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September|October 2005
The Prudent Jurist By William H. Simon
Evil Twins By John Wolfson
Elder Counsel By Louisa Lombard
U-Hell By Nicholas Hengen
Torture, Inc. By Tara McKelvey
Was the Plant a Plant? By Demian Bulwa
Cases & Controversies

Cases & Controversies


The Sentence Guidelines

THERE ARE SEVERAL SCHOOLS OF THOUGHT regarding the appropriate style and presentation of an effective judicial opinion. Some judges tend toward the coldly analytical, while others prefer to write opinions bursting with flourishes. But all judges ought to avoid the label "incomprehensible." That's the label given to an immigration judge's decision by the Ninth Circuit recently. The appellate court found that it could not evaluate the legal reasoning of Nathan Gordon, who had denied a petition for asylum from a Guatemalan immigrant named Recino on the grounds that Recino was unlikely to suffer political persecution if forced to return. Beyond that, however, the court had no idea what the judge's ruling meant.

The Ninth Circuit opinion, penned by Judge Marsha Berzon, is rife with barbs for Gordon. "That sentence defies parsing under ordinary rules of English grammar," "The IJ did not follow [the] decisional structure outlined by the regulation, or, for that matter, any intelligible structure," "We note the IJ's incoherence regarding Recino's credibility as illustrative of the entire opinion's indecipherable nature," and, in summary, "The IJ opinion in this case is extreme in its lack of a coherent explanation." Recino's lawyer said that she caught Gordon snoozing during the hearing.

But while Judge Berzon minces no words in her treatment of Gordon, who (at the age of 78) retired before the publication of the Ninth Circuit opinion, she dispenses quickly with the (anonymous) Bureau of Immigration Appeals member who, through a "streamlining" process, affirmed Gordon's opinion without comment. If Gordon is guilty of abdicating his duty, what about the BIA judge who rubberstamped his work?

William Pryor's Jukebox Money

AFTER ENDURING A FILIBUSTER AGAINST HIM, making do with a recess appointment, and surviving a close vote in the United States Senate, William Pryor finally penned his first opinion as a confirmed member of the U.S. Court of Appeals for the Eleventh Circuit this June. Since his temporary appointment to the court by President Bush in February 2004, Pryor had written several opinions, and Pryor's critics had claimed that he was holding back his true views in order to smooth the path to his confirmation.

Zibtluda v. Gwinnett County, an opinion issued the same day that the Senate confirmed Pryor's nomination, is perhaps the first glimpse into the uninhibited mind of William Pryor. Zibtluda ("adult biz," spelled backwards) was seeking to expand its chain of "Love Shack" adult bookstores into Gwinnett County, Ala. To do so, the business had successfully challenged a zoning ordinance designed to keep adult stores at bay. Free of this impediment, Zibtluda filed two license applications for new stores. But the legislature hurriedly passed a new zoning bill that meant the company's applications would be denied.

The Eleventh Circuit considered the question of whether that law, which regulated speech on the basis of its content, was kosher under the First Amendment. But on his way to determining that the law was O.K., Pryor had some fun, describing the county law in question as regulating "commercial entertainment akin to the 'Huggin' and a kissin', dancin' and a lovin', wearin' next to nothing' that the B-52's famously described as occurring in a 'funky old shack.' " While Pryor's comfort with the risqué lyrics of the 1980s pop song that gave the porn bookstore its name may seem surprising, his vote against the pornographer is not.

Later, Nader

IN THE FALL OF 2000, THE COMMISSION ON PRESIDENTIAL DEBATES announced that only candidates named Bush or Gore would appear in its nationally televised debates. This didn't endear the commission to Ralph Nader or his supporters, who began interrupting Gore events with the chant, "Let Ralph debate!" A group of Nader advocates blockaded the entrance to the Washington, D.C., offices of the commission one morning in protest. On Meet the Press, Nader said, "Maybe I'll crawl up on the stage there."

Nader also teamed up with Reform Party candidate Patrick Buchanan and several other presidential hopefuls to challenge the denial in court. Filed in the summer of 2000, the suit claimed that the debates commission was violating its Federal Election Commission mandate by "endorsing" the dominant political parties and "opposing" theirs. But the suit was shot down five days before the first debate, and debate officials even banned fringe candidates from the grandstands of the Boston debate. Ushers were given snapshots of Nader and seven other candidates and instructed to keep the candidates outside.

In the summer before the 2004 election, a new set of aggrieved candidates brought a fresh suit, alleging that the debates commission's move to keep them out of debate audiences proved that the commission favored the major parties. A Federal District Court in Washington, D.C., found their arguments compelling enough to send the matter for review by the election commission, but not compelling enough to force the candidates into the debates. This June, however, an appellate court reversed even that partial victory for the candidates. Expect Ralph Nader to watch the 2008 debates, once again, from a safe distance.

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