From the Congressional Research Service's Report for Congress on "Congressional Protection of Religious Liberty" (p. 17):

Legislation that Congress passed in 1942, to codify existing rules and custom for the display and use of the American flag, also shook the foundations of Gobitis. Language in the bill indicated a preference for avoiding rigidly enforced flag salutes. After stating that in pledging allegiance to the flag a citizen would extend the right hand, palm upward, toward the flag, the statute further provided: "However, civilians will always show full respect to the flag when the pledge is given by merely standing at attention, men removing their headdress." 56 Stat. 380 Sec. 7 (1942)

Now, the CRS report goes on to note that the Justice Deparment "had been informed that Jehovah's Witnesses would have no objection to standing at attention during the flag-salute exercise," but the Congress's desire to accomodate those conscientous objectors isn't what startles me here. Rather, it's the image of hands stretched out to the flag, rather than over the heart (the PTA, Boy Scouts, Girl Scouts, Red Cross, and Federation of Women's Clubs all complained that the common flag salute -- prior to the modified straight-arm salute of Barnette -- looked too much like Hitler's salute. What did the original look like, then?).

You'd also might suspect, in reading Justice Jackson's opinion for Barnette, that Congress had approved of the Court's earlier ruling.

The Gobitis opinion reasoned that this is a field 'where courts possess no marked and certainly no controlling competence,' that it is committed to the legislatures as well as the courts to guard cherished liberties and that it is constitutionally appropriate to 'fight out the wise use of legislative authority in the forum of public opinion and before legislative assemblies rather than to transfer such a contest to the judicial arena,' since all the 'effective means of inducing political changes are left free.' Id., 310 U.S. at page 597, 598, 600, 60 S.Ct. at pages 1014, 1016, 127 A.L.R. 1493.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections. [319 U.S. 624, 638]

Ringworms are being used to experimentally treat ulcerative colitis, an inflammatory bowel disease caused by immune system overreaction in the intestinal lining. The article doesn’t explain why the worms might help but my guess is that they give the immune system something else to think about other than attacking your intestines. For a link to great pictures of ulcerative colitis and other inflammatory bowel disease images, see my recent reg rats gastro post.

(Aside: A lot of medical principles are based on distraction. For example, experimental bee sting therapy for MS, an autoimmune disease, is believed by some to help because it distracts your immune system into attacking the bee venom rather than the myelin coating your nerves. One theory of asthma is that living in sanitary conditions contributes to it: roughly, reduced exposure to allergens causes your immune system to go awry when it encounters normally benign invaders.)

Student Behavior Contract 11/11/03
[wrote the teacher] "He explained to another child that you are gay [double-underlined] and what gay means."
"Dear Mom,
Today I had a problem in school.
What I did: I sed bad wurds.
What happened because I did what I did: lineing up fur riyces.
What I should have done: cep my mouf shut.
I need to talk to you about my plan for how to handle a similiar problem next time."

Marcus McLaurin is a second-grader at an elementary school outside of Lafayette, LA. When one of his classmates asked him why he had two mothers, and then what his initial answer of "gay" meant, he defined "Gay is when a girl likes another girl."

The definition contains nothing sexual and I can't see it causing much of an effect, on the playground, other than children deciding that gay meant a friendship between two girls. But for his use of inappropriate language school, he attended 6:45am behavior clinic where he wrote, over and over, "I will never use the word ‘gay’ in school again."

His teacher, Terry Bethea, complained that "[t]his kind of discussion is not acceptable in my room. I feel that parents should explain things of this nature to their own children in their own way." The president of the School Board, David Thibodaux stood beside her, saying, "I feel like any discussion by a child of a parent's sexual orientation is inappropriate. I would not want my children discussing sexuality with their friends." [so if a kid can't say he he's got two mommies, can he also not say he's got a mommy and a daddy? will children no longer be able to mention their families at school?]

The ACLU's demands are simple: an official apology, clean this from the boy's discipline record, and don't tell him that he can't use "gay" at school. Public sentiment, as reflected by the 525 answers to an Advertiser opinion poll, supports the ACLU and the family here: 84% agree that "School officials should apologize for violating the rights of the student and his mother"; 6% think "The school overreacted, but no harm was done"; a hard-hearted 9% say "The school was right to punish the boy"; and 1% bother to respond to say "I don't know" what I feel about the boy's punishment.

This story has been picked up by Lafayette's The Advertiser here, here, and here; the ACLU; the New York Times; and the Washington Post. According to the Advisor, it's in over 100 national and international papers, thanks to the wires, although I still can't find any mention of it in the Baton Rouge Advocate or New Orleans Times-Picayune. [All these links and I start to feel like the amazing Howard Bashman, from whose site I first noticed this story.]

Dear Lafayette Parish School District officials,

Quit it. Only one member of your school board (Rick Hardy) has had the courage (or the political savvy) to stand up to say that a public apology is in order. If you thought that no one would originally notice your mistake, you're wrong. If you thought that the public would support your punishment of a second-grader for his sympathetic and entirely appropriate explanation of why he had two mothers, you're also wrong. Now you're making it worse by lying about what you said and did. To refresh your memory, I refer to Superintendent Easton's denial that Marcus had to copy-out a promise not to use 'gay' in school again and your denial that Marcus was disciplined for saying 'gay' because the school thought it was a bad word ["We have a high regard for freedom of expression, and we value diversity. It would surprise me if that accusation is accurate."] You don't sound very plausible in the face of the Student Behavior Contract and the School Behavior Report, which are out and publically avaliable, even as you claim you can't release additional documents to the media (just what documents would you release that would support your stance?). So apologize and quit embarrasing yourselves and all of us. Louisiana just elected the considerably less-conservative gubernatorial candidate. The winds of public opinion have started to shift, and you don't have a leg of support to stand on.

Sincerely,

- Amanda Butler

First, Judge Richard Posner interviewed two Crescat Bloggers (for jobs as his research assistants). Then, Howard Bashman interviewed Judge Posner (for his 20 Questions for the Appellate Judge feature). Now I'm proud to announce that Crescat is closing the circle. We present to you 20 Questions for Howard Bashman of How Appealing.

Please read on, as Howard Bashman discusses the origins of How Appealing, rumors about his potential judgeship, and his resolution to spend more time in bars.

1: Why did you start blogging?

I often wonder that myself. As best as I can recall thinking back to early May 2002, I was hoping that it might be enjoyable to have a Web log that focused on appellate litigation. I was interested in seeing whether such a blog might prove popular, as no blog focusing on the subjects that mine covers then existed. And I was looking to compile in one place the court opinions and commentary that I found interesting, so that I could rather easily refer back to it as necessary.

2: How many blogs do you read in a day?

I probably glance at around twenty or so.

3: How do you find the time to cruise all of the newspapers you report on each day? Or even to simply type out all of the links? Is there some poor associate secretly slaving away over How Appealing?

I generally scan the contents of six to eight of the major national newspapers each day looking for articles and commentary of interest. I look at half early in the morning and the other half at night. A number of reporters from those publications are regular readers of “How Appealing,” and I like to keep up with the stories that they are covering. In addition, I am very fortunate to have many thoughtful and enthusiastic readers who email to me each day links of interest from a whole bunch of other newspapers. As a result, it probably appears that I am searching many more newspapers than I actually am.

4: Rumors have floated throughout the blogosphere that you're under consideration for a Third Circuit Judgeship. We certainly hope these rumors are true, but if you were picked, would that be the end of How Appealing?

It was flattering to be the subject of such rumors, which I think can be traced back to an article published in late October 2003 in the Daily Journal, a widely-read California-based legal newspaper with a bureau in Washington, DC. Recently, however, it has been reliably reported that the White House has offered the one seat that currently remains open on the Third Circuit for which there is no nominee to a U.S. District Judge serving on the Eastern District of Pennsylvania. While I greatly admire those individuals who have become federal appellate judges at or before the age of 40 (I won’t turn 40 until October 2004), I am not desperate to join their impressive ranks.

5: Another question about the rumors-- it seems like you would enjoy advocacy a great deal, and wouldn't get to do as much of that if you were sitting in one of the big seats. Would you rather be given a recess appointment to the Supreme Court, or made Solicitor General?

While it is not unheard of for judges serving on a U.S. Court of Appeals to resign to serve as Solicitor General (the examples that come immediately to mind are Thurgood Marshall and Kenneth W. Starr; you can see a complete list the individuals who have served as Solicitor General here), I have not heard of someone who has chosen to serve as Solicitor General instead of accepting an appointment to the U.S. Supreme Court. I don’t think that I would want to be the first to do so.

6: Suppose you were advising the Presidents as they picked the next two Supreme Court nominees-- one a Republican nominee, and one a Democrat. Keeping in mind the difficulties of confirmation, who would you suggest that they pick?

This question is impossible for me to answer, because it fails to supply me with the names of the currently-serving Justices who are departing from the Court. Also, I haven’t given much thought recently about whom a Democratic President should nominate, and my recommendation in that regard would be substantially influenced by which Democrat became President and who controlled the U.S. Senate (and by what margin). The June 2003 installment of my monthly appellate column published in The Legal Intelligencer contained my recommendations concerning whom the White House should nominate if Chief Justice Rehnquist and/or Justice O’Connor had retired this past summer. Of course, neither individual retired then, and subsequent developments (for example, the U.S. Senate’s filibustering of the nomination of Janice Rogers Brown to serve on the D.C. Circuit) might cause me to alter those recommendations when a vacancy finally does arise.

7: To what extent should a judicial candidate, up for nomination before the Senate, be required to answer questions truthfully, particularly if no one has any idea what his view on a certain issue might be and revealing this view would get him voted resoundly down? For example, we happen to think Judge Posner is positively brilliant, but we aren't positive the Senate would have agreed with us if they'd known a priori what they were in for. So, if a question is put forth to a candidate, and the candidate feels convinced that his views are constitutional but that he'd never be able to convince the Senate of this, or if he feels that the question he is being asked is not one that is relevant to his performance on the bench, is it ever ethical for him to give a vague, crowd-pleasing answer?

When judicial nominees testify at confirmation hearings before the U.S. Senate, they take an oath or affirmation to testify truthfully. As a result, not telling the truth isn’t an option. After having listened carefully to the testimony of a number of judicial nominees at confirmation hearings over the past year and a half, it is clear that nominees vary in the degree of specificity they are willing to provide in response to questions seeking to learn how they might rule on controversial issues. What I do not know is the extent to which, if at all, a nominee’s testimony at his or her confirmation hearing actually influences how Senators will vote on whether to confirm the individual (or allow the individual’s nomination to receive an up-or-down vote on the merits).

8: Some of my readers have suggested that the online community has little to add to law. Obviously, thousands and thousands of readers disagree. What do you think has made How Appealing so popular?

That question is undoubtedly best asked of readers of my blog. So far as I can tell, my site is popular because it offers a collection of content that is not available all in one place anywhere else. And I hope that part of my blog’s popularity stems from the fact that information is presented in a way that is useful, easy to understand, and at times interesting.

9: Where did you get your idea to start asking 20 Questions for the appellate judge each month?

I was aware that many federal and state appellate judges were among the readers of my Web log, and I thought it would be enjoyable to see if they would participate in a monthly interview feature that would allow them to speak directly to the readers of the blog on a variety of matters of interest to appellate judges, appellate lawyers, and the general public. My biggest fear was that I would announce my intention to initiate the feature and no one would volunteer to participate. Fortunately, the first volunteer came forward almost instantaneously, and the second was not far behind. So many of the judges who have participated or agreed to participate in the future are among the most highly regarded appellate judges currently serving on the bench, and I think that all who have taken part have enjoyed participating as interviewees.

What appealed to me about this interview idea was that it would enable me to present a truly original offering that was available no where else and that would not have existed had I not conceived of it.

10: Some suggested that Law School now functions as a sort of "brain drain." Bright young people, the argument goes, no longer enter graduate schools in economics, political science, or philosophy but turn instead to Law School where the monetary returns are far greater. This in turn contributes to a dearth of serious philosophers and economists, and a glut of lawyers running around suing each other. Do you think there is any truth to this?

I have heard this argument raised many times, and in many different ways(including that the USA’s preference for litigation over manufacturing, research, and development will put this nation at a competitive disadvantage in the world). As we bloggers know well, the likelihood of monetary returns cannot explain all human behavior. I say thank goodness for those who are running around suing one another, and especially for those who have the wherewithal to pursue the matter through the appellate stage. But seriously, those who pursue a career in the law simply to maximize their likelihood of earning a comfortable living are destined to be very disappointed. Many lawyers do not become rich, and many lawyers do not find the practice of law enjoyable. We have a system where a combination of economic forces and free will determines what jobs are popular and how much financial compensation will be paid in exchange for working. I don’t think that any other system (even one that created more philosophers, economists, and political scientists and fewer lawyers) would prove as popular to the society at large in the long run.

11: You had harsh words for Judge Harry Pregerson's refusal to obey Supreme Court precedent in a backlog of "three strikes" cases. Is there ever a time when a lower court Judge should do what he thinks is right rather than what he is ordered to do?

My criticism of Judge Pregerson’s dissents focused on the fact that he was refusing to apply U.S. Supreme Court precedent that was directly applicable to the cases he was assigned to decide, simply because he believed that the U.S. Supreme Court had reached an unjust result. Unfortunately, lower court judges in our hierarchical system of justice are not at liberty to “nullify” the directly on-point, binding decisions of higher courts. If a judge cannot in good conscience apply the law given his or her personal values, he or she should either step down from hearing the case in question or, as a last resort, resign from service as a judge.

12: Should the Ninth Circuit be split?

Yes. For my reasons why, see my monthly appellate column published in April 2003.

13: You've suggested that lawyers ought to be permitted by the court to play a short theme song as they step up to the podium. What would the Howard Bashman theme song be?

That attempt at humor on my part arose around the time when the U.S. Senate was considering U.S. District Judge Edward C. Prado’s nomination to serve on the U.S. Court of Appeals for the Fifth Circuit. Some news reports stated that Judge Prado’s courtroom had a sound-system that enabled him to play music or other sound effects while trials were underway to bring some levity to the proceedings. Given the large variety of cases that I am fortunate to handle on appeal, I regret that I cannot provide a single song that would be appropriate for all occasions.

14: How about Solicitor General Ted Olson? Professor Laurence Tribe?

Hmm, please see my answer to question 13.

15: We've just noticed that Atrios is in your list of "especially appealing blogs." Do you actually read Atrios?

Yes. “Atrios” and I have something in common -- we are both based in Philadelphia. I sometimes find that he links to matters that might be of interest to readers of “How Appealing,” and I enjoy keeping up with his liberal and irreverent take on the news and political items.

16: Some judges are particularly renowned/feared for terrorizing lawyers during oral argument. If you were conducting a "Dream Team" appellate panel of such judges, who would be your top three picks?

I have never experienced that myself at oral argument, and I only recall one instance in my entire career when I observed anything close to that. It occurred during my Third Circuit clerkship, when a senior Third Circuit judge was giving an attorney for the federal government an especially difficult time. I think I ended up feeling sorry for both of them.

If there is one group of judges before whom I would most enjoy arguing, it would be the nine currently serving on the U.S. Supreme Court. And that is not because they would “terrorize” me, but rather because they invariably seem to have given much thought to the issues pending before them and the ramifications that could flow from the rulings they are being asked to announce.

17: Now, do you think judges *should* terrorize lawyers during argument, or is much of that just egomaniacal grandstanding?

No, in a perfect world that wouldn’t happen. But I tend to think that when judges become exasperated during oral argument, the lawyer’s subpar performance either in briefing and/or orally arguing the case is to blame.

18: Are you ever going to get off blogspot and switch to Movable Type?

Only time will tell. I have obtained the appellateblog.com domain name, and many readers have graciously offered to assist in helping me set up my blog using the Movable Type software. Blog*Spot generously provides me with a whole bunch of bandwith for free, an offer that no other potential host has yet to duplicate.

19: Your tastes for 18-year-old Macallan’s are no secret. But why Scotch rather than Bourbon?

Once again I am behind the curve. I must resolve to spend more time in bars and less behind the keyboard.

20: Anonymous sources have told us that you're not reading much fiction. What are you reading these days?

In college I was a voracious reader of fiction, but no more. I’m currently reading Judge Posner’s latest book, and readers of my blog who happen to be the authors of recently published books have generously sent along complimentary copies that will provide me with plenty to read for quite some time into the future.

...for the next day or so, but I leave you in capable hands.