How Appealing

Tuesday, November 15, 2005

“Court Nominee Plays Down ’85 Remarks”: This article will appear Wednesday in The New York Times. And the newspaper will also contain an editorial entitled “Ignore the Man Behind That Memo.”

The San Jose Mercury News on Wednesday will report that “Personal views won’t sway judicial decisions, Alito tells senator.”

The Philadelphia Inquirer on Wednesday will report that “Alito’s view of precedent may indicate approach to Roe.”

The Los Angeles Times provides a news update headlined “Law Comes Before Personal Views, Alito Says.”

The Denver Post provides a news update headlined “Allard endorses Alito.”

And The Associated Press reports that “Kennedy voices concern after meeting Supreme Court nominee Alito.”

Posted at 11:25 PM by Howard Bashman

“White House Backs Dividing Appeals Court”: The Associated Press provides a report that begins, “The Justice Department is backing efforts by congressional Republicans to split up the 9th U.S. Circuit Court of Appeals, the nation’s largest federal appeals court and the frequent source of anti-Bush administration rulings.”

Posted at 9:02 PM by Howard Bashman

Skepticism merited: A bit earlier today, I had a post that began:

Is a report about a fake blog published on a separate fake blog the equivalent of hearsay within hearsay? The blog “The Right Honorable Samuel A. Alito, Jr.” offers a post titled “Don’t Cry for A3G, Argentina.”

The foregoing link no longer works, and the author of the “Alito” blog has a new post titled “A Terrific Misunderstanding” admitting that the former, now disappeared post, which purported to reproduce a statement from the author of the “Underneath Their Robes” blog, was fictional in the sense that the statement didn’t in fact come from the author of the “UTR” blog. Whether this means that we should in fact cry for A3G, Argentina, remains to be seen.

Update: An email from the email address shown on the “Alito” blog as belonging to that blog’s author states:

I am writing to let you know that I am not, have not been in contact with, have never met, and do not know Article III Groupie, David Lat, or anyone pretending to be either one of them.

I am a satirist, and I have created works of satire, in the real world and online; I created the Samuel Alito blog when I saw that the Harriet Miers blog was popular.

It seems clear that you understand this, since your link to my site makes it clear that my blog is a fiction.

Apparently, some people (I do not know who) have taken this literally and it is causing Mr. Lat some distress. Apparently some people believe that the posts on my site actually come from him.

To avoid confusion, I have taken down the relevant posts (frankly if it causes Mr. Lat any trouble I’ll be happy to delete the site).

I received an email tonight purporting to be from Mr. Lat. It pleaded (I prefer the word “plead” but I’m told lawyers use the term “pleaded”) that I take down the posts and “issue a retraction” to you.

I don’t believe I was in contact with you, so I don’t need to retract anything I said to you. However, it appears to be in Mr. Lat’s interest that it be made clear somehow, so I’m writing you.

Feel free to email me back if you need to confirm my real name, the fact that I am not a lawyer and don’t know Mr. Lat, or anything else.

Whether this matter could become any more surreal remains to be seen.

Posted at 8:10 PM by Howard Bashman

“Kennedy vs. Alito by Proxy: The Vanguard frenzy is much ado about nothing.” Edward Whelan has this essay today at National Review Online.

Posted at 5:55 PM by Howard Bashman

Is a report about a fake blog published on a separate fake blog the equivalent of hearsay within hearsay? The blog “The Right Honorable Samuel A. Alito, Jr.” offers a post titled “Don’t Cry for A3G, Argentina.”

Meanwhile, one of my readers emails:

I see that you are closely following the David Lat story and I thought I’d pass on the following thoughts (since I don’t blog myself — for professional reasons ;)): David and I were colleagues and close friends at WLRK during his “thousands and thousands” of hours there. (I sometimes think I may have mentored him right out of private practice during a particularly gruesome privilege log experience).

Like many many ambitious young lawyers, David has always had two competing sides: The devoted and fascinated lawyer side (fortified by a desire to live up to familial expectations (he’s the son of Filipino immigrants) and by a philosophically conservative streak) and a flamboyant creative side that led him to take film/theater classes (as a WLRK associate – no mean feat!) and fantasize about life in the entertainment world. When he quit WLRK, I thought the creative side might win out, but then I decided (wrongly!) that the more-conformist side had triumphed when he ended up taking the AUSA post. Anyone who has worked late nights with David knows that A3G is the best of David’s creative side — even at WLRK, he kept us all in stitches with breathless speculation about “litigatrixes” of our acquaintance and rhapsodies about Prada shoes.

Friends who’ve spoken with him in the last few days say 1) that David’s “outing” was totally voluntarily and 2) that he’d never broached the subject with his superiors before yesterday afternoon. I hope this means that David has found a way to reconcile the two wonderful sides to his personality. It couldn’t happen to a nicer, funnier or smarter guy.

Like many women, I never (even before I knew for sure) believed A3G as a woman (or as a law firm associate — who has time for that?). However, I never found it “icky,” and am a bit taken aback by those who do. A3G and David share a strongly camp sense of humor (I’m NOT saying David’s gay! I’ve never asked him) that is firmly rooted in show-biz tradition. If you think of A3G as a fantastic performance, I think it all makes sense (and doesn’t seem icky at all).

Anyway, I doubt any of this is useful to you in your quest for hard news, but you may quote me as a former colleague of Lat’s and a former WLRK-er, although I’d prefer if you didn’t use my name

Thanks much!

Posted at 4:55 PM by Howard Bashman

“Following Harriet Miers?”: At “PrawfsBlawg,” Dan Markel has a post that begins, “So, where did A3G and David Lat disappear?”

Posted at 4:10 PM by Howard Bashman

Someone who has known David Lat for more than ten years emails: “I had no idea of his parallel life as A3G, and as someone who’s fed some recent items to UTR, the idea that it was really Dave on the other end of the computer is kind of weirding me out. (No, I didn’t hit on ‘her’ or anything — thank goodness!) I haven’t talked to him since he outed himself, and have no idea why he decided to do so, or of what his boss thinks. I imagine that the powers-that-be in the U.S. Attorney’s Office can’t be too pleased, however.” I’ve also received word of a David Lat sighting at the Federalist Society’s annual conference last weekend in Washington, DC. And the blog “T&A” offers a post titled “Tom Cruise, A3G, and the value of not showing too much.”

Posted at 3:38 PM by Howard Bashman

“High court rules on Columbine case”: The Denver Post provides a news update that begins, “The Colorado Supreme Court today agreed with The Denver Post that items seized from the homes of Eric Harris and Dylan Klebold are criminal justice records, which clears the way for their release if Jefferson County Sheriff Ted Mink determines the release would benefit the public.”

And The Rocky Mountain News provides an update headlined “High court sends Columbine records dispute back to judge.”

You can access today’s ruling of the Supreme Court of Colorado at this link.

Posted at 3:30 PM by Howard Bashman

“Courts hears challenge to minimum federal sentences”: The Rocky Mountain News provides an update that begins, “Three judges of the Denver-based 10th U.S. Circuit Court of Appeals heard arguments Tuesday over a 55-year prison sentence imposed on a Salt Lake City man, a first offender, for selling small amounts of marijuana and having guns.”

Posted at 3:28 PM by Howard Bashman

Ninth Circuit Judge Alex Kozinski has no comment on the unmasking of A3G: The reigning “male superhotty of the federal judiciary” has declined comment, perhaps in objection to a newspaper article headline that I recently linked here.

When I was in Monterey, California a couple of weekends ago, one of the U.S. District Judges in attendance asked me, with evident curiosity, whether I thought that Judge Kozinski could be the author of the “UTR” blog. Fortunately, my hunch in answering that question proved correct.

Posted at 2:40 PM by Howard Bashman

Email from Amy Klein, reporter with North Jersey Media Group: I sent some questions to the reporter whose article headlined “Anonymous blog can’t find judicial funny bone” appears today in The Bergen Record.

Here is the text of my email to Ms. Klein:

I write the blog “How Appealing” hosted by Legal Affairs magazine. Was David Lat at work yesterday, and were you able to draw any conclusion for why his site “Underneath Their Robes” went off-line late yesterday. E.g., do you think it was at the instruction of his employer, the USDOJ? And did Mr. Lat suggest that he was planning to leave his job with the federal government and do something else? Also, did you ask him whether it was his decision to go public as the site’s author or was he going to be outed whether he participated or not?

And Ms. Klein responded as follows:

I did reach David Lat at work around 4 p.m. yesterday, but the only things he said to me I put in the story (that he would have to check with his employer, and then that he would not comment). Shortly after he refused to comment, the site went offline — I don’t know if that was at the instruction of the USAO or whether Lat made that decision himself.

I didn’t get a chance to ask him any of the other questions you pose (although I would have liked to).

I thank Ms. Klein for allowing me to quote her response here.

Posted at 12:40 PM by Howard Bashman

Email from Seventh Circuit Judge Richard A. Posner: I emailed Judge Posner moments ago seeking his reaction to yesterday’s news that “[i]n real life, A3G is a thirty-year-old Newark-based assistant U.S. attorney named David Lat.”

Judge Posner responded as follows:

You may recall that that back on September 1, 2004, your blog carried an item about an ABAJ interview with me in which I had said that I thought A3G was male. So I feel vindicated. I also think that the disclosure will ruin Underneath Their Robes, because the hyperfeminine shtick is too discordant with the known male identity of the blogger.

I thank Judge Posner for his very prompt response to my inquiry, and the post of mine from September 2004 to which I think he’s referring can be accessed here.

Posted at 11:25 AM by Howard Bashman

My email interview with Jeffrey Toobin of The New Yorker: Following-up further on yesterday’s breaking news, I conducted an email interview this morning with Jeffrey Toobin, whose Talk of the Town essay posted online yesterday revealed that “In real life, A3G is a thirty-year-old Newark-based assistant U.S. attorney named David Lat.”

The questions were posed by me, and the answers were supplied by Mr. Toobin:

Q. Was it David Lat’s decision to go public, or did you plan to reveal his identity whether he cooperated or not?

A. This was entirely David’s decision. I actually met with him once, and we had a discussion about whether he should reveal himself. He then decided to go ahead, and we had a formal, on the record interview on another occasion.

Q. If it was David’s decision, why now?

A. He addresses that issue in my piece, and I take his answer at face value.

Q. Had David Lat previously disclosed to his bosses in the Newark, NJ U.S. Attorney’s Office that he was the author of the UTR site, and if so when?

A. I don’t know.

Q. If not, what reaction did David expect the USDOJ to have, and did he expect the news to cause his employer to demand that UTR be taken off-line or that David stop working for the USDOJ?

A. I don’t know.

Q. What happened yesterday that caused David to take UTR off-line (if you know)?

A. I don’t know. I have emailed him and asked him, but I haven’t heard back.

Q. What are David’s plans for the future?

A. I don’t know.

Q. As a journalist, do you think it is appropriate for a USDOJ attorney to be the anonymous author of the UTR site?

A. It’s not really my place to say. I just don’t know.

I thank Mr. Toobin for his very prompt responses to these questions.

Posted at 11:20 AM by Howard Bashman

“Where is David Lat?” At “The Right Coast” blog, Law Professor Thomas A. Smith has this post. I’m in the midst of doing some original reporting myself (perish the thought!).

For now, I reprint in full the first email I received from Article III Groupie at 12:03 a.m. on June 10, 2004:

Dear Mr. Bashman:

I have been a loyal reader for many months of your wonderful blog, which I visit several times a day, and which I have shared with many friends and colleagues. It is a superb resource, and I’m grateful to you for what must be the many hours you put into maintaining it each day.

Inspired by your efforts and those of many other “blawg” creators, I have started a blog of my own, “Underneath Their Robes,” located at Here is a brief squib about my blog, which I think carves out a fairly unique niche among blawgs:

“Underneath Their Robes” (“UTR”) is a combination of People, US Weekly, Page Six, The National Enquirer, and Tigerbeat, focused not on vacuous movie stars or fatuous teen idols, but on the federal judiciary. The mission of UTR is to get ‘underneath the robes’ of our federal judges, to find out what they are really like–not as impersonal guardians of the Constitution, or as disembodied legal minds analyzing complex legal disputes, but as human beings. After all, federal judges are people too, with unique personalities, private lives, and peccadilloes, all just waiting to be explored.”

The full mission statement appears here:

If you might have the time–and I completely understand if you don’t, between maintaining “How Appealing” and your busy appellate practice–I would be most grateful if you might take a quick peek at my blog. I hope you will find it interesting and even amusing. It is, as blawgs go, fairly lighthearted and frivolous; I focus on the personalities, leaving the heavy lifting of legal analysis to others. My latest post, “Fili-BUSTED!”, is a comparative analysis of Justice Janice Rogers Brown, Judge Carolyn B. Kuhl, and Justice Priscilla Owen, as “judicial divas.”

If you do happen to find my site interesting, I would be eternally grateful if you might briefly mention it on “How Appealing.” I am eager to increase traffic to my blog, and even the most fleeting reference on your site–the premier legal blogspot, with thousands of visitors each day–would work untold wonders for my humble site.

Once again, thank you so much for all of your wonderful work! “How Appealing” is a real treasure, and your devotion to it is a great public service to the legal community.


Article III Groupie

Although “UTR” may be off-line now, between Bloglines and the internet wayback machine, nothing that was once online is ever offline again.

Posted at 11:14 AM by Howard Bashman

“Abortion not a right, Alito wrote in 1985; Nominee also faulted racial, ethnic quotas”: This article appears today in The Newark Star-Ledger.

Jan Crawford Greenburg of The Chicago Tribune reports today that “Alito argued against Roe; Nominee questioned legality in ’85 form.”

The Los Angeles Times contains an article headlined “Old Job Form, New Questions; Alito, pushing for a promotion in 1985, cited his work against racial quotas and his view that the right to an abortion isn’t in the Constitution.”

The Boston Globe reports that “Alito papers dispute right to abortion.”

Newsday reports that “Alito went on record on abortion; Memo from 1985 quotes high court nominee saying Constitution doesn’t protect abortion, taking stand against affirmative action.”

The Washington Times contains articles headlined “Alito papers evince a conservative” and “Liberals rap Alito’s anti-Roe stance.”

USA Today reports that “Alito abortion remarks concern some; 1985 view: Right is not protected by Constitution.”

And The New York Sun reports that “Roe v. Wade an Issue Ahead of Alito Hearing.”

Meanwhile, in commentary, The Washington Post contains an op-ed by columnist Richard Cohen entitled “Ivy-Covered Court.” And columnist Ruth Marcus has an op-ed entitled “The Ginsburg Fallacy.”

Posted at 7:20 AM by Howard Bashman

“Justices to Hear Prison Case Alito Ruled On; As an appellate judge, the high court nominee sided against inmates and with state officials”: David G. Savage has this article today in The Los Angeles Times.

The Pittsburgh Post-Gazette reports today that “Court to rule on Pa. inmate reading priveleges.”

The Washington Times reports that “Supreme Court lets stand ban on voting by felons.”

The Miami Herald reports that “State’s ban on felons voting stands; The nation’s highest court rebuffed civil-rights groups by letting stand a Florida law that strips felons of their right to vote.”

And The St. Petersburg Times reports that “Court passes on felon voters law; Democrats may mount a ballot initiative in 2006 after the U.S. Supreme Court refuses to consider a challenge to the state’s ban on voting rights for former felons.”

Posted at 7:10 AM by Howard Bashman

“Senators Agree on Detainee Rights; Deal Would Allow Some Court Access”: The Washington Post contains this front page article today. The newspaper also contains an editorial entitled “Dealing With Detainees.”

The Los Angeles Times reports today that “Senate Vote Nears on Guantanamo Detainee Rights; Showdown is set today on a measure that would bar prisoners’ access to federal court.”

And in The New York Times, Anthony Lewis has an op-ed entitled “Prisoners of the Senate.”

Posted at 6:55 AM by Howard Bashman

“Anonymous blog can’t find judicial funny bone”: This article about the blog “Underneath Their Robes” appears today in The Bergen (N.J.) Record. And a screen-shot of the final “UTR” post is available here via “Evan Schaeffer’s Legal Underground.”

Posted at 6:50 AM by Howard Bashman