How Appealing

Thursday, August 4, 2005

“I respectfully conclude that today the majority announces a dangerous precedent.” Second Circuit Judge Rosemary S. Pooler today issued a dissenting opinion that begins:

I respectfully conclude that today the majority announces a dangerous precedent. According to the majority, if an individual subscribes to an Internet E-group and that E-group is determined to have an illegal purpose, the government has probable cause to obtain a warrant to search the subscriber’s home. This is the case even when (1) an individual’s e-mail address remains on the E-group subscriber list only for fourteen days and (2) there is no particularized evidence indicating that the individual visited the E-group subsequent to subscription or participated in the E-group’s functions in any way.

You can access the complete ruling at this link.

Posted at 8:54 PM by Howard Bashman

The Associated Press is reporting: Gina Holland has an updated report headlined “Chief Justice Briefly Hospitalized.”

In other news, “Roberts Puts Harvard Law on Hot Streak.”

An article reports that “N.C. Wins Back 1789 Copy of Bill of Rights.”

And in news from Panama City, Florida, an article headlined “Man Gets Death for Killing Wife After Sex” begins, “A man who got angry with his wife because she wanted to cuddle after sex when what he really wanted to do was watch sports on television was sentenced to death for killing her with a claw hammer.”

Posted at 8:40 PM by Howard Bashman

“Documents indicate Roberts isn’t always predictably conservative”: Ron Hutcheson of Knight Ridder Newspapers has an article that begins:

As a legal adviser to President Reagan, Supreme Court nominee John G. Roberts Jr. joined a scathing denunciation of abortion-clinic bombers and urged Reagan to stay out of an effort to post tributes to God in Kentucky schools.

Roberts’ advice, in documents Knight Ridder obtained before their public release later this month, might help him counter critics who portray him as a doctrinaire conservative.

You can access the complete article at this link.

Posted at 8:33 PM by Howard Bashman

“Chief Justice Returns to Hospital”: Gina Holland of The Associated Press provides this report, and more recently The AP has issued a news alert stating that “Chief Justice William H. Rehnquist has been released from the hospital.”

Posted at 8:10 PM by Howard Bashman

Entirely anonymous no more: The winner of the “Most dumb-ass question for Judge Roberts” contest has, after achieving that distinction, revealed that he is the author of the blog “Unused and Probably Unusable.” His celebratory post can be found here. And the contest’s runner-up seems happy too.

Posted at 5:35 PM by Howard Bashman

We have a winner, and more: Back on Friday, July 29, 2005, I published the following post:

Dumb-ass questions contest: Why should seven Democratic U.S. Senators and their staff have all the fun? Why indeed!

Accordingly, I am hereby launching a “How Appealing” contest to identify the most dumb-ass question that could possibly be asked of U.S. Supreme Court nominee John G. Roberts, Jr. at his upcoming confirmation hearings. Unlike last time, when U.S. Senator Orrin G. Hatch (R-UT) put himself in charge of deciding whether or not questions for Roberts were appropriately characterized as “dumb-ass,” this time I’m the sole referee of this admittedly entirely subjective contest.

Entries should be submitted to me via email, along with your name and a statement whether I can identify you by name if your entry is the winner or a runner-up in the “Most dumb-ass question for Judge Roberts” contest. The winner and runners-up receive the psychic reward of knowing that their questions were, in my subjective view, among the most dumb-ass questions that this blog’s audience submitted in response to this contest, along with the admittedly fleeting pleasure of seeing their names mentioned here at “How Appealing” if they give permission for me to do so. Please enter early and often, because this contest could (and indeed at some point will) end at any time.

Let me begin by thanking all the many readers who participated in this contest — even those who submitted entry after entry after entry, and even those who long after the deadline for submission of entries passed earlier this week continued to send in what clearly was the most popular entry (“Boxers or briefs?”) as though they had been the first to think of it.

The winning entry, submitted by a reader from Philadelphia who chooses to remain anonymous, arrived just one hour and forty-five minutes after I launched the contest:

I can’t imagine that you haven’t already (you posted at 7:45 a.m.) received the following questions, so they’re not entries:

Boxers/Briefs? Paper/plastic? What’s your favorite color: red or blue? Tastes great/less filling? Original intent/words of the text? FedSoc or ACS? Man-on-man or zone? Man-on-man or foundation of Western civilization? Non-precedential or citable? Split the 9th or split the tab? Tab or RC? RC or wire-controlled? First class or coach? Smoking or non? Catholic or Protestant? Catholic or conformist? Catholic or parochial (yes, they’re opposites)?

My real favorite kind of dumb-ass question would hit all of the basic no-nos.

It would also draw on your special, perhaps unique method of counting, as evinced in your “20 Questions” posts.

Here is my entry:

Justice- Pardon me, Judge Robert, I mean Roberts:

If you were Chief Justice of the Supreme Court along with John Souter, Terrence Thomas, Anthony Scalia, Nino Kennedy, Ruth Day O’Ginsberg, John Paul Jones, William Brennan, and your former boss Bill Rehnquist, and a case involving abortion and capital punishment came before you on an appeal from a panel upon which you sat, and you believed you would be committing a mortal sin by hearing the case but not deciding it, and you’d gone duck-hunting with counsel for appellants but the Founders and the French would agree with the other side, would you recuse yourself if your wife had signed but not been involved with drafting of one of the amicus briefs?

First runner up goes to Cassandra of the “Villainous Company” blog for the following entry:

Regarding your extremist and highly controversial decisions in Rancho Viejo v. Norton and Hedgepeth v. WMATA, the American people have a right to know:

If an endangered pregnant Southwestern arroyo toad were arrested for eating a single French Fry on the DC Metro while en route to obtain an illegal third trimester abortion, would your Catholic beliefs force you to recuse yourself from the case? Furthermore, would the fetus qualify as a protected class under the 14th Amendment, or would you apply rational basis review as you did in Hedgepeth, thereby condemning the hapless toad to a lengthy stay in the DC detention center and depriving the mother of the right to control her reproductive destiny?

And honorable mentions go to each of the following entries–

From Mark Arnold: “Judge Roberts, in describing the arroyo toad as ‘hapless,’ are you not guilty of insensitive specie-ism?”

From Jeremy Berry: “International law, penumbras or public opinion, which would you use to protect the right of individual citizens to define their own existence in the universe?” and “Since you’re replacing Justice O’Connor, could you please explain to the committee Justice O’Connor’s judicial philosophy? Try to be brief.”

From RDG: “Speaking of ‘originalism,’ do you prefer ‘original’ or ‘extra crispy’ at KFC?”

From Los Angeles attorney Melinda Eades LeMoine: “Judge Roberts, say a case comes before the court, let’s call it, um … Woe v. Rade ….”

From Chris Geidner: “Explain the plaid pants?”

From Brian Tomasovic: “Judge Roberts, I note that in your questionnaire responses to the judiciary committee you have been admitted to practice before the D.C. Circuit, the Second Circuit, the Third Circuit, the Fourth Circuit, the Fifth Circuit, the Sixth Circuit, the Seventh Circuit, the Eighth Circuit, the Ninth Circuit, the Tenth Circuit, the Eleventh Circuit, and the Federal Circuit Courts of Appeal. My question to you is…no First Circuit?”

From Mr. Sun (who has many more entries listed here): “If I sent out my Pikachu to battle your Jigglypuff, who would win?”

From Jim Cope of Western Kentucky University: “Judge Roberts, do you believe that seven votes are required to overturn Roe since seven justices voted for it when it was decided? Or can you overturn with five?”

And last but not least, from my former Third Circuit co-clerk Tim Mc Donald:

Entry No.1 – “Please justify your vote in joining the dissent in Roe v. Wade?”

Entry No. 2 – “When will your favorite chewing gum come back in style?”

Entry No. 3 – for Led Zeppelin fans – “Where’s the confounded bridge?”

Entry No. 4 – “Besides Elvis Presley, what else might be found in the legislative interstice between the arising under clause of Section 1331 and the arising under clause of Article III?”

Entry No. 5 – “Do you think O.J. did it?”

Entry No. 6 – “Did you ever sit on a panel with Judge Wapner?”

Entry No. 7 – “In your view, which member of the Senate Judiciary Committee is the biggest dumb-ass?”

Again, thanks to everyone who entered this contest! Remember, you can submit questions for U.S. Supreme Court nominee John G. Roberts, Jr. directly to U.S. Senators via this link.

Posted at 11:00 AM by Howard Bashman

“Hapless toads: Supreme Court nominee John Roberts’ legal views could spell trouble for protection of the nation’s rare animals and plants.” This editorial appears today in The News & Observer of Raleigh, North Carolina.

Posted at 10:35 AM by Howard Bashman

Three-judge Sixth Circuit panel issues four opinions to decide a single appeal: I’ve previously noted instances where one judge on a three-judge panel has issued more than one opinion in a single case, but this is the first instance in recent memory where the number of opinions has exceeded the number of judges participating in a federal appellate court’s decision.

Update: A reader emails to observe that apparently the D.C. Circuit‘s recent ruling in the Judith Miller-confidential sources appeal didn’t make a big impression on me. It likewise featured a total of four opinions from three judges.

Posted at 10:15 AM by Howard Bashman

“Kissing Sibs: Could the Supreme Court embrace incest?” Matthew J. Franck has this essay today at National Review Online.

Posted at 9:54 AM by Howard Bashman

In news from Mississippi: The Biloxi Sun Herald today contains an article headlined “Judge issues jury instructions; 4-hour litany bores some, thrills others” that begins, “A crowd materialized Wednesday for the final showdown between U.S. prosecutors and four men accused of judicial bribery.” And a related article is headlined “A legal eye: Judicial performance, ethics could come into play regardless of verdict in judicial bribery trial.”

In other coverage, The Clarion-Ledger reports today that “Cases could turn on verdict; Insurance firm could benefit in bribery case involving Diaz, Minor.”

Posted at 7:28 AM by Howard Bashman

“Appeals court upholds voiding divorce decree”: The Associated Press reports here that “In a case that outraged women’s-rights groups and prompted a change in state law, an appeals court has sided with a Spokane judge who vacated a woman’s divorce because she was pregnant.”

You can access Tuesday’s ruling of the Court of Appeals of the State of Washington at this link.

Posted at 7:24 AM by Howard Bashman

“Roberts Donated Help to Gay Rights Case; In 1996, activists won a landmark anti-bias ruling with the aid of the high court nominee”: Richard A. Serrano has this article today in The Los Angeles Times. And Maura Reynolds reports that “Nominee Admits He Registered as Lobbyist.”

Today in The New York Sun, Josh Gerstein has an article headlined “The Case of the Nazi Propagandist” that begins, “As a young but trusted legal lieutenant at the Justice Department in the early 1980s, Judge John Roberts Jr. was assigned some of the agency’s most politically sensitive duties, including fielding the requests of conservative heavyweights who sought to exert influence in ongoing cases.”

Newsday reports that “Roberts makes a correction” and “Abortion still supported; Despite decades of debate on subject, Pew poll shows majority of Americans endorse it, with restrictions.”

The Washington Times reports that “Abortion backers fear ‘hostile’ Roberts.”

The Richmond Times-Dispatch contains an article headlined “Allen to Roberts: ‘Watch out for those … blocks’; The talk includes football as Virginia senator meets and praises court nominee.”

The Bozeman Daily Chronicle reports that “Supreme Court battle comes to Montana.”

The Stanford Daily reports that “Law prof. weighs in on Supreme Court nominee.”

And Bloomberg News reports that “Roberts Backed Plan to Restrict U.S. Sex Discrimination Law.”

In commentary, The Charlotte Observer contains an editorial entitled “Unsettling the law: Of course U.S. Supreme Court can overturn precedents.”

In The Chicago Tribune, columnist Steve Chapman has an op-ed entitled “Who’s the extremist on Roe vs. Wade?

In The Fort Worth Star-Telegram, columnist Linda Campbell has an op-ed entitled “A mystery set in Washington.”

In The Providence (R.I.) Journal, columnist M. Charles Bakst has an op-ed entitled “Judging Bush’s nominee to high court.”

In The Baltimore Sun, Michael Comiskey has an op-ed entitled “The case for grilling Roberts.”

In The Seattle Times, Julia K. Stronks has an op-ed entitled “Of course judges shape and build our laws.”

In The Philadelphia Inquirer, Dave Boyer has an op-ed entitled “Who’s ‘fit’ for the high court?

And FindLaw commentator Vikram David Amar has an essay entitled “It’s the Specifics, Stupid…. A Commentary on The Kind of Substantive Questions the Senate Can and Should Pose to Supreme Court Nominees.”

Posted at 6:44 AM by Howard Bashman