-Telegram contained this report. In related news, The Corpus Christi Caller-Times yesterday contained a report from The Associated Press headlined “Bush meets with reporters for roundtable discussion.”

Posted at 12:47 by Howard Bashman

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

Posted at 11:25 by Howard Bashman

“Why don’t the courts just vote for us? Being denied the right to vote despite state statutes.” Attorney Robert N. Hochman has this op-ed in today’s edition of The Chicago Tribune.

Posted at 11:14 by Howard Bashman

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

Posted at 11:02 by Howard Bashman

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

Posted at 09:55 by Howard Bashman

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

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

Finally, The Birmingham News reports here today that “Plans made for second monument.” And The Montgomery Advertiser reports here today that “Moore’s attorneys to fight suspension.”

Posted at 09:40 by Howard Bashman

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

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

The Gulf Daily News of Bahrain, meanwhile, reports here that “US to assist Arab law reform programme” and here that “Training plan for judges backed.”

Posted at 09:39 by Howard Bashman

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

Posted at 06:55 by Howard Bashman

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

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

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

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

Posted at 06:45 by Howard Bashman

Soon to be over 2 million served! From the department of amazing if useless statistics, sometime this morning “How Appealing” will experience its 2 millionth page view since May 7, 2002 according to this blog’s Bravenet hit counter. Thanks for visiting, everyone!

Posted at 06:35 by Howard Bashman

“Court May Reconsider Calif. Recall Delay”: David Kravets of The Associated Press has this report.

Posted at 06:30 by Howard Bashman

Today’s FindLaw commentator: Edward Lazarus has an essay entitled “The Federal Appellate Decision Delaying the Recall: Bush v. Gore’s Tragedy Repeats Itself as California’s Farce.”

Posted at 06:25 by Howard Bashman

“No namby-pamby judge with an obsession with the ostensible voting rights of welfare mothers is going to prevent a millionaire Republican operative from achieving his dream of unseating the elected governor of our largest state.” Neal Pollack gets to the essence of things in a post you can access here.

Posted at 23:47 by Howard Bashman

“Medical Marijuana and the Powers of Congress”: Law Professor Lawrence Solum attended today’s Ninth Circuit oral argument, and he offers this thorough report.

Posted at 23:36 by Howard Bashman

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

Posted at 23:32 by Howard Bashman

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

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

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

USA Today reports here that “Appeals court might take another look at recall ruling; Judges will vote on whether to reconsider case.” You can access here an essay entitled “Recall ruling is fun, but that doesn’t make it political.” And an editorial is entitled “A spur for election reform.”

Posted at 23:00 by Howard Bashman

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

Posted at 22:57 by Howard Bashman

You heard it here first: The Associated Press is reporting that “Court Rules Against Visa, MasterCard.” And Reuters has an article headlined “Antitrust Ruling Upheld Against Visa, MC.”

Posted at 22:41 by Howard Bashman

“Federal Government To Close Thursday; No Decision Yet About Friday”: The Washington Post provides this local news.

Posted at 22:28 by Howard Bashman

“Recall proponents ask appeals court to reinstate Oct. 7 election”: David Kravets of The Associated Press has this report.

Posted at 22:27 by Howard Bashman

“Ethnic, religious alliance backs gay-marriage ban”: Thursday’s edition of The San Francisco Chronicle will contain this front page article.

Posted at 22:22 by Howard Bashman

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

Posted at 22:09 by Howard Bashman

Abolishing a form of marriage: Today an en banc panel of the Commonwealth Court of Pennsylvania, one of Pennsylvania’s two intermediate appellate courts, issued a decision abolishing common law marriage. Thanks to “Benefitsblog” for the pointer.

Posted at 20:54 by Howard Bashman

“Defense of Marriage”: U.S. Senator John Cornyn (R-TX) today issued this letter.

Posted at 20:02 by Howard Bashman

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

Posted at 19:57 by Howard Bashman

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

Posted at 18:56 by Howard Bashman

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

Posted at 17:33 by Howard Bashman

“Rewire this Circuit”: Harvard Law Professor Einer Elhauge has this to say about the ruling the Ninth Circuit issued Monday postponing California’s recall election.

Posted at 17:18 by Howard Bashman

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

Posted at 16:52 by Howard Bashman

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

Posted at 16:34 by Howard Bashman

“City says scouts’ use of land is in jeopardy; The group’s exclusion of gays and atheists is at issue. It has its local headquarters on city property.” The Philadelphia Inquirer today contains this report.

Posted at 16:24 by Howard Bashman

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

Posted at 16:12 by Howard Bashman

Friends of the Kangaroo Rat v. California Department of Corrections: The California Court of Appeal, Fifth District, released this opinion for publication yesterday.

Posted at 15:52 by Howard Bashman

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

Posted at 15:16 by Howard Bashman

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

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

Posted at 15:12 by Howard Bashman

“Court scrutinizes P2P subpoena process”: Declan McCullagh of c|net News.Com has this report on an oral argument that occurred yesterday in the U.S. Court of Appeals for the D.C. Circuit.

Posted at 15:05 by Howard Bashman

Like a hurricane: A reader emails:

The “Originalism and Statutory Construction” program scheduled for September 19th in Washington, DC will be rescheduled due to Hurricane Isabel. Since you are basically the appellate equivalent of CNN, it would be nice if you could mention something about the rescheduling.

And in other hurricane-related news, unofficial word has reached me that the headquarters of the U.S. Court of Appeals for the Fourth Circuit very likely will be closed tomorrow. (This post’s heading based on the title of a song by Neil Young.)

Posted at 14:39 by Howard Bashman

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

Posted at 13:58 by Howard Bashman

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

Posted at 13:32 by Howard Bashman

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

Posted at 12:53 by Howard Bashman

“Supreme Court May Pass on This One: Legal experts say a number of reasons exist for the justices to avoid hearing California case, including the divisive Florida experience.” David G. Savage and Henry Weinstein have this article in today’s edition of The Los Angeles Times.

Posted at 12:31 by Howard Bashman

Online at Town Hall: Debra Saunders has an essay entitled “It’s not about the punch cards,” and Robert Novak has an essay entitled “Terminating the Terminator.”

Posted at 12:29 by Howard Bashman

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

Posted at 12:00 by Howard Bashman

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

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

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

Federal Rule of Appellate Procedure 35(a), entitled “When Hearing or Rehearing En Banc May Be Ordered,” provides the general standards that govern whether a federal appellate court will grant rehearing en banc. The rule provides:

A majority of the circuit judges who are in regular active service may order that an appeal or other proceeding be heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and ordinarily will not be ordered unless:

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

(2) the proceeding involves a question of exceptional importance.

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

As I wrote a while back in my monthly appellate column published in The Legal Intelligencer, Philadelphia’s daily newspaper for lawyers:

Appeals are heard en banc in the U.S. Courts of Appeals only on rare occasions. In the twelve-month period ending September 30, 2000, the twelve regional federal courts of appeals decided 27,516 appeals on the merits after briefing or oral argument, and only 73 of those appeals were decided en banc. Appeals heard “en banc” are considered by the full membership of a court (or, in the Ninth Circuit, by an eleven-judge panel), rather than by a panel consisting of three judges.

Despite their rarity, en banc sessions play a critical role in the federal appellate process. The ruling of a three-judge U.S. Court of Appeals panel binds all subsequent panels in a given circuit until overturned by the Supreme Court of the United States or by the appellate court sitting en banc. As the Supreme Court has explained, “the in banc court is normally reserved for questions of exceptional importance, or to secure or maintain uniformity of decision within the circuit.” Moody v. Albemarle Paper Co., 417 U.S. 622, 626 (1974) (per curiam). En banc courts “are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit.” United States v. American-Foreign S.S. Corp., 363 U.S. 685, 689 (1960). In Moody, the Supreme Court described en banc courts as having “exceptional power to determine the major doctrinal trends of the future for a particular circuit.” 417 U.S. at 626.

Just because a case is important or controversial does not guarantee that the Ninth Circuit will rehear the case en banc. Perhaps the best example of this point is the Ninth Circuit’s denial of rehearing en banc earlier this year in the case in which a three-judge panel had declared unconstitutional the words “under God” in the Pledge of Allegiance. In an opinion concurring in the denial of rehearing en banc in that case, Ninth Circuit Judge Stephen Reinhardt criticized several of his colleagues who had voted in favor of rehearing en banc for doing so simply based on the “importance” of the question presented. On the other hand, the Ninth Circuit’s judges once promised that their court would consider granting rehearing en banc more frequently in order to deal with purported inconsistencies in that court’s rulings, and that promise was part of an effort to respond to those who had been calling for the division of the Ninth Circuit into two or more smaller federal appellate courts. That promise, however, did not silence calls for splitting up the Ninth Circuit.

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

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

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

Posted at 10:39 by Howard Bashman

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

Posted at 10:19 by Howard Bashman

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

Posted at 10:14 by Howard Bashman

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

Posted at 09:57 by Howard Bashman

Ten Commandments news: Reuters reports here that “Alabama Judge Offers Ten Commandments to Congress.” And The Atlanta Journal-Constitution reports here that “Suit seeks to force Barrow to remove Commandments.”

Posted at 09:43 by Howard Bashman

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

Update: The hearing has been canceled! The Associated Press reports here that “The nomination hearing for a federal judge from Michigan was canceled Tuesday, and Republicans and Democrats gave different reasons for the change.”

Posted at 09:29 by Howard Bashman

“Justice O’Connor Stresses Importance of Effective Judicial Systems; Discusses role of independent judiciary at press availability in Bahrain”: The U.S. State Department has issued this report, which includes the transcript of an interview with U.S. Supreme Court Justice Sandra Day O’Connor.

Posted at 07:03 by Howard Bashman

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

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

Posted at 06:45 by Howard Bashman

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

Posted at 06:40 by Howard Bashman

Today’s FindLaw columnists: Michael C. Dorf has an essay entitled “The Supreme Court’s Extraordinary Campaign Finance Reform Oral Argument.” And Barton Aronson has an essay entitled “Do Police Need A Warrant In Order To Use Global Positioning System Technology? A Recent Washington Court Said Yes, But It’s Wrong.”

Posted at 06:30 by Howard Bashman

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

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

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

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

Posted at 23:33 by Howard Bashman

News in Brief from The Onion: You can access here newsbriefs entitled “Revised Patriot Act Will Make It Illegal To Read Patriot Act” and “Supreme Court Gets Free Box Of Shoes After Mentioning Nike In Ruling.”

Posted at 23:30 by Howard Bashman

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

Posted at 22:51 by Howard Bashman

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

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

Posted at 22:32 by Howard Bashman

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

Posted at 22:24 by Howard Bashman

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

Posted at 22:09 by Howard Bashman

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

Posted at 20:59 by Howard Bashman

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

Posted at 19:56 by Howard Bashman

“Illinois Court Slashes Philip Morris Bond”: Reuters offers this news. And The Associated Press reports here that “Ill. High Court Lowers Philip Morris Bond.”

Posted at 18:45 by Howard Bashman

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

Posted at 17:02 by Howard Bashman

Today’s Ninth Circuit order setting a deadline of tomorrow for any requests for en banc rehearing is now available online: You can access it here.

Posted at 16:35 by Howard Bashman

“Fed judges in stocks; Rulings on bench, portfolios conflict”: Yesterday’s issue of The New York Daily News contained this report.

Posted at 16:24 by Howard Bashman

“More States May See Election Challenges”: The Associated Press has this report.

Posted at 16:17 by Howard Bashman

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

Posted at 16:06 by Howard Bashman

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

Posted at 16:01 by Howard Bashman

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

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

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

Posted at 15:42 by Howard Bashman

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

Fortunately, my review of the docket proved worthwhile in another respect. Yesterday’s Ninth Circuit ruling was issued as a “per curiam” opinion, but the docket seems to disclose which of the three judges on the panel wrote the decision. The docket entry in question states:

9/15/03 FILED OPINION: REVERSED In considering all the relevant factors, we conclude that the district court erred as a matter of law in denying the preliminary injunction with respect to the vote on Propositions 53 and 54 and the gubernatorial recall. Therefore, we reverse the order of the district court. The Secretary of State is enjoined from conducting an election on any issue on October 7, 2003. In view of the pendency of the election, we direct the Clerk of Court to issue the mandate forthwith, but stay our order for seven (7) days to allow the parties to seek further relief from this decision, if they so desire. ( Terminated on the Merits after Oral Hearing; Reversed; Written, Signed, Published. Harry PREGERSON; Sidney R. THOMAS, author; Richard A. PAEZ. ) FILED AND ENTERED JUDGMENT. [03-56498] (ru)

So, according to the docket at least, it was Circuit Judge Sidney R. Thomas who wrote yesterday’s opinion.

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

Posted at 14:56 by Howard Bashman

California’s Secretary of State to announce response to yesterday’s Ninth Circuit ruling at press conference scheduled for 5 p.m. eastern time: The Los Angeles Times provides this report.

Posted at 14:42 by Howard Bashman

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

Posted at 14:39 by Howard Bashman

“Judge: I can be impartial.” This article appears in today’s issue of The Cincinnati Post.

Posted at 14:29 by Howard Bashman

“Blanket primary is struck down; Appeals court says state’s system violates political parties’ rights”: Today’s edition of The Seattle Post-Intelligencer contains this report. And The Olympian reports here that “Court rejects state’s primary: Tradition of unaffiliated voting looks doomed; parties pleased.”

Posted at 14:27 by Howard Bashman

What law? The Vancouver Sun reports here today that “B.C.’s pot law doesn’t exist, judge rules.”

Posted at 14:23 by Howard Bashman

“What sicko dreamed up the idea of putting last meals on the internet?” The blog “Bureaucrat by Day” asks the question.

Posted at 14:02 by Howard Bashman

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

Posted at 13:59 by Howard Bashman

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

Posted at 13:58 by Howard Bashman

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

Posted at 12:00 by Howard Bashman

Second Circuit to Harvard Law Professor Alan M. Dershowitz — “You might benefit from a visit to your law school’s library”: Footnote seven found on page 13 of this ruling that the U.S. Court of Appeals for the Second Circuit issued yesterday is worth a look.

Posted at 11:05 by Howard Bashman

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

Posted at 11:01 by Howard Bashman

In news from Canada: “Same-sex vote today.”

Posted at 10:57 by Howard Bashman

“N.C. Judge Who Sent Ethnic Jokes Through E-Mail Resigns; 60-Year-Old Sent E-Mails To Lawyers, Business Leaders, Other Judges”: The Associated Press provides this news.

Posted at 10:56 by Howard Bashman