How Appealing

Thursday, September 15, 2005

“Taking the Kozinski Challenge”: In Friday’s edition of The Recorder of San Francisco, attorney Cyrus Sanai will have an interesting essay that begins, “The fiercest battle within the federal appellate courts these days is not over abortion or gay marriage, but the arcane question of whether an attorney may cite the unpublished case law of an appellate court as the binding law of the circuit.”

Posted at 11:54 PM by Howard Bashman

“Reassurance Relieves Senators; Roberts Says He Won’t Support Usurping Congressional Authority”: Lawrence Hurley has this article today in The Daily Journal of California.

And, once again, today’s newspaper contains “Two Scholars View the Hearing,” this time consisting of an essay by Law Professor Erwin Chemerinsky entitled “Memos, Briefs Give Democrats Reason to Oppose Nomination” and an essay by Law Professor Douglas Kmiec entitled “Eloquence, Erudition of Nominee Make Listening to Him a Pleasure.”

Posted at 11:40 PM by Howard Bashman

“Judge Revives Challenge to School Pledge; Constitutional Issue Likely Is Bound for U.S. Supreme Court”: This article appears today in The Daily Journal of California.

Posted at 11:30 PM by Howard Bashman

“Roberts’ Values, Character Come In for Questions; Democratic senators complain of evasive responses and test the chief justice nominee’s composure during a 10-hour hearing”: This article appears today in The Los Angeles Times, in addition to the articles earlier noted here.

Posted at 11:10 PM by Howard Bashman

Available online from The Washington Post: Friday’s newspaper will contain an article headlined “‘I’m Not an Ideologue,’ Roberts Tells Senate Panel.” And Dana Milbank will have an essay entitled “Final Day of Nomination Hearings: Yawn.”

Today’s newspaper, meanwhile, contains an editorial entitled “Judge Roberts Speaks,” an article headlined “Spinning in the Ring; Left and Right Try to Land Their Punches,” and an essay by Dana Milbank headlined “Hey, Batter, Hold the Chatter.”

Posted at 11:05 PM by Howard Bashman

“Roberts Gains Respect, if Not Converts; The nominee finishes his hearings by indicating that he’s a mainstream conservative who would put the law before politics — and his heart”: David G. Savage and Richard B. Schmitt will have this article Friday in The Los Angeles Times.

Posted at 11:02 PM by Howard Bashman

In online commentary: At Slate, Dahlia Lithwick has a jurisprudence essay entitled “Confirmation Report: Getting to ‘law-plus.’” And Emily Bazelon has a jurisprudence essay entitled “Moments of Truth: What John Roberts really thinks.”

The New Republic has an editorial entitled “Mister Roberts: In support of Bush’s nominee for chief justice–with reservations.” And Lee Siegel has an essay entitled “Contempt: John Roberts’s performance was an insolent reply to the existence of the hearings themselves.”

At National Review Online, Gregory S. McNeal has an essay entitled “A Judge for All Seasons: John Roberts’s judicial philosophy is a model of appropriate restraint.”

At The Weekly Standard, Matthew Continetti has an essay entitled “Taking a Grandstand: Day two of the Roberts hearing is full of speechifying senators–with a question or two thrown in for good measure.”

At, Michael Scherer has an essay entitled “John Roberts’ favorite pastime: Day two of the Senate hearings — The baseball metaphors flew, and the nominee for chief justice dodged nearly every question thrown his way.”

FindLaw commentator Edward Lazarus has an essay entitled “After Two Days of Hearings on Supreme Court Nominee John Roberts, What Should Senate Democrats’ Next Move Be?

At The American Prospect, Kermit Roosevelt has an essay entitled “Robed Men Tell No Tales: John Roberts winked at moderates during his hearings — a bit.” And Adele M. Stan has an essay entitled “Opening Day: The Roberts hearings began according to script; But the Senate needs to keep its eyes on where the story goes from there.”

Finally, at The Nation, Max Blumenthal has an essay entitled “The Many Faces of Dr. Coburn.” And David Corn has an essay entitled “Question Time for Roberts.”

Posted at 10:40 PM by Howard Bashman

“Antonin Scalia, Judicial Activist: How the conservative justice legislates from the bench.” Cathy Young has this essay online at Reason.

Posted at 10:35 PM by Howard Bashman

U.S. Court of Appeals for the Tenth Circuit rules in favor of City of Denver, Colorado in anti-abortion protester on highway overpass First Amendment case: Today’s ruling from a partially divided three-judge Tenth Circuit panel is the second ruling from a federal appellate court in recent months in a case involving controversial protests on highway overpasses. The earlier ruling, from the U.S. Court of Appeals for the Seventh Circuit, appears on the surface, at least, to reach the opposite result.

Posted at 10:25 PM by Howard Bashman

A Chief Justice William H. Rehnquist bobblehead doll sold at auction today on eBay for $1,077.00: You can access the item, on which bidding has closed, at this link. The auction of another Rehnquist bobblehead is due to conclude early Saturday morning eastern time, and the current bid (as of the time this post first appeared online) is a mere $305.00.

As a thoughtful appellate commentator has repeatedly observed, “Who among us can afford not to subscribe to The Green Bag?

Posted at 9:18 PM by Howard Bashman

“Roberts Concludes Three Days of Testimony; Nominee for chief justice says opinions written as a federal appeals judge aren’t those of an ‘ideologue'”: T.R. Goldman has this report online at

Posted at 7:44 PM by Howard Bashman

“With Roberts hearings complete, Democrats wrestle with their votes”: James Kuhnhenn of Knight Ridder Newspapers provides this report.

Posted at 7:35 PM by Howard Bashman

“Bout 1: over. Bout 2: huge; With Roberts unscathed by grillings, Democrats turn gaze to court’s ‘swing’ seat.” Gail Russell Chaddock will have this article Friday in The Christian Science Monitor.

Posted at 6:20 PM by Howard Bashman

“Judge rejects pledge in school; He rules the practice coerces students, violates Constitution”: This front page article appears today in The Sacramento Bee.

The San Francisco Chronicle reports today that “Pledge again ruled unconstitutional; U.S. judge says ‘under God’ phrase violates right of Sacramento-area schoolchildren to be free from a requirement to affirm a deity.”

Josh Richman of The Oakland Tribune reports that “Pledge is shot down by judge; ‘Under God’ again ruled unconstitutional for reciting in schools; case could return to top court.”

The Los Angeles Times reports today that “Judge Revives Battle Over Pledge; Religious conservatives denounce the ruling that ‘under God’ in the Pledge of Allegiance means that it is unconstitutional.”

Howard Mintz of The San Jose Mercury News reports that “Federal judge rules Pledge of Allegiance unconstitutional.”

The Washington Times reports that “Judge rules against Pledge in schools.”

The San Francisco Examiner contains an article headlined “Observers: Pledge battle will be fought far from classroom; Ruling won’t affect classrooms in area right away.”

The Santa Cruz Sentinel reports that “Federal court flags Pledge of Allegiance as unconstitutional.”

The Desert Sun of Palm Springs contains an article headlined “Pledging allegiance no more; Valley residents have mixed responses to judge’s ruling ‘under God’ unconstitutional.”

The Lodi News-Sentinel contains an article headlined “Judge: No pledge in schools.”

The Appeal-Democrat of Marysville-Yuba City, California reports that “Decision disappoints Y-S teachers.”

And The Olympian of Olympia, Washington reports that “Pledge in schools loses legal decision.”

In commentary, The San Jose Mercury News contains an editorial entitled “More legal wrangling over pledge’s ‘under God’; Appellate judge’s ruling unlikely to sway Supreme Court.”

And in The Arizona Republic, E.J. Montini has an op-ed entitled “One nation (not always), under God (since 1954).”

Posted at 3:40 PM by Howard Bashman

“Key Democrats May Not Vote Against Roberts; Feinstein and Schumer say they have not made up their minds yet as questioning of chief justice nominee ends”: The Los Angeles Times provides this news update.

Posted at 3:28 PM by Howard Bashman

“Fourth Day of Hearings on the Nomination of Judge Roberts”: A continually updated transcript of today’s proceedings is available here via The New York Times.

Posted at 2:10 PM by Howard Bashman

Unfortunately, the article doesn’t say how much he paid for the bobblehead dolls: The Times Argus of Barre, Vermont today contains an article headlined “Judge Roberts’ nod to Vermont.”

The article begins: “Wally Malley may have retired this summer after more than a decade as the state’s deputy attorney general, but his one and only U.S. Supreme Court case was on the mind of Chief Justice nominee John Roberts Wednesday.”

And the article goes on to report, “That Roberts could pull the obscure case out of seemingly nowhere in response to a question by Sen. Charles Grassley, R-Iowa, impressed Malley, who, after winning the case, bought bobble head dolls of Justices John Paul Stevens and Sandra Day O’Connor to go with the two quill pens he was given after arguing before all nine members of the court.”

Posted at 2:05 PM by Howard Bashman

Programming note: This morning, my day job requires my presence in Harrisburg, Pennsylvania to present an appellate oral argument. Additional posts will appear here this afternoon.

At 9 a.m. eastern time today, the Senate Judiciary Committee will resume its hearing on the nomination of John G. Roberts, Jr. to be Chief Justice of the United States. The hearing will begin with the nominee still in the hot seat, but at some point before too late in the day other witnesses are scheduled to testify.

In addition to viewing online via C-SPAN3 (using RealPlayer or Windows Media Player), the Judiciary Committee offers a live audio feed, as does National Public Radio (RealPlayer required). Tom Goldstein of “SCOTUSblog” is live-blogging the hearing, as is Tom Curry of MSNBC.

Posted at 6:15 AM by Howard Bashman