Rocky Mountain Appellate Blog

10th Circuit Nominee from Oklahoma Still Awaiting Hearing

The Oklahoman has this story on Judge Robert E. Bacharach of Oklahoma, a federal magistrage judge who was nominated for a seat on the Tenth Circuit (filling the vacancy left by Judge Henry) way back in January.  Apparently Senator Coburn still has not given his approval for a Senate hearing, although Senator Inhofe -- who, like Coburn, is a Republican -- consented to a hearing more than a month ago.

Gorsuch on the Hypothetical Short List

The Wall Street Journal Law Blog has a short post today concerning who a hypothetical President Romney might select in the event of a vacancy on the Supreme Court bench. Judge Gorsuch of the Tenth Circuit is mentioned as a possibility. The post is here.

Chief Justice Harry Reid?

Chris Cilliza, who blogs about politics for the Washington Post, has this post about a July 2010 Pew Poll showing that only 28 percent of those surveyed knew that John Roberts was Chief Justice of the Supreme Court.  53 percent didn't know, while 8 percent thought it was Thurgood Marshall, 6 percent thought it was John Paul Stevens . . . and 4 percent thought it was Harry Reid.

The Pew Research Center's original article on the poll, taken just after Justice Kagan's confirmation, can be found here.

Down the Memory Hole II

 Following a petition for rehearing in Wyoming v. United States Department of the Interior (No. 10-8088) (April 5, 2012), the Tenth Circuit withdrew its earlier decision regarding snowmobiles in Yellowstone National Park, and substituted a new one. As I have blogged previously (in Down the Memory Hole), when the court issues a new opinion, it does its best to get rid of the old one. In this case, the original opinion appears to have been removed from the 10th Circuit’s website. It lives, however, on Google Scholar.

Turning to substance, I tried to find a difference between the two, but it eluded me.

Holder's Homework

As a follow-up to yesterday's post about the Fifth Circuit's homework assignment to Attorney General Holder, the DOJ just filed the Attorney General's letter to the court.  Underscoring the Judge Smith's rhetorical point, Holder's letter states unequivocally that "[t]he power of the courts to review the constitutionality of legislation is beyond dispute."

The letter goes on to point out, however, that "[t]he Supreme Court has often acknowledged the appropriateness of reliance on the political branches' policy choices and judgments. . . . The Court accords 'great weight to the decisions of Congress' in part because '[t]he Congress is a coequal branch of government whose Members take the same oath [judges] do to uphold the Constitution of the United States.' Rostker v. Goldberg, 453 U.S. 57,64 (1981) (quoting Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 102 (1973))." Holder concludes by asserting that the president's remarks were "fully consistent" with these principles.

UPDATE:  My erstwhile colleague Geoff Klingsporn notes that Holder's letter can be viewed here.

Fifth Circuit's Homework Assignment to DOJ

A Fifth Circuit oral argument held yesterday garnered enormous attention when Judge Jerry Smith questioned a DOJ attorney about whether the judiciary could strike down an unconstitutional law -- a rhetorical question if ever there was one. Judge Smith elaborated that it wasn't clear whether President Obama believes such a right exists, based on his recent prediction that the U.S. Supreme Court will not overturn the Affordable Healthcare Act (Judge Smith called it Obamacare) because such a ruling "would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress."

Apparently not satisfied making the rhetorical point, the panel then ordered the DOJ to submit, by Thursday at noon, a three-page letter explaining whether the Attorney General believes the federal judiciary has the authority to invalidate federal laws.

The audio of the oral argument is here (the case is Physician Hospitals of America v. Sebelius).  The exchange between Judge Smith and the DOJ attorney begins at about the 18-minute mark.  It's worth noting that the DOJ lawyer, Dana Lydia Kaersvang, handled the situation very well.

Can't wait to see how the DOJ responds to this homework assignment.