Howard J. Bashman's appellate columns, etc.

'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 law.com.]

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 law.com.]

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 law.com.]

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 law.com.]