Howard J. Bashman's appellate columns, etc.

An archive of Howard J. Bashman's monthly columns about appellate litigation, with other of his writings thrown in for good measure

Monday, January 14, 2008

Don't Raise Too Many Issues on Appeal in Bad Faith

By Howard J. Bashman
Monday, January 14, 2008

As anticipated, the Supreme Court of Pennsylvania ended 2007 by issuing a plethora of opinions. This occurred because three of that court's justices were leaving, to be replaced by two newly elected justices and one vacancy that Pennsylvania's governor and General Assembly must combine to fill until the next judicial election occurs nearly two years from now.

Among the very many Supreme Court opinions that issued in the final days of 2007 was the much-anticipated decision in Eiser v. Brown & Williamson Tobacco Corp. In order to understand why that decision is of consequence to the practice of appellate litigation in Pennsylvania, some background is required.

When a decision is appealed from a Pennsylvania state trial court to one of Pennsylvania's intermediate state appellate courts, Pennsylvania Rule of Appellate Procedure 1925 requires the trial judge to issue an opinion explaining the basis for his or her ruling if no such explanation yet exists in the record. Rule 1925 permits the trial judge to direct counsel for the party taking the appeal to identify for the trial judge's benefit, in drafting a post-appeal opinion, the issues that the appellant intends to raise on appeal.

The rule, unfortunately, often places counsel for the appellant in a conundrum. Counsel for appellant is required to tell the trial judge in which respects the trial judge's ruling is erroneous and subject to challenge on appeal, often without any indication of the grounds or rationale on which the trial court judge has relied in issuing his thus far unexplained ruling.

As a result, prudence dictates that the attorney for the appellant will identify various alternative grounds for appeal in order to cover all of the possible bases on which the trial court may have ruled against the party that is taking the appeal. This protective overspecification of the grounds for appeal is necessary, because if a party fails to list in its Rule 1925 statement of errors to be complained of on appeal the actual basis for the trial court's ruling, the appellate court could conclude that the party taking the appeal has waived its right to appellate review.

Nevertheless, it is possible to raise a ridiculous number of errors to be complained of on appeal in an appellant's Rule 1925 statement, because in a 70-page appellate brief it is impossible to raise and argue an overabundance of separate issues. Thus, if the lawyer for a litigant that is taking an appeal provides a trial judge with a Rule 1925 statement containing 30, 40, 50 or even 100 errors, it might be reasonable to conclude that the attorney is not simply attempting to protect his ability to raise all viable issues on appeal, but rather is attempting to punish the trial judge, who must write an opinion addressing these alleged errors to facilitate appellate review.

If an appellate brief can at most address in an adequate fashion three, four, five, or perhaps even 10 issues, why should a trial judge be forced to address 30, 50 or 100 potential issues listed in the appellant's lawyer's statement of errors to be complained of on appeal? This was essentially the question facing the Supreme Court of Pennsylvania in the Eiser appeal.

In Eiser, counsel for appellant presented the trial judge with a Rule 1925 statement of matters to be complained of on appeal that listed nearly 30 grounds for appeal. The trial court's post-appeal opinion urged the Superior Court to hold that appellant had waived the right to appellate review by filing a Rule 1925 statement that raised an excessive number of issues for appeal. The Superior Court agreed in large measure, refusing to address on the merits any of the eight issues the appellant actually raised in its briefs on appeal beyond the two issues that the trial court's post-appeal opinion had addressed in a non-cursory fashion.

In a decision issued on Dec. 28, the Supreme Court vacated the Superior Court's decision and remanded with instructions for the Superior Court to address the remaining six issues that appellant raised and argued in its Superior Court briefs. Regrettably, the Supreme Court's ruling failed to produce a majority opinion in the case. Three justices joined in the opinion announcing the judgment of the court. Two other justices concurred in the result, one with opinion and one without. The remaining two justices dissented. Thus, there were five votes in favor of the result, but only three of the court's seven justices joined in the lead opinion.

According to the opinion announcing the judgment of the court, "the number of issues raised in a Rule 1925(b) statement does not, without more, provide a basis upon which to deny appellate review where an appeal otherwise complies with the mandates of appellate practice." The lead opinion also recognized that there was no evidence that the attorney for appellant acted in bad faith in raising nearly 30 issues in his Rule 1925 statement, nor had the trial court expressly found that counsel for appellant acted in bad faith in doing so.

The decision in Eiser involved the version of Rule 1925 that was in existence before amendments to that rule took effect in July. The old rule did not address how many issues were too many to include in a Rule 1925 statement. The newly amended rule, by contrast, directly addresses that question: "Where nonredundant, nonfrivolous issues are set forth in an appropriately concise manner, the number of errors raised will not alone be grounds for finding waiver."

Thus, the Supreme Court's ruling in Eiser is in accord with newly amended Rule 1925. The number of issues asserted in a Rule 1925 statement, without more, will not give rise to waiver. Eiser, however, demonstrates that one thing that could supply a basis for finding waiver is if too many issues have been raised in bad faith, such as to make the trial judge's life difficult as punishment for having ruled against the party taking the appeal.

With Eiser's newfound focus on "bad faith," one may expect to see trial judges invoke the mantra of "bad faith" more frequently when faced with excessively lengthy Rule 1925 statements. It also remains to be seen whether the bad faith inquiry will focus on objective or subjective bad faith. Subjective bad faith involves whether the lawyer actually had an improper purpose in raising so many issues, while objective bad faith involves the number of issues that a reasonable lawyer would have raised under the circumstances. In any event, the question of bad faith is one that the trial judge may be best situated to evaluate, and thus I would not expect to see appellate reversals frequently in cases where a trial court rules that the raising of too many issues occurred in bad faith.

One very important fact that advocates should keep in mind is that Eiser was an atypically complex case. A federal district judge in Washington, D.C., not too long ago issued an opinion in a tobacco liability case that exceeded 1,000 pages in length. Just because preserving 30 issues for appeal in one of the most complex cases imaginable was not excessive does not give the green light to preserve 30 issues for appeal in a far less complex case.

It is unfortunate that the thoughtful opinion announcing the judgment of the court in Eiser lacked the support necessary to become a majority opinion, because the recent personnel changes on Pennsylvania's highest court now make it impossible to predict the future course of that court's Rule 1925 jurisprudence. Of the four justices who took part in the Eiser ruling and now remain on the court, two dissented. Only one joined in the opinion announcing the judgment of the court, while the other wrote a separate, one-paragraph opinion concurring in the judgment.

The court's two new justices will thus have the ability to control the outcome of any Rule 1925 cases that come before the court in the near future. The opinion announcing the judgment of the court in Eiser will not bind them as stare decisis because that opinion lacked the support of a majority when it issued.

One possible solution, hinted at in Justice Thomas G. Saylor's opinion concurring in the judgment, is for trial courts to ask attorneys to winnow down their Rule 1925 statements when they raise too many issues. If that approach is employed, instead of jumping immediately to the conclusion that a waiver has occurred, common sense may finally prevail.

This article is reprinted with permission from the January 14, 2008 issue of The Legal Intelligencer © 2008 ALM Properties, Inc.

Monday, April 09, 2007

Access online an archive of my recent "On Appeal" columns for

The archive appears online at this link.


Justice Castille: Don't let 'em see you sweat.

By Howard J. Bashman
Monday, April 9, 2007

Given the citizenry's continued discontent over the matter, the last person whom you'd expect to be keeping the issue of state judicial pay raises in the headlines is the author of the Pennsylvania Supreme Court's September 2006 decision invalidating legislation to repeal those judicial pay raises while upholding the repeal of every other aspect of that controversial pay raise law.

One lesson that many of us learned from our parents when we were young is that reacting to the provocations of bullies tends only to encourage the people who are doing the bullying, because the reaction reveals that we care about what the bullies are doing and saying. If we ignore a bully, maybe he will go away or lose interest. But if we react to the bully, it will likely only encourage further bullying.

These thoughts came to mind recently when major newspapers across Pennsylvania reported that Justice Ronald D. Castille had declined an invitation from a professor at the Duquesne University School of Law to attend a ceremony at which U.S. Supreme Court Justice Samuel A. Alito Jr. would receive the Carol Los Mansmann award, named in honor of the late 3rd Circuit judge who died far too young due to cancer. The reason Castille declined the invitation, according to these press reports, was because one of the most persistent critics of the Pa. Supreme Court's pay raise ruling also serves as a law professor at Duquesne.

The judicial gadfly in question, with whom Castille apparently does not want to associate in any way whatsoever, is Duquesne law professor Bruce Ledewitz. According to The Philadelphia Inquirer, Ledewitz recently stated in an interview with The Beaver County Times that the Pa. Supreme Court was "more corrupt than the legislature" for having invalidated the repeal of judicial pay raises while allowing the repeal of legislative pay raises. Castille, a former Philadelphia District Attorney who lost a limb fighting for the United States in Vietnam, understandably does not take kindly to being referred to as corrupt.

Particularly surprising, however, were the contents of a letter that Castille wrote to the Duquesne law professor who had invited Castille to attend the event honoring Alito. In that letter, Castille explained that he was refusing the invitation because court critic Ledewitz also teaches at Duquesne's law school. Castille's letter, according to press reports, also stated that Ledewitz's charge that the Pa. Supreme Court was corrupt could subject Ledewitz to disciplinary charges from the Pennsylvania Bar for accusing judges of committing a crime without having any reasonable basis for doing so.

In an earlier installment of this column, I explained that, in my view, the Pa. Supreme Court reached the correct legal result in ruling that the legislature could not repeal the judicial pay raise. In my opinion, the court was guilty, at most, of only political, but not legal, ineptitude. But, although I think that Castille's majority opinion reached the right result in the pay raise case, I cannot defend the specifics of Castille's reaction to Ledewitz's statement that the Pa. Supreme Court acted corruptly in ruling as it did.

To begin with, the use of the word "corrupt" in an interview with The Beaver County Times is best understood by its colloquial meaning -- akin to a charge that someone has acted to feather his own nest -- rather than as a charge of criminal wrongdoing. It cannot be denied that the Pa. Supreme Court's pay raise ruling financially benefited the justices on that court and state court judges in general. But this sort of a conflict of interest was inherent, and inescapable, in that case, and the existence of the conflict does not, without more, mean that the justices acted unlawfully in deciding the case or that their decision was bound to be incorrect or affected by self–interest.

If the justices serving on Pennsylvania's highest court are unwilling to associate with critics of their pay raise ruling, those justices may find themselves welcome in very few places across the Commonwealth. Moreover, the idea that Duquesne should be punished because of the outspoken nature of the criticisms expressed by one of its law professors on the pay raise issue is truly absurd. Where will the punishment end? Will the Pa. Supreme Court's justices refuse to hire any law clerks from Duquesne? And will lawyers or clients associated with Duquesne regularly find themselves on the losing end of cases decided by the court based on that affiliation?

These rhetorical questions sound quite silly, but only slightly more silly than the idea that a Pa. Supreme Court justice would refuse to attend an event at Duquesne honoring a U.S. Supreme Court justice merely because a single Duquesne law professor has harshly criticized the Pa. Supreme Court's pay raise ruling. Justices serving on Pennsylvania's highest court ought to rise above the level of their critics, instead of engaging in a petty series of recriminations having no end in sight.

It may be unfair to insist that judges ought to sit back and take it when their work and sometimes even their ethics are harshly criticized in the media. But this latest series of events provides one more example of why it is typically preferable that judges adhere to the high road instead of trying to battle it out in the muck.

This article is reprinted with permission from the April 9, 2007 issue of The Legal Intelligencer © 2007 NLP IP Company.

Monday, July 10, 2006

Report Card from the U.S. Supreme Court: How the Third Circuit Fared in the October 2005 Term

By Howard J. Bashman
Monday, July 10, 2006

The Supreme Court of the United States, in its just-completed Term, issued a total of 69 signed opinions in argued cases. Three of those cases reached the Supreme Court directly from the 3rd U.S. Circuit Court of Appeals, and in all three instances the 3rd Circuit suffered reversals.

Happily, the 3rd Circuit did not receive only bad news from the Supreme Court this Term. Not only did one of the 3rd Circuit's own judges, Samuel A. Alito Jr., join the Supreme Court in late January 2006, but the 3rd Circuit's jurisprudence fared much better when it was implicated in circuit splits presented in cases arising from other federal appellate courts.

The Supreme Court in ten other cases noted that it was resolving conflicts that involved the 3rd Circuit. In seven of those cases, the Supreme Court approved of the 3rd Circuit's approach, while in the remaining three cases, the Supreme Court disagreed with the 3rd Circuit's approach.

The most newsworthy 3rd Circuit reversal of this past Term came on March 6, 2006, when the Supreme Court announced its unanimous ruling in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. The Court, in a ruling by Chief Justice John G. Roberts Jr., held that the federal law known as the Solomon Amendment did not violate the First Amendment freedoms of speech and association of law schools.

That federal law conditions the availability of federal funds to universities on a requirement that military recruiters have the same sort of on–campus access to law students as other employers, even though the military is unable to sign a pledge required of other employers renouncing discrimination in hiring on the basis of sexual orientation.

The decision that the Supreme Court reversed was written by Judge Thomas L. Ambro and joined in by Judge Walter K. Stapleton. Judge Ruggero J. Aldisert had dissented from the 3rd Circuit's decision in the case.

Rumsfeld v. FAIR was not the only First Amendment–related reversal that the 3rd Circuit suffered at the hand of the Supreme Court last Term. On the second to last opinion issuance day of the Term, the Supreme Court announced its ruling in Beard v. Banks. By a vote of 6–2, the Court rejected a constitutional challenge to a Pennsylvania state prison policy of denying to the most dangerous and recalcitrant inmates any access to newspapers, magazines, and photographs.

In so ruling, the Supreme Court reversed a decision that 3rd Circuit Judge Julio M. Fuentes had written and in which Judge Max Rosenn had joined. Although Alito did not participate in that ruling at the Supreme Court, he was on the 3rd Circuit panel, where he dissented from the panel's result.

The final case in which the 3rd Circuit suffered a reversal involved, of all things, a Federal Tort Claims Act suit by a woman who claims she was injured when she tripped and fell over mail that an employee of the U.S. Postal Service had left on her porch. In Dolan v. U.S. Postal Service, the Supreme Court ruled by a margin of 7–1 that the 3rd Circuit had erred in dismissing that suit as barred by an exception to the Tort Claims Act's waiver of sovereign immunity.

The decision that the Supreme Court reversed, which had dismissed the injured woman's claim against the Postal Service, was written by Judge Jane R. Roth and was joined in by Chief Judge Anthony J. Scirica and Judge Theodore A. McKee.

Although the 3rd Circuit suffered reversals in all three cases in which the Supreme Court directly reviewed its work, the 3rd Circuit fared much better in cases arising from other federal appellate courts presenting conflicts that implicated 3rd Circuit rulings.

In Woodford v. Ngo, where Justice Alito delivered the majority opinion, the Supreme Court ruled by a margin of 6–3 that the Prison Litigation Reform Act of 1995 requires state prison inmates to properly exhaust administrative remedies before filing in federal court any suit challenging prison conditions. In so ruling, the Supreme Court sided with the 3rd Circuit's approach in Spruill v. Gillis, a decision that Judge Edward R. Becker wrote and in which Judges Alito and Michael Chertoff joined.

In Fernandez-Vargas v. Gonzales, the Court by a vote of 8–1 rejected an argument that it would be impermissibly retroactive to apply a particular federal immigration law requiring deportation in that case to those immigrants who had reentered the United States before the law's enactment. In so ruling, the Supreme Court approved of a 3rd Circuit ruling from 2003 written by Circuit Judge Maryanne Trump Barry, in which Chief Judge Scirica and Circuit Judge D. Brooks Smith had joined.

In Empire HealthChoice Assurance, Inc. v. McVeigh, the Court ruled by a vote of 5–4 that when an insurance company that paid benefits in accordance with the Federal Employees Health Benefits Act sues to obtain reimbursement from a beneficiary's tort recovery, the insurance company's suit does not arise under federal law and therefore must be litigated in state court. In so ruling, the Supreme Court agreed with a 3rd Circuit ruling from 1994 written by Circuit Judge Morton I. Greenberg, in which Judge Stapleton and a visiting federal district judge from Florida joined.

In Jones v. Flowers, the Supreme Court ruled 5–3 that when mailed notice of a tax sale of a home is returned unclaimed, a State must take additional reasonable steps to attempt to provide notice to the property owner before selling his property, if it is practicable to do so. The majority opinion cited with approval a 3rd Circuit ruling from 2001 written by Circuit Judge Joseph F. Weis Jr., in which Judge Ambro joined. Circuit Judge Dolores K. Sloviter had dissented from that ruling.

In Day v. McDonough, the Court by a vote of 5–4 upheld the dismissal of an untimely–filed habeas corpus petition even though the State opposing the habeas petition had failed to raise the statute of limitations defense in the answer it filed in federal district court. In allowing a federal district court to excuse a State's waiver of a statute of limitations defense, the Court cited with approval a 3rd Circuit ruling from 2004 written by Circuit Judge Becker, in which Chief Judge Scirica and Circuit Judge D. Michael Fisher joined.

In United States v. Grubbs, the Supreme Court by a vote of 8–0 rejected a challenge to anticipatory search warrants. Justice Antonin Scalia's opinion for the Court cited with approval a 3rd Circuit decision from 1999 that was written by a federal district judge visiting from New York, in which Circuit Judges Sloviter and Carol Los Mansmann joined.

In Arbaugh v. Y&H Corp., the Supreme Court held 8–0 that Title VII's requirement that an employer have 15 or more employees in order to be covered under that federal law is not a requirement that, if unsatisfied, deprives a federal district court of subject matter jurisdiction. The 3rd Circuit, in a decision from 2003, reached the same result. Judge Ambro wrote that ruling, in which Circuit Judges Richard L. Nygaard and Roth joined.

In Burlington, Northern & Santa Fe Railway Co. v. White, the Supreme Court resolved a dispute over the scope of Title VII's anti–retaliation provision. The decision notes that the 3rd Circuit was among those federal appellate courts which had required that the challenged action must result in an adverse effect on the terms, conditions, or benefits of employment. By a vote of 8–1, the Supreme Court rejected the 3rd Circuit's approach. Judge Alito had written the 3rd Circuit's decision from 1997, in which Circuit Judges Greenberg and Robert E. Cowen had joined. Therefore, perhaps it was not surprising that Justice Alito was the lone member of the Supreme Court to endorse the 3rd Circuit's approach as correct.

In Marshall v. Marshall, the case better known as the Anna Nicole Smith probate battle, a unanimous Supreme Court clarified the scope of the so–called "probate exception" to federal court jurisdiction. The Supreme Court's ruling notes that the 3rd Circuit adopted too expansive of a view of the probate exception's scope in a decision from 2004 written by Judge Chertoff, in which Judge Alito and visiting U.S. District Judge Dickinson R. Debevoise had joined.

Finally, in Schaffer v. Weast, the Supreme Court held by a vote of 6–2 that the burden of persuasion in an administrative hearing challenging an individualized education program that a school district has issued pursuant to the Individuals with Disabilities Education Act is properly placed upon the party seeking relief, whether that is the disabled child or the school district. In so ruling, the Supreme Court disagreed with a 3rd Circuit decision from 1993 that always placed the burden of persuasion on the school district. Judge Becker wrote that 3rd Circuit decision, in which Judges Greenberg and Weis joined.

To summarize, although the 3rd Circuit suffered reversals in all three of the cases that reached the Supreme Court this Term on direct review, in another ten cases the Supreme Court approved of 3rd Circuit rulings seven times. Thus, the overall tally favors the 3rd Circuit this past Term, given that its rulings were approved seven times and disapproved only six times.

This article is reprinted with permission from the July 10, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.

Monday, May 08, 2006

Is the Stock Ownership Recusal Requirement Too Unforgiving?

By Howard J. Bashman
Monday, May 8, 2006

Under federal law, federal judges are precluded from presiding over any case in which the judge owns even one share of stock in a corporation that is a party to the case.

[The remainder of this essay can be accessed online here at]


The Battle Over the Soul of Law Professor Blogs

By Howard J. Bashman
Monday, May 8, 2006

Late last month, I was among the participants at a Harvard Law School–hosted conference titled "Bloggership: How Blogs are Transforming Legal Scholarship." Unbeknownst to most of us outside the legal academy, there apparently is some disagreement over whether weblogs that law professors operate should be regarded as legitimate scholarship and public service or should be dismissed as a frivolous waste of time that detracts from the more traditional scholarly pursuits of writing massive law review articles and pontificating to the mainstream media on legal issues of public interest.

This past weekend, my "How Appealing" weblog, which focuses on appellate court rulings and related news coverage, celebrated its fourth year of existence, and thus my blog happened to be the third oldest blog represented at the Harvard "Bloggership" conference. The two blogs represented at the conference that began even earlier than mine are two of the most popular law professor blogs.

"InstaPundit," written by Law Professor Glenn Harlan Reynolds of the University of Tennessee College of Law, is one of the most popular blogs on the entire internet. Its focus is primarily on matters of politics, public policy, and other current events of wide interest, with only a secondary focus (if that) on legal issues. And "The Volokh Conspiracy," founded by Law Professor Eugene Volokh of the UCLA Law School and his brother Sasha, is now the second highest trafficked law professor blog. It is a group blog to which more than a dozen law professors contribute, and its focus is largely, but far from exclusively, on law–related issues.

More recently, the Law Professor Blogs Network, which today consists of nearly thirty separate blogs, has come into existence. Its founder, Professor Paul Caron of the University of Cincinnati College of Law, in April 2004 began the "TaxProf Blog." It was Professor Caron who organized the Harvard "Bloggership" conference.

The blogs within the Law Professor Blogs Network each tend to focus on a specific area of the law or legal education, such as the highly acclaimed "Sentencing Law and Policy" blog by Law Professor Douglas A. Berman of the Moritz College of Law at The Ohio State University. And those blogs, while not denying their authors the ability to reveal non–law–related aspects of their personalities, tend to contain only posts that are relevant to each blog's particular subject matter focus.

The "Sentencing Law and Policy" blog stands as the epitome of a law professor blog that deserves to be viewed both as scholarship and public service. The blog reports in a timely manner on significant state and federal court rulings in the area of criminal sentencing, and the blog regularly posts to the internet copies of legislative reports, briefs, and even court opinions that otherwise would not be readily accessible online.

Perhaps for these reasons, "Sentencing Law and Policy" is the blog that has thus far been cited most frequently in court opinions and law review articles. Yet notwithstanding the blog's focus on a particular legal subject matter, the blog's author, Professor Berman, frequently reveals his passion for sports and popular culture. The site proves beyond any doubt that a law professor's blog that deserves to count as scholarship and public service need not be bereft of personality or pop culture.

At the opposite end of the spectrum from the "Sentencing Law and Policy" blog stands Law Professor Ann Althouse's blog, "Althouse." Its author teaches at the University of Wisconsin Law School, but the blog focuses more avidly on the Fox network program "American Idol" than on serious legal issues. By choosing to blog about her life and what she finds of interest generally, Professor Althouse has created the opposite of what one might envision a law professor's blog to be. But unexpected does not equal unpopular, and Professor Althouse's blog appears to be the third most visited law professor weblog now in existence.

Another category of law professor blogs that I particularly enjoy consists of law professors who blog about legal issues of general interest in a way that is both insightful and yet readily accessible to non–experts in the field. These blogs, although they are not focused on a particular narrow law–related subject matter such as tax law or sentencing law, do tend to focus on law–related issues as compared to politics or the popular culture.

Three examples from this genre are "PrawfsBlog," a group blog founded by Law Professor Dan Markel of the Florida State University College of Law; "Concurring Opinions," a group blog founded by Law Professor Daniel J. Solove of the George Washington University Law School; and "," founded by (you guessed it!) Law Professor Orin S. Kerr also of GWU, who additionally remains as a contributor to "The Volokh Conspiracy." If you find my "How Appealing" blog to be of interest, chances are good that you will also enjoy these three other blogs.

If my four years of operating a popular law blog has taught me anything, the key to having a successful law–related blog is choosing a subject or range of topics that the author knows a great deal about and has particular enthusiasm for. Over time, a blog that offers thoughtful commentary or easy access to interesting legal news and case developments can generate a readership numbering in the thousands to tens of thousands per day, far outstripping the number of people who will read the typical law review article.

While law–related blogging may never be as popular of a destination on the Web as sex and pornography, I can only imagine the traffic that a Law Professor Blogs Network site devoted to the law of sex and pornography would generate if such a blog ever were launched.

As I explained in the remarks that I delivered at the Harvard "Bloggership" conference, to those of us outside the legal academy, the battle over whether law professor blogs should count as scholarship or public service borders on the irrelevant. What we, the readers of law blogs, hope to find is interesting content. Fortunately, the law professor segment of the law blog world generates a great deal of interesting content on a daily basis.

This article is reprinted with permission from the May 8, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.

Monday, May 01, 2006

Considering a Likely Appeal in the Moussaoui Case

By Howard J. Bashman
Monday, May 1, 2006

After a jury in the U.S. District Court for the Eastern District of Virginia announces its verdict, or the trial court decides that the jury is unable to reach a unanimous verdict, Judge Leonie M. Brinkema will either sentence Zacarias Moussaoui to death or to life imprisonment without the possibility of parole.

[The remainder of this essay can be accessed online here at]

Monday, April 24, 2006

Arresting the Homeless Is Unconstitutional?
Where the 9th Circuit Went Wrong

By Howard J. Bashman
Monday, April 24, 2006

Earlier this month, the majority on a divided three–judge panel of the 9th U.S. Circuit Court of Appeals ruled that "a City of Los Angeles ordinance that criminalizes sitting, lying, or sleeping on public streets and sidewalks at all times and in all places within Los Angeles's city limits" cannot be enforced because arresting the homeless of Los Angeles would violate the Eighth Amendment to the U.S. Constitution.

[The remainder of this essay can be accessed online here at]

Monday, April 17, 2006

Should Congress Mandate Supreme Court TV?
Will original understanding go high-definition?

By Howard J. Bashman
Monday, April 17, 2006

This is the true story of nine justices, picked to serve together on a court and have their oral arguments videotaped for broadcast to the public. If the Senate Judiciary Committee has its way, soon the U.S. Supreme Court's justices could be the stars of the newest reality programming to capture the imagination of the MTV generation.

[The remainder of this essay can be accessed online here at]

Monday, April 10, 2006

Justice Delayed: How Long Should an Appellate Court's Ruling Take?

By Howard J. Bashman
Monday, April 10, 2006

Unlike at a jury trial, where the jury's decision ordinarily issues just hours or days after the conclusion of the evidence, appellate courts take considerably more time to issue their rulings. And the reasons for this are quite understandable. Appellate briefs must be considered, the record on appeal must be reviewed, and a decision explaining the result of the appeal must be written and approved by the judges on the panel.

Thus, while no one should expect an instantaneous ruling on appeal, frequently appellate lawyers and judges have occasion to consider how long is too long to wait for a decision on appeal. This question, for obvious reasons, defies any easy answer. Appeals that are factually or legally complex frequently take longer to decide. Appeals in which more than one judge on the panel will be writing an opinion understandably take longer to decide than appeals in which a single judge writes on behalf of a unanimous court. And sometimes the quality of the lawyering, whether especially good or especially bad, necessitates more effort from the court in disposing of an appeal.

As a rule of thumb, appeals that are relatively straightforward should take between one to three months to decide after the case has been orally argued and submitted. Moderately difficult cases should take between three to six months to decide after argument and submission. More complex cases should take between six month to a year to decide. Any case that takes more than a year after oral argument and submission to decide should be extraordinarily complex, and only the rarest of cases should fall into this category.

With one notable exception, the federal and state appellate courts in Pennsylvania adhere to these timelines. The 3rd U.S. Circuit Court of Appeals seldom takes over a year from the date of oral argument to decide an appeal, and the vast majority of appeals are decided in a very timely fashion. The Superior Court of Pennsylvania, despite being one of the busiest state appellate courts in the nation in terms of its caseload per judge, also appears to adhere to these timelines, as does the Commonwealth Court of Pennsylvania.

Unfortunately, the Supreme Court of Pennsylvania at some point fell behind in its work, and thus cases in which that court has granted review on the merits regularly take more than one year, and sometimes even more than two years, after oral argument to be decided. How might the Pa. Supreme Court reduce its backlog of argued cases to increase the speed with which it disposes of such cases? The only way that work gets done is if someone does the work, so the court presumably could work harder, faster, and could even start accepting fewer cases in order to remain more current on the cases it does accept.

In addition, the Pa. Supreme Court is one of those appellate courts where the Justices, even when the court is evenly divided 3–3 with a recusal, will write opinions explaining why they would affirm or reverse the result below. Yet when the Pa. Supreme Court is evenly divided on a case, the judgment under review is affirmed by an equally divided court, and those opinions are of no precedential value. One way to save much time in these cases would be for the Justices to refrain from writing any opinions. In the U.S. Supreme Court, by contrast, no opinions are written by the Justices when a case is affirmed by an equally divided court. And the U.S. Supreme Court issues opinions in all argued cases each Term before the Justices depart for their summer recess.

The Pa. Superior Court's ability to timely disposes of the large number of cases that court handles could be imperiled someday soon as certain active judges reach retirement age. If the Superior Court were to find it more difficult to dispose promptly of the cases it is handling, the court would have several timesaving options to consider.

One idea that I continue to support is a proposal that the Superior Court should stop allowing counsel to decide whether appeals will be orally argued. Instead, the Superior Court's judges should decide whether a given appeal deserves oral argument. Over the course of a year, each Superior Court judge spends hours listening to oral argument in cases in which the court's judges on their own would presumably see no need for argument. Those hours could instead be spent working on getting the cases decided.

The Superior Court also frequently issues unnecessarily lengthy non–precedential opinions. While I strongly support the idea that appellate courts should issue rulings that explain why the appeal under review was decided a certain way, in cases decided by non–precedential rulings those decisions will never be seen by anyone other than the parties and their lawyers. Thus, those rulings could dispense with any detailed recitation of the facts and procedural posture and could instead launch right in to explaining why the court has ruled as it did. If the Superior Court focused on keeping its non–precedential opinions short and to–the–point in cases that are to be disposed of in that manner, much additional time could be saved.

Although the phrase "“Justice Delayed is Justice Denied" may not always be true, it is difficult to quarrel with the proposition that appellate courts should try to the best of their ability to render decisions that are not only correct and well–reasoned, but also timely. A court's reputation depends not only on the quality of its jurists and its rulings, but also on the timeliness of its work.

In the Supreme Court of Pennsylvania, appeals that take more than a year after oral argument to be decided may at that point have been pending before the court for over two years, once the time spent in considering the Petition for Allowance of Appeal and briefing the case on the merits is taken into account. If experience is any guide, the worst thing to do when facing a backlog of unfinished work is worrying about how it will ever be completed. And the best thing to do, instead of worrying about it, is just to get it done.

This article is reprinted with permission from the April 10, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.


Giving It to the Federal Circuit: Why Stop at Immigration Appeals?

By Howard J. Bashman
Monday, April 10, 2006

The U.S. Congress is considering legislation that would route all immigration appeals to the Washington, D.C.–based Federal U.S. Circuit Court of Appeals, instead of to the regional federal appellate courts where the cases are now heard and decided.

[The remainder of this essay can be accessed online here at]

Monday, April 03, 2006

Who's on the Argument Panel: Why Ignorance Isn't Bliss

By Howard J. Bashman
Monday, April 3, 2006

The federal appellate courts are divided over an issue that rarely receives any attention: Whether lawyers who will orally argue an appeal should receive advance notice of which three judges have been assigned to the oral argument panel.

[The remainder of this essay can be accessed online here at]

Monday, March 27, 2006

'Choose Life' Tags Appear Headed to Supreme Court

By Howard J. Bashman
Monday, March 27, 2006

To those unfamiliar with the public debate over abortion, a license plate proclaiming "Choose Life" may appear to be a riposte to the "Live Free or Die" motto found on the license plates of motor vehicles registered in New Hampshire. Soon, however, history is likely to join these two controversial license plates in a more permanent way.

[The remainder of this essay can be accessed online here at]

Monday, March 20, 2006

11th Circuit's Abuzz With Sex Toy Litigation

By Howard J. Bashman
Monday, March 20, 2006

History fails to attribute to patriot Patrick Henry the statement "Give me sex toys or give me death," so therefore it's not surprising that the legal battle continues over whether the right to obtain and use appliances intended for sexual gratification is included within the liberty protected under the U.S. Constitution.

[The remainder of this essay can be accessed online here at]

Monday, March 13, 2006

Total Recall: Where's My Free Lunch?

By Howard J. Bashman
Monday, March 13, 2006

Now that several months have passed since Pennsylvania voters learned that a statewide judicial retention election actually can be used to remove from office Justices serving on the Supreme Court of Pennsylvania, it is the perfect time to reflect on the lessons of what happened.

Last November, of course, Pennsylvania voters narrowly rejected the retention of Justice Russell M. Nigro and narrowly voted to retain Justice Sandra Schultz Newman. After Nigro was forced to leave the court at the end of 2005, Governor Edward G. Rendell nominated Cynthia A. Baldwin, then a state trial court judge in Allegheny County, to replace Nigro, and the Pennsylvania State Senate overwhelmingly confirmed Baldwin's nomination. Justice Baldwin, who recently joined the Supreme Court, will serve there until then end of 2007.

Dissatisfaction with legislative and judicial pay raises is considered the central reason why so many Pennsylvanians went to the polls in November 2005 to vote against retaining Nigro and Newman. Yet while voters may have been justifiably outraged at the pay raise for state legislators, it cannot be denied that salaries for state judges in Pennsylvania's trial and appellate courts are far too low. Nigro, Newman, and their colleagues deserved meaningful pay raises then and Pennsylvania appellate judges still deserve them now.

What made the vote to oust Nigro and almost oust Newman even more irrational was that these two members of Pennsylvania's highest court played no direct role whatsoever in the legislature's decision to provide the judiciary with a much needed pay raise. To be sure, they took the pay raise and they deserved it, but they had done nothing to lobby for its enactment. Rather, it was the legislators who passed the pay raise, and it was Governor Rendell who signed it into law.

The final irony, of course, was that the decision to remove Nigro from the court ended up giving many of the state officials who were most to blame for the pay raises the power to determine who would serve as Nigro's replacement on the court through the end of 2007. Because once a vacancy arose, it was up to Governor Rendell to nominate a replacement and it was up to the Pa. Senate to confirm or reject that nominee. The electorate itself will not have a direct say regarding who should fill Nigro's seat until November 2007.

Although electoral dissatisfaction with pay raises strikes me as an absurd reason to remove a state Supreme Court Justice from office, there are at least two other reasons that currently come to mind. On Sunday, March 5, 2006, The Harrisburg Patriot–News published an article headlined "Justices still running up the public tab; State reimbursed judges $53,473 for expenses in last 6 months." Although more than $53,000 in expenses for a six–month period may seem like a lot of money, especially since there were only six Justices on the court for a portion of that time, the article reports that the rate of spending has slowed. Last fiscal year, by contrast, the Justices racked–up $164,212 in expenses.

According to the article, a great deal of these expenses are incurred because the Justices are eating (and treating others to) fancy meals for lunch and dinner, picking up the tab, and then charging the matter to their official expense accounts.

Jan Murphy, the reporter who wrote the article, quoted Chief Justice Ralph J. Cappy as saying, "Judges are high officials in our society." Cappy is further quoted as having said that "You end up going to the lunches where your profession goes." According to the Chief Justice, "When you say they are not in touch, it's true that a person making minimum wage might not have lunch in a place where you might take the dean of the law school to lunch."

Now I like to be treated to a fancy lunch as much as the next person or law school dean, and I am not being paid anything for writing this column. But, thus far, no Justice on the Pa. Supreme Court has invited me to an extravagant meal to convince me that the expenses issue is really much ado about nothing.

While the attempt to blame law school deans for pricey lunches surely is creative, in my experience a law professor has not decided to accept the deanship of a law school in the hope that Pa. Supreme Court Justices might treat him or her to a fancy meal every now and then. In fact, chances are quite good that these law school deans are being paid more than the Justices, which in fairness would dictate that the deans should be picking up the check. Moreover, deans at state–sponsored law schools could pick–up the check and cause the public to pay the bill without it being as obvious, and of course law deans do not have to stand for retention elections every ten years. So, on reflection, perhaps the deans truly are to blame in certain respects.

The expense–account issue, involving charges for fancy meals, carwashes, tips to doormen, snacks from a hotel honor bar, and lodging expenses at fancy hotels, strikes me as a slightly more persuasive reason to deny retention than a judge's acceptance of a much needed, and well deserved, pay raise. Of course, if the fancy meals were instead being bestowed on unpaid appellate columnists, then I might have a different view of the matter.

The final retention election–related risk that the Justices are now facing involves, of all things, the Ten Commandments. The Pa. Supreme Court's garishly decorated courtroom in Harrisburg prominently features the Ten Commandments painted on the wall behind where the Justice sit during oral arguments. Apparently someone associated with the court determined that a photograph contained in the court's official brochure of the Justices standing in front of the Ten Commandments mural should be intentionally blurred so that the image of the Ten Commandments was rendered indistinct.

This official Pa. Supreme Court photograph led to the only moment of drama at the confirmation hearing for Justice Baldwin, as State Senator Jeffrey E. Piccola attempted to get Baldwin to pledge that she would ensure that the image of the Ten Commandments would no longer be blurred in any later editions of the brochure. Indeed, although the U.S. Supreme Court's jurisprudence on Ten Commandments displays surely qualifies as murky, in that whatever Justice Stephen G. Breyer says is acceptable becomes the law of the land, neither the Court nor Breyer has ever suggested that the blurry photograph of a courtroom mural of the Ten Commandments, which is not blurry when viewed in person, is necessary or appropriate.

When viewed in combination with the expense account issue, the Pa. Supreme Court's intentional defacement of a photographic image of the Ten Commandments may suffice to cause voters once again to flock to the polls for the next statewide judicial retention election, scheduled to occur in November 2007. Perhaps, between now and then, the court will attempt to solve the matter by cutting back on meals and using the money instead to redesign the Harrisburg courtroom.

Marble friezes, such as those found on the walls of the U.S. Supreme Court's courtroom in Washington, DC, are quite nice. The Ten Commandments depiction found at the U.S. Supreme Court features the commandments written in Hebrew, which many Pennsylvanians may find less offensive because it is both realistic (based on the movie) and who reads Hebrew anyhow.

I personally do not favor removing qualified and experienced appellate judges from office based on irrational reasons. But if the urge were to once again strike Pennsylvania voters, to me at least the expense account issue and the blurring of the Ten Commandments are marginally less irrational than the pay raise issue that led to Nigro's removal from the Court.

This article is reprinted with permission from the March 13, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.

Liberal Law Professors and the Solomon Amendment Rout

By Howard J. Bashman
Monday, March 13, 2006

Conservative commentators erupted in glee after the U.S. Supreme Court last week unanimously ruled in Rumsfeld v. Forum for Academic and Institutional Rights, Inc. that Congress had not violated the First Amendment rights of law schools by requiring, on pain of a university's loss of substantial federal financial assistance, that military recruiters receive the same on–campus access to students as the most favored non–military recruiters.

[The remainder of this essay can be accessed online here at]

Monday, March 06, 2006

To Cite or Not to Cite to Non-Precedential Opinions

By Howard J. Bashman
Monday, March 6, 2006

The most controversial change ever proposed to the Federal Rules of Appellate Procedure is scheduled to take effect later this year. If approved by the U.S. Supreme Court and Congress, Federal Rule of Appellate Procedure 32.1, which authorizes citation to non–precedential federal appellate court rulings in briefs filed in all of the U.S. Courts of Appeals, will become law.

[The remainder of this essay can be accessed online here at]

Monday, February 27, 2006

Congress Puts 'Partial-Birth' Abortion Back on the Supreme Court's Agenda

By Howard J. Bashman
Monday, February 27, 2006

On the U.S. Supreme Court's first official day of business after Justice Samuel A. Alito Jr. replaced Sandra Day O'Connor, the Court agreed to revisit the contentious issue of whether a ban on partial–birth abortion is constitutional. Because O'Connor provided the dispositive fifth vote to declare Nebraska's ban on partial–birth abortion unconstitutional, many believe that the Supreme Court in O'Connor's absence is now likely to reverse course and uphold the constitutionality of the federal Partial–Birth Abortion Ban Act of 2003 after hearing oral argument later this year.

[The remainder of this essay can be accessed online here at]

Monday, February 20, 2006

Dead Judges Voting: When Does Life Tenure End?

By Howard J. Bashman
Tuesday, February 21, 2006

The day after Senior Circuit Judge Max Rosenn died Feb. 7 at the age of 96, following more than 35 years of exemplary service on the 3rd U.S. Circuit Court of Appeals, that court issued a decision by a divided three–judge panel in which Rosenn cast the deciding vote. What, if anything, is wrong with this picture?

[The remainder of this essay can be accessed online here at]

Monday, February 13, 2006

Pa. Supreme Court Rejects Opportunity To Relax
Its Harsh Appellate Waiver Jurisprudence

By Howard J. Bashman
Monday, February 13, 2006

If you handle trials or appeals in the Pennsylvania state court system, you need to be aware of two opinions that the Supreme Court of Pennsylvania issued in late December 2005 on the issue of appellate waiver. Thus far, these two appellate waiver decisions have not received the attention that they deserve.

At issue in both cases was Pennsylvania Rule of Appellate Procedure 1925(b), which provides that after a party files a notice of appeal, the trial court "may enter an order directing the appellant to file of record in the lower court and serve on the trial judge a concise statement of the matters complained of on the appeal.... A failure to comply with such direction may be considered by the appellate court as a waiver of all objections to the order, ruling or other matter complained of."

As I explained in this space back in June 2004, Rule 1925(b) has a laudable purpose: the rule allows the trial court to determine whether a sufficient explanation of the reasons for the ruling or rulings to be challenged on appeal already exists in the record. If the trial court concludes that additional explanation is merited, the trial court can issue a new opinion in support of what is being challenged on appeal.

As written, Rule 1925(b) is unobjectionable. Yet in 1998, the Pa. Supreme Court, in Commonwealth v. Lord, held -- notwithstanding Rule 1925(b)'s plain language that an appellate court "may" find waiver if the rule's requirements are not complied with -- that a failure to comply with Rule 1925(b) requires a finding of waiver.

In two decisions issued on December 29, 2005, the Pa. Supreme Court expanded even further the scope of the mandatory waiver that the earlier decision in Lord had adopted. In Commonwealth v. Castillo, one of the two decisions issued late last month, Pennsylvania's highest court confronted a case in which Castillo had filed his Rule 1925(b) statement of issues to be raised on appeal after expiration of the 14–day period for filing specified in that rule. Notwithstanding the lateness of that filing, the trial court issued an opinion addressing the issue identified in Castillo's Rule 1925(b) statement.

On appeal to the Superior Court of Pennsylvania, Castillo's attorney raised not only the issue identified in his client's belated Rule 1925(b) statement but also some additional issues. The Superior Court ruled that the additional issues were waived because they had not been raised in the Rule 1925(b) statement, but the court also ruled that Castillo was entitled to a new trial based on the issue that he had raised in his untimely Rule 1925(b) statement.

The prosecution then asked the Supreme Court of Pennsylvania to review the Pa. Superior Court's ruling, and the Supreme Court agreed to hear the case to decide whether "to allow discretion in the intermediate appellate courts to review an issue that was not raised in a timely statement of matters complained of on appeal under Pa. R.A.P. 1925(b)."

The Pa. Supreme Court consolidated its review of the Castillo case with a case captioned Commonwealth v. Schofield that raised a similar issue. In Schofield, the defendant had been convicted of several criminal offenses including first degree murder, and she received a sentence of life imprisonment. Somehow, Schofield managed to find herself proceeding pro se, without an attorney, immediately after her notice of appeal had been filed in the trial court.

During the time that Schofield was without counsel, the trial court entered a Rule 1925(b) order requiring Schofield to identify the issues that she intended to raise on appeal. Schofield claims to have filed a timely Rule 1925(b) statement, but the trial court's records contained no evidence that the statement had been filed with the trial court's Prothonotary’s Office. Nevertheless, apparently Schofield did serve the Rule 1925(b) statement on the trial judge, who thereafter issued an opinion addressing the issues raised in the defendant's Rule 1925(b) statement.

On appeal to the Pa. Superior Court, that court by a 2–1 margin ruled that Schofield had waived all issues for appeal by failing to comply with Rule 1925(b)'s requirement that the statement be timely filed "of record in the trial court" in addition to being served on the trial judge. The dissenting judge vigorously disagreed, asserting that the purpose of Rule 1925(b) had been satisfied because the trial judge had been informed of the issues Schofield intended to raise on appeal and because the trial judge had filed an opinion addressing those issues, thereby allowing the Superior Court to conduct meaningful appellate review.

On December 29, 2005, the Supreme Court of Pennsylvania announced its rulings in Castillo and Schofield. In both cases, the Supreme Court held by identical 6–1 margins that the failure of the parties appealing from the trial court to both file and serve on the trial judge a Rule 1925(b) statement within the 14–day period required under that rule resulted in the forfeiture of all issues that could have been raised on appeal.

The effect of that ruling was especially harsh in the Schofield case, where the defendant, sentenced to life imprisonment, has no ability to claim ineffective assistance of counsel since she was pro se at the time her Rule 1925(b) filing was due. Moreover, the trial court prepared a Rule 1925(a) opinion addressing the issues raised in Schofield's pro se Rule 1925(b) statement of issues to be raised on appeal. Schofield's apparent failure to file her statement of issues to be raised on appeal in the Prothonotary's Office, an omission that caused no actual harm to anyone and that presented absolutely no impediment to appellate review, will nevertheless ensure that she remains in prison for the rest of her natural life without any prospect whatsoever of appellate review in the state court system.

The Pa. Supreme Court's recent rulings in Castillo and Schofield demonstrate the urgent need for two amendments to the Pennsylvania Rules of Appellate Procedure.

First, the language of Rule 1925(b) should be amended to make absolutely clear that the waiver the rule contemplates is mandatory, rather than discretionary at the option of the appellate court as the rule now states. In other words, Rule 1925(b)'s present assertion that "a failure to comply with such direction may be considered by the appellate court as a waiver of all objections" should be changed to accurately advise that "a failure to comply with such direction will be considered by the appellate court as a waiver of all objections."

And second, the Pennsylvania Rules of Appellate Procedure should be further amended to mandate that a trial court's Rule 1925(b) order contain language advising that: (1) if the appealing party's Rule 1925(b) statement is not filed with the Prothonotary's Office and served on the trial judge by the deadline specified in the rule, no issues will be preserved for appellate review; and (2) only those issues set forth in a timely–filed Rule 1925(b) statement, and no other issues, can be raised on appeal.

The Pa. Supreme Court's recent rulings in Castillo and Schofield also demonstrate that in cases where the losing party would benefit from the involvement of an experienced appellate advocate, the losing party should get the appellate lawyer involved before the Rule 1925(b) statement is due. Otherwise, an appellate lawyer may end up identifying potentially meritorious issues that the appellate court will refuse to address because they were not included in the appealing party's Rule 1925(b) statement as filed in the trial court.

The prospect of appellate waiver is nothing new. But in its recent rulings in Castillo and Schofield, the Pa. Supreme Court has expanded the scope of appellate waiver beyond the boundaries of what reason and justice support. Regardless of their merit, those rulings now represent the law of Pennsylvania. Consider yourself forewarned!

This article is reprinted with permission from the February 13, 2006 issue of The Legal Intelligencer © 2006 NLP IP Company.


Less Is More: When Courts Decide a Law
Means the Opposite of What It Says

By Howard J. Bashman
Monday, February 13, 2006

Judicial confirmation hearings might lead one to conclude that appellate courts spend the bulk of their time deciding whether to invent new, or overrule previously invented, constitutional rights. But, in reality, those very controversial issues, while they may attract the bulk of media attention, only make up a small portion of any appellate court's docket. Much of what appellate courts do on a regular basis involves the rather mundane task of construing laws passed by the legislature.

[The remainder of this essay can be accessed online here at]

Monday, February 06, 2006

Minimum Wage: The $1.50 Attorney Fee

By Howard J. Bashman
Monday, February 6, 2006

With so much media attention focused on outrageously large attorney fees awards and the ever–skyrocketing cost of litigation, it would be easy to overlook a recent en banc decision of the 10th U.S. Circuit Court of Appeals awarding a $1.50 attorney fee in favor of a lawyer who prevailed at trial on a federal civil rights claim for an imprisoned client.

[The remainder of this essay can be accessed online here at]

Monday, January 30, 2006

Redact This: Preserving Secrets on Appeal in the Digital Age

By Howard J. Bashman
Monday, January 30, 2006

As many have learned to their great dismay, anonymity over the Internet is much more difficult to attain than it appears. Even the author of the "Underneath Their Robes" Web log, before he was voluntarily unmasked in The New Yorker, had unwittingly revealed his true identity to "some tech–savvy readers," according to a recent profile of the site's author, David B. Lat, in The New York Times.

[The remainder of this essay can be accessed online here at]

Monday, January 23, 2006

In Nazi Memorabilia Fight, Yahoo Can't Win for Losing

By Howard J. Bashman
Monday, January 23, 2006

If hard cases make bad law, perhaps it follows that unusual cases produce bizarre results. Proof of that can be seen in a recent ruling of an 11–judge en banc panel of the 9th U.S. Circuit Court of Appeals involving Yahoo's battle against French groups that oppose the sale of Nazi memorabilia.

[The remainder of this essay can be accessed online here at]

Tuesday, January 17, 2006

Who'll Be the Supreme Court's Next Swinger?

By Howard J. Bashman
Tuesday, January 17, 2006

When Justice Sandra Day O'Connor finally retires from serving on the U.S. Supreme Court, the high court's center of gravity unquestionably will shift. And some other justice will become the Court's swinger -- that is, the key swing vote.

[The remainder of this essay can be accessed online here at]

Tuesday, January 10, 2006

The Sam Alito I Know

By Howard J. Bashman
Tuesday, January 10, 2006

A former chief judge of the 3rd U.S. Circuit Court of Appeals once said that the White House has kept trying to appoint ideologues to serve on that court, but after being confirmed those judges have consistently defied such expectations. That former chief judge could have been speaking specifically about Judge Samuel A. Alito Jr.

[The remainder of this essay can be accessed online here at]

Monday, December 12, 2005


Opponents Of Rule Allowing Non–Precedential U.S. Court Of Appeals
Decisions To Be Cited Manage To Insert A Fly In The Ointment

By Howard J. Bashman
Monday, December 12, 2005

A little over two months ago, the Judicial Conference of the United States approved a proposed Federal Rule of Appellate Procedure that will allow attorneys to cite to non–precedential federal appellate rulings in all federal appellate courts. Currently, some federal appellate courts permit their non–precedential rulings to be cited in briefs, other federal appellate courts disfavor the practice but permit it when no on–point precedential decision exists, while a third group of federal appellate courts almost entirely prohibits any citation to their own non–precedential rulings.

Although the Judicial Conference's approval of proposed Federal Rule of Appellate Procedure 32.1 is excellent news, the approval came at a price. The rule as presented to the Judicial Conference for approval stated: "A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been designated as 'unpublished,' 'not for publication,' 'non–precedential,' 'not precedent,' or the like."

Unfortunately, in order to agree to approval of the rule, the Chief Judge of one of the U.S. Courts of Appeals where the citation to that court's own non–precedential decisions is now almost entirely prohibited demanded that proposed Rule 32.1 apply only to federal court rulings issued on or after January 1, 2007. The Judicial Conference agreed to the change and approved a version of proposed Rule 32.1 which specifies that the rule will apply only to opinions issued "on or after January 1, 2007."

The Advisory Committee's note has been updated as follows to reflect this belated amendment to Rule 32.1: "Rule 32.1(a) applies only to unpublished opinions issued on or after January 1, 2007. The citation of unpublished opinions issued before January 1, 2007, will continue to be governed by the local rules of the circuits."

On November 29, 2005, the Judicial Conference forwarded amended proposed Federal Rule of Appellate Procedure 32.1 to the U.S. Supreme Court with the recommendation that the rule be approved and promulgated to Congress by May 1, 2006. If the Supreme Court sends the rule along to Congress by that date, and if Congress thereafter takes no action to derail the rule, proposed Federal Rule of Appellate Procedure 32.1 will go into effect on December 1, 2006 (even though the rule, by its own terms, will only apply to decisions issued on or after January 1, 2007).

In considering proposed Federal Rule of Appellate Procedure 32.1, the Supreme Court has the power to eliminate the belated amendment making the rule applicable only to decisions issued on or after January 1, 2007. For the reasons that follow, the Supreme Court should remove the Judicial Conference's last–minute, prospective–only amendment and return Rule 32.1 to the form in which the Appellate Rules Advisory Committee approved it, making the rule applicable to all unpublished and non–precedential federal court rulings, regardless of when issued.

There are two persuasive reasons why the Supreme Court should remove the temporal limitation added via the Judicial Conference's belated amendment to Federal Rule of Appellate Procedure 32.1: the amendment is guaranteed to sow unnecessary confusion, and the amendment serves no logical purpose in distinguishing between non–precedential decisions based on date of issuance.

One of the major purposes of proposed Rule 32.1 was to eliminate the lack of uniformity in the local rules of the U.S. Courts of Appeals governing when non–precedential rulings may be cited. Unfortunately, the Judicial Conference's belated amendment to the rule appears to grandfather–in the lack of uniformity that currently exists with respect to non–precedential federal appellate court rulings issued before January 1, 2007.

I fear that, in practice, the new version of proposed Federal Rule of Appellate Procedure 32.1 threatens to add much additional, not heretofore encountered uncertainty. At present, most federal appellate courts either by local rule or case law have announced whether and under what circumstances those courts' own non–precedential decisions may be cited in briefs filed in those courts. Yet those local rules and that case law speak to the present. Thus, for example, an advocate filing an appellate brief today in the U.S. Court of Appeals for the Ninth Circuit knows that she risks discipline from the court if she cites a non–precedential Ninth Circuit ruling as authority.

As of December 1, 2006, if proposed Rule 32.1 goes into effect as planned on that date, the Ninth Circuit's local rule will be deprived of any effect, at least with respect to Ninth Circuit non–precedential rulings issued on or after January 1, 2007. But the question will then arise whether the preexisting local rule, consisting of a currently–applicable blanket prohibition on the citation of any Ninth Circuit non–precedential decisions, should be construed to continue to prohibit citation to non–precedential decisions issued before January 1, 2007.

What would make the most sense, of course, would be for every single U.S. Court of Appeals, in advance of December 1, 2006, to promulgate a new local rule specifying whether and under what circumstances (if any) litigants will be permitted to cite to those courts' own non–precedential rulings issued before January 1, 2007. But the promulgation of such new local rules by federal appellate courts across the Nation is not guaranteed to happen, and nothing in proposed Rule 32.1 requires it to occur. Absent such newly promulgated local rules, litigants in most circuits will be at a loss to figure out whether local rules addressing when non–precedential decisions can be cited at the present time continue, in the aftermath of Rule 32.1's effective date, to govern the circumstances under which non–precedential rulings issued before January 1, 2007 can be cited.

The confusion that the Judicial Conference's amendment to Rule 32.1 is guaranteed to spawn is but one of the two reasons why the Supreme Court should nix that amendment. The second, equally important reason is that the amendment illogically draws a distinction between non–precedential opinions issued before January 1, 2007 and non–precedential opinions issued on or after January 1, 2007.

Proposed Rule 32.1 merely allows attorneys to cite a federal appellate court's non–precedential or unpublished opinions, but the rule in no way requires a federal appellate court to treat its own non–precedential or unpublished opinions as precedent. Thus, after January 1, 2007, the Ninth Circuit will be prohibited from disciplining an attorney who cites one of the Ninth Circuit's post–January 1, 2007 non–precedential rulings in a brief, but the Ninth Circuit itself remains as free to continue to ignore its own non–precedential rulings after Rule 32.1 takes effect as the Ninth Circuit believes itself to be today.

Another possibility is that a prospective–only limitation in proposed Rule 32.1 will allow those circuits that strictly prohibit citation to their non–precedential rulings either to improve the quality of such rulings after January 1, 2007 or know that such rulings should thereafter be entirely bereft of any citable content. But if that is the rationale for the rule's temporal limitation, the amendment overlooks that attorneys recognize that non–precedential rulings should only be cited in the absence of any comparable precedential authority and that federal appellate courts will remain entirely free to disregard their own non–precedential decisions as not binding and not authoritative.

There are two important reasons why I am optimistic that the U.S. Supreme Court will strike the Judicial Conference's belated temporal limitation amendment from the text of proposed Federal Rule of Appellate Procedure 32.1, and their names are Chief Justice John G. Roberts, Jr. and Associate Justice nominee Samuel A. Alito, Jr. Both served on the U.S. Courts Appellate Rules Advisory Committee, and both are on the record as opposed to any temporal limitation in proposed Rule 32.1.

Because the Judicial Conference's temporal limitation on proposed Federal Rule of Appellate Procedure 32.1's scope is guaranteed to foment confusion and is based on the illogical proposition that non–precedential rulings issued before the new rule's effective date ought to be treated differently than non–precedential rulings issued after the new rule's effective date, the Supreme Court should eliminate the Judicial Conference's prospective–only amendment from the text of proposed Rule 32.1 before forwarding the rule to Congress in the Spring of 2006.

This article is reprinted with permission from the December 12, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.

Monday, November 14, 2005

One Local Jurist Prepares To Join The Supreme Court,
While Another Prepares To Leave It

By Howard J. Bashman
Monday, November 14, 2005

Since my last column appeared in these pages some four weeks ago, U.S. Supreme Court nominee Harriet Miers has mercifully receded from memory as though a bad dream. In her place, President Bush had the good sense to nominate the Third Circuit's own Samuel A. Alito, Jr., an outstanding judge whom many of us in the Philadelphia region know well.

Not only would Judge Alito be the first Third Circuit judge to join the U.S. Supreme Court, but he would also be the first Phillies fan to serve on that Court in quite some time. With a fifteen–year record of deciding cases on the Third Circuit -- including cases involving some of the hot–button issues of our time, such as abortion rights and the death penalty -- Judge Alito's nomination brought an abrupt end to his time under the radar. He now faces a far more hectic than usual holiday season, with a Supreme Court confirmation hearing due to get underway early in 2006.

Over the years I have followed closely Judge Alito's rulings, including many in cases on which I have worked. In the area of civil litigation, I have found his rulings to be often unpredictable and thus not what one would expect from a reliably doctrinaire conservative. In criminal law cases, however, Judge Alito does seem to be usually pro–government, as one might expect of a former federal prosecutor.

There is no denying that Judge Alito is incredibly smart, although in personal interactions he comes across as soft–spoken and kind, often to the point of seeming shy. During oral argument, he is respectful toward counsel, sometimes asking difficult questions but never being difficult himself. Judge Alito is not someone who dominates oral arguments at the Third Circuit, making him unlikely to do so at the U.S. Supreme Court.

Once President Bush tapped Judge Alito for the Supreme Court, and Judge Alito experienced the glare of the national media's spotlight, early press coverage repeatedly invoked the sobriquet Scalito, as though Judge Alito were a diminutive clone of Justice Antonin Scalia. While I count myself among those who view a favorable comparison to Justice Scalia as a compliment, in Judge Alito's case the comparison strikes me as especially unfair. Whereas Justice Scalia has a brash personality and is a polarizing force on the Court, where he is typically either unwilling or unable to compromise his strongly–held jurisprudential beliefs, Judge Alito is a modest, low–key individual who has earned the respect of both his liberal and conservative colleagues on the Third Circuit.

One of Judge Alito's accomplishments is particularly noteworthy in connection with the respect for precedent that he has displayed thus far in his lengthy judicial career. While serving as chair of the Advisory Committee on Appellate Rules of the United States Courts, Judge Alito spearheaded the effort to allow attorneys to cite to non–precedential federal appellate rulings in all federal appellate courts.

Appellate courts that decided cases using non–precedential rulings but then prohibited anyone from citing to such decisions were improperly unconstrained from acting like legislatures, deciding one case one way today and then deciding an all–but–identical case the opposite way tomorrow. Thanks to the controversial rule change that Judge Alito shepherded through the approval process, over the initial objections of many of his judicial colleagues across the nation, appellate judges are unable to avoid the consequences of being reminded that they decided one case a certain way today when an indistinguishable case comes before the same court tomorrow.

Proposed Federal Rule of Appellate Procedure 32.1, which is now in the final stages of the rule approval process, demonstrates that Judge Alito has deep respect for precedent and understands that courts do not appropriately assume the role of legislatures deciding each case on an individual, ad hoc basis free from the constraints of earlier rulings. He is not a results–oriented judge; rather, he is a judge who properly believes that appellate courts should not easily evade their earlier rulings just because of a change in membership or a change of mind.

As matters now stand, it appears that Judge Alito's nomination will not be subject to a filibuster and that he will be confirmed to the Supreme Court before the end of January 2006. Justice Alito will join the Supreme Court lacking any personal agenda to change existing law and fully accustomed to operating under the constraint of precedent. While no one can know for sure what the future will bring -- as the past month's events have vividly demonstrated -- President Bush surely could have nominated other, even more controversial, candidates whose previously expressed views in favor of overturning hot–button precedents would have caused liberals even more trepidation than Judge Alito's nomination reasonably should.

Unexpectedly, next month Pennsylvania will experience another Supreme Court–related first, as the first state appellate court judge ever to lose a retention election departs from the bench. Due largely to the electorate's deep–felt dissatisfaction with a large, sneakily obtained legislative and judicial pay raise, last week Pennsylvania's voters narrowly failed to retain Justice Russell M. Nigro on the Supreme Court of Pennsylvania. He thus becomes the only Pennsylvania appellate judge ever to lose a state–wide retention vote. And his one colleague on the Court who also stood for retention last week, Justice Sandra Schultz Newman, narrowly avoided the same fate.

In retrospect, Justice Nigro did not take seriously enough the threat that Pennsylvania's voters' outrage toward the pay raise would be successfully channeled into a majority vote against retention. As a result, in the very near future Governor Edward G. Rendell will need to nominate an interim Justice who, subject to legislative confirmation, will serve through 2007 until the results of the next judicial election can be implemented.

Interestingly, even the proposed so–called "merit selection" process for Pennsylvania appellate judges would allow voters to cast ballots up–or–down on the issue of retention after the appointees have served an initial period on the bench. Thus, even under a "merit selection" system, voters could remove sitting judges from the bench based on whatever reason then captures the attention of the electorate.

In order to switch from the current system of electing judges to a "merit selection" system, Pennsylvania's voters would need to approve a constitutional amendment bringing about the change. The statement that Pennsylvania voters made last week by rejecting a sitting Pennsylvania Supreme Court Justice suggests to me that the electorate in Pennsylvania is not eager to cede to the Governor and the Legislature the power to decide which individuals should go onto the bench as appellate judges in Pennsylvania.

The electorate's decision not to retain Justice Nigro could be characterized as irrational, because the decision was not directly based on any rulings or actions that Justice Nigro took in his capacity as a member of the Pa. Supreme Court. Moreover, a raise in the wages paid to state judges in Pennsylvania was well–deserved and long overdue. It is extremely short–sighted for Pennsylvania's voters to think that they can continue to attract the best and the brightest to serve as state court judges in exchange for a salary that is far too low. Ironically, former Justice Nigro is now on the verge of earning a much higher salary in the private sector.

Years from now, we will remember the past month as a time that taught several useful lessons. The rejection of Justice Nigro has demonstrated that populism within the electorate is a force that should never be underestimated.

The withdrawal of Harriet Miers's nomination to the U.S. Supreme Court has demonstrated that an appearance of cronyism coupled with an apparent lack of qualifications make for a less–than–compelling nominee.

And the nomination of Sam Alito demonstrates that, as was also the case with Chief Justice John G. Roberts, Jr., sometimes we do get the appellate judges that we deserve -- the best and the brightest -- with a refreshing dose of modesty and humility mixed–in.

This article is reprinted with permission from the November 14, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.

Monday, October 10, 2005

Miers Nomination Catches Bush Off–Base

By Howard J. Bashman
Monday, October 10, 2005

What qualifies someone to serve on the Supreme Court of the United States? A literalist would answer, "Being nominated by the President and confirmed by the U.S. Senate." Thus, it is not disqualifying for a President to nominate someone who was not considered a front–runner for the Court or even someone about whom there is precious little that can be known until it is too late to do anything about it.

President Bush's nomination last week of White House Counsel Harriet E. Miers to replace Justice Sandra Day O'Connor took most everyone by surprise. Miers has never served as a judge, has never argued a case to the U.S. Supreme Court, is sixty years old, is relatively unknown to lawyers and political geeks who obsess over the highest Court in the land, and had not been seriously viewed other than apparently by President Bush as a likely choice for the Court.

None of this, of course, means that Miers is unqualified to serve on the Supreme Court. She already possesses one of the two necessary qualifications: a Presidential nomination. And if a majority in the U.S. Senate votes to confirm the nomination (or if 50 Senators vote to confirm, plus the tie–breaking vote of Vice President Dick Cheney), Miers will become the one–hundred–and–tenth person, and third woman, to serve as a Justice on the U.S. Supreme Court.

So what qualifies Miers to serve on the highest Court in the land? She has worked closely with President Bush for many years, enabling him to have great confidence in her character and outlook. She rose to the heights of the profession in private practice, as leader of one of the largest law firms in Texas and as head of both the Dallas and Texas Bar Associations. She once served for two years on the City Council in Dallas. And she has no disqualifying paper trail.

On the other hand, for those who were wondering whether President Bush's second nomination to the Supreme Court could equal in quality and political deftness the nomination of John G. Roberts, Jr., the answer clearly is "no." Perhaps it would be unreasonable to expect that President Bush's second nominee would equal the quality of his first nominee, given how highly qualified Chief Justice Roberts was and is. But there are many, many other potential nominees, both male and female, of various demographic backgrounds, whose qualifications come close to those of Chief Justice Roberts. From what we know thus far, Harriet Miers is not one of them.

So are we to believe that Harriet Miers was President Bush's second choice when the President originally nominated John G. Roberts, Jr. to replace Justice O’Connor? And are we to believe that in the month after Chief Justice William H. Rehnquist died, Harriet Miers turned out to be the best nominee President Bush could find for the newly reopened O'Connor vacancy? Who knows?

Although a U.S. Supreme Court Justice has but one vote out of nine, Justice Sandra Day O'Connor's vote on the current Court, which until this year had no vacancies since 1994, has often proved decisive in resolving the most pressing issues of our time. Replacing Justice O'Connor with a person of unknown views and unknown judicial ability is, frankly, a frightening proposition.

When campaigning for the Presidency, George W. Bush often stated that he intended to nominate Justices in the model of Antonin Scalia or Clarence Thomas. And while Chief Justice Roberts is unlikely to be another Scalia or Thomas, at least the new Chief Justice probably will hold many of the same views as his predecessor and mentor, William H. Rehnquist. Harriet Miers does not appear to be another Scalia, Thomas, or Rehnquist. And that causes many on the political right to fear that she could be the next David H. Souter.

Of course, the first President Bush didn't know Souter well before nominating him to the Court, while the current President Bush has had a long time to get to know Harriet Miers. But again, when we find out what sort of a Justice Harriet Miers is, it will be too late to do anything about it. And the defense that the White House is offering -- that the nominee's supposed personal views should reassure those who hoped President Bush would nominate someone in the mold of Justices Scalia and Thomas -- seems wholly inconsistent with what conservatives have been saying about the distinction between a judge's personal views and constitutional opinions.

Many in the Republican base are angry and disappointed that President Bush did not nominate one of the many highly–qualified, young, unquestionably conservative potential candidates for the O'Connor vacancy. With 55 Republicans in the U.S. Senate, the White House could afford to lose five votes and still gain confirmation of a controversial nominee thanks to Vice President Cheney's tie–breaking vote. And even if the President nominated someone known to view Roe v. Wade as incorrectly decided, Justice O'Connor is currently the sixth vote on the Court to uphold a constitutional right to choose abortion (although, admittedly, she was the decisive fifth vote in striking down a ban on the controversial "partial–birth" abortion procedure).

Even though neither you (assuming you're not President Bush) nor I would have nominated Harriet Miers to the Supreme Court, I presume she will be confirmed to serve on the Court. After all, enough Republican Senators will support her, and she already has the support of the Senate's Democratic Leader, Harry Reid.

So let's try to end on a hopeful note. President Bush's nomination demonstrates that leading a law firm can qualify one to serve on the U.S. Supreme Court. The nomination shows that bar association leadership can lead to a seat on the highest Court on the land. And I'm sure that some members of the Dallas City Council are looking forward to being fitted for a judicial robe and having a large corner office in the marble palace at One First Street, N.E. in Washington, DC. Of course, being a close friend of the President never hurts, either.

This article is reprinted with permission from the October 10, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.

Monday, September 12, 2005

The Chief Justice is Dead; Long Live the Chief Justice

By Howard J. Bashman
Monday, September 12, 2005

In addition to dealing with the quite unsettling scenes of death and devastation from Louisiana and Mississippi and the unexpected news of Chief Justice William H. Rehnquist's death, over the past days I have done my best to adjust to the realization that my chance of serving as Chief Justice of the United States is nearer to nonexistent than ever.

To be sure, my name has appeared on no "short lists" for the Chief Justice's position other than my own, although The Daily Journal (a California–based legal newspaper) once reported that I was under consideration to fill a vacancy on the U.S. Court of Appeals for the Third Circuit. Yet the George W. Bush administration has compiled an admirable record of nominating appellate lawyers to appellate judgeships. And I am an appellate lawyer -- I'm even a member of the dreaded Federalist Society -- so it never hurts to aim high.

I am not delusional enough to have expected to be named Chief Justice at this time, of course. I am now just on the verge of turning forty–one, and my "judicial experience"” (if time serving as a moot court judge is ignored) is limited to having served as a law clerk for two–years to a Third Circuit judge who himself at one point was rumored to be a U.S. Supreme Court nominee.

Chief Justice nominee John G. Roberts, Jr., as the news media regularly remind us, is now 50 years old, and if he serves until the age of 80, as Chief Justice Rehnquist did, then I will be over 70 years old when the post of Chief Justice is next vacant. At that point, undoubtedly a young whippersnapper who today is still in college (or perhaps in elementary school) will be the obvious choice for Chief.

Barring any further postponements, this afternoon in the Senate Judiciary Committee the confirmation hearing of John G. Roberts, Jr. to become Chief Justice of the United States is scheduled to begin. It is emblematic of the ultimate uselessness of these hearings that today's proceedings will be devoted to a half–day of statements without any time for testimony from anyone.

And even when the schedule turns to testimony, as it will tomorrow when the nominee is scheduled to begin a grueling two days behind the microphone, the vast majority of the time is consumed by the speechifying of U.S. Senators who would rather hear their own voices than the nominee's answers to questions.

When the Judiciary Committee held hearings on John G. Roberts, Jr.'s nomination to the D.C. Circuit, one Republican Senator on the committee accused a Democratic Senator on the committee of asking "dumb–ass" questions. While U.S. Senators are certainly free to borrow dialogue from "Beavis and Butthead" episodes for use in their on–the–record interactions, one hopes that this time the proceedings will be more dignified all around.

Notwithstanding Chief Justice Rehnquist's refusal to concur in the Supreme Court's "right of privacy" jurisprudence, he did not hesitate to exercise his own right to keep private the details of his medical condition. Thus, while many medical experts opined after Chief Justice Rehnquist's diagnosis of thyroid cancer became public that the treatment he was receiving indicated a form of the disease that was likely to prove fatal sooner rather than later, the Chief Justice never revealed whether he had that type of thyroid cancer and, in July 2005, issued a statement disavowing any intention of resigning from the Court.

It was Chief Justice Rehnquist's desire to serve at least one more year in that post. And had he done so, it appeared certain that the U.S. Senate would have confirmed Judge Roberts to replace Justice Sandra Day O'Connor as an Associate Justice. That would have spared the eleven–Term "junior" Justice, Stephen G. Breyer, from having to continue in the junior Justice's role as door–keeper at the Court's private conferences. The Supreme Court is one of the few places in America where the junior employee is old enough to be collecting Social Security retirement benefits.

Whether or not you view favorably President Bush's decision to withdraw Judge Roberts as the successor to Justice O'Connor and instead nominate Judge Roberts for Chief Justice, this recent development is clearly good news (at least for the time being) for liberals dismayed with the impending rightward shift that the Court was about to take. Justice O'Connor was of course notorious as a centrist swing–vote, and it appeared certain that having Judge Roberts replace her would move the Supreme Court in a more conservative direction.

Now, however, Judge Roberts will be replacing his former boss, Chief Justice Rehnquist. That change in the Supreme Court's composition is unlikely to alter the Court's overall doctrinal outlook. Had Chief Justice Rehnquist served through July 2006, perhaps the Bush Administration could have then replaced the Chief Justice with another conservative jurist, cementing a gain of one conservative seat on the Court.

Instead, Chief Justice Rehnquist is being replaced by someone many view as a Rehnquist clone, and the pressure will again be strong to replace Justice O'Connor with an O'Connor clone. Judge Roberts, a charming conservative with a Teflon–coated past (overlooking, as the U.S. Senate is about to do, some snide memos written as a young White House lawyer), was capable of achieving enough support to be confirmed to replace Justice O'Connor without triggering the so–called anti–filibuster "nuclear option" in the Senate. Whether anyone else exists who could thread this same needle remains to be seen, but many are understandably skeptical.

Because Judge Roberts is no longer slated to replace on the Court the most powerful woman in America, the U.S. Senate during this week's confirmation hearing can focus on minutia if it wishes. For example, will a Chief Justice Roberts continue the tradition of wearing gold bars on the Chief Justice's judicial robe? Will a Chief Justice Roberts continue the tradition of silencing arguing counsel mid–syllable when the red light signaling the end of counsel's time illuminates?

And how long will it take for a Chief Justice Roberts, who has repeatedly supported the enactment of a Federal Rule of Appellate Procedure allowing non–precedential opinions to be cited to all U.S. Courts of Appeals over the vociferous opposition of the behemoth U.S. Court of Appeals for the Ninth Circuit, to oversee the dismantling of the Ninth Circuit into two or more manageably sized federal appellate courts?

But these questions, of interest to appellate geeks, likely won't be asked this week. Instead, odds remain good that once again Judge Roberts will be required to respond to some dumb questions during this week's confirmation hearing. Although U.S. Senators in the past have done quite well on their own in formulating such questions, online at my "How Appealing" web log I recently held a contest to see what additional dumb questions readers wanted Judge Roberts to answer.

Among the submissions that I received were the following queries: "Judge Roberts, in describing the arroyo toad as 'hapless,' are you not guilty of insensitive specie-ism?"; "International law, penumbras, or public opinion, which would you use to protect the right of individual citizens to define their own existence in the universe?"; "Speaking of 'originalism,' do you prefer 'original' or 'extra crispy' at KFC?"; and "In your view, which member of the Senate Judiciary Committee is the biggest dumb–ass?"

These reader submissions are also unlikely to be asked during this week's hearing, although several female Democratic Senators likewise recently solicited over the internet questions from the public for Judge Roberts. But I feel confident that whatever the quality of questions that Judge Roberts receives this week, he will emerge unscathed and will have a lengthy and distinguished tenure on the U.S. Supreme Court. Meanwhile, I can still hold out hope for an Associate Justice's position.

This article is reprinted with permission from the September 12, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.

Monday, August 08, 2005

Money, Judicial Elections, And The First Amendment

By Howard J. Bashman
Monday, August 8, 2005

Last week, the U.S. Court of Appeals for the Eighth Circuit sitting en banc ruled that Minnesota's cannons of judicial conduct applicable to candidates seeking election to judicial office violate the First Amendment in two significant respects.

First, the court struck down a restriction that prohibited candidates for election to judicial office from publicizing their political party affiliation or seeking a political party’s endorsement. And second, the court struck down a restriction that prevented candidates from personally soliciting campaign contributions.

A dissent from last week's ruling notes that twenty–four states, including both Minnesota and Pennsylvania, prohibit candidates seeking to be elected as judges from personally soliciting campaign contributions, while just six states permit such personal solicitations. Thus, while last week's Eighth Circuit ruling only directly binds the seven States located within that federal appellate court's geographical boundaries, the decision's reasoning, to the extent other courts find it persuasive, could significantly affect the way judicial campaign fundraising is conducted across the Nation.

Last week's ruling from the en banc Eighth Circuit was not even the first especially important judicial election–free speech ruling to arise from that Minnesota case. The very same case produced a U.S. Supreme Court decision in 2002 holding that candidates for judicial election have a First Amendment right to announce their views on disputed legal and political issues.

Before last week's ruling, Minnesota was one of many States in which candidates for elective judicial office had to conduct fundraising through committees consisting of others. In practice, a candidate for judicial office could meet with potential supporters to discuss his or her candidacy, but the candidate was prohibited from either personally requesting campaign contributions or sending out written solicitations over his or her signature requesting campaign contributions.

At in–person meetings with judicial candidates, only after the candidate had left the room could someone from his or her staff request campaign contributions. And written solicitations carried the signature of someone on the candidate's campaign committee, instead of the signature of the candidate himself or herself.

The en banc Eight Circuit's majority opinion explained that Minnesota's restriction on personal solicitation of funds by candidates for judicial office was subject to strict scrutiny under the First Amendment for two related reasons. First, the restriction was content–based, and content–based restrictions on speech are traditionally subject to strict scrutiny under the First Amendment. And second, because the restriction "applies to requests for funds to be used in promoting a political message," strict scrutiny is appropriate because "promoting a political message requires the expenditure of funds."

After concluding that strict scrutiny was the appropriate constitutional standard of review to apply to the direct fundraising solicitation ban, the Eighth Circuit's majority opinion stated: "Since strict scrutiny is clearly invoked, the solicitation clause must also be narrowly tailored to serve a compelling state interest. Minnesota asserts that keeping judicial candidates from personally soliciting campaign funds serves its interest in an impartial judiciary by preventing any undue influence flowing from financial support."

The Eighth Circuit's majority opinion concluded that the ban on personal solicitation of campaign funds could not survive strict scrutiny review because a separate, unchallenged provision of Minnesota's cannons of judicial conduct prevented a judicial candidate's campaign committee from disclosing to the candidate the identities of campaign contributors. And if the judicial candidate did not learn the identity of campaign contributors, the majority reasoned, then the ban on personal solicitation of campaign contributions was not narrowly tailored to serve the State's compelling interest in unbiased and open–minded judges.

Yet in the very same en banc ruling, both the majority opinion and the dissent noted that, in Minnesota, the identities of contributors to judicial campaigns are publicly available over the internet from the Minnesota Campaign Finance and Public Disclosure Board. And there are many other ways that a candidate for judicial office may learn about the identity of campaign contributors even if his or her campaign committee did not inform the candidate directly. Moreover, in some States, including Pennsylvania, there is no limit on the amount of money that someone may contribute to a candidate for elective judicial office. The bigger the contribution, the more difficult it becomes to keep the contributor's identity a secret.

The concern that a judicial candidate will feel beholden to campaign contributors is quite troubling, and yet a prohibition on campaign contribution solicitations does not directly influence the extent to which a judicial candidate will feel that he or she, after attaining judicial office, ought to rule in a manner that financial supporters of the judge's campaign would prefer.

Anyone who achieves judicial office, whether by election or appointment, may feel indebted to those responsible for helping him or her attain office. Yet the expectation is that the judge will either be able to put aside such feelings when deciding how to rule on a case or will recuse from participating if the judge cannot approach the case in an unbiased manner due to who was involved in helping the judge reach office.

As I have recently written in an article about judicial recusal that will be published in a forthcoming issue of the Journal of Appellate Practice and Process, "An appellate judge who, once elected to office, sought to repay supporters by means of favorable rulings would assuredly be acting in an unethical manner. But the overarching question is whether the appellate judge's impartiality might reasonably be questioned [based on campaign contributions], and that issue can be endlessly debated."

Nearly four years ago, my September 2001 monthly appellate column carried the title "Pennsylvania Should Keep, But Reform, Its System Of Electing Appellate Judges." In that column, I advanced two proposals that seem especially relevant in the aftermath of last week's Eighth Circuit decision striking down prohibitions on the personal solicitation of campaign contributions by candidates for judicial office:

"Currently, supporters of candidates for judicial office in Pennsylvania can make unlimited campaign contributions. And, the rules governing whether an elected judge can participate in a case involving attorneys or parties who contributed to the judge's election campaign contain few bright lines. To eliminate the unseemly impression some may have that judicial candidates are for sale, Pennsylvania should adopt judicial campaign contribution caps that are at least as strict as those that govern candidates for Congress. The rules of judicial conduct should further make clear that a judge who has received contributions in excess of those limits from an attorney or a party must recuse himself or herself from deciding any case involving the attorney or party.

"Pennsylvania should also consider offering matching campaign funds to judicial candidates who are willing to adhere to specified limits on campaign spending. While the U.S. Supreme Court has declared unconstitutional mandatory campaign spending limits, spending limits that candidates elect to observe, encouraged by matching campaign funds, appear to be lawful."

Last week's en banc Eighth Circuit decision in my view reached the correct result concerning whether prohibiting a judicial candidate from personally soliciting campaign contributions violates the First Amendment. But there remain lawful ways to limit the improper influence that campaign contributions could exert on someone who has successfully campaigned for elective judicial office, and States that elect judges should examine enacting limits on campaign contributions and encouraging limits on campaign expenditures.

This article is reprinted with permission from the August 8, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.

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