Time to Focus on Appellate Court Nominations: Yesterday, The Legal Intelligencer featured a piece urging the Obama Administration to start filling the vacancies in the appellate courts. The piece, by How Appealing blogger Howard Bashman, reports that during Obama's first seven-plus months in office he has only nominated 16 people to fill 88 vacancies in the district and appellate courts, and has left 72 seats without nominees. Bashman asserts that if President Obama wants to take advantage of the "unusually easy path toward achieving the confirmation of individuals nominated to serve on the courts of appeals and the district courts[,]" he should act now. The Senate's Democratic majority could change in November 2010, "since history shows that the political party that does not hold the presidency usually gains seats in a midterm election." If Bashman's correct, we're content with the President' current rate of nominations. There's no need to rush "to shape the direction... of the federal judiciary..."
Dissents in Death Penalty Cases: Doug Berman has a post on Sentencing Law and Policy briefly discussing today's New York Time's article, "More Judges Dissent in Death Penalty Cases." The article, written by John Schwartz, discusses the increasing occurrence of judicial dissent from decisions upholding the death penalty. One case, the Ninth Circuit's denial of Kevin Cooper's appeal, contained a 101-page dissent by Judge William Fletcher. The article contributes many of the dissents to the "ire" that many judges feel toward the Antiterrorism and Effective Death Penalty Act of 1996. One commenter, Eric M. Freedman, a critic of the death penalty, belives judges dissent because they have little patience "for being hogtied by legalistic mumbo-jumbo." He believes this "mumbo jumbo" prevents fair results. In the long, drawn out case of Kevin Cooper, however, Kent correctly states that the defendant has been given ample opportunity to exonerate himself. AEDPA's legalistic "mumbo jumbo" has led to a result that is fair for all parties involved.
Tenth Circuit Splits on Gun Ban for Misdemeanants: At Volokh Conspiracy, David Kopel blogs on a split 10th Circuit ruling on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor. In the case of In re United States, federal prosecutors petitioned for a Writ of Mandamus to stop a Utah district judge from employing a jury instruction which the prosecutors did not want. Back in June, the district judge had ruled in U.S. v. Engstrum that the Second Amendment allowed someonebeing prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor to present an affirmative defense "that he posed no prospective risk of violence." Federal prosecutors didn't like the decision, and apparently neither did a majority of the panel. Late yesterday, federal Judges Hartz and Kelly voted to issue the Writ of Mandamus. Judge Murphy dissented. Both Kopel, and Doug Berman at Sentencing Law and Policy, believe that Judge Murphy presents a strong argument for setting the issue for briefing. Berman's post remarks that in light of District of Columbia v. Heller, mandamus relief seems "inappropriate" when Heller could be of consequence "for an array of broad and severe federal gun possession crimes."
Dissents in Death Penalty Cases: Doug Berman has a post on Sentencing Law and Policy briefly discussing today's New York Time's article, "More Judges Dissent in Death Penalty Cases." The article, written by John Schwartz, discusses the increasing occurrence of judicial dissent from decisions upholding the death penalty. One case, the Ninth Circuit's denial of Kevin Cooper's appeal, contained a 101-page dissent by Judge William Fletcher. The article contributes many of the dissents to the "ire" that many judges feel toward the Antiterrorism and Effective Death Penalty Act of 1996. One commenter, Eric M. Freedman, a critic of the death penalty, belives judges dissent because they have little patience "for being hogtied by legalistic mumbo-jumbo." He believes this "mumbo jumbo" prevents fair results. In the long, drawn out case of Kevin Cooper, however, Kent correctly states that the defendant has been given ample opportunity to exonerate himself. AEDPA's legalistic "mumbo jumbo" has led to a result that is fair for all parties involved.
Tenth Circuit Splits on Gun Ban for Misdemeanants: At Volokh Conspiracy, David Kopel blogs on a split 10th Circuit ruling on the constitutionality of banning guns for persons who have been convicted of a domestic violence misdemeanor. In the case of In re United States, federal prosecutors petitioned for a Writ of Mandamus to stop a Utah district judge from employing a jury instruction which the prosecutors did not want. Back in June, the district judge had ruled in U.S. v. Engstrum that the Second Amendment allowed someonebeing prosecuted for possessing a gun after having been convicted of a domestic violence misdemeanor to present an affirmative defense "that he posed no prospective risk of violence." Federal prosecutors didn't like the decision, and apparently neither did a majority of the panel. Late yesterday, federal Judges Hartz and Kelly voted to issue the Writ of Mandamus. Judge Murphy dissented. Both Kopel, and Doug Berman at Sentencing Law and Policy, believe that Judge Murphy presents a strong argument for setting the issue for briefing. Berman's post remarks that in light of District of Columbia v. Heller, mandamus relief seems "inappropriate" when Heller could be of consequence "for an array of broad and severe federal gun possession crimes."
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