How Appealing

Thursday, November 17, 2005

Pennsylvania’s judicial pay raise repeal, and the Pennsylvania Constitution: Section 16(a) of Article V of the Pennsylvania Constitution provides:

Justices, judges and justices of the peace shall be compensated by the Commonwealth as provided by law. Their compensation shall not be diminished during their terms of office, unless by law applying generally to all salaried officers of the Commonwealth.

The Pittsburgh Post-Gazette reports today that “Repeal of pay raises passes quickly, 50-0, as leaders ask for forgiveness.” According to the article, “There has been some concern that a judge might sue to overturn the repeal, based on a constitutional provision saying judges’ salaries can’t be reduced once they’ve been set. But Mr. Brightbill said judges’ salaries alone cannot be cut, but when they are reduced as part of an overall package that reduces the salaries of all salaried state officials they can be, and that is what the repeal bill did.”

The Harrisburg Patriot-News reports today that “Finally, lawmakers kill their unpopular pay raise.” The article states, “Authors of the repeal said they have designed it to avoid violating a clause in the state constitution designed to protect judges’ salaries. The constitution states that judicial salaries cannot be cut without reducing the pay of the state’s other salaried officers, a provision to ensure judges are not punished for unpopular rulings. Earlier this month, the House and Senate clashed over language to ensure the judges’ pay would be cut. Some said they are worried that the repeal might be challenged by one of the state’s 1,000 jurists. House and Senate leaders agreed to add language to the repeal stating that those who received the raises ‘constitute the salaried officers of the commonwealth.’ Brightbill said the repeal is not intended to single out the judiciary or ‘be punitive.'”

The Pittsburgh Tribune-Review reports that “Pay raise ends with apologies.” According to the article, “All that threatens the repeal now would be a lawsuit seeking to overturn the repeal of judges’ pay. Under the Pennsylvania Constitution, lawmakers can’t lower judicial salaries except as part of a general government-wide salary cut. The provision is meant to keep the judiciary independent, so that lawmakers can’t cut the pay of judges who hand down decisions they don’t like. Anti-pay raise activist Gene Stilp said it is a ‘high probability’ that someone will sue. ‘What lawyer wouldn’t want to be on the good side of judges by challenging this?’ Stilp said. Senators said yesterday that the repeal bill, which states the Legislature isn’t trying to intimidate judges, will withstand a challenge.”

In other coverage, The Philadelphia Inquirer reports that “Pay-hike death warrant signed.”

And The York Daily Record reports that “Pay raise repeal final; Senators passed the latest bill, and Rendell signed it Wednesday.”

Posted at 10:30 PM by Howard Bashman

“It’s no wonder that more than 75 percent of Ninth Circuit decisions are overturned by the U.S. Supreme Court.” So reported CNN correspondent Casey Wian, in covering legislation to split the Ninth Circuit, on yesterday’s broadcast of “Lou Dobbs Tonight.” The transcript is here (segment appears approximately three-quarters of the way down the page). Thanks to reader Josh Gerstein for having drawn this to my attention.

Posted at 6:55 PM by Howard Bashman

In other news from the Supreme Court of Canada: The Toronto Globe and Mail provides a news update headlined “Court to hear bookstore’s fight for legal fees” that begins, “A Vancouver gay bookstore has been given the go-ahead to argue in front of the Supreme Court of Canada that the government should fund its legal dispute with Canada Customs.” The article later explains that “The bookstore has been fighting Canada Customs because the federal agency blocked the importation of several books and magazines at the U.S. border, claiming they were obscene.”

Posted at 5:55 PM by Howard Bashman

“Alito vs. Ginsburg: Take a look; You decide.” Edward Whelan has this essay today at National Review Online.

And at NRO’s “Bench Memos” blog, Matthew Franck has a very interesting post titled “Views, Personal and Constitutional” in which he writes, “Ever since Sammon of the Washington Times broke the story of Alito’s statement in his job application to work for Attorney General Ed Meese in 1985, this has been a very strange week.”

Posted at 4:35 PM by Howard Bashman

A blockheaded ruling? The Toronto Globe and Mail provides a news update headlined “Court sides with Mega Bloks” that begins, “Mega Bloks Inc. was the one left standing in the epic battle of the blocks Thursday after the Supreme Court of Canada ruled that its interlocking toy bricks are not an infringement of Danish toy giant Lego System AS’s distinctive product. In a landmark decision that is believed to have wide-ranging implications for trademark law, the Supreme Court dismissed Lego’s claim, which sought to force Mega Bloks to market its product with a disclaimer that its bricks are not Lego blocks.”

And Reuters reports that “Top Canada court backs Mega Bloks in Lego tussle.”

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

Posted at 3:22 PM by Howard Bashman

“Suck-up ipsa loquitur!” Lily at “The Kitchen Cabinet” offers these thoughts on what she calls an “[u]nder-commented-on aspect of the A3G unveiling controversy.”

Posted at 3:00 PM by Howard Bashman

“Federal Courts Seek Congressional Action on 68 New Judgeships”: The Administrative Office of the U.S. Courts today issued a press release that begins, “The federal courts, coping with caseloads that ‘increased fairly relentlessly’ over the last 15 years, need 68 new judgeships so they can continue serving justice properly, a federal judge has told Congress.”

A list of the proposed new judgeships is here, while the text of the testimony presented to Congress yesterday can be accessed here. More information about yesterday’s hearing can be accessed at this link.

Posted at 2:50 PM by Howard Bashman

“Bid to punish judges has eye on state; Proponents of the South Dakota measure hope California’s next”: Claire Cooper, legal affairs writer for The Sacramento Bee, today has an article that begins, “An initiative providing for the ouster and criminal indictment of judges who make bad decisions appears headed for a test vote in South Dakota next year and, if it succeeds there, will be attempted in other states, sponsors of the measure said this week.”

Posted at 2:05 PM by Howard Bashman

The sexual hostility was inhuman: In discussing (and ultimately reversing) a federal district court’s ruling which held that a hospital could not be found liable for a sexually hostile work environment where the alleged purveyor of the hostility was an independent contractor physician, Seventh Circuit Judge Frank H. Easterbrook observes in an opinion issued today:

Because liability is direct rather than derivative, it makes no difference whether the person whose acts are complained of is an employee, an independent contractor, or for that matter a customer. Ability to “control” the actor plays no role. Employees are not puppets on strings; employers have an arsenal of incentives and sanctions (including discharge) that can be applied to affect conduct. It is the use (or failure to use) these options that makes an employer responsible–and in this respect independent contractors are no different from employees. Indeed, it makes no difference whether the actor is human. Suppose a patient kept a macaw in his room, that the bird bit and scratched women but not men, and that the Hospital did nothing. The Hospital would be responsible for the decision to expose women to the working conditions affected by the macaw, even though the bird (a) was not an employee, and (b) could not be controlled by reasoning or sanctions. It would be the Hospital’s responsibility to protect its female employees by excluding the offending bird from its premises.

You can access the complete ruling at this link.

Posted at 1:45 PM by Howard Bashman

“Abortion ruling causes confusion”: The St. Louis Post-Dispatch today contains an article that begins, “Is the 24-hour waiting period for abortions in Missouri now in effect? Attorney General Jay Nixon’s office says it is. Planned Parenthood of the St. Louis Region says it is not. The two sides disagree on the effect of Wednesday’s ruling by the St. Louis-based 8th U.S. Circuit Court of Appeals, which either lifted or altered District Judge Scott O. Wright’s order that has prevented enforcement of the waiting period for more than a year.”

My earlier coverage of yesterday’s Eighth Circuit ruling can be accessed here.

Posted at 1:20 PM by Howard Bashman

“How to Blog Safely (About Work or Anything Else)”: The Electronic Frontier Foundation provides this guide to the subject of anonymous blogging, a topic that I discussed here earlier today.

Posted at 1:10 PM by Howard Bashman

“Alito tells Snowe he erred on 1991 abortion decision”: The Sun Journal of Lewiston, Maine today contains an article (registration required) that begins, “U.S. Supreme Court nominee Samuel Alito Jr. admitted he made a mistake in a 1991 opinion when he backed a Pennsylvania law that women needed permission from their husbands to get an abortion, he told U.S. Sen. Olympia Snowe.”

The article proceeds to explain, “Alito told Snowe that his lone dissent on a 1991 abortion case mistakenly interpreted Justice Sandra Day O’Connor’s opinion on what constitutes an undue burden. He believed her support of parental notification could be extended to include spousal notification, Snowe said. ‘He was trying to anticipate what she (O’Connor) would uphold and he said obviously he got it wrong,’ Snowe said. He would not answer whether he would vote to uphold Roe v. Wade, if confirmed, she said.”

Posted at 12:45 PM by Howard Bashman

“Stealth attack on court: Budget bill is sneaky venue for partisan goal of breaking up 9th Circuit.” The San Jose Mercury News contains this editorial today.

Posted at 11:30 AM by Howard Bashman

“Scandal tapes reveal sordid details of battle with Fieger; Cox denies allegation of a second affair”: The Detroit Free Press today contains an article that begins, “Sex in a courthouse stairwell, threesomes, adultery, political espionage and spies — that was the stuff of secretly taped conversations at the heart of the investigation into allegations that Southfield attorney Geoffrey Fieger attempted to blackmail state Attorney General Mike Cox, according to transcripts released to the Free Press on Wednesday.” The newspaper also offers transcript excerpts and the complete transcripts. And in related coverage, The Freep reports that “Cox wins skirmish in court: Judge says Fieger must cede records in ad campaign; State says it suspects series of felonies” and “Fieger donated $1,000 to Cox political group.”

The Detroit News, meanwhile, reports today that “Tapes weave sleazy tale; Fieger and Cox are compared to ‘two dope dealers’ trying to ruin each other with stories of illicit sex.” And in related news, “Judge limits Cox’s role; The Attorney General’s Office may look at Fieger records, but the scope of warrants is narrowed.” The DetNews has also posted “Key excerpts from the police probe,” along with audio clips (here and here; Windows Media Player required).

And in earlier coverage, The Detroit News yesterday published an article headlined “Sex, lies & lawyers: Gorcyca won’t charge Fieger, but believes Cox about blackmail threat.” And on Tuesday, The DetNews contained an article headlined “Cox hires justices’ wives for staff; Conflict-of-interest questions surface as Gorcyca decides on alleged Fieger extortion.”

Posted at 11:22 AM by Howard Bashman

“The R.H.S.A.A. and the Goblet of Fire”: This post appears today at the blog titled “The Right Honorable Samuel A. Alito, Jr.”

Posted at 11:05 AM by Howard Bashman

Anonymous blogging — Is it even possible? In the famous New Yorker cartoon (which can be viewed here and here), a dog sitting at a computer terminal says to another dog, “On the Internet, nobody knows you’re a dog.” Perhaps in 1993, when the cartoon first appeared, that level of ignorance about how the internet works could be excused, especially among canines.

These days, however, most users of the internet understand that every bit of information communicated electronically leaves electronic fingerprints that can be used to trace the source of the information, even if the source hoped to remain anonymous. To be sure, there are ways to anonymize emails and other forms of communication, but they tend to be complicated to use and difficult to figure out.

This background is useful to keep in mind in contemplating Assistant U.S. Attorney David B. Lat’s decision to reveal that he was the author of the “Underneath Their Robes” blog. As I have earlier hinted, in 2004 I discovered that “Article III Groupie” had sent me an email from a U.S. Department of Justice web server, using an otherwise anonymous Yahoo email account, promoting that new blog. At the time, I was amazed to contemplate that the author of “UTR” might be a USDOJ employee. Indeed, in my opinion, USDOJ employees ranked near the top of my list of unlikely “UTR” authors:

1. Death row inmates.

2. U.S. Supreme Court Justices.

3. Ninth Circuit Judge Alex Kozinski.

4. U.S. Department of Justice employees.

Nevertheless, I was not alone in the discovery that the author of “UTR” was a USDOJ employee. And after Monday’s revelation in The New Yorker of the identity of the author of “UTR,” I emailed a former Ninth Circuit law clerk who had (incorrectly) been my number one suspect. The former clerk replied:

I’m flattered that your money was on me. Nice that someone would think I was that funny, but I don’t actually have to suffer the consequences of being A3G, which I would imagine are going to be pretty grave.

The general reaction I’m getting is kind of nonplussed: Yeah, we knew who it was. I think a lot of folks had already done the detective work (A3G as you know was not always so careful to mask her IP addresses…) Once you put the US Attorney’s office in New Jersey together with the other relevant info, it was probably pretty easy to narrow down. It was clear from her writings she was a former CA9 clerk (she clearly had the most info on CA9 judges). There are only so many feeder judges — she had to have clerked for one of them to have been able to secure multiple S. Ct. interviews, and to have so much bitterness about the Elect!

And I am hearing from others that they, too, had more-or-less figured out who the author of “UTR” was before Monday.

This is not to say, of course, that anyone would have unmasked David Lat as the author of “UTR” had he not chosen to do so himself. I, for one, had kept silent about my strong suspicion that the author of “UTR” worked for the USDOJ, just like I haven’t gone public with my strong suspicion (backed-up by similarly strong evidence) concerning the identity of “Juan Non-Volokh.” Nevertheless, I’m sure that the author of “UTR” was well-aware that others knew who he was, and that may have made his voluntary unmasking somewhat less than “voluntary” in fact.

In conclusion, to return to the question presented in the title of this post, I doubt whether anonymous blogging is possible. It surely isn’t possible if the blogger conducts email correspondence with others and fails to mask his or her internet protocol address. Plus, even the act of logging on to a blogging service provider, such as TypePad or blogger, leaves electronic fingerprints, and I’d have to assume that “UTR” had a TypePad subscription, enabling someone to subpoena the blog owner’s identity and/or payment information. So, to you anonymous bloggers out there, have fun, but don’t fool yourselves into thinking that simply by not providing your identity you are doing an effective job of remaining hidden.

Posted at 10:35 AM by Howard Bashman

“Benched”: Al Kamen’s “In the Loop” column published yesterday in The Washington Post began, “Underneath Their Robes was the hottest, most irreverent blog about the federal judiciary.” According to Kamen’s column, “Monday morning, A3G issued a critique of the New Yorker article, with ‘final comments’ noting that ‘the views expressed in this blog are exclusively those of A3G, and no one else; and (2) Dave Lat is a very interesting individual, and he has asked A3G to mention that he would be happy to entertain further media inquiries.’ Maybe not all that happy. We’re still awaiting a return call.”

Posted at 9:05 AM by Howard Bashman

“1995 Suit May Be Focus in Milberg Weiss Probe; Prosecutors have granted immunity to several participants in the case brought by the law firm, sources say”: This article appears today in The Los Angeles Times.

Posted at 7:20 AM by Howard Bashman

“Alito disagreed with court decisions on reapportionment; Written statement in ’85 challenged Warren era rulings”: The Boston Globe today contains this article, along with an article headlined “GOP leader fears backlash if Roe v. Wade is overturned.”

The New York Times reports today that “Some Judges Criticize Court Nominee on Civil Rights.”

The Washington Post contains articles headlined “1985 Memo by Alito Has Legal Weight, Senators Say” and “Rep. Davis Warns of Backlash if Roe v. Wade Is Overturned.”

The Washington Times contains articles headlined “Democrats say Alito not a sure thing” and “Alito backed search of minor.”

The Chicago Tribune reports that “Democrats kick up criticism of Alito; Leading senators express reservations and concerns about high court nominee.”

The Pittsburgh Post-Gazette reports that “Dems intensify criticism of Alito; Judiciary members cite reservations on court nominee.” And Michael McGough has a news analysis headlined “Alito’s ’85 thoughts a hot potato.”

The San Francisco Chronicle reports that “Dems’ leader tells of ‘concerns’ on Alito; Reid won’t rule out filibuster option over abortion rights.”

The Newark Star-Ledger reports that “Democrats sound alarm over Alito.”

The New York Sun reports that “Schumer Assails Alito On ‘Pattern.’” In addition, R. Emmett Tyrrell Jr. has an op-ed entitled “Judge Alito’s ‘Smoking Gun.’

The Wilmington News Journal reports that “Alito’s views still a worry to Biden; Confirmation isn’t a certainty, Democrats say.”

The Richmond Times-Dispatch reports that “Allen meets with Alito, signals support.”

The Helena Independent Record reports that “Burns likes high court nominee.”

The Naples Daily News reports that “Pro-choice group protests Supreme Court nominee.”

The San Antonio Express-News reports that “Planned Parenthood of S.A. demonstrates against Alito.”

And The Allentown Morning Call reports that “Bucks rally protests U.S. Supreme Court nomination; Abortion rights group wants committee to be tough on Alito.”

Posted at 7:00 AM by Howard Bashman

“Federal prosecutor’s superheated blog is put on ice”: This article appears today in The Newark Star-Ledger.

According to the article, “U.S. Attorney Christopher Christie yesterday declined to say if Lat faced disciplinary action. Christie said he only learned of Lat’s role in the blog on Monday night, as he was leaving on a business trip. Christie said he has since read about 150 pages of the blog but had not yet spoken with Lat. Christie said prosecutors aren’t prohibited from such extracurricular activity as blog writing, but said assistants are required to get a superior’s approval before talking to the media, which Lat apparently did not do.”

Posted at 6:50 AM by Howard Bashman