The Eleventh Circuit recently heard oral arguments in the case, and SA patron saint, Judge William H. Pryor Jr., gave an ACLU lawyer the business:

ACLU lawyer Daniel Mach had barely started into his arguments when Judge Bill Pryor interrupted him, asking how courts can know when a prayer is sectarian or nonsectarian.

“What about King of Kings?” Pryor asked. “Is that sectarian?”

Stammering, Mach answered that phrase could “arguably be a reference to one God.” Mach later agreed that, in some instances, it is hard to draw a bright line of distinction.

“What about Lord of Lords?” Pryor asked again. “The God of Abraham?”

“That’s a tougher call,” Mach said, responding to the second question. “Several faiths believe in the God of Abraham.”

Pryor, a former Alabama attorney general, pressed on.

“What about the God of Abraham, Moses, Jesus and Muhammad?” he asked. “Or Heavenly Father?” he continued, noting that could refer to the Divine Trinity.

Heh. Elections matter, folks.

An interesting post from ATL on one of my favorite legal topics: the increasing influence of state solicitors general on the jurisprudential landscape. There is also a shout out to future supreme-court justice (and fraternity brother of the fedster), Kevin Newsom, as well as this funny comment regarding Kevin’s recent SCOTUS oral argument/win:

I had the privilege of watching Kevin Newsom argue Riley v. Kennedy from last term, a case he won 7-2 against Pam Karlan. The dude knows his sh*t.

Indeed, he does.

Now, if only Attorney General Thurbert Baker would appoint an SG for Georgia.

Howard Bashman reports that a three-judge panel of the Seventh Circuit–with my judge (Manion) and Judge Sykes in the majority and Judge Rovner in dissent–issued an opinion today holding that under the Supreme Court’s decision in Georgia v. Randolph a husband’s objection to the search of his premises did not preclude a valid search, conducted solely on the wife’s consent, once the husband had been validly arrested and removed from the dwelling.

You can read or watch the 60 Minutes segment aired tonight, that includes clips from Lesley Stahl’s interview.  The ABA Journal website also posted a bunch of links related to Scalia this evening, including another interview and excerpts from his forthcoming book.

It occurred to me just now that the news that Justice Scalia has co-authored “Making Your Case: The Art of Persuading Judges” (release date: April 28) hit during SA’s hiatus. I’m surprised that Feddie has not already blogged the Scalia book tour/media blitz (unless I missed it), so here goes –

– To Roger Williams law students: “I am not a nut”

– Remarks to/ Q&A with Virginia high schoolers: video (scroll down to April 9) / story

– 60 Minutes interview/profile to air “in late April”

– Videos of co-author Bryan Garner’s interviews with eight Justices (including Scalia) on the subject of “legal writing and advocacy” / story

Courtesy of Judge Alex Kozinski.

(LvCrank)

COA Review.  A promising new appellate blawg.

Check it out.

So, this past week I attended the always excellent DRI Appellate Advocacy seminar, which was held this year in Orlando. And guess who was one the featured speakers this year? None other than ACS Queen Bee Dahlia Lithwick. Well, y’all can guess what was going through my head on the drive down to Florida. You bet. I was channeling Dana Carvey’s “Church Lady” character, and picturing in my mind the type of “education” I would be receiving from Mrs. Lithwick. But I have to say, she was a fantastic speaker.  And she gave me a great writing tip, which I plan on using in the near future, and which I will share with y’all now:

The next time that you’re writing a brief, and the lines are starting to blur together, and you know that any further review of the document will be worthless without putting it down for a day or two, change the document’s font.  According to Lithwick, it is like reading an entirely different brief.

A simple but wonderful suggestion, and one that I suspect will prove to be very useful in the near future.

Anyway, her talk about bringing a record to life on appeal was fantastic. I was very, very impressed with her.

But the funniest thing was my conversation with Lithwick after her talk. Here’s a recap of what happened. I walk up to the side of the stage where Lithwick is speaking with four or five liberal admirers, and they are all throwing out their liberal street creds. “I clerked for Blackmun!” “I have a Scalia dartboard!” “I hate the Constitution too!” And then I pipe up, “I am a former right-wing blogger who disagrees with just everything you’ve ever written. I clerked for Judge Manion, and would have cut off my right arm to clerk for Justice Thomas. But I think you’re an excellent writer, and I thought your talk was fantastic.” Lithwick looks at me with this wry smile, and says, “Well, that’s the best compliment I’ve had in quite some time. Where did you blog?” “Southern Appeal,” I reply. Lithwick then looks at me as if I just admitted to smashing her pumpkin a few Halloweens back, and says, “Ah, I know who you are. You’re quite the troublemaker.”

Good times.  

Those of you who have been following my representation of the Housing Authority in the local appointment controversy may find this editorial of interest.

I’ve just signed on to act as a consultant in a (federal) criminal-defense matter. One of my primary responsibilities will be to assist lead counsel in preserving issues for appeal. Do any of you know of a treatise on this subject that you would recommend?

Just in time for this election cycle.

No appellate court should ever require the lawyers who practice before it to double space footnotes and block quotes in a brief.

Trust me. There is a special place in Hell for those who advocate and maintain such a rule (somewhere just below the folks who place advertising flyers on cars in shopping-center parking lots).

Now let’s see what the state’s supreme court does with the issue.

Well, that was a quick ruling.

Nothing beats winning.

That is the question asked and answered by the Blawgfather, HJB.

More appellate work for the fedster.

Thanks to SA reader and Hahvahd feddie, Jennifer Carter, for notifying me that an annotated version of Judge Randolph’s fascinating speech to the national Federalist Society convention from this past fall is now available online.

The AJC has this report.

To my pal, Ray Ward, on a huge appellate win. Ray blogs at AL&P and Minor Wisdom.

Excellent post by Ed Whelan over at Bench Memos.

The fedster wins one for the defense.

That’s the question addressed by Judge Carnes in this interesting opinion (scroll down to the concurrence).

I am especially interested in this issue, given that I have taken a contrary position in a pending appeal before the same panel. Thankfully, the attorney general waived the issue in my case as well. It will be interesting to see, however, whether the panel elaborates any further on this particular issue.

All I can say is: Amen!

The laudatory goals of the FAA will be achieved only to the extent that courts ensure arbitration is an alternative to litigation, not an additional layer in a protracted contest. If we permit parties who lose in arbitration to freely relitigate their cases in court, arbitration will do nothing to reduce congestion in the judicial system; dispute resolution will be slower instead of faster; and reaching a final decision will cost more instead of less. This case is a good example of the poor loser problem and it provides us with an opportunity to discuss a potential solution. (more…)

Check out page 16, fn. 1 to this Sixth Circuit opinion (which is actually part of the concurrence).

As many of y’all know, I am a member of the Eleventh Circuit’s CJA panel, which means that on occasion I am asked to take on an appeal pro bono publico. I’ve only had two cases thus far, but both of them have involved comlpex and interesting issues.

The second appeal I was assigned by the Court is a habeas case, and oral argument was scheduled for March 1st (Ash Wednesday). Well, I just received a call from someone at the Court informing me that the judges on the panel have decided to rule on the briefs and that oral argument is no longer necessary. This decision is certainly understandable, given that yesterday the government (wisely) conceded the threshold issue on appeal (an issue of first impression), and because the remaining issue–while involving an intricate fact pattern–is essentialy a judgment call on the part of the Court.

So why I am telling you all this? Well, in the Eleventh Circuit the Court reveals to attorneys–two weeks in advance–the names of the judges on the three-judge panel assigned to hear/decide their cases. Care to take a guess at who was on my panel? Yep. You guessed it.

Needless to say, I am disappointed. It’s not often that you have an opportunity to demonstrate your skills (such as they are) in a formal setting to someone you consider to be an intellectual mentor.

Oh well, perhaps another opporunity will arise down the road.

BTW, I am curious about this practice of providing attorneys advance notice of the judges assigned to hear their cases. When I clerked for the Seventh Circuit, the Court did not reveal the names of the judges on the panel ahead of time. Do any of y’all know whether the Eleventh Circuit’s practice of doing so is the rule, the exception, or are the circuits evenly divided on this? And what do my fellow appellate practioners think about this practice?