Circuit Split Watch: Patricia Millett's Last Supreme Court Case?

This article first appeared in the August 14, 2013, issue of the National Law Journal’s Supreme Court Brief.

Patricia Millett, one of President Obama’s three pending nominees to the U.S. Court of Appeals for the D.C. Circuit, is a counsel of record in Samantar v. Yousuf, now making its second trip to the Supreme Court.

The petition in the case, which Millett opposes, highlights a circuit split in the lower courts about immunity for foreign officials. The Supreme Court has already shown interest in the petition twice and may decide to hear the case in the upcoming term.

During a recent Senate Judiciary Committee hearing on Millett’s nomination, Senator Chris Coons (D-Del.) asked her about Samantar, which she argued and won at the high court in 2010. Millett, who co-heads the Supreme Court practice at Akin Gump, represents individuals who allege that Mohamed Ali Samantar is responsible for atrocities, including torture and murder, committed under his command as defense minister and then prime minister of Somalia. He currently lives in Virginia.

In 2010, the justices found that Samantar was not entitled to immunity under the Foreign Sovereign Immunities Act, but left open the question of whether common law immunity might apply. That is the issue in the latest case.

On remand, the Fourth Circuit rejected common law immunity for Samantar. The court noted that “crimes or human rights violations” contrary to international norms, also called jus cogens, can wipe away immunity.

The pending petition, filed by Shay Dvoretzky, a partner at Jones Day and former Scalia clerk who represented Samantar at the Supreme Court in 2010, contends that three federal appellate courts disagree with the Fourth Circuit.

Most recently, the Second Circuit held in 2009: “A claim premised on the violation of jus cogens does not withstand foreign sovereign immunity.”

Millett, for the respondents, disputes that a circuit split exists, in part because the cases the petition identifies as splitting from the Fourth Circuit predate the 2010 Samantar decision. In other words, they did not incorporate the Supreme Court’s latest statement on immunity for foreign officials.

In addition, the response brief points out that, after the Court’s 2010 decision, the U.S. State Department rejected immunity for Samantar. The State Department determined that he “is a former official of a state with no current government formally recognized by the United States.” As a result, no recognized government can “assert or waive any immunity Samantar might enjoy.” The United States recently recognized a government in Somalia, which requested immunity for Samantar, but the State Department has not, to date, changed its recommendation.

The case has the Supreme Court’s attention.

On June 24, after briefing by both sides, the justices called for the views of the Solicitor General (CVSG). According to research published in a 2009 George Mason Law Review article, “the grant rate is considerably higher following a CVSG,” but it does not guarantee that the Court will hear a case.

Earlier, the Court requested a response to Samantar’s latest petition, after that opportunity was initially waived. Though less of an indicator than a CVSG, the response request also increases the odds of a grant, according to the 2009 research.

The fact that the question at issue is one the Court itself left open earlier is another factor favoring review.

Will Samantar be Millett’s last Supreme Court case (or one of the last) in her history-making career as an advocate before the Court? The Senate Judiciary Committee already approved her nomination, along party lines, but the full Senate has not yet voted.

For most of her career, Millett served in the U.S. Department of Justice in the Solicitor General’s Office and in the Civil Division’s Appellate Section, under administrations of both parties. As Senator Ted Cruz (R-Tex.) told Millett at her hearing, she finds herself in the midst of a larger battle over the D.C. Circuit, which is not about her qualifications.

Millett and fellow Solicitor General office alum Lisa Blatt, who heads Arnold & Porter’s Supreme Court practice, made history in recent years by passing the thirty-argument mark, the most ever for female advocates before the high court. Blatt now holds the lead with thirty-three arguments to Millett’s thirty-two.

The author assisted with the briefs in the 2010 Samantar case as an attorney at Jones Day.

Argument Audio: The Four Holdout Circuits

Most federal appellate decisions are final, and arguments are an important part of that process. See "Before Supreme Court TV, How About This?" More and more, courts are opening these public proceedings to the public, via the Internet.

On Wednesday, Appellate Daily was able to announce that the D.C. Circuit will post argument audio online, starting in September. The D.C. Circuit joins the U.S. Supreme Court and eight federal appellate courts that post audio online.

That leaves only four holdout circuits.

The Second, Sixth, and Eleventh Circuits offer audio CDs for purchase. The Tenth Circuit requires a motion to obtain audio; if granted, a copy is emailed. In a phone call this week, the Tenth Circuit clerk's office said those motions are routinely granted.

A few notes on the future:

*The Tenth Circuit seems close to posting online. It already offers free e-audio, just not on its website. It's like the moment when a child is deciding whether to approach or back away from an unfamiliar animal. The Tenth Circuit is curious, but wants to make sure this animal doesn't bite. I think the court will find it doesn't and make the change.

*Perhaps a year ago, I phoned the Second Circuit to inquire about the status of its audio policy. At the time, the clerk's office said that the idea of online access had been floated, but that the court was in the process of a renovation. Once that work was done, the clerk's office said, the court would be in a better position to take up the question. With the renovation now complete, will the Second Circuit increase access?

*The Eleventh Circuit has already made significant progress. Its previous policy was even worse than the D.C. Circuit's: no public access (even for parties and even for closed cases). In 2010, I wrote letters to several circuits, asking for online access to argument audio. Eleventh Circuit Chief Judge Joel Dubina kindly responded that the court would consider the idea, though it did not make immediate change. In 2012, the Eleventh Circuit began offering audio CDs for purchase. With the big leap to public audio already made, perhaps the court will be open to posting online, now just an incremental change? [fn1]

*Posting online would save court staff time in these four circuits. Staff in "CD" circuits would not have to produce CD copies and mail them. The Tenth Circuit could avoid reviewing motions and sending emails. All four circuits could field fewer calls and process fewer forms. Interested parties could just point and click online.

Stay tuned.
____
1) The Fourth Circuit also kindly responded to the 2010 letter and took action within months to put audio on the Internet. As with all courts, the Fourth Circuit undoubtedly had been thinking about changes, independent of outside voices. But it is heartening that the courts do consider citizen viewpoints.

Circuit Split Watch: Gun Rights Outside the Home

This article first appeared in the January 16, 2013, issue of the National Law Journal’s Supreme Court Brief.

The U.S. Supreme Court’s landmark Heller decision declared an individual right to possess a firearm at home, but left open the question of gun rights in public. The high court could be asked to weigh in soon on this open question, which has split federal appellate courts and again been part of the national conversation since the Newtown shootings.

In a December opinion, Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, writing for himself and Judge Joel Flaum, honed in on the words “keep and bear” in the Second Amendment, drawing meaning from each one.

“The right to ‘bear’ as distinct from the right to ‘keep’ arms is unlikely to refer to the home,” Posner stated. “A right to bear arms thus implies a right to carry a loaded gun outside the home.” This reading, Posner concluded, is consistent with Heller. The majority struck down an Illinois ban on carrying guns in public.

Dissenting, Judge Ann Claire Williams was not convinced that Heller implied a “right to have ready-to-use firearms” outside the home.

Williams looked to “a long history of regulating arms in public,” including state laws adopted during the founding era. Predating those laws, the 1328 Statute of Northampton provided that no one may “go nor ride armed by night nor by day, in Fairs, markets, nor in the presence of the Justices or other Ministers, nor in no part elsewhere.”

Both Posner and Williams cited recent decisions from the 2nd and 4th Circuits, which upheld public-carry restrictions (a New York law and a National Park Service regulation, respectively).

In November, a unanimous 2nd Circuit panel found “a longstanding tradition of states regulating firearm possession and use in public because of the dangers posed to public safety.”

A unanimous 4th Circuit held in 2011 that “as we move outside the home, firearm rights have always been more limited, because public safety interests often outweigh individual interests in self-defense.” As to extending Heller, two of the three judges said it is “prudent to await direction from the [Supreme] Court.”

Posner questioned both opinions and distinguished the Illinois ban as “the most restrictive gun law of any of the 50 states.” Along these lines and in an unusual move, Posner gave the Illinois legislature 180 days to revise the ban. The new law can “impose reasonable limitations, consistent with the public safety and the Second Amendment,” he explained.

If Illinois takes this option, it could lessen the practical impact of the circuit split. The revised restrictions could be similar to those upheld; in fact, the Supreme Court declined to review the 4th Circuit public-carry decision. A petition for certiorari is pending in the 2nd Circuit case.

For now, Illinois continues to fight the 7th Circuit ruling.

On January 8, Illinois Attorney General Lisa Madigan filed a petition for rehearing en banc. In a press release that same day, Madigan said: “In ruling that Illinois must allow individuals to carry ready-to-use firearms in public, the 7th Circuit Court’s decision goes beyond what the U.S. Supreme Court has held and conflicts with decisions by two other federal appellate courts.”

If the full 7th Circuit decides to rehear the case, any Supreme Court review would be delayed. However, a quick denial by the 7th Circuit, followed by a petition for certiorari is just as likely.

Top Five Appellate Daily Posts of 2012

Below are the five most popular Appellate Daily posts of 2012, with a few notes and updates. Thanks to everyone for reading and following the news feed. Hope your 2013 is happy!

1-How Paul Clement Wishes He Could Prepare for Argument

• My interview with the former Solicitor General tops the list this year. It is also the most popular post in the blog's history, by far.

2-Circuit Split Watch: Is Personal Use of a Work Computer a Federal Crime?

• The United States decided not to appeal the Ninth Circuit decision featured in this post, perhaps "scared off by [Chief] Judge Kozinski's opinion" for the en banc majority, according to Professor Orin Kerr quoted in Wired. "It would have been the first document that the [Supreme Court] justices read, and it's a pretty powerful brief against the government's position," said Kerr.
• The computer-use issue is still alive, though. A pending petition for certiorari from the Fourth Circuit on the issue (12-518) gives the Supreme Court the chance to weigh in.

3-Circuit Split Watch: A New Abortion Battleground

• This split is ready and waiting for a vehicle to get it to the Supreme Court. The Oklahoma state court case, mentioned at the end of the post, is the one to watch right now. On December 4, the state supreme court struck down Oklahoma's pre-abortion ultrasound requirement. That day, the state attorney general said in a press release that his office is considering an appeal.
• The Texas federal case is over; it was not appealed to the Supreme Court. The North Carolina federal case is still pending below. See Abortion Ultrasound Cases (Updates and Correction).

4-Judge Wilkinson on Cri de Coeur, Law Clerks, and a Germophobic Third Circuit

• The Green Bag recently recognized Judge Wilkinson's book, discussed in this post, in its 2012 Exemplary Legal Writing honors.

5-Circuit Split Watch: Former Federal Judge Seeks Restitution for Victims

• Judge Cassell has asked the Supreme Court (12-651) to review the Ninth Circuit decision highlighted in this post. Other petitions could follow in the coming months.

Circuit Split Watch: A New Abortion Battleground

This article first appeared in the April 30, 2012, issue of the National Law Journal's Supreme Court Insider.

In a matter of days, a new battle over abortion could reach the U.S. Supreme Court. At issue is whether states can require doctors to perform ultrasounds on women seeking abortions, and to display and describe the fetal images to them. Federal courts have recently split on the question.

According to an April report from the Guttmacher Institute, a pro-choice think tank, more than twenty states regulate pre-abortion ultrasounds. But provisions vary, ranging from written information provided to mandatory ultrasounds. Three states, North Carolina, Texas, and Oklahoma, have the most stringent requirements.

Under North Carolina law, the doctor must perform an ultrasound on a woman seeking an abortion and then display images from the ultrasound to her, noting “the presence, location, and dimensions of the unborn child” and describing “external members and internal organs, if present and viewable.”

Several North Carolina doctors and other health care providers challenged the constitutionality of the law in Stuart v. Huff.

Judge Catherine Eagles of the U.S. District Court for the Middle District of North Carolina preliminarily enjoined the “speech-and-display requirements,” as she called them.

“The First Amendment,” Judge Eagles wrote, “generally includes the right to refuse to engage in speech compelled by the government.” The North Carolina law requires speech via words and imagery, “even when the provider does not want to deliver the message and even when the patients affirmatively do not wish to see it or hear it,” she said.

Eagles also found “no medical purpose” in the speech-and-display requirements.

An order in the case, denying intervention of additional parties, is on appeal at the U.S. Court of Appeals for the 4th Circuit, but the case itself remains before the district court in North Carolina. A trial is set for January 2013.

Walter Dellinger, a prominent Supreme Court advocate with O’Melveny & Myers, who served as acting Solicitor General of the United States, recently entered an appearance in the 4th Circuit for the plaintiffs, opposing intervention. Dellinger’s involvement, in what could be considered a side issue, signals the high-profile nature of the case as a whole and its possible Supreme Court track.

Like North Carolina, Texas also has a mandatory ultrasound law with speech-and-display requirements. However, a federal appeals court has upheld the Texas law.

Writing for a unanimous three-judge panel in Texas Medical Providers Performing Abortion Services v. Lakey, Chief Judge Edith Jones of the U.S. Court of Appeals for the 5th Circuit declared that the “disclosures of a sonogram . . . and [its] medical descriptions are the epitome of truthful, non-misleadling information,” a reference to language in Planned Parenthood of Southeastern Pennsylvania v. Casey, a 1992 Supreme Court decision.

Chief Judge Jones maintained that the Texas disclosures are “more graphic and scientifically up-to-date,” but “not different in kind” than those “discussed [and approved] in Casey—probable gestational age of the fetus and printed material showing a baby’s general prenatal development stages.”

Jones rejected what she saw as the assumption that Casey is “a constitutional ceiling for regulation of informed consent to abortion, not a set of principles to be applied to the states’ legislative decisions.”

The 5th Circuit denied rehearing en banc in February. As a result, a petition for certiorari must be filed with the Supreme Court by May, absent an extension.

Although the federal circuit split is still developing, the Supreme Court may decide to review the ultrasound question, because of its nationwide importance. From the Court’s action in the coming months, whatever that action is, other states will take cues about their boundaries in the future.

A state trial court in Oklahoma recently struck down that state’s ultrasound law, which also includes speech-and-display requirements.

Judge Wilkinson on Cri de Coeur, Law Clerks, and a Germophobic Third Circuit

Speaking at Duke Law School today, Judge J. Harvie Wilkinson called his new book a "cri de coeur" that criticizes judicial activism on the right and the left.

Cosmic Constitutional Theory: Why Americans Are Losing Their Inalienable Right to Self-Governance attempts to promote judicial restraint, Judge Wilkinson explained.

Wilkinson has sat on the U.S. Court of Appeals for the Fourth Circuit since 1984, and before that, served as a law clerk to U.S. Supreme Court Justice Lewis Powell, editorial page editor for the Virginian-Pilot in Norfolk, and law professor.

As a law student, he put his studies on hold to run for Congress at age 25. His opponent had a billboard encouraging voters to return him, the incumbent, to Congress and return Wilkinson to law school. When he lost, Wilkinson quipped that he got a mandate from the voters: return to school.

Wilkinson's new book is dedicated to his law clerks, who, he said, are one of the best parts of his job. He values "intergenerational relationships" because each can learn from the other.

Being at Duke, Wilkinson took time to praise his three North Carolina colleagues on the Fourth Circuit: Albert Diaz, Allyson Duncan, and James Wynn.

Judge Wilkinson predicted that Diaz, who has been on the circuit just over a year, will come to be widely recognized as one of the best federal appellate judges in the country. Wilkinson also told how Diaz helped him in relation to the death of Fourth Circuit Judge Blane Michael. Michael and Wilkinson, both runners, had been friends and liked to go for runs in a particular park. When Michael died, Wilkinson was so sad that he wondered if he could ever run in that park again. But, Diaz invited Wilkinson to go running one day, which returned Wilkinson to the park. Wilkinson was sure that Diaz, a former Marine, had slowed his pace, so that Wilkinson could keep up.

The Fourth Circuit tradition of judges and attorneys shaking hands after oral argument was the topic of a humorous story shared today. Judge Wilkinson tried to convince a colleague on the Third Circuit, the late Judge Edward Becker, that his court should try handshaking, as well. Becker asked other judges in his circuit and looped back to Wilkinson with a negative response. They felt it would spread too many germs.

Circuit Split Watch: Variations on the Padilla Theme

This article first appeared in the January 10, 2012, issue of the National Law Journal’s Supreme Court Insider.

The U.S. Supreme Court will soon have the chance to revisit Padilla v. Kentucky, its 2010 decision holding—at the intersection of criminal and immigration laws—that the Sixth Amendment requires attorneys to inform their clients about the possible deportation consequences of a guilty plea.

In recent months, three federal appellate courts split 2-1 on whether Padilla applies retroactively, teeing the cases up for possible review by the Supreme Court. All three were denied rehearing en banc.

Chaidez v. United States, from the U.S. Court of Appeals for the 7th Circuit, is already the subject of a petition for certiorari.

In 2003, Roselva Chaidez, a lawful permanent resident of the United States since 1977, pled guilty to fraud related to a staged accident insurance scheme and, in 2004, was sentenced to probation. Five years later, after Chaidez tried to apply for citizenship, the federal government initiated removal proceedings against her. Because the admitted fraud caused the victims to lose more than $10,000, it qualified as an aggravated felony, and Chaidez was eligible for deportation.

Chaidez took the matter to federal district court, filing a coram nobis motion, which is a collateral attack similar to habeas, except the defendant is not in custody. Chaidez argued that her attorney did not tell her that a guilty plea could get her deported. Had she known, she would not have pled guilty. Chaidez alleged ineffective assistance of counsel and asked that her conviction be overturned.

Looking to Padilla, which the Supreme Court decided while Chaidez’s motion was pending, the district court vacated her conviction.

The 7th Circuit reversed, over Judge Ann Claire Williams’ dissent.

Judge Joel Flaum, writing for himself and Senior Judge William Bauer, explained that Padilla is not retroactive, meaning that it only applies to cases on direct review, not to a coram nobis motion or other collateral attack. The direct line of Chaidez’s criminal case had been final for years, when she pled guilty and did not appeal.

In Judge Flaum’s view, Padilla announced a groundbreaking new rule that lower courts had not anticipated. In fact, Flaum noted, federal courts before Padilla had unanimously held that plea counsel is not constitutionally required to warn clients of immigration consequences.

Judge Williams disagreed, finding that Padilla applies retroactively to collateral review. Risk of deportation is important information to know before entering a plea. Williams urged that “prevailing professional norms at the time of Chaidez’s plea required a lawyer to advise her client of the immigration consequences of a guilty plea.” Under Supreme Court precedent cited by Williams, such norms have long been relevant to whether counsel’s representation was reasonable.

The 7th Circuit panel knew that its decision would create a circuit split. Less than two months earlier, the 3rd Circuit in United States v. Orocio determined, like Judge Williams, that Padilla applied retroactively. Following 7th Circuit Rule 40(e), the panel distributed the majority and dissent to all ten active 7th Circuit judges. The majority voted not to rehear the case en banc. However, as reported in the panel opinion, four judges voted for rehearing.

The 7th Circuit also denied a later rehearing en banc petition, this time without a vote requested, presumably because the court had previously taken and announced its vote.

Joining the 7th Circuit and making the split 2-1, the 10th Circuit in United States v. Chang Hong ruled that Padilla is not retroactive. Although not precedent, a footnote in United States v. Hernandez-Monreal, a 4th Circuit unpublished opinion from 2010, stated, without analysis, that “nothing in the Padilla decision indicates that it is retroactively applicable to cases on collateral review.”

A petition for certiorari has already been filed in the 7th Circuit case, and petitions from the 3rd and 10th Circuit cases could soon follow.

Circuit Split Watch: Test-Tube Babies and Social Security

This article first appeared in the September 14, 2011, issue of the National Law Journal's Supreme Court Insider.

When Congress passed the Social Security Act in 1935, the idea of a child being born years after its father’s death might have provoked when-pigs-can-fly laughter. Now, through advances in science, such births are a reality, not to mention a source of controversy.

Federal appellate courts have recently split over the requirements for posthumously conceived children to receive Social Security survivor benefits. One petition for certiorari is already pending before the U.S. Supreme Court and two more could follow soon.

The most recent case in the split, decided at the end of August, is Beeler v. Astrue, from the U.S. Court of Appeals for the 8th Circuit.

Doctors diagnosed Bruce Beeler, an Iowa man in his thirties, with leukemia and recommended chemotherapy. Because he and his fiancée Patti wanted to have children, but understood that the treatment could cause sterility, Bruce had his semen banked at a fertility clinic prior to undergoing chemotherapy. He and Patti married within weeks.

Despite chemotherapy and later, a bone marrow transplant, Bruce Beeler died. Nearly two years later, Mrs. Beeler gave birth to their daughter and subsequently filed for Social Security survivor benefits on the girl’s behalf. The Social Security Administration denied the request, but a federal district court in Iowa disagreed and awarded benefits.

Judge Steven Colloton, a former Rehnquist clerk, writing for a unanimous 8th Circuit panel, reversed the district court and upheld the agency’s denial of benefits. Senior Judge Myron Bright, born in 1919, sixteen years before Social Security was enacted, and Judge Roger Wollman also sat on the panel.

The core dispute before the 8th Circuit was whether the daughter is a “child” of a deceased worker, as defined by the Social Security Act and related regulations. From Mrs. Beeler’s standpoint, the answer is simple: It is undisputed that Bruce, the deceased worker, is the biological father of the girl, so she is his child.

For the agency though, biology is not the end of the story, but a trigger to further inquiry. The next question, as the agency reads the Act, is whether the biological child could inherit under state intestacy law. If so, she is a “child” for purposes of Social Security benefits.

In this case, Iowa intestacy law did not recognize posthumously conceived children as heirs. As a result, the Beelers’ daughter did not qualify as a “child” for Social Security purposes. Iowa has since changed its law, the 8th Circuit noted, but not retroactively. The daughter also did not qualify under several other inapplicable provisions, apart from state law.

In upholding the agency’s state law inquiry, the 8th Circuit explained, it was joining the 4th Circuit on one side of a 2-2 circuit split. On the other side, the 3rd and 9th Circuits do not require further inquiry for biological children.

Three of these four federal appellate decisions are from 2011, with major actions in all three just last month. In August, the 8th Circuit ruled, the Solicitor General filed a petition for certiorari in the 3rd Circuit case, Capato ex rel. B.N.C. v. Commissioner of Social Security, and the 4th Circuit denied rehearing en banc in Schafer v. Astrue. In other words, there could soon be three cert petitions on a conflicting issue of nationwide importance pending before the Supreme Court.

New questions from new technologies are becoming a recurring theme on the Supreme Court’s docket with recent grants on subjects like GPS surveillance, DNA testing, and video games. Posthumous conception and Social Security benefits could be next.

D.C. Circuit: Increased Access to Oral Arguments?

As previously mentioned on this blog, the Supreme Court and seven federal appellate circuits post argument audio on the Internet, free of charge (links here; Appellate Daily sidebar). Six circuits, including the D.C. Circuit, do not.

Perhaps things are changing?

Today, the D.C. Circuit posted a listing on its website, requesting proposals from vendors "to redesign [the court's] entire web presence" (proposal deadline December 30, 2010).

Along with many other requirements, the chosen vendor needs to "support multiple file types for documents," as well as, wait for it, "audio, and video." The listing also states the D.C. Circuit's interest in "explor[ing] options to alert visitors using RSS feeds, [as well as] Twitter updates."

While this listing is preliminary and does not announce or commit to anything, it does show that the D.C. Circuit is looking to the future and putting itself in a position to offer more information to the public through available technologies.

Who knows? In the coming years, we might be listening to, or even watching, arguments from our computers about the detention of suspected terrorists, stem cell research, and climate change, just a few of the nationally and internationally significant issues the D.C. Circuit hears.

The Eleventh and Fourth Circuits have also indicated a willingness to consider increased access to oral arguments. Among other important issues, these two circuits almost certainly will be involved in the health care debate, deciding appeals from district court cases in Florida and Virginia.

Stay tuned.

Tased: Three Circuits

"Spillcam" and "vuvuzela" may be the top words of 2010, but the word on many police departments' minds lately could very well be "Taser."

Last week alone, the Fourth and Seventh Circuits ruled against police, allowing suits stemming from deadly Taser incidents to go forward.

Also, in December, the Ninth Circuit sitting en banc will rehear two Taser cases that police originally won (not deadly incidents). In Seattle, a simple traffic stop for speeding escalated to tasing when the driver, a pregnant woman, refused to sign paperwork and leave her car. She thought that signing would admit guilt. In Maui, a teenager called police to report a physical altercation between her mother and stepfather. When the police arrived and attempted to arrest the man, the woman stood in front of him and did not move. Police tased her. The original Ninth Circuit panels found that the officers were entitled to qualified immunity, but the en banc decision remains to be seen.

Fourth Circuit-Article and order
Seventh Circuit-Article and opinion
Ninth Circuit-Rehearing notice
Ninth Circuit-Original opinion, Seattle
Ninth Circuit-Original opinion, Maui

Fourth Circuit: County Furloughs OK

The Washington Post is reporting on a Fourth Circuit decision this week, which upheld furloughs in Prince George's County, Maryland; article here.  The court's decision is here.

Quote: Why the Handshake Never Caught On

[There is a] tradition in the Court of Appeals for the Fourth Circuit, where at the end of oral argument the judges come down from the bench and shake hands with the lawyers.  It is a very endearing custom emblematic of the grace and hospitality of the region encompassed by the Fourth Circuit.

Things are different in the District of Columbia Circuit. . . . There is a famous episode from the early nineteenth century involving Judge Buckner Thruston, who was in the habit of finding the lawyers appearing before him deficient in many respects, and in the habit of giving voice to that view.  On one occasion, a lawyer responded in kind, letting Judge Thruston know that he, the lawyer, found the Judge equally deficient.  The Evening Star explained what happened next: "Judge Thruston's reaction was to hustle down from the bench and berate his critic as 'a scoundrel and poltroon,' whom he challenged to step 'outside and fight.'"  Perhaps those sorts of beginnings explain why the tradition never really caught hold in D.C. as it has in Richmond.

John G. Roberts, Jr., What Makes the D.C. Circuit Different?  A Historical View, 92 Va. L. Rev. 375, 375-76 (2006) (footnote omitted).

There Are Always C-SPAN2 and C-SPAN3

Joe Wong likes that if C-SPAN does not help him fall asleep, there are always C-SPAN2 and C-SPAN3.

Tonight at 7pm (ET), C-SPAN will televise a panel discussion on the current Supreme Court term, moderated by Elena Kagan, before her nomination, and including former Solicitor General Paul Clement. This is part of C-SPAN's America and the Courts series, televised every Saturday night at 7pm. This link has recent programs available, including presentations by Supreme Court justices, among them a joint discussion with Justices Scalia and Breyer about their views of the Constitution.  Recent programs also include a speech by Fourth Circuit Judge Roger Gregory, as well as a Moot Court on health care and immigration status.