Please visit "How Appealing" at its new online address: At midnight on Tuesday, April 20, 2004, this Web log is moving to a new address. From that point forward, this blog will be hosted at the Web site of Legal Affairs magazine.
If the Legal Affairs Web site ever becomes temporarily inaccessible, I will use this blog's original blogspot address as a backup site while any outage is underway.
Later this month, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit is scheduled to hear oral arguments in Saipan: The calendar can be viewed at this link. Coincidentally, Tuesday's issue of The Guam Daily News contains an article headlined "Saipan official indicted" that begins, "If you've been drinking any of Saipan's water over the last few years, you may have been drinking water tainted with coliform or fecal coliform bacteria."
"Supreme Court says U.S. may bring case after tribal trial": Stephen Henderson of Knight Ridder Newspapers provides this report.
"Criticism of court leads to ban on Atlanta law firm; A Madison County judge apparently was deeply offended by comments from former U.S. Attorney General Griffin Bell":This article appeared over the weekend in The St. Louis Post-Dispatch.
"At court: terror-war detentions; The case involving Guantanamo could alter government powers." Warren Richey will have this article in Tuesday's edition of The Christian Science Monitor.
Divided three-judge Ninth Circuit panel sets aside as cruel and unusual punishment a "three-strikes," 25 years-to-life sentence imposed on a state court convict for stealing $199 VCR machine: You can access today's ruling of the U.S. Court of Appeals for the Ninth Circuit at this link. You can access my summaries of the two recent U.S. Supreme Court rulings that today's Ninth Circuit decision seems, at first glance, to contravene at this link. Circuit Judge Andrew J. Kleinfeld dissented, in an opinion you can access here. Today's opinion does not appear to mention the California man who was sentenced to 25 years-to-life for stealing a slice of pepperoni pizza that one would hope, under the circumstances, was especially tasty (more details available here).
"Intel, Top Rival Set for Supreme Court Showdown":Reuters provides this report.
"This appeal from a conviction in 2003 concerning a racially motivated murder in a national forest in 1966 primarily presents constitutional due process and confrontation issues." So begins a very interesting opinion that a unanimous three-judge panel of the U.S. Court of Appeals for the Fifth Circuit issued today.
"The Rule Regarding Unpublished Opinions Is A Wolf In Sheep's Clothing": "Milbarge" has this post, with which I disagree, at the "Begging The Question" blog.
Crab cakes may have been made in the USA, but the crab they contained was imported: Today a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit affirmed a trial court's dismissal, for lack of standing under the Lanham Act, of a claim that Made in the USA Foundation brought against Phillips Foods, Inc. of Maryland. You can access today's ruling at this link.
"U.S. Court Won't Review Ruling on Mystery Skeleton":Reuters reports here that "A U.S. appeals court declined on Monday to reconsider its February decision allowing scientists to resume testing on a 9,000-year-old skeleton -- called 'Kennewick Man' -- despite protests from American Indian tribes." You can access today's order of the U.S. Court of Appeals for the Ninth Circuit at this link.
"Death Penalty: The Movie; The Supreme Court finds its happy ending." Online at Slate, Dahlia Lithwick has this report on one of today's U.S. Supreme Court oral arguments.
Quick update on today's Third Circuit oral argument involving whether to recuse the federal district judge presiding over a handful of large asbestos-related bankruptcy cases: Today's oral argument before the U.S. Court of Appeals for the Third Circuit was scheduled to run about an hour and a half. In fact, the argument began at 1 p.m. and did not wrap-up until 4:30 p.m. The courtroom was packed with observers, to the point where it was standing room only. The case was well argued on all sides, but, as someone who has read all of the briefs filed in the Third Circuit in this matter, the argument did not change my view concerning how that court is likely to rule. More details are available at this link, where in the final paragraph I previewed today's oral argument.
The CA2 heard arguments today in Maurice Clarett v. NFL. I could recount the oral arguments, which were extensive, but the news is that the court has just now issued a stay of the district court's ruling (with a full decision to follow), therefore precluding Clarett (and USC WR Mike Williams) from the draft, largely because the NFL offered to have a supplemental draft if the lower court's decision is affirmed. The CA2 clearly held, however, that the NFL had demonstrated a "likelihood of success on the merits." The stay application had been referred to the merits panel by a motions panel about 3 weeks ago, and was briefed on an extremely expedited basis.
A look back, and a look ahead: This morning at midnight, I posted online the April 2004 installment of "20 questions for the appellate judge." This month's interview offers a perspective not reflected in earlier installments of the "20 questions" feature -- that of a senior U.S. District Judge who has sat by designation with nearly all of the U.S. Courts of Appeals. You can access this month's interview here and here.
And, if all goes as planned, at midnight tonight "How Appealing" will begin to be hosted at the Web site of Legal Affairs magazine. This blog's new address will be prominently featured at the top of this page when the switch-over takes place. Old content will remain here, but the only place to access this blog's new content will be at its new address.
Access online today's U.S. Supreme Court opinion and Order List: The Supreme Court, which hardly ever issues an opinion on a Monday during an oral argument week, today issued its decision in United States v. Lara, an important Indian-rights case. You can access the ruling at this link. Justice Stephen G. Breyer issued the opinion of the Court, in which the Chief Justice and Justices John Paul Stevens, Sandra Day O'Connor, and Ruth Bader Ginsburg joined. Justice Stevens also issued a concurring opinion. Justice Anthony M. Kennedy issued an opinion concurring in the judgment, and so did Justice Clarence Thomas. Finally, Justice David H. Souter issued a dissenting opinion, in which Justice Antonin Scalia joined. The oral argument transcript is available at this link.
Today's Order List is available at this link. The Court granted certiorari in one case and summarily affirmed another.
"Very bad idea":The Las Vegas Review-Journal today contains an editorial that begins, "In what could be the worst proposal to come down the pike in quite some time -- and when you're talking about the federal government, that's saying something -- a Kentucky representative wants to give Congress the power to overrule U.S. Supreme Court decisions it doesn't like."
The second of two cases to be argued at the Court today is Schriro v. Summerlin. The case presents the following questions:
In Ring v. Arizona, 536 U.S. 584, 589 (2002), this Court held that the Sixth Amendment jury trial guarantee extends to the determination of any fact, other than a prior conviction, that increases the maximum punishment for first-degree murder from life imprisonment to death. In the instant case, the United States Court of Appeals for the Ninth Circuit held that the rule announced in Ring should be applied retroactively to cases on collateral review.
1. Did the Ninth Circuit err by holding that the new rule announced in Ring is substantive, rather than procedural, and therefore exempt from the retroactivity analysis of Teague v. Lane, 489 U.S. 288 (1989) (plurality)?
2. Did the Ninth Circuit err by holding that the new rule announced in Ring applies retroactively to cases on collateral review under Teague's exception for watershed rules of criminal procedure that alter bedrock procedural principles and seriously enhance the accuracy of the proceedings?
On the day that a divided eleven-judge en banc panel of the U.S. Court of Appeals for the Ninth Circuit issued its decision in this case, I predicted that U.S. Supreme Court review would occur. More details about this very unusual case can be accessed here, in a post I made when the Ninth Circuit issued an order taking the case en banc. As I then explained, this is a "death penalty cases from Arizona that offers a little something for everyone."
Finally, today at 1 p.m. a three-judge panel of the U.S. Court of Appeals for the Third Circuit will hear oral argument, once again, on consolidated petitions for writ of mandamus that seek the recusal of District Judge Alfred M. Wolin of the U.S. District Court for the District of New Jersey from continuing to preside by designation over a handful of very large asbestos-related bankruptcy cases pending in the U.S. District Court for the District of Delaware. You can access at this link Judge Wolin's recent decision refusing to recuse himself. And the Third Circuit's earlier ruling in this matter can be accessed here. I will be attending this afternoon's oral argument on behalf of various of my clients, and I will be sure to link to whatever news coverage the oral argument generates.
Judge Shadur was born in St. Paul, Minnesota in 1924. He attended undergraduate and law school at the University of Chicago. Between college and law school, he served in World War II as a Lieutenant (j.g.) in the U.S. Navy. After law school, he entered the private practice of law in Chicago.
In April 1980, President Jimmy Carter nominated Shadur to fill a vacancy on the U.S. District Court for the Northern District of Illinois. In June 1992, Judge Shadur took senior status. Since taking senior status, Judge Shadur -- in addition to retaining a full civil and criminal calendar on the district court -- has sat regularly three or four times a year by invitation with U.S. Courts of Appeals around the country. In all, he has sat by designation with the U.S. Courts of Appeals for the D.C., First, Second, Third, Seventh, Ninth, and Tenth Circuits, and he is scheduled to sit with the Sixth Circuit soon. Judge Shadur's chambers are located in Chicago.
Questions appear below in italics, and Judge Shadur's responses follow in plain text.
1. How, in your experience, does a U.S. District Judge benefit from sitting by designation on a U.S. Court of Appeals? Conversely, what benefit, if any, might a court of appeals judge who never sat as a trial judge gain by sitting by designation on a district court? And do you believe that the U.S. Court of Appeals for the Seventh Circuit made an error in judgment when it stopped inviting district judges from within the circuit to sit by designation, and why or why not?
It's difficult for me to identify the substantive benefits derived from sitting with a Court of Appeals, apart of course from such matters as experiencing an occasionally welcome change of pace from activity on the District Court, the opportunity to enjoy some warm interpersonal relationships and like intangible rewards. My sense, though, is that I've also gained some insights into what's important from the appellate perspective that merely reading Court of Appeals opinions may not convey fully (especially when, as is regrettably sometimes the case, such opinions portray a lawsuit that is quite different from the one that the District Judge has lived through at his or her level). My hope is that thus being exposed to the appellate perspective, and to what an appellate panel finds persuasive or unpersuasive, may help me to shape my District Court rulings in a way that will articulate my views both accurately and persuasively. Finally, I confess that my Court of Appeals sittings, however much I enjoy them, regularly reconfirm that my "day job" is the right one for me -- that my nature and abilities are better suited, in terms of full-time or principal activity, to laboring in the District Court vineyards than to appellate court work.
As for the other side of the coin, I don't believe that occasionally presiding over a District Court trial provides a very valuable experience for a Circuit Judge who has not had prior experience as a trial judge. Instead it seems to me to be not much different in value from the periodic visit by the board of visitors to the poorhouse in Oliver Twist, with one possible exception: the need for a visiting appellate judge to rule on evidentiary and other issues instantly, without the luxury of going back to the books to render decisions at greater leisure, should give the judge a more realistic view of what it means to provide what has often been termed "a fair trial, not a perfect trial." It should also be remembered that only a small part of the District Judge's time is spent in the conduct of trials, so that an occasional stint by a Circuit Judge in the conduct of a trial doesn't come close to conveying a full appreciation of the many other things that District Judges must deal with that may ultimately find their way onto the appellate docket.
Lastly, because I'm unaware of the policy reasons that led to the change in the invitation practice from the time that I was first invited to sit with the Seventh Circuit (more than ten years before I took senior status), I'm reluctant to opine in terms of any possible "error in judgment" vel non. But I am satisfied that in many cases there are affirmative benefits to a Court of Appeals panel in being able to draw on the experience of a trial judge to gain insights that Circuit Judges who lack such experience may not have -- and I suspect that the Courts of Appeals that do extend invitations to District Judges may well share that view.
2. Some academics at The Ohio State University performed a study, whose methodology I cannot vouch for, which concluded that visiting U.S. District Judges who sat on U.S. Court of Appeals panels did not participate as fully in the decision-making process as did their appellate court colleagues. In your experience, both first-hand and based on what you have heard from others, is this true? Is it nonetheless a legitimate concern? And more specifically, are visiting judges more reluctant to advocate bold pronouncements on the development of the law, less active at oral argument, and are they afforded any input into how a court of appeals should dispose of a petition for rehearing en banc?
Although I don't pretend to know what kind of methodology could arguably support the kind of conclusion that you report (no academic can be a fly on the wall during the course of the post-argument conferences among appellate panel members), and though I freely confess that no statistical significance can be attached to my personal experience or that of any other individual District Judge, I have never had any such lesser-participation experience anywhere. In light of your question, I had one of my law clerks who is an electronic search guru run a couple of lists, and I then did a quick scan of the published opinions that I've written (as you know, a later question deals with the subject of unpublished and noncitable orders). Even though I've made no effort to distill the results of that examination into precise numbers, what they reflect generally is that I've written something over 100 published opinions at the appellate level, which represent (as you might expect) a third of the published opinions issued by the panels in which I've participated. About one-fourth of my opinions have been written in cases that have involved dissents, and those in turn are divided in almost exactly equal numbers between situations in which I have been the dissenting judge and those in which I have written for the panel and another member of the panel has dissented. As you can readily see, that picture is totally at odds with the conclusions of the study that you mention.
As for your other questions, very few District Judges whom I know fit into the shrinking violet category, so I would guess (but I confess it is only a guess) that few if any who are invited to sit with a Court of Appeals would be either "more reluctant to advocate bold pronouncements on the development of the law" or "less active at oral argument." That's certainly not my own self-perception, although -- as always -- you could probably get a more accurate reading from judges who have served on panels with me. As for en banc petitions, in my experience every Court of Appeals excludes visiting judges (even visiting Circuit Judges, I believe) from voting on such petitions. Because a Court of Appeals normally encounters a combined motion for panel rehearing and petition for en banc hearing, I'm always meticulous in voting on the former but not the latter. Nonetheless a number of Circuit Judges have chosen to report my views as to en banc consideration in the form of framing those views as recommendations (even though I've refrained from making any).
3. What are the procedures for a federal district judge to become a visiting judge by designation on a U.S. Court of Appeals? Do such visitors volunteer for these assignments, or are they invited? What roles, if any, do the Chief Justice, the Chief Circuit Judges, and a judge's colleagues on the district court play in the process?
Under 28 U.S.C. sec. 292(d) it is the Chief Justice of the United States who is assigned the power to designate and to assign temporarily a District Judge for service in another circuit, including service with a Court of Appeals. That potential designation and assignment are statutorily triggered by the presentation of a certificate of necessity by the Chief Judge of the requesting circuit. And that procedure is mirrored as to senior judges ("retired judges" is the technical term) in 28 U.S.C. sec. 294(d), which provides for the Chief Justice to maintain a roster of retired judges "who are willing and able to undertake special judicial duties from time to time outside their own circuit."
As a practical matter, that roster of senior judges is maintained by a Judicial Conference committee designated as the Committee on Intercircuit Assignments. Each year that Committee sends out a questionnaire that inquires of senior judges about their willingness to serve, including any indication of their preferences in terms of the courts involved. Maintenance of that roster is of course consistent with the provision of 28 U.S.C. sec. 294(b) that permits every senior judge to "continue to perform such judicial duties as he is willing and able to undertake," with the only limitation being the nonstatutory setting of certain minimum levels of activity to be entitled to specified levels of staffing as to law clerks, secretaries, minute clerks and court reporters.
As for your question regarding volunteering v. being invited, as I've just said any senior District Judge who expresses his or her willingness to serve elsewhere is also free to express preferences in that regard in his or her filing with the Committee on Intercircuit Assignments. Although I don't know whether others may have undertaken direct communications with the Chief Judge of another circuit to pursue those preferences, to my recollection I have never done so in the first instance. Instead the original invitation to sit with each circuit has come from the then Chief Judge, rather than from a request on my part. Sometimes the Chief Judge or one of the other members of the Court of Appeals has been someone whom I know, but in some instances that has not been the case. Once I have ended up on a panel with a Court of Appeals, of course, I may follow up with inquiries about future years. But to return to my earlier point, in no instance have I specifically sought out -- or refrained from seeking out -- any court.
Finally, to my knowledge the senior judge's colleagues on the District Court play no role in the process -- remember that they have no control as to the amount of work that a senior judge may choose to undertake.
4. You cast the deciding vote against President Bush on a three-judge Ninth Circuit panel in the case known asGherebi v. Bush(issued Dec. 18, 2003), a decision holding that Guantanamo Bay detainees in the war on terror are entitled to some measure of judicial review in the United States courts. Ninth Circuit Judge Stephen Reinhardt's majority opinion explains that one of the disagreements between the majority and Ninth Circuit Judge Susan P. Graber, in dissent, was whether the Ninth Circuit should announce a ruling given that the U.S. Supreme Court had already granted review in a case presenting the same question from the D.C. Circuit. Did it concern you at all, given Judge Reinhardt's less than perfect track record before the U.S. Supreme Court, that issuing a ruling against the President in that case might in fact prove counter-productive? And what are some other especially significant cases that you have participated in by designation on the U.S. Courts of Appeals, and in any of those did you cast the deciding vote on a divided panel?
In the best tradition of the aphorism that "timing is everything," the D.C. Circuit cases that presented the same question that our panel dealt with in Gherebi v. Bush have been argued before the Supreme Court on April 20 (these answers are being written just a few days before that date). Cert. has been applied for recently in Gherebi, and the latest issue of Law Week hasn't reported any action on the application as yet.
Now to turn to your direct question, no consideration was given by any of our panel members (including dissenting Circuit Judge Susan Graber) as to whether what you refer to as Steve Reinhardt's "less than perfect track record" should lead to any different handling of the case, on the premise that our decision might create a backlash. In my view any such consideration would be totally out of place on the part of a Court of Appeals panel -- and that possibility is one that I would surely not ascribe to the Supreme Court either. Instead, I believe that one important consequence of the issuance of our ruling, rather than our simply abstaining pending the Supreme Court's decision in the cases originating in the D.C. Circuit, is to make it clear that the view that habeas jurisdiction does exist in the Guantanamo Bay situation is one that has been thoughtfully considered and answered affirmatively by a court at the appellate level, and not merely by lawyer advocates who have a stake in the outcome.
As for "other especially significant cases" in which I have participated by designation, it's difficult for me to single out specific cases because I'm not sure what criteria ought to be applied. But one other case in which I cast the deciding vote on a divided panel was United States v. Morros, 268 F.3d 695 (9th Cir. 2001), a high-profile case in which our panel majority held that the District Court had abstained improperly in a suit brought by the United States Department of Energy to challenge the Nevada State Engineer's denial of water permit applications to evaluate the suitability of the Yucca Mountain site for use as a nuclear waste repository. Another case that would probably be considered as "especially significant" from any perspective would be the Third Circuit decision that first addressed the constitutionality of the widely prevalent statutes that require the registration of sex offenders -- in that case, Artway v. Attorney General, 81 F.3d 1235 (3d Cir. 1996), the masterful and comprehensive panel opinion was written by Ed Becker without dissent, though I wrote a short concurrence addressing one facet of his opinion (id. at 1271).
5. What are your most favorite and least favorite aspects of sitting by designation as a federal appellate judge, and what are your most favorite and least favorite aspects of serving as a federal district judge?
My most favorite aspects of sitting by designation with Courts of Appeals have really been addressed in my response to your question 1. My least favorite aspect, though in some quarters this might be considered a strength of the appellate process, is encountered in cases in which I have to "rise above principle" to write in a way that will command a second vote or even unanimity -- to trim my own firmly-held views by reshaping them into a form that I consider less satisfactory.
As for my regular job as a District Judge, I confess that everything about it is richly rewarding, except for the distorted type of criminal sentencing that has been thrust upon us by the Sentencing Guidelines and congressionally-mandated minimum sentences. Forty five years ago Charles Wyzanski, Jr., a fine District Judge from Massachusetts, wrote a letter to then Senator Leverett Saltonstall (a letter reprinted at page 456 of a book by Walter Murphy and C. Herman Pritchett, Courts, Judges and Politics -- An Introduction to the Legal Process (3d ed. 1979)) explaining why Judge Wyzanski was declining his proposed nomination to the First Circuit (by chance, when I was in the practice of law I had the privilege of arguing a case that successfully challenged, in First Amendment terms, the Northern District of Illinois' rule that impermissibly limited lawyers' ability to comment on pending litigation -- and Judge Wyzanski was a member of the panel, sitting by invitation in the Seventh Circuit). It's impossible for me to improve on Judge Wyzanski's explanation of the special joy of judicial service at the District Court level -- after characterizing as "the classic example" of the scope of a judge's initiative and discretion as the "width of choice of sentencing defendants" (something that no longer exists in the federal courts), he said in part:
In civil litigation a District Judge has a chance to help the lawyers frame the issues and develop the facts so that there may be a meaningful and complete record. He may innovate procedures promoting fairness, simplification, economy, and expedition. By instructions to juries and, in appropriate cases, by comments on the evidence he may help the jurors better to understand their high civic function. He is a teacher of parties, witnesses, petitioners for naturalization, and even casual visitors to his court. His conduct of a trial may fashion and sustain the moral principles of the community. More even than the rules of constitutional, statutory, and common law he applies, his character and personal distinction, open to daily inspection in his courtroom, constitute the guarantees of due process.
* * *
While it may well be true that the highest office for a judge is to sit in judgment on other judges' errors, it is perhaps a more challenging task to seek, from minute to minute, to avoid one's own errors. And the zest of that task in enhanced by the necessity of reacting orally, instead of after the reflection permitted under the appellate judge's uninterrupted schedule of reading and writing.
6. Identify the one federal or state court judge, living or dead, whom you admire the most and explain why.
It is of course difficult to avoid listing Chief Justice John Marshall as a near-Pavlovian response, given his enormous accomplishments in shaping an institution that was shapeless when he came to it, in much the same way that George Washington really created the office of President of the United States. But if I may choose a judge closer in time -- someone whose work I have read when it was fresh rather than simply read about, and someone before whom I have had the opportunity to argue and to observe oral argument, my choice would be Justice William Brennan. To me he had all of the attributes that I most admire in a judge, including the ability to shape dissents that are at least as powerful as his opinions for the Court. And if I were compelled to choose one opinion that for me epitomizes him as a Justice, it would be his dissent in Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 247 (1985), which for me proved the analytical bankruptcy of Hans v. Louisiana and its progeny in defining the scope of federal jurisdiction and the Eleventh Amendment. If that opinion, written for four dissenting Justices, had been able to capture one more vote, our ongoing jurisprudential trend curbing federal judicial power in favor of states' rights would have followed a very different course.
7. Not only are you the first participant in the "20 questions for the appellate judge" feature who has never been a full–time appellate judge, but you are also the first participant who has served as a judge on so many different U.S. Courts of Appeals. Perhaps you can say a word or two about what distinguishes each of the federal appellate courts with which you have sat from the others? And is there any reason why you have avoided federal appellate courts based in the south, or are you merely saving the best for last?
It is certainly true that each Court of Appeals with which I've had the opportunity to sit has had its own institutional personality -- not simply in terms of procedures but in terms of such characteristics as collegiality. That being said, I would view it as an abuse of the hospitality with which I have always been greeted everywhere to venture on any comparisons (let alone comparisons that might be thought of as invidious). As for the omission from my appellate stopover points of three Courts of Appeals based in the south (the Fourth, Fifth and Eleventh), one based in the north (the Eighth) and the D.C.-based Federal Circuit, that is purely a matter of chance rather than of choice. As I've already said in response to question 3, my out-of-circuit sittings have always stemmed in the first instance from invitations that I've had extended to me (that has most recently been the case with the Sixth Circuit, when such an invitation to sit with that court for the first time -- unbidden, though very welcome when it arrived -- came from its Chief Judge last summer; that initial sitting is scheduled for this June 17 and 18).
8. Based on your experiences sitting with the U.S. Court of Appeals for the Ninth Circuit, what are your views on whether the Ninth Circuit should be split into two or more smaller circuits, and is there a particular manner of dividing the Ninth Circuit that you view as best?
My understanding is that when the Courts of Appeals were first created they served essentially equivalent populations. With the population explosion that has taken place in California and Arizona, as well as the addition of Hawaii, the Ninth Circuit has become truly unwieldy in terms of the size of its judicial complement. Even though I suspect that everyone agrees on that score, any attempt to divide the circuit in a rationally acceptable way strikes me as extraordinarily difficult. Anything that would attempt to address the problem by splitting California between two circuits is really an unacceptable alternative, and no other proposals that I have seen would seem to work either. From the jurisprudential point of view, the principal difficulty that I see is encountered when a case must be considered en banc, for the need to have fewer than all of the judges participate creates the possibility of an en banc decision that does not truly reflect the circuit's majority view.
9. How did you come to President Jimmy Carter's attention as a potential nominee to serve on the U.S. District Court for the Northern District of Illinois?
To my knowledge I never came to President Carter's attention at all. My path to the federal bench was an odd one, beginning with a telephone call out of the blue from then Illinois Senator Charles Percy in the spring of 1974 (at that time I was a practicing lawyer, having been with the same small firm for a quarter century), asking whether I would be interested in being on his short list (six in number) for a then-anticipated vacancy on the Seventh Circuit. Because that would have represented the fulfillment of a boyhood dream, I said “yes” to the invitation in a nanosecond. When a vacancy did arise a few months later, Bill Bauer (then a District Judge, with a distinguished background including service as a state court judge and then as the United States Attorney here) was selected as the nominee to replace the late Otto Kerner, and I cheerfully resumed the practice of law. Then a year later, still during the Ford administration, Senator Percy called once again to ask whether I had an interest in being considered for the District Court -- but both because my practice was not that of a trial lawyer and, more importantly, because I then had five people in college and could not afford to take the vows of poverty, I declined with gratitude.
One year later, during the last year of President Ford's term, Senator Percy called again, said he didn't want to take "no" for an answer and sent my name in to the Senate Judiciary Committee -- although he was careful to tell me that in the summer preceding a presidential election it was customary for a freeze to set in (those were the days when the differences between the party in power and the party out of power manifested themselves only a few months before the election, rather than today's pattern of perpetual conflict). What the Senator told me was that although he had never asked anything about my politics and did not propose to do so then, his hope was the then junior Senator -- Democrat Adlai Stevenson -- would not “blue slip” me (exercise a veto) if the Senate were able to consider the nomination actively. But the presidential-year freeze did set in a couple of months before the November 1976 election, and once again I continued with the practice of law.
It was a couple of years later, during President Carter's administration, that I received a similar call from Senator Stevenson (who had then acquired the power of recommendation, although Republican Senator Percy was still serving) -- and that was what actually led to my District Court appointment. At least in those days the President played a much less active role (if any) in District Court appointments, which is why I began this answer by disclaiming any involvement (so far as I know) by President Carter himself.
10. Experience teaches that it is much easier for an individual to achieve U.S. Senate confirmation for a U.S. District Court judgeship than it is for a U.S. Court of Appeals judgeship. Isn’t it true, however, that the most powerful individual position in the entire federal judiciary is U.S. District Judge? Please explain why you agree or disagree, and do you believe that the U.S. Senate should scrutinize district judge candidates more closely or appellate court candidates less closely?
It's nice to hear that you regard the District Judge as occupying "the most powerful individual position in the entire federal judiciary" -- but that's only because you've inserted "individual" into that proposition. All of the things that Judge Wyzanski has said tend to demonstrate why, with that qualification, the proposition is an accurate one. And as I've suggested, for me one of the most satisfying (and at the same time most challenging) aspects of the job is that I have the sole responsibility for calling things as I see them, after what I hope has been full deliberation. In practical terms, moreover, the caseload numbers and the numbers of judges operating at the two levels are such that a Court of Appeals can't effectively monitor all of the things that a District Judge does, and that enhances (or certainly should enhance) the sense of responsibility that ought to weigh on the conscience of the District Judge with every decision.
As for any notion of increased scrutiny by the Senate, again the sheer logistics of the process get in the way of any realistic way to accomplish that. It seems to me as a practical matter that the system must depend, as it has traditionally, on the efforts of the sponsoring Senator or Senators to choose wisely. Though admittedly less than an ideal solution, I know of no better alternative.
11. What role should a federal judge's personal and political ideology play in deciding cases, and when if ever is it appropriate for a judge to decide how to rule based solely on his or her personal preference? Also, if some federal judges are going to decide cases based largely on personal preference, can U.S. Senators be faulted for assuming that every judgeship nominee might adopt that approach if confirmed?
Every judge -- indeed, every human being -- has attitudes and predilections that have been shaped by background, education, experience and all of the other things that enter into the human equation. My view of the difference between the "activist" judge and the "conservative" judge has always been that the former permits (or even intends) those predilections to drive the engine of his or her judicial opinions, while the latter is keenly aware of those predilections and makes a conscious effort -- by affirmative action, if you will -- to avoid having them shape the conclusions and results that he or she reaches. For me the first alternative, when practiced by a judge of any ideology, undercuts the very concept of justice. By contrast, the second type of effort, which I regard as a sort of judicial equivalent of the "dynamic tension" concept expounded by famed (or more accurately once-famed) bodybuilder Charles Atlas, provides the model that I try to follow. To be sure, I recognize that my view may be regarded as idealistic or perhaps even naive, but the suggestion that you pose at the end of your question strikes me as overly cynical -- as potentially feeding the demonstrated tendency of too many Senators to pursue their own predilections and biases in the process of confirming or rejecting judicial nominees.
12. What are your views on the judicial confirmation battles underway in the U.S. Senate, the use of filibusters, and the use of recess appointments to place filibustered nominees onto the federal appellate courts?
For me any President who views it as his or her function to load up the federal judiciary with ideologues of any stripe -- with activists in the sense described in my last answer (whichever end of the political spectrum they happen to occupy) -- poses an ultimate threat to the proper role of a truly independent judiciary in a government comprising three branches and predicated on a system of checks and balances. If the minority-party Senators in any administration perceive that to be taking place, I cannot fault them for using an established legislative practice -- the filibuster -- to block the confirmation of extremist candidates. Unfortunately, extremes tend to beget greater extremes, and the increased resort to filibusters as an essentially defensive or holding device has generated the use of recess appointments that in my view do violence to the Constitution's requirement that presidential appointments must be made with the advice and consent of the Senate.
13. How would you describe your judicial philosophy, and which judicial opinions that you have written stand out as your favorites?
My judicial philosophy is best expressed in terms of engaging in the exercise of dynamic tension as described in the answer to question 11, followed by reaching what my intellect tells me is the right result when arrived at via thorough analysis. As for my favorite opinions, you'll no doubt remember the exchange in Mel Brooks' 2000 Year Old Man in which Carl Reiner as the interrogator asks Brooks if he has any children, to which Brooks responds: "Two thousand, and not one calls me on my birthday!"
In a sense my opinions are my children, except that they number more than 6,000 retrievable on Westlaw (including those at the appellate level in addition to my far more numerous District Court opinions), with that number being increased by a third when nonretrievable opinions are taken into account. Singling out a few favorite trees from that vast forest is well nigh impossible, but two opinions that I do recall with fondness are my dissents in Shaw v. Dow Brands, Inc., 994 F.2d 364, 371 (7th Cir. 1993) and Brown v. Phillip Morris Inc., 250 F.3d 789, 806 (3d Cir. 2001).
Shaw dealt with what I considered the impropriety of treating a litigant's pro forma pleading admission that the requisite amount in controversy existed for removal purposes as conclusive in establishing the existence of diversity jurisdiction, even in the face of actual evidence to the contrary (after all, litigants cannot confer federal jurisdiction by waiver if it is really lacking). Since then the Tenth Circuit has expressly approved my Shaw dissent and disapproved the majority holding, while the Second Circuit has viewed the Shaw majority view with skepticism while specifically noting my dissent (though the court was not called on to speculate as to its ultimate position under the circumstances before it).
As for Brown, it addressed what I perceived to be the improper dismissal under Rule 12(b)(6) of a complaint by African-Americans under 42 U.S.C. secs. 1981 and 1982 that tobacco companies had engaged in racial targeting in the marketing of mentholated tobacco products while at the same time concealing the companies' knowledge of the far greater dangers that those products posed to smokers' health.
But having spoken of those two opinions, I freely acknowledge that if I had the time (or inclination) to go back to review the decisional output of more than two decades, I'd very likely substitute (or at least add) some other candidates for the "favorite" label.
14. What qualities do you look for in deciding whom to hire as a law clerk, and are there any sorts of candidates you wish were applying but haven't been? Also, I understand that you use an untraditional letter to send regrets to those applicants you have not chosen to hire. Please explain.
Because the self-selection process on the part of the many outstanding clerkship applicants carries the assurance of a universally high level of mental horsepower, I look for such things as a solid understanding of the English language and how to use it well, a good sense of humor and -- perhaps most important -- a really good human being. As I frequently say, I head up the equivalent of a three-lawyer law firm, one of much the same size as when I began at the bottom of a four-lawyer totem pole that made up the small firm that I joined after leaving law school 55 years ago. For that kind of relationship to be successful, it's essential to have people with whom you can work comfortably. So I rely heavily on faculty members whom I know well at a substantial number of law schools to give me their sense, or to learn from colleagues' views and then tell me, about the qualities of those applicants to whom I am giving serious consideration. Typically I winnow down the hundreds of applicants, all of whose materials I review personally, to no more than a half-dozen personal interviews, then choose two of those.
As for what you call an untraditional letter, I feel that the young people who take the trouble to apply deserve a personalized kind of response, so I try to frame my two types of letters -- one to those who appear to be in the special star category and to whom I'd therefore want to extend offers if I were a law firm's hiring partner, and the other to the rest of the applicants -- so as to convey my appreciation in a way that sounds sincere because it is.
15. You have expressed opposition to the proposed Federal Rule of Appellate Procedure that would allow litigants to cite to non-precedential opinions in all U.S. Courts of Appeals. But, with respect, some of the reasons that you offer are not persuasive. The proposed rule would not eliminate non-precedential opinions, and federal appellate courts would remain free to ignore non-precedential opinions if they so choose. Some of the federal appellate courts with which you have sat by designation -- the D.C., First, Third, and Tenth Circuits come readily to mind -- have decided to allow citation to non-precedential opinions without any untoward experiences, meaning that such opinions have not magically become precedential nor have they become more time-consuming to prepare. If you found a non–precedential Seventh Circuit opinion that your law clerk told you was directly on point to decide a question pending before you in the district court, would you refuse to take a look? And since such non-precedential opinions can as easily be found by federal district judges as any other legal researcher, why shouldn't the parties have a chance to discuss such rulings if they so choose?
As I write, the Judicial Conference's Advisory Committee on Appellate Rules has just voted for the adoption of proposed Fed. R. App. P. 32.1, which would abolish any restrictions on the citation of unpublished opinions and which in the most meaningful sense targets the concept of nonprecedential opinions. Although the enormous volume of comments received on the proposal (over 500 in number) demonstrate that there are cogent considerations on both sides of the debate, I tend to disfavor the real thrust of the change (though not its literal language) for both jurisprudential and practical reasons. For now I'll address just a couple of those.
But before I turn to those reasons, let me say that the form of the rule masks the true problem that it would generate. Mere citation as such obviously poses no concerns. After all, we regularly receive and consider citations from a wide range of sources: law review articles and (as, for example, in Brown v. Board of Education) social science works and input from other disciplines are only examples of those. So the rhetorical questions with which you conclude question 15 get easy affirmative answers. Instead I view the true difficulty as stemming from the goal sought to be accomplished by those who cite such opinions and what that in turn would presage for the preparation of the opinions themselves.
For me there is no better way to explain how legal precedent evolves than that contained in the late Edward Levi's small book titled Introduction to Legal Reasoning. That evolution rests heavily on being able to point to the similarities and dissimilarities between earlier cases and the one under consideration, a process that determines the direction in which legal concepts will be reshaped.
Having just completed a half-dozen nonprecedential opinions coming out of my sitting with the Third Circuit a month and a half ago (a rate of production that I could not possibly have managed, in addition to my other duties, if full precedential opinions had to be generated), I can tell you that such opinions frequently say little about the facts of the cases, because the audience for which we write -- the litigants themselves -- already knows them. That then enables the writing judge to devote just as much thought and care to analyzing the legal problems and writing about them as with precedential opinions, but with the expenditure of far less time -- a key consideration, given the high volume of cases with which Courts of Appeals must deal. Indeed, the writing is often bobtailed because less needs to be said to apprise the litigants of what the court is ruling and why. But the consequence of that different approach is to reduce materially the value and utility of nonprecedential opinions for the evolutionary development that I've described.
By contrast, if all opinions had to be written in the same manner as precedential opinions are prepared, the inevitable result would be a material reduction in their quality because of their sheer volume and the fact that judicial time is the scarcest resource in the justice system. And for me the other likely consequence -- that more opinions would then become the work product of law clerks rather than the Article III judges who sign them -- is both unthinkable and unacceptable.
16. Some appellate judges profess that the skills necessary to be a successful appellate advocate differ meaningfully from the skills needed to be a successful attorney in the trial court. In your experience as a judge, is this observation correct, and in what ways do the skills needed to excel in the trial court and on appeal differ or remain the same?
Because of the sharp decline in the number of trials in the federal District Courts, it really begs the question to speak of them as "trial courts." Instead I believe that in large part there is really no difference in the primary skills needed for success in the first two levels of the judicial system: keen analytical and language skills, together with the ability to convey effective legal analysis and argument in writing. And to the extent that oral (rather than written) effectiveness is involved, it is I think tautological to say that what will work well for examining and cross-examining witnesses, and for presenting matters to a jury, scarcely coincides with what will work in oral argument before a panel of judges.
17. The U.S. District Court for the Northern District of Illinois currently has two of the youngest federal district judges in the Nation. Both are comfortably below the age of 40. Is there some minimum age or level of experience that you believe it is necessary to attain before one can successfully serve as a U.S. District Court Judge or a U.S. Court of Appeals Judge?
My two newest colleagues, each of them extraordinarily able, fit the description in your question. By definition each has had far less experience than I did when I came to the court after 30 years as a true generalist -- not a trial lawyer -- in the private practice of law. But what you must realize is that no one comes to the District Court bench fully equipped to fill that role -- all of us have gaps of varying depths and widths to fill. What are therefore most important, as long as a new judge has the requisite intelligence and the other qualities that I've mentioned earlier, are the willingness and ability to fill those gaps through hard work and experience acquired on the job. That formulation, rather than the adoption of any bright line rules, seems to me to hold the key to success as a District Judge.
Ironically, in many ways the young judge is better suited to the appellate bench than to the District Court bench, in the sense that all of us have been accustomed to dealing with appellate opinions from our first days in law school. But in candor, I fear that the problem there lies in the fact that experience on the appellate bench never fills in the gaps with which the newly minted judge always comes burdened.
18. The Seventh Circuit has a rather unusual local rule whereby if a case on appeal is sent back for a new trial, the case is automatically reassigned to another U.S. District Judge. What, to the best of your understanding, is the rationale for that rule, does the rule make sense in your view, and why haven’t more federal appellate courts adopted such a rule?
It should first be made clear that Circuit Rule 36 in the Seventh Circuit calls for automatic reassignment only when reversal follows a full trial, not when a remand is ordered after a review and reversal of any other District Court order (as, for example, the grant of summary judgment). My guess, and it is only a guess, is that the rule stems from a concern that the trial judge might have a subliminal tendency to reinforce his or her earlier disposition of a case (for example, in the course of evidentiary rulings) in the handling of the second trial. At least I would hate to think that the rule stems from any distrust of what the District Judge might do other than by way of such unintended subliminal influence.
To the extent that your question amounts to asking whether I would vote for the adoption of such a rule if I were part of the rulemaking process, my answer would be "no" because I have greater confidence in a judge's ability to separate the past from the present. Indeed, it would strike me that any perceived concerns in this area would be more logically applied to situations in which, for example, the District Judge has previously granted summary judgment but the case must now be tried because the grant was erroneous.
19. You have received federal appellate court rulings that reverse your decisions as a trial judge, and you have written and joined in federal appellate court rulings that reverse the decisions of other trial judges. How can trial judges avoid taking it personally when their decisions are reversed or vacated? Does it make a difference how respected the federal appellate judge is who issued the ruling? And does a trial judge's reputation play any factor in an appellate court's review of a decision that has been appealed?
When I first joined our court, one of my colleagues was the late Joseph Sam Perry, who had been a merchant seaman during World War I and who came to law school, and thus began his legal career, quite late in life -- so that I thought of him as awfully old when I took the bench (though my perspective now, viewed through the lens of my own advanced years, would no doubt be different). Sam frequently said that he had never made a mistake as a judge, although he'd often been reversed.
For the most part I suspect that we District Judges take reversals personally only in the sense that we are often unconvinced by such reversals for any of a number of reasons, although there are of course other situations in which we may nod in agreement when reading a Court of Appeals opinion that reverses us. In the limited sense that I've described, it doesn't strike me as at all necessary for us to avoid that natural reaction.
As for the next part of your question, of course one's view of the quality of the author of a reversal affects which of the two reactions that I've just described takes place. And as to the last question you pose, my experience with Courts of Appeals elsewhere has been that the other judges on the panel will frequently express their views as to the degree of reliability they attach to particular judges whose work product they have been reviewing over the years -- and to that extent I believe that the review process may indeed be impacted by that sense of general reliability (or perhaps its absence).
20. What do you do for enjoyment and/or relaxation in your spare time?
For one thing, I'm a certifiable sports nut across a wide range of spectator sports (my last active sports participation ended when I gave up golf several years ago because the slow play tended to kill too much of the day on both Saturday and Sunday, though I stopped just when I was playing my best golf ever, having brought my weekend player's handicap down into single digits for the first time). Classic music (listening, not playing) has been an important part of my life ever since childhood, and I remain a life trustee of the Ravinia Festival Association after having been on its Board of Trustees for many years, culminating in its Vice-Presidency (of course I had to decline consideration for the Presidency because of the prohibition against participating in fundraising activities that applies to federal judges). Reading, both fiction and nonfiction, continues to occupy me a great deal, even though in a sense that's a busman's holiday from the great amount of reading that I must do in my judicial capacity. Most important, though, is the time that I spend with my wife and family -- children, grandchildren and now two great-grandchildren.
Sunday, April 18, 2004
"Judges: No relief for dogs at U.S. courthouse; Federal order warns against letting pets do their business on the grass."This article appeared Friday in The Austin American-Statesman.
"A Daughter Discovers What Really Happened: At last, the Internet reveals how Al Palya died; Why had it been kept secret? Because the government wanted the legal right to be more secretive."This article will appear Monday in The Los Angeles Times. Part one of this two-part series, published in today's newspaper, can be accessed here.
Tonight's music selection: "Downfall" by Trust*Co (available for Real Player and Windows Media Player video and audio only).
"'Just a good man to the core'; Colleagues, friends discuss the amazing career that made Judge Matthew Perry a 'hero'":This article appears today in The State.
"Death sentences by judges: Should they be thrown out? The Supreme Court will consider whether a 2002 death-penalty ruling should be applied retroactively." Warren Richey will have this article in Monday's issue of The Christian Science Monitor.
"Blessed and blind, and before the bar; A formidable courtroom contender, Ontario's Bill Van Atta embraces life with faith and a creed dedicated to family, career and community":This article appears today in The Oregonian.
"Generation Ambivalent: On the eve of the biggest abortion-rights march in a decade, organizers try to attract a younger crowd." The April 26, 2004 issue of Newsweek will contain this article.
"Ex-Staffers Sue Salvation Army over Religious Bias": Yesterday evening's broadcast of NPR's "All Things Considered" contained this report (Real Player required).
"How the Death of Judy's Father Made America More Secretive: A plane crashes at the dawn of the Cold War, and the government seeks a special legal privilege; Its claim sows the seeds of the Patriot Act."This very lengthy article appears today in The Los Angeles Times. The LA Times indicates that it will publish a second article on this topic tomorrow.
"Confessions of a copyright warrior; The Bono factor: Is a dead musician's legacy interfering with free speech?"This essay by David Kipen, book critic for The San Francisco Chronicle, appears today in that newspaper.
"High court to decide fate of refugee; Daniel Benitez, a Mariel refugee in indefinite detention, wants the U.S. Supreme Court to order his release":The Miami Herald today contains this report.
"Court clears justice of wrongdoing; Outcome of mobile-home case supposed to be faxed":The News Journal of Wilmington, Delaware today contains this article.
"Driver's parents risk jail for silence; A judge sends Jennifer Porter's parents home to think over their refusal to answer questions about a hit-and-run, saying he could hold them in contempt of court":The St. Petersburg Times today contains an article that begins, "The parents of a young woman implicated in a hit-and-run accident that killed two children told a judge Friday they would rather go to jail than answer questions about their daughter's role in the collision." And The Tampa Tribune today reports that "Driver's Parents Refuse To Aid Hit-And-Run Probe."
"Unusual jurors glad they did their duty; Judge, hearing-impaired woman avoid making excuses, though they could have":This article appears today in The Ann Arbor News.
"Minor, Diaz ask federal judge to dismiss judicial bribery charges":The Associated Press provides this report from Mississippi.
"Anti-affirmative action campaign in jeopardy":The Detroit Free Press today contains an article that begins, "Plagued by legal challenges, money woes and organizational dysfunction, the campaign to ask Michigan voters to end race and gender preferences in the November election is close to collapse."
"Louisiana Scrambles to Improve Public Defender's Office": Tonight's broadcast of NPR's "All Things Considered" contained this report (Real Player required).
"Supreme Court to examine Bush's policies on the war on terror": Stephen Henderson of Knight Ridder Newspapers has this report.
En banc Fifth Circuit resolves whether restitution and forfeiture orders abate where a criminal defendant dies while his appeal is pending: You can access today's 9-6 ruling at this link.
Tonight's music selection: "Megalomaniac" by Incubus (available for Real Player and Windows Media Player video and audio only).
Plaintiffs appeal from the district court’s order dismissing their complaint on statute-of-limitations grounds. We affirm.
FACTS
Plaintiffs are residents of the Village of Son My, Quang Ngai Province, in the Republic of Vietnam. They bring this action on their behalf and as representatives of deceased victims and survivors of the My Lai Massacre. The My Lai Massacre occurred on March 16, 1968, during the Vietnam War, when members of the United States military allegedly committed atrocities, including murder, against civilian residents of the village of Son My (My Lai).
Plaintiffs filed this suit over thirty-two years after the fact, on October 12, 2000. They named a Utah defendant, Private Michael B. Terry, and several other American soldiers who allegedly committed violations of the Law of War. On September 23, 2002, the district court entered an order dismissing the entire action, with prejudice, on statute-of-limitations grounds.
You can access today's complete decision at this link.
"'one nation under God'; Pledge's words continue to divide":This article appears today in The Express-Times of Easton, Pa.
Mattel wins Barbie-related appeal in the U.S. Court of Appeals for the Second Circuit: In the case decided today, Mattel alleged that Radio City Entertainment infringed Mattel's copyright in Barbie by creating a "Rockettes 2000" doll. The trial court tossed the case on summary judgment, but today's decision reinstates the lawsuit for trial. You can access today's ruling at this link.
Coming soon: At midnight on Monday, April 19, 2004, I will post online here the long-awaited April 2004 installment of "20 questions for the appellate judge."
Access online the U.S. Supreme Court's Hearing List for April 2004: The list is available here. The oral argument session starts on Monday, April 19, 2004.
"Challenge of a Fair Trial for White Supremacist": Today's broadcast of NPR's "Day to Day" includes this report (Real Player required). The report contains commentary from "Law Professor" Dahlia Lithwick. NPR warns that "This segment includes racial language that may be offensive to some listeners."
"Judicial Confirmation Symposium": JURIST has posted online a series of essays addressing the federal judicial confirmation process. Among the authors are Jack Balkin, Judith Resnick, Stephen Presser, and Michael Gerhardt. You can access the symposium at this link.
"Michigan restricts how autopsy photos can be used; But the new limits are challenged as unclear":This article appears today in The Detroit Free Press.
"Flogging the Blogger: Howard Bashman Finds His Site Is Very Appealing to Parodist." Jason Krause, who had this profile of several law bloggers in the March 2003 issue of ABA Journal, today has this article in the ABA Journal eReport. One correction of the current article is in order -- I won't be blogging "full time" for Legal Affairs; rather, I'll continue to practice law full time and, as in the past, blog whenever the muse strikes and time permits.
"O Scalia, my Scalia":United Press International today has posted online this essay by Michael Kirkland, UPI's senior legal affairs correspondent.
"Court rule change on citations moves forward; Federal advisory committee votes to let lawyers point to unpublished appellate opinions": Yesterday's edition of The Oakland Tribune contained this article. The article quotes Ninth Circuit Judge Alex Kozinski as having stated on Wednesday, "There are more steps in the process and I'm quite confident this rule is not going to be enacted." Or, in the words of Monty Python's Black Knight, this week's vote was "just a flesh wound."
Chief Justice Thurgood Marshall: In response to this article published yesterday in The Harvard University Gazette, a reader emails, "Shouldn't people at Harvard know that he was not Chief Justice?" Update: The good folks at Harvard have corrected their error.
"Ex-attorney general speaks at Tulane; Meese blasts blocking of Bush nominees":The Times-Picayune today contains this report.
"State high court to review online speech case; Judges will decide if re-posting defamatory words is illegal":This article appears today in The Oakland Tribune.
"9th Circuit appears loath to intervene in tax case":The Las Vegas Review-Journal today contains an article that begins, "A federal appeals court seemed disinclined Thursday to intervene in a controversial Nevada Supreme Court tax ruling." That newspaper today also contains a related editorial entitled "Agosti won't run."
"Agosti will not run for second term": Yesterday, The Las Vegas Sun posted online an article that begins, "Justice Deborah Agosti, who wrote the controversial opinion permitting a tax increase without a constitutional two-thirds vote by the Legislature, said this morning she would not run for a second term on the Nevada Supreme Court."
I respectfully dissent and agree with Judges Jones and Barksdale that the defendant law enforcement officers are entitled to qualified immunity and should be released from personal liability. It seems disingenuous to hold that the law is clearly established when it takes 20,467 words to explain, and when six United States Court of Appeals judges sharply disagree about it. To my way of reasoning, the majority has turned the words, and the doctrine, of "clearly established" on its head when it denies immunity in this novel case.
You can access the original three-judge panel opinion at this link. It is interesting to note that the author of today's majority opinion, Chief Judge Carolyn Dineen King, also wrote the panel decision, and one of today's dissenters, Circuit Judge Rhesa Hawkins Barksdale, was on the three-judge panel and joined in that earlier opinion.
Philadelphia Phillies 6, Cincinnati Reds 4: I had the pleasure of seeing my hometown Philadelphia Phillies win their first victory ever in their new ballpark this afternoon. After six and a half innings they were down 4-0, but they rebounded for two runs in the bottom of the seventh inning and tacked on four more runs in the bottom of the eighth. Then the Phillies called on closer Billy Wagner to do what he was brought to town to do, and he did, causing pinch hitter Barry Larkin to hit the ball on the ground into a game-ending double play. ESPN.com provides this recap of the game and this boxscore.
Thanks to all the readers who emailed along suggested questions for May 2004's "20 questions for the appellate judge" interviewee. Also, while I was out at least one additional appellate judge has expressed an interest in participating in the "20 questions" feature. And perhaps best of all, today I received via email the answers from this month's interviewee, and on a quick glance they appear to be very interesting and informative. This month's interview will appear online here at midnight on Monday, April 19, 2004. Stay tuned for a return to regular programming soon.
Update: I should also mention that today is Major League Baseball's first annual Jackie Robinson Day. You can watch at this link (Windows Media Player required) the video tribute that I saw earlier today.
I'm also looking to acquire "20 questions" interviewees for July and August 2004. Here is how this works: I forward the questions in writing via email in the middle of the month before the interview is published, and the interviewee returns his or her answers to me in writing via email on the Friday before the first Monday of the month in which the interview is to appear. The interview is then published at midnight on the first Monday of that month. Volunteers for these months will, of course, have their interviews appear at this blog's upcoming new location, at the Web site of Legal Affairs magazine. To volunteer, simply contact me via email, and specify which month works better for you. Interview slots are filled on a first-come, first-served basis. After these two vacancies are filled, the next available month is November 2004, so if I receive more than two volunteers, I'll be back in touch to offer one of the vacancies further into the future. As before, should there come a month for which no one volunteers to be the interviewee, this blog's very popular "20 questions for the appellate judge" will finally have come to an end.
Taxing and spending: It's turning out to be a gorgeous day weather-wise here in the Philadelphia area, where we haven't seen the sun in quite some time. I'm just back from the Post Office, where I dispatched my 2003 tax returns and 2004 first quarter estimated tax payments. Unlike at Buchanan Ingersoll, where even shareholders are "employees" who have taxes withheld over twenty-four pay periods throughout the year, being on my own requires that I pay my 2004 estimated tax obligation in just four installments throughout the year. And each of those installments seems especially huge, but the only other lawful alternative -- to not have a thriving appellate practice -- is a far less attractive proposition.
In much happier news, I'm about to depart the office to attend this afternoon's Philadelphia Phillies game at brand new Citizens Bank Park. Today is only the second regular season game to be played there and the first "Business Person's Special." I'm especially fortunate to have a seat in section 123, which is just behind home plate. You can see the views from throughout the stadium via this link.
I'll of course be back later today to update this day's newsworthy law-related developments.
"State Supreme Court: Agosti won't seek re-election; Justice authored controversial decision on taxes."The Las Vegas Review-Journal today contains this article, which explains that "Last year, Agosti was the author of a controversial Supreme Court decision that found legislators could raise taxes without the support of two-thirds of the members of each chamber." The article also states that "A source said Agosti will attribute her decision to health problems."
"The Interrogator": The CBS News program "60 Minutes II" has interviewed an interrogator who worked for the U.S. military at Guantanamo Bay, Cuba. Read all about it here.
"Clarence Thomas to speak at Ave Maria law commencement": The AP offers this news from Michigan.
"Calif. Supreme Court Weighs Gay Marriages": David Kravets of The Associated Press reports here that "The California Supreme Court indicated Wednesday it's mulling how to treat the 4,000 couples who were wed before last month's halt to the same-sex marriage spree in San Francisco."
"Defendant shot in courtroom fracas":The Philadelphia Inquirer today contains an article that begins, "A city deputy sheriff shot and critically wounded a defendant yesterday in the Criminal Justice Center after the man tried to attack the judge during a sentencing procedure."
What liberal law school student body? A reader connected to Yale Law School emails:
I write to you in your capacity as the foremost chronicler of the Supreme Court Bobble Head dolls. This evening at the Yale Law School, an auction on behalf of the Initiative for Public Interest Law had two relevant offerings: a Justice Stevens and a Chief Justice Rehnquist model. I can report that Justice Stevens went for $175, and the Chief Justice fetched $255.
Perhaps not the result one would expect at a public interest law auction. You can learn more at this link about the Initiative for Public Interest Law at Yale.
Do readers of "How Appealing" know more about Kansas City barbecue or the Supreme Court of Missouri? Before work took me to Kansas City, Missouri in January 2003, a multitude of this blog's readers kindly answered my call for barbecue restaurant recommendations in the Kansas City, Missouri region (see here and here).
This Friday, I will be forwarding a series of written questions to Judge Richard B. Teitelman of the Supreme Court of Missouri, who has agreed to be the May 2004 participant in this blog's "20 questions for the appellate judge" feature. I would welcome emails from readers who wish to suggest questions for Judge Teitelman. To initiate an email, simply click here.
"Good advice: The law and love don't always mix well." "Get a room," The Daily Press of Hampton Roads, Virginia advises in an editorial published today.
As I previously noted here, Florida voters in November 2002 amended that State's constitution to reduce the minimum eligibility age for the death penalty from seventeen to sixteen. The U.S. Supreme Court, in January 2004, agreed to decide whether the death penalty may be imposed for crimes committed before the offender reached eighteen years of age.
Seventh Circuit Judge Richard A. Posner examines the concept of gesture-free assault: You can access today's ruling -- in which Judge Posner explains that "Fact is often stranger than fiction because most writers of fiction try to make their stories plausible" -- at this link.
BREAKING NEWS -- The Advisory Committee on Appellate Rules of the U.S. Courts approves proposed Federal Rule of Appellate Procedure 32.1, which would allow unpublished and non-precedential opinions to be cited to all U.S. Courts of Appeals: The Advisory Committee voted 7-2 in favor of the proposal, and I am advised by attendees at the meeting that Senior Third Circuit Judge Edward R. Becker yesterday provided especially persuasive testimony in support of the rule. There remain several steps in the approval process before the proposed rule will be allowed to take effect, but this decisive margin of approval speaks volumes about what good sense the proposed rule indeed makes.
Update: This post has been updated to reflect that two members of the Advisory Committee voted against the proposed rule. Apparently the second of those votes was cast by a member of the Advisory Committee who was not physically present at the meeting.
"Patently Obvious": If you've been looking for a patent law blog with images, you may enjoy this one.
"Larry Flynt and Online Porn Crackdown": Today's broadcast of NPR's "Day to Day" included this report (Real Player required).
Does a finding of liability under Rule 10b-5 in a private securities case require an award of damages? A unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit decided this question of first impression today and delivered bad news for the purportedly prevailing plaintiff.
In today's issue of The Hattiesburg American: An article headlined "Teacher says he warned media; 3 organizations say they never heard restriction" begins, "A Presbyterian Christian High School teacher said Tuesday he told members of the media covering a speech by U.S. Supreme Court Justice Antonin Scalia that they wouldn't be allowed to tape the event. But members of three news organizations at Scalia's speech said Tuesday they don't recall government teacher Jason Meaux's warning, which he says was made in a section of a gymnasium set aside for the media." In related coverage, "Scalia issues written apology." And an editorial is entitled "Scalia issues apology for tape seizure."
"Ohio high court: Release settlement in case of girl killed by puck."The Associated Press reports here that "A judge must release details of a financial settlement awarded to the mother of a girl who died after being hit by a puck at a professional hockey game, the Ohio Supreme Court ruled today." You can access today's ruling of the Supreme Court of Ohio at this link (Microsoft Word document).
"Lawmakers sting atheist with rejection":The Montgomery Advertiser today contains an article that begins, "Two Alabama lawmakers are in hot water with an atheist organization, which claims the legislators denied the group equal treatment by refusing to sponsor a 'rainy day' location for its planned rally at the Capitol just because its members don't believe in God." Such treatment likely would have been far less objectionable had it been directed toward a group that does not believe in rain.
"Appeals Court: Church music director not protected under human rights act."The Associated Press provides this report from Minnesota. You can access yesterday's ruling of the Minnesota Court of Appeals at this link. According to the opinion's syllabus, "A music director is a part of the church’s religious staff, and the Minnesota Human Rights Act does not protect such staff against discrimination and retaliation by the church as an employer if the discrimination and retaliation is based on the employee's sexual orientation."
"Prospective jurors get a message":The Raleigh News & Observer today contains an article that begins, "When close to half of the 83 prospective jurors failed to report for duty Tuesday at the Durham County courthouse, Judge Abraham Jones had a solution: Order the no-shows to come in and explain themselves."
Who says the judges on the U.S. Court of Appeals for the Sixth Circuit don't agree on much: Today the Sixth Circuit issued its en banc ruling in a case that, according to the lead opinion, "addresses the meaning of 'adverse employment action' for purposes of Title VII." A total of thirteen judges participated in the decision, and the opinion contains the following line-up of how those judges voted:
GIBBONS, J., announced the judgment and majority opinion of the en banc court on all issues. The entire en banc court joined Parts I (Background) and III (Attorney’s Fees) of the majority opinion. Part II (Adverse Employment Action) of the majority opinion was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, GILMAN, ROGERS, SUTTON, and COOK, JJ., and Part IV (Punitive Damages) was joined by MARTIN, DAUGHTREY, MOORE, COLE, CLAY, GILMAN, and COOK, JJ. CLAY, J. (pp. 36-51), filed a separate concurring opinion joining Parts I, III, and IV of the majority opinion and writing separately as to Parts II and V, in which he was joined by MARTIN, DAUGHTREY, MOORE, and COLE, JJ. SUTTON, J. (pp. 52-85), filed an opinion concurring in Parts I - III and dissenting from Parts IV and V, in which he was joined by BOGGS, C. J., and KRUPANSKY, BATCHELDER, and ROGERS, JJ.
You can access today's decision at this link. I haven't yet had the chance to see whether today's opinions -- like some other recent en banc decisions that the Sixth Circuit has issued -- contain any exchanges of injudicious accusations among the judges.
"Jury chosen as terrorism trial opens; Potential jurors asked about Islam, technology":The Idaho Statesman today contains an article that begins, "It took most of a day but 14 people are positioned to judge whether former University of Idaho grad student Sami Al-Hussayen supported terrorists like Osama bin Laden."
"Law exceeds city's power, lawyer says; He told the Pa. high court that Phila.'s same-sex benefits are an illegal attempt to redefine marriage":This article appears today in The Philadelphia Inquirer.
"Slate's Jurisprudence: Update on Sept. 11 Lawsuits." Today's broadcast of NPR's "Day to Day" included this interview (Real Player required) with Dahlia Lithwick.
"Panel obeys race case ruling; Canvassers rescind approval of racial preference petitions; appeal is pending":The Detroit News reports here today that "The state elections board on Monday rescinded its approval of the petition seeking a constitutional ban on the use of racial preferences in university admissions and state hiring."
"Mother challenges school over plaque":An article published today in The Kansas City Star begins, "For six years, no one paid much notice to a Ten Commandments plaque on the wall of the Humansville school cafeteria, where students from grades one through 12 dine. But when the mother of an 11th-grader filed a federal lawsuit to have it permanently removed, the plaque grabbed the attention of students, parents, lawyers and the community."
"Many gay couples partners in love, but not in benefits; Battles loom over rights regarding health, adoption":The Detroit Free Press today contains this report.
"Supreme Court justice shares memories, motivations":The Oklahoman contains this report on Justice Sandra Day O'Connor's visit yesterday to Oklahoma City University.
"Court blocks execution of Texan with low IQ":The Associated Press reports here that "A former roofer won a reprieve from a federal appeals court today hours before his execution, based on an appeal that contends the convicted murderer is mentally retarded, making him legally ineligible to be put to death."
Today in the Supreme Court of Pennsylvania: I had the pleasure of spending today viewing oral arguments before the Supreme Court of Pennsylvania. In addition to the case that caused me to be present, there were two other quite interesting cases argued.
In the other, the question presented was whether an attorney's act of providing a member of the press with a document that the attorney filed in court is covered by the same absolute privilege against liability for defamation that applies to the filing of papers with a court in the course of litigation. In other words, if a lawyer files a brief in court that contains defamatory comments about a third-party, the third-party cannot sue the lawyer for the act of filing the brief in court. The question that this case presents is whether, if a newspaper reporter asks the lawyer to email a copy of the brief to save the reporter the effort involved in traveling to the courthouse to review the brief as filed, and the lawyer then provides the reporter with a copy, can the lawyer be liable to the defamed party even though the lawyer would have faced no liability had the reporter reviewed the brief in the casefile at the courthouse. In the Internet age, this raises even more interesting questions than before. Today many courts themselves post online briefs that lawyers have filed -- take, for example, the U.S. Courts of Appeals for the Seventh and Eighth Circuits. Would it make sense to allow a lawyer to face liability for defamation for posting a brief he has filed in the Seventh Circuit online at his law firm's Web site when the same brief is accessible to all from the Seventh Circuit's Web site, and the lawyer would face no defamation liability if the brief were exclusively accessed directly from the court?
The case that I was present for was the final case argued today, and the oral argument did not conclude until after 3:30 p.m. As a result, I was unable to get to Washington, DC this afternoon to report on today's meeting of Advisory Committee on Appellate Rules of the U.S. Courts.
U.S. Court of Appeals for the Fifth Circuit rejects state law claim that Delta Air Lines should provide passengers with more leg room: You can access today's ruling at this link. The decision makes clear that passengers who get hit on the head by bottles of rum falling from an overhead storage bin can still assert a viable state law claim.
The trademark "freebies" turns out not to have been worth anything:This decision, which a unanimous three-judge panel of the U.S. Court of Appeals for the Fourth Circuit issued today, demonstrates that when it comes to "freebies," you sometimes don't get what you pay for.
One week from today, "How Appealing" will be published at a new address: I am overjoyed to announce that beginning on Tuesday, April 20, 2004, "How Appealing" will be hosted at the Web site of Legal Affairs magazine. All content published here before that date will remain accessible here, so if you have ever linked to "How Appealing," those links will continue to function. Early on the morning of April 20th, I will post at the top of this page this blog's new address.
Why move "How Appealing" to the Web site of one of this Nation's truly outstanding law-related magazines? As readers know, I have been looking for a more reliable Web host. Legal Affairs is written and produced by top-notch journalists whose work I greatly respect, and they have the same level of respect for this Web log. As for specifics, "How Appealing" will retain its title, I will remain this site's sole author, and my postings will continued to appear whenever and however I choose with no advance review from anyone. I will also be receiving a payment for hosting rights and will be listed as "contributing editor" on the publication's masthead, in print and online. But the best news for you, the reader, is that this site will remain accessible free of charge and will be more reliably available than it has ever been.
Those who wish to learn more about Legal Affairs magazine can do so at this link. Access to the current issue is available here and access to earlier issues is available here. And best of all, both Legal Affairs and "How Appealing" will be turning two years old in May 2004, allowing us to celebrate our snarky toddler years together. If any readers have questions that I have not addressed here, please feel free to ask them via email.
On today's agenda: Work will have me out of the office, and away from the computer, for this morning and perhaps part of this afternoon. I will be at the Philadelphia courtroom of the Supreme Court of Pennsylvania in connection with the oral argument of this case. You can learn a bit more about the case in this post from last month.
The case is listed as the sixth of seven cases to be orally argued today, which may mean that the case will not even be heard until this afternoon. If the case is called for oral argument after lunch, it will be impossible for me to be present for any part of today's meeting in Washington, DC of the Advisory Committee on Appellate Rules of the U.S. Courts. I have previewed that meeting in posts you can access here, here, here, and here. The good news, however, is that several "How Appealing" readers will be present for all of the meeting, and if I am unable to attend I should still be able to report second-hand on what transpires there today.
"Ex-Kennedy staffer faces ethics case":The Washington Times today contains an article that begins, "A conservative watchdog group plans to file a formal ethics complaint today against a former Judiciary Committee staffer to Sen. Edward M. Kennedy, arguing that the lawyer tried to influence a landmark affirmative action case in which she had participated." And The Wheeling News-Register today contains an editorial entitled "Liberals Go Too Far On Judicial Process."
"The Law That Dare Not Speak Its Name":My appellate column for April 2004, published today in The Legal Intelligencer, addresses what the Advisory Committee on Appellate Rules of the U.S. Courts should do in response to the record number of comments received in opposition to proposed Federal Rule of Appellate Procedure 32.1, which would allow unpublished and non-precedential opinions to be cited to all U.S. Courts of Appeals.
BREAKING NEWS -- "Justice Scalia apologizes to reporters for marshal's interference during speech":The Reporters Committee for Freedom of the Press has issued this press release. You can access a copy of Justice Antonin Scalia's letter to the organization at this link. (Thanks much to the reader who emailed to draw this news to my attention.)
U.S. Court of Appeals for the Fourth Circuit announces ruling in Denny's, Inc. v. Cake: For those concerned that the Denny's restaurant chain was at risk of unduly limiting its dessert offerings, I'm pleased to report that today's case actually involves whether ERISA preempts a claim by officials in California that the restaurant's vacation pay practices violate California's labor law. You can access today's decision at this link.
Maryland's highest court teaches University of Maryland students an expensive lesson on sovereign immunity: Today the Court of Appeals of Maryland, that State's highest court, ruled 5-2 that sovereign immunity prohibited University of Maryland students from suing over a mid-year tuition increase even if that increase constituted a breach of contract between the university system and the students. You can access today's ruling at this link.
Access online summaries of the comments received on all of the proposed pending amendments to the Federal Rules of Appellate Procedure: The Advisory Committee on Appellate Rules of the U.S. Courts is scheduled to meet tomorrow in Washington, DC to consider the public comments received on the proposed amendments published in August 2003 and to consider whether to advance the amendments to the next step in the approval process. I have previously linked here and here to drafts of a summary and recommendation prepared by Law Professor Patrick J. Schiltz, the reporter for the Advisory Committee on Appellate Rules, focusing on two of the more controversial proposed amendments.
Curiously, no one had this tape recording erased: On March 1, 2004, Justice Stephen G. Breyer celebrated what would have been the 100th birthday of Theodor Geisel by reading to children at the library of the U.S. Supreme Court building from the book "Marshall, the Courthouse Mouse: A Tail of the U.S. Supreme Court." You can see Justice Breyer bedecked in both a Cat in the Hat hat and a Cat in the Hat tie on a recent broadcast of C-SPAN's "America & the Court." Simply click here and then advance 34 minutes into the broadcast to see the segment (Real Player required). This is not the first year that Justice Breyer has donned the Cat in the Hat hat, as this photograph from 2003 confirms.
View online archived video of last week's Senate Judiciary Committee subcommittee hearing on whether to split the U.S. Court of Appeals for the Ninth Circuit: Via C-SPAN, you can access here (Real Player required) streaming video of all of last week's hearing. This video will be available online for only ten more days. The entire broadcast lasts three hours and seven minutes.
"Plan may boost black role on VU law journals":The Tennessean reports here today that "African-American law students at Vanderbilt University could be better represented on the staffs of the Law School's three student-run journals under a plan faculty members are expected to finish debating today"
A captive source of labor: Today a three-judge panel of the U.S. Court of Appeals for the Sixth Circuit issued an opinion (PDF format here; HTML format here) that begins, "This appeal draws the court into the longstanding conflict between the government’s policy of employing federal inmates in the manufacture of goods and the challenges faced by the private industries compelled to compete with inmate-produced wares." Later, the opinion notes that "the issues raised in this appeal are matters of first impression among the courts of appeals." District Judge Peter C. Economus, sitting by designation from the U.S. District Court for the Northern District of Ohio, wrote the opinion, in which Circuit Judge Ronald Lee Gilman joined. Circuit Judge Julia Smith Gibbons concurred only in the judgment but did not issue a separate opinion.
"Federal court to consider Nevada Constitution question":The Las Vegas Review-Journal today contains an article that begins, "A federal court will hear arguments Thursday stemming from the controversial Nevada Supreme Court ruling that sought to remedy last year's legislative budget stalemate by setting aside a state constitutional amendment. A panel of the 9th U.S. Circuit Court of Appeals, meeting at the Stanford University Law School, will consider whether the U.S. District Court erred in dismissing the case brought July 14 by 24 Republican lawmakers and others after the 6-1 state Supreme Court ruling."
"U.S. military opens doors, sheds light on Cuba camp; The U.S. military is allowing more media access to the prison for terrorism suspects at Guantanamo Bay, Cuba":This article appears today in The Miami Herald.
"Pennsylvania's Family Feud; Republican moderate Arlen Specter is running for his political life": The April 19, 2004 issue of U.S. News & World Report will contain this article.
"The 9/11 Commission: Justice's Blind Spot; And you thought the Clarke-Rice smackdown was heated; Wait till the folks from the FBI and Justice talk terror under oath."This article will appear in the April 19, 2004 issue of Newsweek.
"'Jane Doe' who sued police is a judge; Detroit paid $85,000 to settle suit alleging mistreatment by cops":This article appeared Friday in The Detroit News.
"Court Reinstates Vietnam-Era Confession":The Associated Press reports here that "A confession thrown out by a lower court can be used against a former Navy seaman charged with killing a shipmate during the Vietnam War, a federal appeals court ruled." I first reported the news in a post you can access here.
"Bush gets tough on porn in the USA; With an election looming, the government is cracking down on the thriving adult market":This article appears today in The Observer (UK).
"Agency chief didn't disclose marital ties; Accused director did good job, board head says": Today's issue of The Dayton Daily News contains this report. I recently linked here to news reports concerning this agency chief's resignation.
Stuart Buck on unpublished opinions: You can access his thoughtful comments here.
"Abortion trial focuses on method's safety; Witness who supports ban calls it dangerous; opponent says it is often best option": Bob Egelko has this article today in The San Francisco Chronicle.
"Disabilities act creates obstruction of justices; Making courtrooms accessible for all proves to be a lot harder than some might imagine":The Chicago Tribune today contains this article.
"Some cry foul over language-ban bill; Ose's legislation against airing some words draws attention and response":This article appears today in The Sacramento Bee. You can access the proposed legislation, currently pending in the U.S. Congress, at this link.
"United States Supreme Court Justice Sandra Day O'Connor to Give Lecture and be Awarded Honorary Doctor of Laws by Oklahoma City University as Part of OCU's Centennial Celebration":The Oklahoma City University School of Law has issued a news release that begins, "Sandra Day O'Connor, Associate Justice of the United States Supreme Court, will give a public address and receive an honorary doctorate from Oklahoma City University at 4:00 p.m., Monday, April 12 at an academic convocation in the Kirkpatrick Auditorium on the OCU campus."
