From How Appealing, I see this new alert noting that President Bush has used a recess appointment to place Mississippi district court judge Charles Pickering on the Fifth Circuit. And, from Southern Appeal, here is a Fox News story.

I'm not against recess appointments generally, but I think this is a bad move. I seriously doubt that the GOP will pick up enough seats in the Senate this year to get a filibuster-proof majority, and if not, Pickering's tenure on the appeals court will end in short order when he is not confirmed by the Senate (unlike Roger Gregory on the Fourth Circuit, whom President Bush re-nominated after President Clinton used a recess appointment to put him on the bench). Plus, under most interpretations of the recess appointment power, Pickering would have to give up his district court seat once his time on the Fifth Circuit ends.

Of course, Pickering is in his mid-60s, and may decide that it's about time to retire anyway, in which case this would be a nice retirement present from the White House. But strategically, I think using the recess appointments this way will be characterized either as a usurpation of the Senate's role or as Bush throwing in the towel in the face of Democratic opposition. (Note: I'm not saying it deserves to be characterized that way, only that I think in the long run it's not going to look like the best course for the White House.)

Anyway, I'm sure there will be a lot of heated rhetoric (and maybe even some thoughtful commentary) on this soon, but I just wanted to mention it while it's fresh.

UPDATE, an hour later: Trent Lott's office, after Lott cast the only vote against the confirmation of Judge Gregory:

"This was an institutional decision based on a statement Senator Lott made last year that any approval of federal judges during the recess should be opposed," said Lott's spokesman Ron Bonjean. [found here]

I wonder if Lott feels the same way about Pickering now? Time will tell.

I'm a little surprised I haven't seen more commentary on this case, but maybe I haven't been looking in the right places. The other day, a federal district judge in Washington, D.C. upheld that city's gun ban. The decision is available here (68-page pdf), and here is Post summary.

The District of Columbia has what is essentially a total ban on legal gun ownership. It goes without saying that there is plenty of illegal gun ownership in the District. I can't provide a cite for this right now, but my understanding is that the ban is worded so broadly that it is illegal to carry a gun from one room in a house to another. Even for legally registered guns, trigger locks are required.

Anyway, several DC citizens sued over the law. The court found that all but one lacked standing to sue because they did not own guns nor had they sought to register one. The remaining one owed a shotgun and thus could maintain her suit. As to her, though, the court held that the Second Amendment does not apply to the District of Columbia, because that city is a unique unit of the federal government. If the purpose of the Second Amendment was to allow the states to maintain militias to protect themselves, the court reasoned, "there is no reason to believe that the First Congress thought that the federal seat of government needed to be protected from itself when the Second Amendment was adopted." Moreover, the Fourteenth Amendment (through which most of the other amendments in the Bill of Rights were incorporated against the states) does not apply to the District of Columbia. (As an alternative holding, the court held that the plaintiff would lose because she did not claim an association with a militia, relying on the Second Amendment's preamble and DC law regarding a volunteer militia.)

There was a minor buzz last month when the Supreme Court denied cert. in a Ninth Circuit case sticking by that court's precedent that the Second Amendment protects a collective, rather than an individual, right. That case is arguably in conflict with a Fifth Circuit case saying that the right is indeed an individual one. (I say "arguably" because I believe, as did a concurring judge, that this statement is mere dicta. The Fifth Circuit said that, even if the right to bear arms is individual, the restriction on that right at issue there would stand. Therefore, the statements on the scope of the Second Amendment were not strictly necessary to reach the decision.) The cert. denial in the Ninth Circuit case did not surprise me, because I think the Supreme Court would only take a case in which the scope of the Second Amendment right made a difference.

Some have suggested that a challenge to the DC gun ban would be that case. But the plaintiff here has several hurdles to overcome. A court would have to say that the Second Amendment applies to the District of Columbia, and the amendment protects an individual right, and it does not require a connection to the militia, and either that the right is absolute (not a chance) or the particular restriction she challenges goes too far. I am highly doubtful she will win on all of those counts. But if she does, I think it would have to be the biggest victory for gun-rights advocates ever.

I'm not going to get into my position on the Second Amendment here. I will just say that (1) I think the DC judge makes some good points on the incorporation issue, and (2) I don't think the preamble in the Second Amendment is superfluous. Anyway, I mainly just wanted to pass along word of this case. I am looking forward to seeing what the DC Circuit has to say. I guess they should have been asking Miguel Estrada about guns instead of abortion.

Let me assure you that my plan is not to leave posts up front until you feel compelled to comment on them. Yesterday I played hooky from work and blogging. And so now it's Friday and I have a three-day weekend coming up, so everything is cool.

I'll have some real content up later, but a few random things to kill some time.

Via Mr. Poon, I saw the Classic Movie Test: Which Classic Movie Are You? I was Easy Rider and Fitz-Hume was Apocalypse Now. Mr. P was Raiders of the Lost Ark, which makes one wonder when they're coming out with the prequel Temple of Poon. Wait, uh, scratch that...I think they've already made a movie with that name.

In political news, the Iowa caucus now looks like a statistical dead heat between Dean, Gephardt, Kerry, and my boy Edwards. My prediction: All four of them will somehow manage to claim victory Monday.

Also, I was thinking about my "guilt bias" post while I was walking to work this morning. I had an addendum I wanted to add, but I liked the way I signed off on that one (with Frankfurter's quote) too much to add this below it. But anyway, in that post I suggested that it would be darn hard to find a "factually innocent" defendant with a Fourth Amendment issue because there wouldn't be a suppression claim unless the police had found something bad. Upon further reflection, I suppose there could be a case where the cops did a bad search that didn't turn up anything but somehow led to, say, a confession. There, the Fourth Amendment issue would be more of a "fruit of the poisonous tree" analysis. Still, defense attorneys who will only work for factually innocent defendants will probably go out of business.

Anyway, I just wanted to add that to my post below. I'll have some new stuff later.

Lyric in my head today: "She said she was working for the ABC News/ It was as much of the alphabet as she knew how to use."
--Elvis Costello, "Brilliant Mistake"

Also, does anyone think it's a coincidence that, mere days after I use a Van Morrison song as a template for a BTQ theme song, Howard makes a pun from a Van Morrison song in a post title? Not this guy. Still, Domino is a better song than Brown-Eyed Girl, so you win this round, Bashman! (Although I will note that my song fits the meter and "Guantanamo" doesn't work as well for "Domino.")

(Title of this post from the brilliant film Office Space.)

The big news at the Supreme Court this week was the argument in Tennessee v. Lane, a case pitting state sovereignty against rights under the Americans with Disabilities Act (ADA). If you can't find news on that case, you're not even trying, but Howard has about a million links over the last few days, including one to a good summary here and you may want to look here for one account of the argument and here for a quite different one. (And while I'm linking, check here and here and here and here). Anyway, there's plenty to read about elsewhere if you want. I won't get into all the details here, but my hope is that this case turns out more like Hibbs than Garrett. My prediction is a narrow win for Lane on as-applied grounds, and a muddle on the facial challenge. Confidence: medium to strong. I wouldn't rule out a Lawrence line-up redux, with Kennedy writing a broad holding on the facial challenge and O'Connor concurring urging an as-applied analysis. Confidence there: low.

Anyway, I wanted to mention another ADA issue that should soon find its way to the Supreme Court: wheelchair access to stadium-style movie theaters. This week the Supreme Court called for the views of the Solicitor General (CVSG) in a pending case raising that issue. For those unfamiliar with it, a CVSG is styled as an "invitation," but it is never refused. It usually comes up in cases involving the application of federal law but where the United States is not a party. (Sometimes it happens in constitutional cases coming from the state courts, or in other situations where the federal government has a big interest in the outcome, but I won't get into all that here.) This invitation means, at a minimum, that the Court is very interested in the Government's take on the case, and if the SG's Office recommends granting cert., it's a near-lock.

Back to the movies. Title III of the ADA prohibits discrimination against the disabled in places of public accommodation. It was passed by Congress in 1990. The Department of Justice has implemented regulations to govern compliance and enforcement. Obviously, Congress couldn't think of every possible circumstance requiring accommodation for the disabled, and stadium-style movie theaters are a perfect example. They didn't really even become popular until the mid-1990s. The DOJ reg governing them states in part that "Wheelchair areas shall be an integral part of any fixed seating plan and shall be provided so as to provide people with physical disabilities a choice of admission prices and lines of sight comparable to those for members of the general public."

Lower courts have split over whether this language means that wheelchair-bound patrons have a right only to unobstructed sight lines, or to the wider range of sight lines and proximity to the screen enjoyed by other moviegoers. Most stadium-style theaters clump the wheelchair-accessible seating near the front, and one can only imagine the cost and difficulty necessary to build ramps or elevators or other means of wheelchair access to the upper tiers of the theater.

In all of the litigation, the United States has taken the position that the DOJ reg required comparable viewing angles for wheelchair seating and other seats. Plaintiffs presented scientific evidence showing that the viewing angles for most wheelchair areas can be quite uncomfortable, and moreover, wheelchair-bound patrons often cannot slump in their seats to correct for being too close to the screen. The plaintiffs won in the Ninth Circuit case now pending with the Court, and a more recent Sixth Circuit case brought by the Government itself. At least three district court cases (cited in the Sixth Circuit case) have adopted this reasoning too.

The theaters have countered that all they need to provide is an unobstructed view. Besides, lots of people choose to sit close to the screen, so it can't be that bad. The theater won in a Fifth Circuit case in 2000.

I think that based on a plain reading of the DOJ reg requires line-of-sight comparability and not just unobstruction comparability. But Judge Kleinfeld's dissent in the Ninth Circuit case is strong -- better than the Fifth Circuit decision. The nuts and bolts of the (eventual) Supreme Court decision is going to turn more on how much deference a court should give those DOJ regulations. (Without getting into a quagmire of administrative law, let me just say that some aspects of the implementation of the regs are odd and I think the deference decision will be complex.) Judge Kleinfeld's dissent is more about this process than the content of the reg. He argues that judicial decisions like that one suddenly make hundreds of theaters out of compliance, whereas if the proper process were adhered to, the results would be prospective and would be subject to public comment and then everybody would know what they need to do. The Sixth Circuit answered that the DOJ's practice was permissible and did not require formal notice-and-comment rulemaking.

Obviously, a major concern for administrative law cases should be administrability. The Sixth Circuit remanded the case back to the district court for compliance, and did not suggest how many new viewing angles for wheelchair seats would satisfy it. Likewise, the Ninth Circuit left that question unanswered. It approved of the DOJ guideline requiring sight lines "equivalent to or better than the viewing angles provided by 50 percent of the seats," which Judge Kleinfeld mocked: How can one subjective choice for a movie theater seat be "better" than another if one person likes to sit on the aisle to be able to get to the restroom and another chooses to sit in the middle of the aisle to avoid being stepped over by people going to the restroom? (not a quote, but that's the gist of it)

It will be interesting to read the SG's brief and see how the Government proposes to apply its reg to thousands of movie theaters. I think the theaters should lose based on the reg, but that whole "now what?" question is a gaping hole. I will try to remember to look for it, but if anyone sees the SG's brief once it is filed, please let me know. Thanks.

Via Will at Crescat, I found this post on Professor Jim Leitzel's always-interesting Vice Squad blog. Both of them are concerned that a "guilty defendant bias" comes into play in Fourth Amendment cases, such as yesterday's Supreme Court opinion in Illinois v. Lidster upholding "information-gathering" traffic roadblocks.

Will nobly suggests a legal foundation dedicated to defending factually innocent Fourth Amendment clients. At least those folks have section 1983 to use, but I suppose my question is why would there be a Fourth Amendment/suppression issue in your case if you are factually innocent and the cops didn't find anything when they searched you?

That said, I have no doubt that "guilt bias" plays a role in lots of criminal cases, and not just in the Fourth Amendment context. I was talking just this week with another appeals court clerk about a sentencing issue in a case. It had to do with whether a certain predicate offence should have been counted in the defendant's criminal history. It has absolutely nothing to do with the offense of conviction, although if it counted, his sentence would be about twice as long. I didn't even know what the guy had done; I was only concerned about the sentencing issue. The other clerk said, "He was convicted of [something really horrible]." I replied, "And that's relevant how?" He allowed that, technically, it wasn't, and I know that much of this comes from his judge, who is always exhorting the clerks to focus on the facts of the case. But I have to suspect that the details of the horrible crime will be on the judge's mind when the judge thinks about what sentence the guy "deserves."

It reminds me of Walter Dellinger's story about how you can often know how a decision is going to end up just by reading the first line:

I was getting ready to argue the line-item veto case, which was scheduled as a special argument after the argument session was over. The Court was announcing a series of opinions which I was paying no attention to, because it was still May and none of the big opinions would come down. I heard the chief justice say, "Mr. Justice Stevens has the opinion in 96-1401, William Jefferson Clinton v. Paula Corbin Jones," which I had argued on behalf of the United States in January of that year.

And Justice Stevens began, "The case we resolve today involves a lawsuit against an individual who happens to be serving as president." I turned to my then-deputy solicitor general, Seth Waxman, and said, "Seth, we're dead." Only I probably used a more colorful phrase than dead.

You can always tell by that first sentence. If a criminal conviction is being affirmed, the oral presentation of the opinion begins, "It was a dark and stormy night when Sally Jones and her boyfriend were on a lonely road." If the opinion is being reversed, the conviction is being reversed, it always starts out, "From the time of the Magna Carta ..." So you know right off how it's going. [That whole article is great, by the way.]

Anyway, I agree with Will and Prof. Leitzel that the "guilt bias" phenomenon is probably more prevalent and more harmful in Fourth Amendment cases. And I can almost hear the resignation in Ken Lammers's voice when he concludes that "I no longer believe that you have rights if you choose to drive your car."

For one thing, as I noted above, Fourth Amendment issues only come up when the cops found something, so the defendant is virtually always guilty of some crime. Second, unlike a lot of trial errors (which can be called "harmless error"), winning a suppression is often a get-out-of-jail-free card. Unless the good faith exception saves it, a Fourth Amendment violation often takes away the only evidence the Government has. Case dismissed. So Fourth Amendment issues have more of a make-or-break quality than many others. In an appeal concerning trial error, sending it back for a new trial leaves the possibility that a defendant might be convicted again. But Fourth Amendment appeals give an appellate judge a pretty stark choice: uphold the search or let a guilty man go. And when the judge knows how many just-as-guilty folks will be subject to the same police action in the future, it must be very hard not to let a natural bias against guilty folks creep into the subconscious. So the bias is more prevalent there, but it's also more harmful, because all these guilty-defendant cases move the line for all of us, and pretty soon we're getting stopped on every block by "information-gathering" cops.

Having said all that, let me back off my cynicism just a tad. Much of this is undergirded by the judge's philosophy about our rights under the Fourth Amendment. I think a reasonable jurist could conclude that the Fourth Amendment gives or should give the police considerable leeway in fighting crime. With that mindset, what I'm calling the "guilt bias" isn't even subconscious or illegitimate -- it's a result that follows naturally from a belief that, whatever the purpose of the Fourth Amendment is, it isn't a tool to be used for wholesale emptying of the jails.

Ultimately, however, I have to agree with Ken that the courts are just out of touch with how the Fourth Amendment plays out in real world encounters between police and citizens. I think it's always worth remembering Justice Frankfurter's admonition that "It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people." United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting).

My favorite feature on The Onion has long been "Pathetic Geek Stories." I love it even more than Dan Savage's advice column or the general hilarity on the main page.

Well, I just found out that PGS now has its own web site. If you're not familiar with Maria Schneider's drawings of readers' stories of embarrassment (usually from childhood), you should check it out. Even if you don't think you are or were a geek, you're probably wrong. Proof? Well, you're reading a freaking blog, for starters. Last month, I told the coolest person I know that I had started a blog, and her response was, "That's cool -- what's a blog?" But seriously, we all did some stupid stuff when we were stupid kids. I'm sure you'll be able to identify with some of these poor folks. Since I have repressed all my painfully geeky memories from my youth (the scenes from adulthood are all too close at hand), I'll have to ask my friends from back then about some of the dorky things I did. The sheer vastness of the blank space that should be junior high in my memory leads me to believe there were a lot of them.

Anyway, I'm really excited about a whole web site devoted to Pathetic Geek Stories. Check out the archive for the classics, and stop by the letters page for great stories Maria hasn't drawn for one reason or another. By the way, here is my all-time favorite. Enjoy!

From the left coast comes this interesting story about how California Governor Arnold Schwarzenegger will soon be faced with some thorny death penalty issues. California, despite having the largest death row in the nation, has not executed anyone in nearly two years. The next execution is scheduled for February 10. The article notes that Schwarzenegger has been much more willing than his predecessors to grant parole, but no California governor has commuted a death sentence since Ronald Reagan in 1967 (when the national death penalty debate was much different).

The article suggests that Schwarzenegger has enough political capital -- and enough of a reputation as a moderate -- to get away with commuting a death sentence. The Governor has expressed support both for the death penalty and the executive's clemency power, so it will be interesting to see how he handles this one. One hopes he will put more thought into his decisions than former Texas Governor Bush did.

It seems paradoxical to say that a person's convention is to be unconventional, but Schwarzenegger has shown some typical independence and pragmatism so far on crime issues. In just a few months, he has granted parole to six murderers, something Gray Davis never did. He has also proposed closing some state prisons, sure to raise the ire of California's very powerful prison guard union. On the other hand, he has decided not to approve the wholesale release of nonviolent offenders.

Without undertaking a detailed study of all the issues, I have to give Schwarzenegger a reserved thumbs-up for having a fairly sensible approach to crime control issues. California never needed all the prisons built under the Wilson and Davis administrations, and this is even more true after the recent voter-approved proposition mandating treatment instead of incarceration for first-time non-violent/non-dealing drug offenders. Given the horrendous debacle that the California budget is (an issue I still think will sink Schwarzenegger), closing some prisons makes perfect sense. On the other hand, the political climate out there just wouldn't support the widespread release of thousands of prisoners. Schwarzenegger might, in turn, use that conserved political good will to take a bolder step, like granting clemency to Stan "Tookie" Williams, a founder of the Crips gang who has apparently reformed himself in prison.

I have been somewhat critical of Schwarzenegger in the past, so I thought I would also give him a little credit when I thought he did something right. Not perfect, but not bad. Now, let's see how that budget turns out.

I don't like automobile ads generally. There's all that fine print and fast talking and promises that only come true if your credit is golden or you don't want any options, like seats. I hate they way they act like they are losing money because they are selling you the car at one dollar below factory invoice. I hate SUV ads mainly because I hate SUVs, but I have a special loathing for the Dodge Durango ads in which the wife tells her friend, "It's not too big, it's not too small...." Not too big? It's freakin' huge, lady. Not too small? If that beheamoth is too small, I think you need to be shopping for cargo planes. As Sideshow Bob would say, "Grrrrr."

But I digress. The ads I really, really can't stand are the ones in which the dealer laments that he or she has ordered too darn many fantastic cars, and the only solution is to give them away to the first lucky folks that set foot on the lot. I heard one this morning on the radio, and apparently this phenomenon is so common at this particular establishment that they have commissioned a jingle to memorialize the purchaser's stupidity. It goes, "Shame, shame shame! Shame on Jimmy!"

Here's a free tip from me to this dealer: Fire Jimmy.

Even assuming the manufacturer would agree to ship an order of cars radically above the number the dealer has ever sold in the past, and even assuming there is no remedy under the UCC or general contract law for a "scriverner's error" (say, writing on the order "2000" instead of "200"), I can't imagine any business hanging onto an employee who made such an error, much less writing a jingle about it and making it the centerpiece of your ad campaign.

The underlying message I get from these ads is "We're so stupid we can't even count. But notwithstanding this pretty basic deficiency on our part, we would like you to give us thousands of dollars and/or enter into a long-term lease agreement with us." I guess you have to take it on faith that you won't ever get a bill for $2990 when your monthly payment should be $299. Or that the odometer doesn't say 20000 when it really should say 200000.

Is there any other industry in which this would be an acceptable marketing ploy? "Hi, I'm the manager of your local McDonald's. We accidentally ordered more beef than our freezers can hold, so come on down and get it before it goes bad. Our prices are MAD!"

Anyway, that's my rant for today. At least so far.