How Appealing

Wednesday, November 2, 2005

“Republican says Nelson should back Alito, or else”: The Hill on Thursday will contain an article that begins, “Nebraska Senate candidate Don Stenberg (R) warned Sen. Ben Nelson (D-Neb.) yesterday that he can expect to get hammered if he votes against Judge Samuel Alito’s Supreme Court nomination.”

And The Lincoln Journal Star provides a news update headlined “Hagel endorses Alito; Nelson gets positive vibes.”

Posted at 8:45 PM by Howard Bashman

“Alito nomination puts spotlight back on Senate’s Gang of 14”: James Kuhnhenn and Steven Thomma of Knight Ridder Newspapers provide this report.

Posted at 8:35 PM by Howard Bashman

“Groups ask court to uphold ruling on gay marriage ban”: The Associated Press provides a report that begins, “Two advocacy groups asked a federal appeals court on Tuesday to uphold a ruling that struck down Nebraska’s gay marriage ban. Lambda Legal and the American Civil Liberties Union filed a brief with the 8th U.S. Circuit Court of Appeals asking that it uphold an earlier ruling by U.S. District Judge Joseph Bataillon.” Those briefs are not yet available from the Eighth Circuit’s web site, although the briefs of the State of Nebraska and its amici can be viewed via this link. And the trial court’s ruling can be accessed here.

Posted at 8:30 PM by Howard Bashman

“The Alito Code: The search for a portrait of the jurist as a young man.” Online at Slate, Bruce Reed’s “The Has-Been” offers this post.

Posted at 5:58 PM by Howard Bashman

Seals and Cross: The San Bernardino County Sun reports today that “Cross may return to Redlands’ city logo.”

The Redlands Daily Facts reported earlier this week that “Community still pondering whether cross crosses a constitutional line.”

Two web sites sponsored by organizations that wish for Redlands to return the historic city seal with the cross can be accessed here and here. A close-up of the historic seal can be viewed on page 2 of the PDF document containing the text of the ballot initiative. The League of Women Voters of California Education Fund offers additional information about the initiative. And the new cross-less seal can be viewed in the upper left-hand corner of the City’s official web site.

Posted at 5:35 PM by Howard Bashman

Patented bull castration tools: The blog “Patently-O: Patent Law Blog” summarizes here yesterday’s Federal Circuit ruling, which I noted yesterday afternoon in this post, and provides a drawing of what these things look like (image not safe for bulls).

Posted at 4:35 PM by Howard Bashman

“Gun-Toting Toad Killers: How can federal regulations survive the new Supreme Court?” Jacob Sullum has this essay online at Reason.

Posted at 3:40 PM by Howard Bashman

“Justices to hear case of deported Utah resident”: The Salt Lake Tribune today contains an article that begins, “Even though the Fernandez family got a glimpse of hope this week, they know it might a year before they are reunited. The U.S. Supreme Court will hear the case of Humberto ‘Bert’ Fernandez-Vargas, a former Ogden resident who is trying to return to Utah as a legal resident to be with his wife and 16-year-old son.”

Posted at 3:20 PM by Howard Bashman

U.S. Court of Appeals for the Ninth Circuit holds that “there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it.” Today’s ruling from a unanimous three-judge panel was written by Circuit Judge Stephen Reinhardt in a case involving elementary school students.

The opinion begins:

When parents of schoolchildren in Palmdale, California learned from their sons and daughters that they had been questioned in their public elementary school about sexual topics such as the frequency of “thinking about having sex” and “thinking about touching other peoples’ private parts,” some of them exercised their constitutional right to take their grievance to the courts.

And the final paragraph of Judge Reinhardt’s opinion states:

In summary, we hold that there is no free-standing fundamental right of parents “to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and religious values and beliefs” and that the asserted right is not encompassed by any other fundamental right. In doing so, we do not quarrel with the parents’ right to inform and advise their children about the subject of sex as they see fit. We conclude only that the parents are possessed of no constitutional right to prevent the public schools from providing information on that subject to their students in any forum or manner they select. We further hold that a psychological survey is a reasonable state action pursuant to legitimate educational as well as health and welfare interests of the state. Accordingly, the parent-appellants have failed to state a federal claim upon which relief may be granted. The decision of the district court is affirmed.

You can access the complete ruling at this link.

Posted at 1:40 PM by Howard Bashman

Access online the federal government’s reply brief on the merits in Rumsfeld v. FAIR, the Solomon Amendment case: The reply brief, which the Solicitor General’s Office filed late last month, can be accessed here.

Posted at 12:15 PM by Howard Bashman

“Court Throws Out 24-Year Sentence In Fraud Case”: The Wall Street Journal today contains an article (pass-through link) that begins, “A federal appellate court, in a significant reversal, threw out the 24-year prison sentence of a former Dynegy Corp. executive convicted in 2003 for his role in an accounting fraud scheme. The Fifth Circuit Court of Appeals in Houston ruled the calculation of shareholder losses used to arrive at the stiff sentence for the executive, Jamie Olis, may have been overstated. The sentence was one of the longest stemming from the wave of corporate scandals in recent years.”

Posted at 11:30 AM by Howard Bashman

“Good from Bad: It all could have been a strategy; It wasn’t; But it would have worked as one.” Today at National Review Online, Matthew J. Franck has an essay that begins, “I have been thinking about why I am so confident that Samuel Alito will be confirmed comfortably by the Senate, with no filibuster attempt by the Democrats, indeed with a good slice of the Democrats voting for him, and probably after hearings that (alas) break no new ground in candor or ‘ideological’ inquiry. And it occurs to me that the reason is summed up in two words: Harriet Miers.”

Posted at 11:00 AM by Howard Bashman

“When a party presents the question whether ‘and’ means ‘or,’ it is tempting to be dismissive of the claim or, worse, to make a crack about the demise of the rule of law.” So begins a majority opinion, written by Circuit Judge Jeffrey S. Sutton, that the U.S. Court of Appeals for the Sixth Circuit issued today. The first paragraph of Judge Sutton’s opinion proceeds to state, “But in this instance the disputed ‘and’ appears in the context of several uses of the term that are alternately conjunctive and disjunctive and as much as nine billion dollars in potential tax refund claims (according to the government) rest on the resolution of the issue in this case and others, both of which prompt us to be anything but dismissive of the question.”

Circuit Judge John M. Rogers dissented in an opinion that begins:

A host separately asked two prospective guests what they liked to drink. One said, “I like bourbon and water.” The other said, “I like beer and wine.” When the second guest arrived at the event, the host served the guest a glass of beer mixed with wine. “What’s that awful drink?” said the guest, to which the host answered, “You said you liked beer and wine.” Replied the guest: “Pfui! You know what I meant. Quit playing word games and get me something I can drink.”

Of course the host was “playing word games,” because the meanings of both “I like bourbon and water” and of “I like beer and wine” are clear. In the first sentence “I like” applies to “bourbon and water” together, whereas in the second sentence “I like” applies to each of “beer” and “wine” separately. Stated differently, the preceding words are distributed over the conjoined elements in the second sentence, so that the meaning is “I like beer and [I like] wine.” But the preceding words are not distributed over the conjoined elements in the first sentence, so that the meaning is “I like (bourbon and water).” In each sentence the word “and” has the same conjunctive meaning–the difference lies in whether the preceding words are distributed over the conjoined elements or not. Whether to interpret the preceding words as distributed over the conjoined elements or not depends on the context of the sentence, and what we externally know about the conjoined elements. Given what we know about the social context, and what we know about bourbon, water, beer and wine, the meanings of the two sentences are not at all ambiguous.

The critical second vote joining Judge Sutton’s majority opinion came from a U.S. District Judge sitting by designation, perhaps making this case a prime candidate for rehearing en banc.

Posted at 10:25 AM by Howard Bashman

“Meet the New Elite”: Today in The Washington Post, columnist David Ignatius has an op-ed that begins, “With the nomination of Princeton and Yale Law grad Samuel Alito to the Supreme Court, I’m beginning to sense a theme in the Bush administration’s rocky second term: We are witnessing the rise of the Republican A students.”

And columnist David S. Broder has an op-ed entitled “President Pushover.”

Posted at 7:24 AM by Howard Bashman