How Appealing

Tuesday, August 9, 2005

“The Bush Administration has mounted a wide-ranging challenge in the Supreme Court to the power of federal judges to stop new anti-abortion laws before they go into effect.” So begins Lyle Denniston’s post titled “Government opposes swift rulings on abortion” online at “SCOTUSblog.”

Posted at 11:30 PM by Howard Bashman

“NARAL Falsely Accuses Supreme Court Nominee Roberts; Attack ad says he supported an abortion-clinic bomber and excused violence; In fact, Roberts called clinic bombers ‘criminals’ who should be prosecuted fully”: The Annenberg Political Fact Check, a project of the Annenberg Public Policy Center of the University of Pennsylvania, today issued this evaluation of the television ad recently released by NARAL Pro-Choice America.

In somewhat related coverage, Kevin Russell at “The Supreme Court Nomination Blog” hypothesizes here about “the degree to which the views expressed in the Government’s brief in Bray should be attributed to Roberts.” You can view the brief by clicking here.

Posted at 11:00 PM by Howard Bashman

“Roberts Papers Being Delayed; Bush Aides Screen Pages for Surprises”: Wednesday’s issue of The Washington Post will contain a front page article that begins:

Thrown on the defensive by recent revelations about Supreme Court nominee John G. Roberts Jr.’s legal work, White House aides are delaying the release of tens of thousands of documents from the Reagan administration to give themselves time to find any new surprises before they are turned into political ammunition by Democrats.

Before Roberts’s July 19 selection by President Bush, there was no comprehensive effort to examine the voluminous paper trail from his previous tours as an important legal and political hand under Presidents Ronald Reagan and George H.W. Bush, administration officials said.

Wednesday’s issue of The New York Times will contain an article headlined “Nominee Is Pressed About End-of-Life Care” that begins:

Terri Schiavo, the brain-damaged Florida woman whose case provoked Congressional action and a national debate over end-of-life care, became an issue on Tuesday in the Supreme Court confirmation of Judge John G. Roberts Jr. when a Democratic senator pressed Judge Roberts about whether lawmakers should have intervened.

The senator, Ron Wyden of Oregon, said Judge Roberts, while not addressing the Schiavo case specifically, made clear he was displeased with Congress’s effort to force the federal judiciary to overturn a court order withdrawing her feeding tube.

“I asked whether it was constitutional for Congress to intervene in an end-of-life case with a specific remedy,” Mr. Wyden said in a telephone interview after the hourlong meeting. “His answer was, ‘I am concerned with judicial independence. Congress can prescribe standards, but when Congress starts to act like a court and prescribe particular remedies in particular cases, Congress has overstepped its bounds.'”

The answer, which Mr. Wyden said his aides wrote down word-for-word, would seem to put Judge Roberts at odds with leading Republicans in Congress, including the Senate majority leader, Bill Frist, and the House majority leader, Tom DeLay, who both led the charge for Congressional intervention in the Schiavo case this spring. Mr. DeLay said at the time that the federal judiciary had “run amok.”

And Wednesday’s issue of Newsday will contain an article headlined “Ads lash out against Roberts; Abortion rights backers start campaign highlighting high court nominee’s arguments in clinic protest case.”

Posted at 10:42 PM by Howard Bashman

Access online Wal-Mart’s Brief for Appellant filed in the Ninth Circuit in the Dukes v. Wal-Mart Stores appeal: I have posted online at this link (1MB PDF file) a copy of the appellate brief, which Circuit Judge Harry Pregerson criticized at yesterday’s oral argument as too harsh toward the trial judge (see news stories collected here). Now you can judge for yourself whether this appellate judge’s widely-reported criticism was deserved.

Posted at 10:32 PM by Howard Bashman

“Courts Still at Odds Over Transsexuals’ Civil Rights; 6th Circuit ruling opened door to discrimination suits against employers, but some lower federal courts disagree”: provides this report.

Posted at 9:52 PM by Howard Bashman

“Judge Rules for Walt Disney Directors in Ovitz Case”: The New York Times provides this news update.

The Los Angeles Times provides a news update headlined “Disney Dodges Ovitz Bullet; Delaware judge rules media giant’s directors did not breach their fiduciary duty to shareholders.”

The Associated Press reports that “Judge Sides With Disney Board Over Ovitz.”

Reuters reports that “Judge rules for directors in Ovitz case.”

And Bloomberg News reports that “Disney Directors Absolved of Liability in Ovitz Suit.”

Posted at 8:24 PM by Howard Bashman

“Breaking News: Appellate Court Votes 2-1 to Keep Prop. 77 off the Ballot.” Law Professor Rick Hasen’s blog provides this post, which links to today’s California Court of Appeal ruling.

Posted at 5:45 PM by Howard Bashman

“PFA Unveils Ad Campaign to Counter NARAL’s Deception; Television Ad Combats Dishonest Attack on Judge Roberts’ Record”: The organization Progress for America issued this press release today.

Posted at 5:10 PM by Howard Bashman

“Campus recruiting issue heads to high court; Can universities ban military recruiters in protest of Pentagon gay policy?” Tom Curry, national affairs writer for MSNBC, provides this report.

Posted at 3:35 PM by Howard Bashman

“Court Justice Worried About Criticism”: Gina Holland of The Associated Press provides a report that begins, “Supreme Court Justice Stephen Breyer said Tuesday that rulings on difficult subjects like gay rights and the death penalty have left courts vulnerable to political attacks that are threatening judicial independence. Breyer urged lawyers to help educate people about court responsibility to be an independent decision-maker.”

Posted at 3:15 PM by Howard Bashman

“U.S. court reverses Cubans’ spying convictions”: Reuters provides this report on a ruling that the U.S. Court of Appeals for the Eleventh Circuit issued today.

The Eleventh Circuit’s per curiam opinion concludes with the following paragraph:

The court is aware that, for many of the same reasons discussed above, the reversal of these convictions will be unpopular and even offensive to many citizens. However, the court is equally mindful that those same citizens cherish and support the freedoms they enjoy in this country that are unavailable to residents of Cuba. One of our most sacred freedoms is the right to be tried fairly in a noncoercive atmosphere. The court is cognizant that its judgment today will be received by those citizens with grave disappointment, but is equally confident of our shared commitment to scrupulously protect our freedoms. The Cuban-American community is a bastion of the traditional values that make America great. Included in those values are the rights of the accused criminal that insure a fair trial. Thus, in the final analysis, we trust that any disappointment with our judgment in this case will be tempered and balanced by the recognition that we are a nation of laws in which every defendant, no matter how unpopular, must be treated fairly. Our Constitution requires no less.

In other coverage, The Miami Herald provides a news update headlined “Convictions of 5 Cuban spies overturned by appellate court; new trial ordered.” And The Associated Press reports that “Cuban Agents to Get New Trial.”

Posted at 2:14 PM by Howard Bashman

Today’s rulings of note from the U.S. Court of Appeals for the Ninth Circuit: By means of an order issued today in the case captioned Friendly House v. Napolitano, the Ninth Circuit dismisses for lack of any case or controversy a lawsuit brought to challenge Proposition 200, an initiative adopted in November 2004 by Arizona voters and designed to deter illegal aliens from collecting welfare benefits.

And by means of a separate ruling, the Ninth Circuit today issued its decision in Yellow Cab v. Yellow Cab. As had been widely anticipated, the opinion footnotes both Joni Mitchell and Chuck Berry.

Posted at 1:20 PM by Howard Bashman

“Is a ‘Domestic Partnership’ the Same as a ‘Marriage’? No, but the California Supreme Court Says A ‘Domestic Partner’ is the Same as a ‘Spouse.'” FindLaw commentator Joanna Grossman has this essay today.

Posted at 11:42 AM by Howard Bashman

Wal-Mart’s appellate brief criticized as too harsh toward federal district judge: Earlier this morning, I linked here to news coverage of yesterday’s oral argument in the U.S. Court of Appeals for the Ninth Circuit in Dukes v. Wal-Mart Stores.

One aspect of the press coverage is worthy of additional discussion. In The New York Sun, Josh Gerstein reports:

Judge Pregerson, 81, also took the highly unusual step of publicly dressing down Mr. Boutrous over the tone of the company’s brief. “It has language in there that’s a little arrogant, that’s a little offensive towards the district judge, talking about the judge being prolix and wordy and long-winded, trampling on Wal-Mart’s due process rights,” Judge Pregerson said. “Do you regard this as an effective way to present written advocacy?”

“That was our hope,” Mr. Boutrous replied.

“You slam the district judge,” Judge Pregerson insisted.

“We didn’t mean any disrespect,” explained Mr. Boutrous, a partner with a Los Angeles–based firm, Gibson, Dunn & Crutcher. “You can be courteous when you say those things. This is like someone fighting in the streets or alley,” Judge Pregerson said, adding that he believed Wal-Mart owed Judge Jenkins an apology.

In its article, The Contra Costa Times reports:

The three-judge panel of the 9th U.S. Circuit Court of Appeals scrutinized the arguments on both sides, repeatedly interrupting each attorney. Judge Harry Pregerson, however, directed particularly pointed comments toward Boutrous, critiquing the tone of the written appeal of Jenkins’ ruling.

“It has language in there that’s a little arrogant, it’s a little offensive, about the district judge, about his being … long-winded and trampling on due process rights,” he said. “I think you better apologize to him sometime. … You work for a major law firm, I’m really surprised that you haven’t learned that lesson.”

Boutrous said they “meant no disrespect,” and insisted the company merely feels “very strongly” that its due process rights are being violated.

And in its article, The Los Angeles Times reports:

Two of three judges on a federal appeals panel grilled the retail behemoth’s attorney, bringing up facts harmful to the company’s defense and faulting him for using “arrogant” language in criticizing the trial court judge.

The Ninth Circuit has made the audio of yesterday’s oral argument available online at this link (Windows Media).

Posted at 11:35 AM by Howard Bashman

D.C. Circuit reinstates lawsuit presenting First Amendment challenge to U.S. Postal Service regulation banning “soliciting signatures on petitions, polls, or surveys” on “all real property under the charge and control of the Postal Service”: You can access today’s ruling of the U.S. Court of Appeals for the D.C. Circuit at this link.

Posted at 10:10 AM by Howard Bashman

“Wal-Mart fights to split sex bias suit; Class action status inhibits fair defense, retailing giant claims”: Bob Egelko has this article today in The San Francisco Chronicle.

The Los Angeles Times reports today that “Wal-Mart Faces Tough Questioning by Judges; A federal appeals panel points out weaknesses in the retailer’s defense in a sex discrimination suit.”

In The New York Sun, Josh Gerstein reports that “Court Gives Wal-Mart a Chilly Reception in Sex Bias Case.”

The Contra Costa Times reports that “Wal-Mart case awaits judgment.”

And today’s broadcast of NPR‘s “Morning Edition” contained a segment entitled “Wal-Mart Moves to Block Sex-Discrimination Case.”

Posted at 9:44 AM by Howard Bashman

“Ad Campaign Says Roberts Backed Violent Protesters; Judge’s Allies Defend His Work on Abortion Case”: The Washington Post contains this article today.

Today in The Los Angeles Times, Maura Reynolds and David G. Savage report that “Ad Attacks Roberts’ Role in Clinic Case; A leading abortion rights group issues a TV spot on the high court nominee’s support of protesters who sought to block access to facilities.”

USA Today reports that “Ad says Roberts tied to clinic violence; Supporters of nominee accuse NARAL of ‘outrageous’ distortion.”

Tom Curry, national affairs writer for MSNBC, reports that “Abortion rights group presses Republican centrists on Roberts; NARAL mounts ad campaign in Maine and Rhode Island.”

The Baltimore Sun reports today that “One sentence in Constitution could be key to Roberts’ role; Some see in his writings peril to basic protections.”

The Pittsburgh Post-Gazette reports that “Specter to press Roberts on interstate commerce cases; Senator asks for nominee’s opinion.”

And The Chicago Sun-Times reports that “Gonzales pleads Bush’s case to nation’s lawyers.”

In commentary, The San Francisco Chronicle contains an editorial entitled “Courting secrecy above reason.”

The Rutland Herald contains an editorial entitled “A gentleman’s approach.”

Investor’s Business Daily contains an editorial entitled “A Justice From The Real World.”

The Delaware County Times contains an editorial entitled “Roberts’ adoption records should be off limits.”

In The Washington Post, columnist Richard Cohen has an op-ed entitled “The Real Roberts?” that begins, “John G. Roberts Jr. is out of the closet.”

In The Baltimore Sun, Stephen G. Peroutka has an op-ed entitled “Roberts’ words give abortion foes reason to be wary.”

In The Boston Globe, Christopher D. Morris has an op-ed entitled “Stopping a judicial conflict of interest.”

In The Biloxi Sun Herald, Douglas Newcombe has an op-ed entitled “The John Roberts I remember.”

In The Philadelphia Daily News, Debbie Woodell has an op-ed entitled “Holding out hope for Roberts.”

Sunday in The Chicago Tribune, Frank James had an essay entitled “Majority rule: For Bush, there’s no room for high court quotas.”

And at National Review Online, Rich Lowry has an essay entitled “Out of Nothing at All: The myth of a right to privacy.”

Posted at 8:33 AM by Howard Bashman