How Appealing

Wednesday, January 11, 2006

Available online from National Public Radio: This evening’s broadcast of “All Things Considered” contained segments entitled “Questioning of Alito by Democrats Heats Up” (featuring Nina Totenberg); “Sessions, Leahy on Alito Hearings: Part I“; “Sessions, Leahy on Alito Hearings: Part II“; and “Expanding Executive Power Via Signing Statements.”

Today’s broadcast of “Day to Day” contained segments entitled “Progress of Alito Hearings Stirs Debate” and “High Court Hears DNA Appeal from Death Row.”

Finally, NPR’s hour-long wrap-up of today’s confirmation hearing can be accessed here.

RealPlayer is required to launch these audio segments.

Posted at 10:50 PM by Howard Bashman

U.S. Court of Appeals for the Tenth Circuit overturns grant of summary judgment rejecting federal discrimination claims against the City of Altus, Oklahoma’s English-only policy for its employees: The causes of action that today’s ruling reinstates are claims of disparate-impact and disparate-treatment under Title VII, intentional discrimination under 42 U.S.C. § 1981, and denial of equal protection under 42 U.S.C. § 1983.

Posted at 10:25 PM by Howard Bashman

Who charges more per hour for his time: my plumber, or a U.S. Magistrate Judge? A reader has called to my attention an opinion that a U.S. Magistrate Judge serving on the U.S. District Court for the District of Columbia issued yesterday imposing sanctions on an attorney. Interestingly, the judge decided to measure the penalty based on the cost of the judge’s own time:

A fair penalty would attempt to recover for the taxpayers the cost of my time. As a United States Magistrate Judge, I earn about $150,000 per year. If one assumes that I take two weeks vacation and work a forty hour week, I am paid $75 an hour. I can assure my reader that I have spent much more than one full working week in preparing the two memoranda to which I referred. Nevertheless, I will exercise my discretion and impose a monetary sanction of $3,000 upon Karl, representing 40 hours or one week of my time at $75 per hour.

You can access the complete opinion at this link.

Posted at 9:00 PM by Howard Bashman

“Alito the Activist: One man’s judicial activism is another’s sound interpretation.” Jacob Sullum has this essay online at Reason.

At National Review Online, Byron York has an essay entitled “Dems Attack Alito — and Lose: The first day of questioning goes to the nominee.” And Pia de Solenni has an essay entitled “Protecting Girls: Thinking about Ted Kennedy’s Groody concerns.”

Online at The New Republic, Jacob T. Levy has an essay entitled “Power Grab: The Alito hearings and congressional power.” Ethan J. Leib has an essay entitled “Surprise Witness: Three surprises from Alito’s testimony.” And David Kusnet has an essay entitled “Family Guy: Samuel Alito, street-corner conservative.”

And online at The Nation, Bruce Shapiro has an essay entitled “Alito Almanac: Credibility Gap.”

Posted at 8:50 PM by Howard Bashman

“Alito pressed on precedent, privacy; Halfway through his hearings, opponents have struggled to depict high-court nominee as an extremist”: This article will appear Thursday in The Christian Science Monitor.

Posted at 6:04 PM by Howard Bashman

“Gasoline price claims doubted; Justices question allegations made by service stations”: The Houston Chronicle today contains an article that begins, “U.S. Supreme Court justices signaled strong skepticism Tuesday of claims by service station dealers that Shell Oil Co. and Texaco fixed prices by selling gasoline through a pair of Houston-based joint ventures.”

Posted at 5:55 PM by Howard Bashman

Calvin and: Has the requirement that interstate commerce be implicated in federal Hobbs Act prosecutions been relaxed too much? Today, First Circuit Judge Juan R. Torruella issued a separate opinion in which he writes:

Under the government’s theory of causation, if the decedent had taken the money out of the kitchen hiding place, gone to the supermarket, and been robbed of this money, shot, and killed by a person holding up the supermarket, a Hobbs Act violation could be charged since the original source of those funds was a business in interstate commerce and his business was never able to reopen after the depletion of those funds and the owner’s death. What about the hold up of a neighborhood ice cream truck selling national brand products, in which the driver is killed resisting the robber, as a result of which his estate must file for bankruptcy? Would the government blink at calling that a Hobbs Act violation? At the rate we are going, perhaps the day will come when the federal government will see fit to prosecute the robbery of a child’s roadside lemonade stand because the lemons came from California, the sugar was refined in Philadelphia, and the paper cups were manufactured in China.

You can access the complete ruling at this link.

Posted at 5:28 PM by Howard Bashman

“This case presents an unusual question: whether plaintiffs, German Social Insurers, may bring state-law based negligence and wrongful death claims arising out of the terrorist attacks of September 11, 2001, under authority of German law despite the personal representatives’ receipt of funds from the 9/11 Victim Compensation Fund.” As had the district court before it, the U.S. Court of Appeals for the Second Circuit answers “no” today in an opinion that you can access here.

Posted at 5:15 PM by Howard Bashman

“The Pressure to Cover”: The January 15, 2006 issue of The New York Times Magazine will contain an article (TimesSelect subscription required) by Law Professor Kenji Yoshino that begins, “When I began teaching at Yale Law School in 1998, a friend spoke to me frankly. ‘You’ll have a better chance at tenure,’ he said, ‘if you’re a homosexual professional than if you’re a professional homosexual.'”

Posted at 4:55 PM by Howard Bashman

“Pregnant doesn’t count in HOV lane”: The East Valley (Ariz.) Tribune today contains an article that begins, “Home pregnancy tests won’t be standard police equipment anytime soon after a judge ruled Tuesday that unborn children don’t count when it comes to carpool lanes.”

And in related coverage, The Associated Press offers an article headlined “Judge: Don’t Count Fetus for Carpool Quota.”

Posted at 3:50 PM by Howard Bashman

“From Alito’s Past, a Window on Conservatives at Princeton”: You can access here The New York Times article originally published on Sunday, November 27, 2005 that Senate Judiciary Committee Chairman Arlen Specter (R-PA) is discussing now.

The article reports: “Mr. Morgan’s memorandum and other records of Concerned Alumni are contained at the Library of Congress in the papers of William A. Rusher, a leader of the group and a former publisher of National Review. Those records and others at Mudd Library at Princeton give no indication that Judge Alito, who sits on the United States Court of Appeals for the Third Circuit, was among the group’s major donors. He was not an active leader of the group, and two of his classmates who were involved and Mr. Rusher said they did not remember his playing a role.”

Posted at 3:00 PM by Howard Bashman

“The issue before us is whether a plaintiff bringing suit under 42 U.S.C. § 1983 can assign her right to seek attorney’s fees to her attorney.” A unanimous three-judge panel of the U.S. Court of Appeals for the Ninth Circuit today answers “no” in an opinion you can access here. As the case in which the question arose demonstrates, a contrary resolution of the question would make certain civil rights cases much more difficult to settle.

Posted at 2:45 PM by Howard Bashman

“Tom Capano’s death sentence has been thrown out by the Delaware Supreme Court, which ordered a new penalty hearing and a resentencing for Capano.” The News Journal of Wilmington provides this news update, which continues, “A former state deputy attorney general, Capano was convicted and initially sentenced to death for the 1996 murder of Anne Marie Fahey.”

You can access today’s ruling of the Supreme Court of Delaware at this link. Two of the five judges participating in the ruling dissented from the decision to allow a new sentencing proceeding at which Capano could again be sentenced to death.

Posted at 12:55 PM by Howard Bashman

Finally, some fireworks at the Alito confirmation hearing: Moments ago, Senate Judiciary Committee Chairman Arlen Specter (R-PA) and committee member Edward M. Kennedy (D-MA) engaged in a heated discussion over whether the committee would subpoena records stored at the Library of Congress in the archive of former National Review publisher William A. Rusher pertaining to the Concerned Alumni of Princeton organization.

Ed Whelan blogs the confrontation here at National Review Online’s “Bench Memos” blog. And at The Washington Post’s “Campaign for the Court” blog, Fred Barbash has a post titled “Kennedy and Specter Have Words” that begins, “Things really got ugly — really ugly — between Sens. Kennedy and Specter.”

Update: The Washington Post makes the video of the confrontation available at this link.

Posted at 12:44 PM by Howard Bashman

“Democrat fears Alito may ban abortion”: Reuters provides a report that begins, “A top Senate Democrat told U.S. Supreme Court nominee Samuel Alito on Wednesday that he remained concerned that Alito could be the deciding vote to reverse the 1973 decision that legalized abortion.”

There are two problems with this article’s first sentence and its headline. First, even if the U.S. Supreme Court‘s ruling in Roe v. Wade were overturned, that would merely return to the States the question of whether and how abortion should be regulated. It would not result in the declaration, by the U.S. Supreme Court, that abortion is illegal. And second, as I explained in my essay this week for, “Even if both Chief Justice Roberts and Justice Alito would vote to overrule Roe v. Wade — and that’s a big if — five votes would remain on the Court to uphold Roe‘s central holding.”

Posted at 11:30 AM by Howard Bashman

“Jury selection under way in ‘Survivor’ tax case; The trial is expected to begin tomorrow and last between two and three weeks”: The Providence Journal contains this article today.

Posted at 11:15 AM by Howard Bashman

“High court to rule on eminent domain”: The Cincinnati Enquirer today contains an article that begins, “A three-year legal battle over Norwood’s right to seize private property for a $125 million commercial development goes before the Ohio Supreme Court today.” And in earlier coverage, on Sunday that newspaper contained an article headlined “Eminent-domain case goes to court” and a related item headlined “Norwood timeline.” You can watch today’s oral argument live by clicking here (the is due to be argued shortly after this post originally appeared; RealPlayer required).

In other coverage, The Associated Press reports that “Ohio Court Hears Case on Eminent Domain.”

And The Cincinnati Business Courier reports that “Rookwood heads for showdown; Development fight hits court Jan. 11.”

The Supreme Court of Ohio provides this background on the case. Once the oral argument video is archived, you will be able to access it via this link.

Posted at 11:10 AM by Howard Bashman