How Appealing

Thursday, March 15, 2007

“It is the Court’s interpretation of the statute that commands that the debtor lose here, not the language Congress chose to use in the statute. As tempting as it would be to ignore the Supreme Court’s interpretation of the text in favor of the actual text, that is not our role at the circuit court level.” So writes Tenth Circuit Judge Timothy M. Tymkovich in a concurring opinion he issued today in a bankruptcy case.

The concurring opinion concludes:

In the end, Kelly is a textbook example of the Court ignoring the plain meaning of a statute to further competing policy goals with very good arguments on each side. It is not altogether clear the Court made the best choice. It appears nonetheless that Congress over the years has acquiesced in that interpretation, so perhaps this is a case of “no harm, no foul.” Even so, subject to the vagaries of stare decisis, the Supreme Court could and should correct its error by taking this case and narrowing the holding of Kelly to the statutory text.

The decision whose outcome Judge Tymkovich is criticizing is Kelly v. Robinson, 479 U.S. 36 (1986).

Posted at 8:35 PM by Howard Bashman

“SCOTUS-gate: What if Alberto Gonzales and Harriet Miers had been confirmed to the Supreme Court?” Dahlia Lithwick has this essay online at Slate.

Posted at 7:32 PM by Howard Bashman

“It’s time to let the public tune in the voices of the Supreme Court”: Ronald K. L. Collins has this op-ed today in The Baltimore Sun. And, for what it’s worth, I agree.

Posted at 5:54 PM by Howard Bashman

“Federal court grants condemned Arizona man’s execution request”: David Kravets of The Associated Press provides this report.

Posted at 5:10 PM by Howard Bashman

The method for citing to blog posts found in the 18th edition of The Bluebook “would completely ream someone like Howard Bashman”: So writes Cathy Gellis in a comment to this post by Christine Hurt at “Congomerate” (via “InstaPundit“).

Fortunately, on a literal understanding of that comment, the actual Howard Bashman emerges completely unscathed.

Posted at 3:20 PM by Howard Bashman

“Mismanagement of Justice”: This editorial appears today at National Review Online. In addition, Andrew C. McCarthy has an essay entitled “Playing Politics with Politics: The U.S.-attorneys controversy pits incompetence against hypocrisy.”

And at, Sidney Blumenthal has an essay entitled “All roads lead to Rove: The White House political director was clearly at the center of the partisan plot to fire U.S. attorneys, despite the administration’s clumsy attempts to pretend otherwise.”

Posted at 2:05 PM by Howard Bashman

“Fire Power: The ruling that will bring back gun wars.” Law Professor Cass R. Sunstein has this essay online today at The New Republic. The essay concludes, “It is likely that, for the first time in many decades, the Supreme Court will be entering the Second Amendment fray. Its conclusions will tell us a great deal about the future of gun control–and also about the justices’ conception of their own place in American democracy.”

Posted at 1:44 PM by Howard Bashman

En banc Ninth Circuit holds that death row inmate can indeed “volunteer” for death: The September 18, 2006 installment of my weekly “On Appeal” column for was headlined “When Can an Inmate ‘Volunteer’ for Death? 9th Circuit rejects a competent inmate’s decision to abandon legal challenge to his capital sentence.” Therein, I criticized a divided three-judge Ninth Circuit panel’s ruling that had rejected an Arizona death row inmate’s effort to withdraw all pending legal challenges to his death sentence.

And on Monday of this week, Adam Liptak of The New York Times covered the case in an installment of his weekly “Sidebar” column headlined “Another Kind of Appeal From Death Row: Kill Me” (TimesSelect temporary pass-through link).

Today, a fifteen-judge Ninth Circuit en banc panel, by a vote of 14-1, issued a decision that allows the death row inmate to withdraw the pending legal challenge to his death sentence. You can access today’s ruling at this link.

Posted at 1:34 PM by Howard Bashman

Divided three-judge Eighth Circuit panel holds that Union Pacific Railroad is not liable for sexual discrimination under Title VII of the Civil Rights Act of 1964 as amended by the Pregnancy Discrimination Act of 1978 by failing to cover prescription contraception for its female employees: You can access today’s ruling at this link.

Posted at 11:35 AM by Howard Bashman

“Patient loses court appeal for medical pot use; The court reaffirms the right of the U.S. government to prosecute patients and suppliers, even in states where marijuana is a legal medicine”: The Los Angeles Times contains this article today.

Today in The San Francisco Chronicle, Bob Egelko reports that “Medical pot user loses again in federal court.”

And in The Oakland Tribune, Josh Richman reports that “Court doesn’t buy medical marijuana; Despite sympathies, appellate judge rules federal law trumps Oakland woman’s needs.”

My earlier coverage of yesterday’s Ninth Circuit ruling appears at this link.

Posted at 8:40 AM by Howard Bashman

“Gay adoption push renewed”: The St. Petersburg Times today contains an article that begins, “Florida’s three-decades-old ban on allowing gays to adopt children is under attack once again.”

Posted at 8:15 AM by Howard Bashman

“Statements On Firings of Prosecutors Are Key Issue”: This front page article appears today in The Washington Post. The newspaper also contains an editorial entitled “The Reno Precedent: President Clinton’s attorney general fired all U.S. attorneys; So why is this different?” And Stephen Barr’s “Federal Diary” column is headlined “U.S. Attorneys’ Dismissals Cloud New Rating Systems.”

The Los Angeles Times today contains articles headlined “Gonzales gets rare rebuke from Bush; The president’s criticism of a trusted ally adds to debate over whether the attorney general should resign” and “Gonzales aide called prosecutor a ‘real problem’; After news reports of a widening corruption probe, D. Kyle Sampson sent an e-mail about replacing Carol Lam.”

In The Wall Street Journal, Jess Bravin has an article headlined “Still Vague: Why Were Prosecutors Fired? Accounts Don’t Clarify How Dismissals Became A Bush Team Priority” (free access).

USA Today reports that “GOP senator says Gonzales should be fired; Sununu joins the increasing criticism of attorney general.”

And The Washington Times reports that “Bush stands by firings, ‘not happy’ with process.” The newspaper also contains an editorial entitled “Weak knees at Justice.”

Posted at 8:14 AM by Howard Bashman

“Media Fight Request to Close Parts of Israel Lobbyists’ Trial”: The Washington Post today contains an article that begins, “Defense lawyers and media organizations are objecting to what they say is a government effort to bar the public from the upcoming trial of two pro-Israel lobbyists charged with violating U.S. espionage laws.”

Posted at 8:00 AM by Howard Bashman

“A Slow Death”: Today in The New York TImes, Senior U.S. District Judge Frederic Block of the Eastern District of New York has an op-ed that begins, “While New York State does not subscribe to the death penalty for the moment, the federal government does. Over the last few years there has been a surge in death penalty prosecutions authorized by the United States attorney general, both nationwide and in federal cases in New York. But these have resulted in disproportionately few death penalty verdicts, at enormous costs and burdens to the judicial system. A more prudent and realistic approach in the way the government seeks the death penalty is warranted.”

Posted at 7:45 AM by Howard Bashman