How Appealing



Thursday, April 19, 2018

“The Supreme Court Should Rethink Deference to the Executive in the Travel Ban Case”: W. Neil Eggleston and Amanda Elbogen have this post at the “Just Security” blog.

Posted at 11:08 PM by Howard Bashman



“In McAdams vs. Marquette hearing, justices focus on speech rights for professors”: Karen Herzog of The Milwaukee Journal Sentinel has this report.

And Shawn Johnson of Wisconsin Public Radio reports that “State Supreme Court Hears Arguments Over Suspension Of Marquette Professor; The Dispute Over John McAdams Pits Traditional Allies Against One Another.”

You can access via this link the audio of today’s oral argument before the Supreme Court of Wisconsin.

Posted at 8:16 PM by Howard Bashman



“Now a full decade after Rita, Gall and Kimbrough, do any Justices still care about reasonableness review?” Douglas A. Berman has this post at his “Sentencing Law and Policy” blog.

Posted at 8:06 PM by Howard Bashman



Programming note: In just a few moments, I will begin my commute to the Ceremonial Courtroom of the U.S. Court of Appeals for the Third Circuit in Philadelphia to attend the investiture ceremony for that court’s newest judge, Stephanos Bibas.

To commemorate this event, here are a few “fun facts.” Before becoming a federal appellate judge, Bibas was himself an occasional law blogger. Judge Bibas holds the same seat on the Third Circuit as the Third Circuit judge for whom I clerked from 1989 to 1991. And the future looks promising for blog post titles containing attempted cleverness.

Update: It was a lovely investiture ceremony. Justices Anthony M. Kennedy (for whom Judge Bibas clerked at the U.S. Supreme Court) and Samuel A. Alito, Jr. (the Circuit Justice for the Third Circuit) were in attendance, and Justice Kennedy delivered some remarks and administered the ceremonial oath of office (as Judge Bibas actually was sworn into office shortly after his confirmation last November and has been working as a Third Circuit Judge ever since). Justice Kennedy observed during his remarks that if Judge Bibas’s young children lived near Justice Kennedy, they could help Justice Kennedy learn to use his laptop computer.

White House Counsel Donald F. McGahn II was present and participated in the ceremony by reading Judge Bibas’s Presidential Commission. In addition to nearly all of the active and senior judges of the Third Circuit who attended the investiture, D.C. Circuit Judge Gregory G. Katsas, Sixth Circuit Judge Raymond M. Kethledge, and Eighth Circuit Judge David R. Stras were also in attendance.

Although I did not see him, also announced as being in attendance was Fifth Circuit nominee Kyle Duncan, who was recognized from the bench at least a few days prematurely as “Fifth Circuit Judge Kyle Duncan.” According to an email alert that I received today from the Alliance for Justice, the U.S. Senate is scheduled to hold a cloture vote on Duncan’s Fifth Circuit nomination on Monday of next week.

Posted at 1:50 PM by Howard Bashman



“The Supreme Court Is Making History — With Its Snail’s Pace; Why are the justices hearing fewer cases and taking longer to decide them?” Matt Ford of The New Republic has this report.

Posted at 11:43 AM by Howard Bashman



“Washington argues salmon case in U.S. Supreme Court”: Rhytha Zahid Hejaze of Medill News Service has this report.

For whatever reason, freely accessible news coverage previewing the oral argument greatly exceeded freely accessible news coverage of the oral argument.

For example, Lynda V. Mapes of The Seattle Times previewed the oral argument in an article headlined “Supreme Court showdown: Washington’s attorney general vs. tribes over salmon habitat; State Attorney General Bob Ferguson goes up against the tribes in the Supreme Court Wednesday, seeking to overturn multiple court rulings calling on the state to fix culverts that block salmon habitat.”

Amanda Reilly of Greenwire reported that “Highways, salmon habitat collide in tribal treaty case.”

And online at The Conversation, law professor Monte Mills had a post titled “Supreme Court case tests weight of old Native American treaties in 21st century.”

You can access at this link the transcript of yesterday’s U.S. Supreme Court oral argument in Washington v. United States, No. 17-269.

Posted at 10:52 AM by Howard Bashman



Circuit Judge James C. Ho issues his first opinion: In the form of a dissent from the denial of rehearing en banc that the U.S. Court of Appeals for the Fifth Circuit issued yesterday.

Lest anyone assume that Trump appellate appointees will march in lockstep on cherished issues such as campaign finance disclosure, the order denying en banc rehearing reveals that the other recent Trump appointee to the Fifth Circuit voted against rehearing en banc in the case.

Update: At his “Election Law Blog,” Rick Hasen has a post titled “En Banc 5th Circuit, on a Vote of 12-2, with One of Trump’s Appointees Issuing a Blistering Dissent, Denies Rehearing to Consider Challenge to Austin’s $350 Contribution Limit.”

Posted at 10:35 AM by Howard Bashman