How Appealing

Sunday, December 16, 2007

“Control sought on military lawyers; Bush wants power over promotions”: Yesterday in The Boston Globe, Charlie Savage had an article that begins, “The Bush administration is pushing to take control of the promotions of military lawyers, escalating a conflict over the independence of uniformed attorneys who have repeatedly raised objections to the White House’s policies toward prisoners in the war on terrorism.”

Posted at 10:44 PM by Howard Bashman

“Bill Would Penalize Judges Leaving for High-Paying Jobs”: Monday in The Daily Journal of California, Lawrence Hurley will have an article that begins, “Congress may be offering federal judges a major pay raise for the first time in 16 years, but lawmakers are also embracing a plan to deter senior judges from taking high-paying jobs in the private sector.”

Posted at 10:33 PM by Howard Bashman

“Whittling Away, but Leaving a Gap”: Monday’s installment of Adam Liptak’s “Sidebar” column in The New York Times begins, “There was an avalanche of sentencing news last week. The Supreme Court gave trial judges more power to show mercy, the United States Sentencing Commission gave almost 20,000 prisoners doing time on crack cocaine charges a good shot at early release, and even President Bush commuted a crack sentence.”

And Monday in The Chicago Tribune, James Oliphant will have an article headlined “New drug rules won’t crack many jail doors.”

Posted at 10:30 PM by Howard Bashman

“Whitehouse discounts value of court nominee’s hearing”: The Providence Journal on Monday will contain an article that begins, “Even if U.S. District Judge William E. Smith pledges to follow judicial precedent as a member of a powerful federal appeals court, he could go back on his word once he gets the lifetime job, Sen. Sheldon Whitehouse suggested last week. ‘You’ve got to make sure that the guy’s not a stalking horse for Bush ideology,’ Whitehouse said of Smith, whom the president has nominated to a vacancy on the 1st U.S. Circuit Court of Appeals. ‘That’s an issue that needs to be put to rest,’ said Whitehouse, who could play a decisive role in whether Smith is elevated to the Boston-based court. Supporters of Smith, including the man he would replace, senior Judge Bruce M. Selya, have presented him as a moderate jurist who has built a solid reputation since the Senate confirmed him to Rhode Island’s federal court in 2002. Republican Smith, a labor lawyer with ties to former Sen. Lincoln D. Chafee, won the approval of the Democrat-controlled Senate without any dissent.”

Posted at 10:10 PM by Howard Bashman

“Top court’s dynamic duo is never out of order; Justices liven up sessions with their repartee and tag-team tactics”: Today in The Newark Star-Ledger, Kate Coscarelli has an article that begins, “The seven justices of the New Jersey Supreme Court file into their eighth-floor courtroom in Trenton and each settles into a high-backed leather chair behind the raised bench of polished African mahogany. Once in session, from the first moments a case is called, lawyers know they must be prepared to field all kinds of difficult and probing questions from any of the black-robed men and women peering down at them. While all of the justices can and do interrogate the attorneys making their arguments before the court, these days much of the verbal sparring comes from one end of the bench — where Justices Roberto Rivera-Soto and Barry Albin sit, side by side.”

Posted at 10:04 PM by Howard Bashman

“U.S. Supreme Court Justice Clarence Thomas to Speak at Chapman Dec. 17; Second Visit to Chapman by the Justice, Who Helped Open Kennedy Hall, Home of the Chapman School of Law, in 1999”: Chapman University has issued this news release.

Posted at 9:50 PM by Howard Bashman

“Ex-San Jose aviation firm worker says exec talked of torture flights”: Bob Egelko had this article yesterday in The San Francisco Chronicle.

Posted at 9:42 PM by Howard Bashman

“Gone Wild and Gone All Wrong”: The New York Times today contains an article that begins, “The multimillionaire creator of ‘Girls Gone Wild’ sits in a jail visiting room here, wearing a uniform of orange shirt and gray pants and looking pale but rested from eight months of incarceration.”

Posted at 8:40 PM by Howard Bashman

“Wider Spying Fuels Aid Plan for Telecom Industry”: The New York Times today contains an article that begins, “For months, the Bush administration has waged a high-profile campaign, including personal lobbying by President Bush and closed-door briefings by top officials, to persuade Congress to pass legislation protecting companies from lawsuits for aiding the National Security Agency’s warrantless eavesdropping program. But the battle is really about something much bigger. At stake is the federal government’s extensive but uneasy partnership with industry to conduct a wide range of secret surveillance operations in fighting terrorism and crime. The N.S.A.’s reliance on telecommunications companies is broader and deeper than ever before, according to government and industry officials, yet that alliance is strained by legal worries and the fear of public exposure.”

Posted at 2:22 PM by Howard Bashman

“Supreme Court rules on sentences: By loosening the reins on guidelines, has the court given judges too much leeway?” This editorial appears today in The Los Angeles Times.

Posted at 2:15 PM by Howard Bashman

“Clause and Effect: The best way to make sense of the Second Amendment is to take away all the commas.” Adam Freedman has this op-ed today in The New York Times.

Posted at 2:07 PM by Howard Bashman

“Detainee takes torture debate to court; Requesting the judiciary to rule on what is and isn’t torture, lawyers for Guantanamo detainee Majid Khan asked a federal court in a classified motion to examine how the CIA interrogated him”: Carol Rosenberg had this article yesterday in The Miami Herald. The newspaper has posted online at this link a copy of Majid Kahn’s motion, as redacted, and has posted online at this link the transcript of Kahn’s CSRT hearing.

The Washington Post reports today that “Destruction of CIA Tapes Defended.”

The New York Times reports that “Court Inquiry on Tape Case Is Opposed.”

And at “SCOTUSblog,” Lyle Denniston has a post titled “US: CIA tapes issue not for courts.”

Posted at 2:02 PM by Howard Bashman

“Torture, American style — The surprising force behind torture: democracies.” Darius Rejali has this article today in the Ideas section of The Boston Globe.

Posted at 1:50 PM by Howard Bashman

“Crack ruling of little effect locally; Houston-area drug convictions mostly produced at state rather than federal level”: This article appears today in The Houston Chronicle.

Posted at 1:10 PM by Howard Bashman

“Appeals court reviews Libby case”: The Associated Press provides a report that begins, “A federal appeals court heard arguments Wednesday on an appeal of a pretrial ruling in the government’s asbestos case against W.R. Grace & Co. and some of its former executives. Earlier this year, Grace asked for the full 9th U.S. Circuit Court of Appeals to review a decision by a three-judge panel that allowed certain government witnesses to testify against the chemical manufacturer. The 9th Circuit granted the request and heard arguments on the issue Wednesday afternoon; it was unclear when a decision would be issued.”

The article is reporting on this past Wednesday’s en banc reargument before an eleven-judge panel of the U.S. Court of Appeals for the Ninth Circuit. You can download the en banc oral argument audio via this link (9.95MB Windows Media audio file).

I have listened to the audio from three Ninth Circuit en banc oral arguments that have occurred last week, the first en banc arguments held since Alex Kozinski became that court’s chief judge. (I provided links to download those three oral arguments in earlier posts here and here.) Appellate advocates should be aware that en banc oral arguments before the Ninth Circuit seem to have taken on a much less advocate-friendly tenor since Kozinski has become that court’s chief judge and thus has begun to preside over that court’s en banc hearings.

My two favorite recurring instances of this are when the new chief judge aggressively asks the advocate, “Why are you talking at the same time I am talking?!” which invariably occurs after Kozinski has taken a long pause and then starts speaking again at the same time that the lawyer believes that it is safe to resume arguing his case. This outburst from the bench was then followed by a lengthy lull or further admonishment of counsel during which time no further progress in arguing the case occurred, while the clock keeping track of the time remaining for the advocate’s oral argument continues its steady march toward the red light. The new chief judge also has several times during these arguments interrupted to tell the advocate that the advocate is wasting the court’s time by making whatever argument the advocate was in the midst of making. Whether the other ten judges on the en banc panel likewise believed that their time was being wasted is not readily apparent.

Of course, attorneys at oral argument should not be talking at the same time that a judge is talking and should not be wasting a court’s time discussing irrelevant matters. My point here is merely that attorneys who were used to the old style of en banc oral argument before the Ninth Circuit where they were not as likely to be put through the wringer should be prepared to receive a different sort of treatment while at the lectern under the new regime.

Posted at 1:05 PM by Howard Bashman

“Death judge broke rules”: Today in The Houston Chronicle, columnist Rick Casey has an op-ed that begins, “So many judges, so little time. One article on this paper’s front page Thursday revealed that U.S. District Judge Sam Kent had hired lawyer Dick DeGuerin and undergone questioning by the FBI in connection with findings that he had sexually harassed an employee. Right next to it was an article disclosing the fact that the state’s highest judge on criminal matters grossly violated at least the spirit of her court’s policy in September by turning down a request to keep the clerk’s office open an extra half hour or so to accept a last-minute appeal for a Texas man scheduled to be executed that night.”

Posted at 12:42 PM by Howard Bashman

“The Judgment Power”: William Baude has this article (SSRN abstract with link for download) forthcoming in The Georgetown Law Journal. The article’s abstract begins, “When an Article III court decides a case, and the President disagrees with the outcome, what can he do about it?”

As for why the article’s abstract, posted online only yesterday, already has more than 1,000 views, a link from “Instapundit” never hurts!

Posted at 12:40 PM by Howard Bashman