How Appealing

Friday, September 28, 2007

“Behind the Black Robes: A new book about the Supreme Court focuses on the private lives of the justices; But should they be treated like Britneys in black?” Adam B. Kushner has this essay online at

Posted at 11:00 PM by Howard Bashman

“Justice Thomas Lashes Out in Memoir; Book Attacks Liberals and the Media, Breaks Near-Silence on Anita Hill”: Saturday in The Washington Post, Robert Barnes, Michael A. Fletcher, and Kevin Merida will have this front page article.

And Mark Sherman of The Associated Press reports that “Justice Thomas Writes Autobiography.” Sherman’s article begins, “Breaking his 16-year public silence on his bitter confirmation hearings, Supreme Court Justice Clarence Thomas says Anita Hill was a mediocre employee who was used by political opponents to make claims she had been sexually harassed.”

As I had anticipated, both The Washington Post and The Associated Press were able to purchase the book at bookstores that placed it on sale before Monday’s official release date.

Posted at 10:30 PM by Howard Bashman

“Federal judge disciplined for sexual harassment”: Harvey Rice of The Houston Chronicle provides a news update that begins, “A judicial council today reprimanded and admonished U.S. District Judge Samuel Kent, who presides in Galveston, on allegations that he sexually harassed a court employee.”

The Galveston County Daily News provides an update headlined “Kent reprimanded after harassment complaint.”

And Texas Lawyer provides a news update headlined “5th Circuit Judicial Council Reprimands and Admonishes U.S. District Judge Samuel B. Kent.”

Posted at 8:58 PM by Howard Bashman

“Lethal Injection Under Scrutiny”: The AP provides a report that begins, “Lethal injection was supposed to be the humane, enlightened way to execute inmates and avoid the pain and the gruesome spectacle of firing squads, the electric chair and the noose. But now it, too, is under legal attack as cruel and unusual, with the U.S. Supreme Court agreeing this week to hear arguments that lethal injection can cause excruciating pain.”

And in related coverage, The AP reports that “Hiatus Possible on Texas Executions.”

Posted at 5:42 PM by Howard Bashman

The U.S. Congress considers giving more power to partially-retired, senior status federal judges: Congress is continuing to consider proposed legislation known as the Court Security Improvement Act of 2007. The first four titles of the legislation deal with subjects related to the legislation’s name, but the fifth and final title consists of “Miscellaneous Provisions.”

One of those “Miscellaneous Provisions,” contained in Section 503, provides:

Section 296 of title 28, United States Code, is amended by inserting at the end of the second undesignated paragraph the following new sentence: “However, a judge who has retired from regular active service under section 371(b) of this title, when designated and assigned to the court to which such judge was appointed, shall have all the powers of a judge of that court, including participation in appointment of court officers and magistrate judges, rulemaking, governance, and administrative matters.”

One question that has arisen is whether a law that purports to give a senior circuit judge “all the powers of a judge” on the court on which he or she serves would thereby enable senior circuit judges to cast votes on whether cases should be reheard en banc and/or to participate in deciding the merits of cases that have been granted en banc review even where the senior judges had not served on the original three-judge panel that issued the initial decision in the case. Thus, the proposed legislation’s impact on Sections 46(c) and 294 of Title 28 is apparently of concern to some of the federal appellate judges who have been made aware of this aspect of the proposed legislation.

Whether Section 503 of the Court Security Improvement Act of 2007 would in fact authorize senior appellate judges to vote on whether to rehear cases en banc or to participate in deciding on the merits all cases that have been voted en banc is not immediately clear to me. If readers have views on the subject, feel free to send them along via email. If the concern is a legitimate one, I may write more about this in a future installment of my weekly “On Appeal” column for

Posted at 2:50 PM by Howard Bashman

“Justice Thomas Speaks Out”: This morning, ABC News correspondent Jan Crawford Greenburg has this post at her “Legalities” blog previewing her forthcoming coverage of Justice Clarence Thomas’s new book, “My Grandfather’s Son: A Memoir.”

According to Jan’s post, she has conducted “a series of wide-ranging interviews with [Justice Thomas] in several different locations (and states), as well as an extensive interview with his wife, Virginia.” Her post advises us “to be on the lookout Sunday night for my substantial dot com piece, which will be posted in several parts on”

Jan’s post concludes, “Then, starting Monday morning with Good Morning America, my pieces on Justice Thomas will begin airing on ABC News. We will have a full report on all our platforms: Good Morning America, World News Tonight and a series of lengthy and revealing segments on Nightline, which of course is the perfect place for a closer look at one the most complex, compelling, maligned and misunderstood figures in modern history. I’ve covered the Court and Justice Thomas for 13 years now, and I can tell you this is something you will not, under any circumstances, want to miss…. I also will be blogging on this throughout the weeks to come. Thomas has much to say, and there will be much to discuss.”

Posted at 11:22 AM by Howard Bashman

“Inside the Supreme Court: Three new books offer rare insight into the world of the ‘brethren.'” Stephen R. Reily had this book review last Saturday in The Louisville Courier-Journal.

Posted at 10:44 AM by Howard Bashman

“A new poll tax? Election fraud isn’t a problem, but the Supreme Court may OK an ID law that burdens poor and minority voters.” Law Professor Daniel P. Tokaji has this op-ed today in The Los Angeles Times.

Posted at 9:08 AM by Howard Bashman

“Supreme Court Recusals: The justices should explain the reasons when they remove themselves from cases.” This editorial appears today in The Washington Post.

Posted at 9:03 AM by Howard Bashman

“Nixon, Hoover Bashed Justices in ’71 Phone Call”: Today’s edition of The Washington Post contains an article that begins, “President Richard Nixon described the Supreme Court’s June 1971 Pentagon Papers decision as ‘unbelievable’ and ‘stinking,’ and vowed ‘to change that court,’ during an unusually frank telephone conversation on July 1, 1971, with FBI Director J. Edgar Hoover. Referring to the six justices who voted 6 to 3 to permit newspapers to continue publication of material from the once-classified history of the Vietnam War, Nixon said: ‘You know those clowns we got on there. I’ll tell you I hope I outlive the bastards.'”

Posted at 8:57 AM by Howard Bashman

“Journalist Ross of ABC Ordered To Disclose Sources”: Today in The New York Sun, Joseph Goldstein has an article that begins, “A federal judge in New York has ordered a journalist at ABC News, Brian Ross, to disclose the identities of the government sources he relied upon when reporting about the anthrax attacks of 2001. Mr. Ross is now the sixth reporter to have been ordered to give up sources to assist with a civil lawsuit brought by a former Army scientist, Steven Hatfill, whom the government named as a ‘person of interest’ in the investigation into the deadly anthrax mailings. Mr. Hatfill, who was never charged with the mailings, is suing the federal government for invading his privacy.”

Posted at 8:54 AM by Howard Bashman

“The New Affirmative Action: Colleges want diversity; Students want diversity; There’s just this little problem with the law.” This article will appear in this upcoming Sunday’s issue of The New York Times Magazine.

Posted at 8:42 AM by Howard Bashman

“A Prosecution Tests the Definition of Obscenity”: Today in The New York Times, Neil A. Lewis has an article that begins, “Sometime early next year, Karen Fletcher, a 56-year-old recluse living on disability payments, will go on trial in federal court here on obscenity charges for writings distributed on the Internet to about two dozen subscribers. In an era when pornography has exploded on the Web almost beyond measure, Ms. Fletcher is one of only a handful of people to have been singled out for prosecution on obscenity charges by the Bush administration. She faces six felony counts for operating a Web site called Red Rose, which featured detailed fictional accounts of the molesting, torture and sometimes gruesome murders of children under the age of 10, mostly girls.”

The article goes on to report that “What has attracted the attention of First Amendment scholars and lawyers is that Red Rose — which Ms. Fletcher says is an effort to help her deal with her own pain from child sexual abuse — was composed entirely of text without any images. Although a narrowly divided Supreme Court said in 1973 that images were not necessary to label a work obscene, there has not been a successful obscenity prosecution in the country that did not involve drawings or photographs since then.”

Back on September 28, 2006, I had this post linking to additional press coverage of the case, including an article headlined “Woman charged over ‘vile’ Web stories” published that day in The Pittsburgh Post-Gazette.

By the way, I think Lewis’s article is incorrect in asserting that “there has not been a successful obscenity prosecution in the country that did not involve drawings or photographs” since 1973. As I noted in the October 9, 2006 installment of my “On Appeal” column for — headlined “Text This: Words Alone Can Violate Federal Obscenity Laws” — the U.S. Court of Appeals for the Eleventh Circuit on October 4, 2006 issued a decision affirming a criminal conviction for spoken obscenities that did not involve drawings or photographs.

Posted at 8:30 AM by Howard Bashman

“Antiterror Vindication”: The Wall Street Journal today contains an editorial that begins, “You probably haven’t seen it reported, but the Guantanamo trial system for enemy combatants won a big victory earlier this week.”

Of course, careful readers of this blog previously saw it reported here.

Posted at 8:07 AM by Howard Bashman

“KPMG Judge Questions Laws, Tactics Used in Corporate Cases”: The Wall Street Journal today contains an article that begins, “The federal judge in the case involving allegedly fraudulent tax shelters marketed by KPMG LLP said it may be time to re-examine laws governing corporate criminal liability and the tactics used by prosecutors to investigate those cases.”

Posted at 8:04 AM by Howard Bashman

“Thompson’s convictions upheld by appeals court”: The Tulsa World today contains an article that begins, “Former Creek County District Judge Donald D. Thompson lost his appeal of his criminal convictions Thursday. Thompson was convicted of four counts of indecent exposure and was ordered to serve four, consecutive, one-year sentences. Prosecutors alleged that he used a penis pump while presiding over trials.”

And The Associated Press reports that “Judge’s Exposure Conviction Is Upheld.”

Yesterday’s ruling of the Oklahoma Court of Criminal Appeals is not yet freely available online.

Posted at 7:55 AM by Howard Bashman

“Justice Thomas”: Online at Human Events, Armstrong Williams has an essay that begins, “Justice Thomas has just released his much anticipated memoir about his upbringing, years of government service, the confrontational and x-rated Supreme Court hearings and his musings about today’s issues. ‘My Grandfather’s Son’ is Justice Thomas’ story about his upbringing and how it can be seen throughout his life. Due to my close relationship with this oft-misunderstood man, I am particularly grateful that his story will finally be told. In the book, Justice Thomas addresses Anita Hill, allows us a glimpse into his childhood and gives some insight into his personality.”

Posted at 7:34 AM by Howard Bashman