Attorney General John Ashcroft and Senate Judiciary Committee Orrin Hatch both issued statements Friday reacting to the decision of the US Ninth Circuit Court of Appeals noted earlier today on JURIST not to rehear en banc a case in which the court had held that school recitation of the Pledge of Allegiance offended the Establishment Clause.

The Attorney General fell just short of announcing that his Department would take the issue of the Pledge's constitutionality all the way to the Supreme Court:

For centuries our nation has referenced God as we have expressed our patriotism and national identity in our Declaration of Independence, Constitution, national anthem, on our coins, and in the Gettysburg Address. The Supreme Court of the United States opens each session by saying, 'God save this honorable Court.' The Justice Department will spare no effort to preserve the rights of all our citizens to pledge allegiance to the American flag. We will defend the ability of Americans to declare their patriotism through the time-honored tradition of voluntarily reciting the Pledge.

Senator Hatch set his comments in the context of his immediate legal and political concerns as Judiciary Committee Chairman and principal Senate sponsor of DC Circuit Court of Appeals nominee Miguel Estrada:

This case further places the Ninth Circuit out of the main stream of both American law and culture. It clearly demonstrates why the Supreme Court overturns this Circuit’s opinions more frequently than any other Circuit. This decision creates a split among the Circuits as the 7th Circuit has appropriately ruled previously that the pledge does not violate the Constitution. I expect the Supreme Court will review this case....

Clearly, this court’s outrageous decision demonstrates the importance of nominating and confirming qualified and learned judges who understand the role of the law and will not legislate from the bench. President Bush has done his job and has nominated fine judges. I once again call upon the Senate to confirm the President Bush’s highly qualified nominees, and to end their unconstitutional attempts to deny the Senate’s right to give its consent.

Read Senator Hatch's full press release.

The South Texas College of Law announced Friday afternoon that James J. Alfini of Northern Illinois University College of Law will be its ninth President and Dean, succeeding incumbent Frank T. Read. Read the STCL press release.

At Duke Law School February 26, athiest and Pledge of Allegiance plaintiff Michael Newdow spoke to law students about his US Ninth Circuit Court of Appeals case impugning the Pledge under the Establishment Clause for containing the words "under God" (an en banc rehearing of that case was rejected today). "The government tells people there is no reason to give credence to an atheist in our society," Newdow said. The Duke Chronicle reports.

The Pentagon Friday released a draft instruction listing and defining violations of the laws of war and other offenses which it considers triable by military commission. The offense categories include terrorism, hijacking, "employing poisons and analagous weapons," using protected persons or property as shields, rape and spying. The instruction also includes detailed definitions of command responsibility. Read the DoD press release, review the Military Commission Instruction[PDF], and peruse a transcript of a Department of Defense background briefing by two unnamed officials from the DoD Office of General Counsel. The Department of Defense invites public comment on the draft instruction: comments should be faxed to the Office of General Counsel at (703) 614-4432.

The International Criminal Tribunal for the Former Yugoslavia ordered the immediate release Friday of a Kosovo Albanian indicted and detained for war crimes in the murder and torture of Serb and Albanian civilians. Defense lawyers argued successfully that Agim Murtezi, 46, was "not the person referred to in the indictment" and should be returned to Kosovo. Read the ICTY press release.

A split US Ninth Circuit Court of Appeals ruled Friday that it would not grant an en banc rehearing of the case in which a three-judge panel had originally held, in June 2002, that a 1954 federal Act adding the words "under God" to the Pledge of Allegiance, and a California school district's practice of teacher-led recitation of the Pledge with the added words included, violated the Establishment Clause.

Apart from the merits (subtly altered now, as dissenting judge O'Scannlain and Howard Bashman point out that today's amended version of the June 2002 judgment issued with the order against rehearing sidesteps the technical question of the constitutionality of the 1954 legislation), the ruling is interesting because of sharp divisions apparent between various 9th Circuit judges as to the appropriate circumstances in which to grant an en banc rehearing. Several members of the Court - who notably did not carry the day - expressed the view that the importance of the case and even the highly-critical public and political reaction to it were relevant standards. Circuit Judge Stephen Reinhardt, who had been one of the two judges overturning the Pledge in the original appeals ruling, disagreed strongly in a powerful and trenchant disquisition worth quoting at length:

To rehear a case en banc simply on the basis that it involves an important issue would undermine the three-judge panel system and create an impractical and crushing burden on what otherwise should be, as Rule 35(a) suggests, an exceptional occurrence. See FED. R. APP. P. 35(a) (“An en banc hearing or rehearing is not favored . . . .”). According to statistics kept by the Clerk of the court, in 2002 this court decided 5,190 cases on the merits, more than 98% of which were finally decided by three-judge panels. These decisions are not measures of “rough justice,” later to be refined by the en banc court. Unless they decide issues of exceptional importance erroneously, create a direct intra-circuit split, or unless the interests of justice require that the decision be corrected, the opinions of three-judge panels should constitute the final action of this court....

Moreover, Article III judges are by constitutional design insulated from the political pressures governing members of the other two branches of government. We are given life tenure and a secured salary so that, in our unique capacity to “say what the law is,” Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803), we may decide constitutional issues without regard to popular vote, political consequence, or the prospect of future career advancement. Most federal judges do not question the wisdom of this approach. When the federal judiciary is so firmly separated by constitutional structure from the direct influence of politics, we must not undermine that structure by allowing political pressures, polls, or “focus groups” to influence our opinions, even indirectly.

This is not to say that federal judges should be completely sequestered from the attitudes of the nation we serve, even though our service is accomplished not through channeling popular sentiment but through strict adherence to established constitutional principles. The Constitution contemplates occasions when we must be responsive to long-term societal trends — when determining, for example, that which is “cruel and unusual,” see Hudson v. McMillian, 503 U.S. 1, 9 (1992), whether in the execution of the mentally retarded, see Atkins v. Virginia, 536 U.S. 304, ___, 122 S. Ct. 2242, 2247 (2002), or the execution of juvenile offenders, see In re Stanford, 123 S.Ct. 472, 474 (2002) (Stevens, J., dissenting from the denial of an application for an original writ of habeas corpus). This broader long-term social conscience, however, is a matter far different from responding to particular immediate political pressures. We may not — we must not — allow public sentiment or outcry to guide our decisions. It is particularly important that we understand the nature of our obligations and the strength of our constitutional principles in times of national crisis; it is then that our freedoms and our liberties are in the greatest peril. Any suggestion, whenever or wherever made, that federal judges should be encouraged by the approval of the majority or deterred by popular disfavor is fundamentally inconsistent with the Constitution and must be firmly rejected.

Read the full Judgment in Newdow v. US Congress.

In a CATO Institute study released Friday, University of Michigan Law School professor Adam Pritchard considers whether Congress should repeal securities class action reform. From the Executive Summary: "The Private Securities Litigation Reform Act of 1995 was designed to curtail class action lawsuits by the plaintiffs' bar. In particular, the high-technology industry, accountants, and investment bankers thought that they had been unjustly victimized by class action lawsuits based on little more than declines in a company's stock price. The plaintiffs' bar and its allies in Congress have [now] called for a repeal or modification of the PSLRA. This paper evaluates the operation of class action lawsuits before and after the act." Read the full policy analysis[PDF].

Barry University School of Law in Orlando has named a new Dean - Joseph Richard Hurt, currently dean of the Florida Coastal School of Law. Hunt takes over from incumbent Stanley Talcott on July 1. Barry University has more about Hurt and his appointment.

Friday's Emory Wheel reports that in a speech to students at Emory University School of Law, Georgia State Supreme Court Justice Robert Benham invited his audience to choose between lawyering in the spirits of Machiavelli or Cicero.

CUNY School of Law this week adopted a tougher admissions policy in the wake of half the law school's graduating class failing the 2001 New York State bar exam. Incoming students will now have to have higher GPAs, and the school will allow in fewer students with LSATs less than 145 on a 180 scale. The Astoria Times has details.

University of Arizona College of Law and the Arizona State College of Law are confronting the prospect of severe tuition hikes as a state legislative committee recommends cutting over $500,000 of state funding from both law schools. The Arizona Business Gazette reports.

UNMOVIC chief weapons inspector Hans Blix said Friday that Iraq's agreement to destroy its Al Samoud 2 missiles was a "very significant piece of real disarmament" in conformity with its obligations under UN Security Council Resolution 1441. Watch his statement to reporters at the UN this morning. Blix reports to the UN Security Council Saturday.

Lawrence Solum of Loyola Law School Los Angeles is reporting live Friday from the Digital Rights Management conference at UC Berkeley School of Law - he'll be heading to Stanford Law School for the Spectrum Policy conference tomorrow. At the University of North Carolina School of Law, Eric Muller says that volunteer American human shields who go to Iraq may be committing treason. And over at UCLA School of Law, Eugene Volokh considers the case for repealing the Seventeenth Amendment to the US Constitution, requiring Senators to be elected by direct popular vote instead of by state legislatures.

Susan Hamill of the University of Alabama School of Law has been making quite a splash recently in the wake of an Alabama Law Review article proposing reform of the tax system based on the principles of Judeo-Christian ethics[PDF]. On February 25 she spoke at the University of Cincinnati School of Law, which has just posted streaming video of her presentation.

In a blunt speech in Toronto delivered Thursday after receiving an honorary degree from the Law Society of Upper Canada, the body that regulates lawyers in the Canadian province of Ontario, Canadian Governor General Adrienne Clarkson (the official representative of the Queen in Canada) said that the legal profession needed to address problems of inequality within its ranks and do a better job of reflecting society by increasing the number of women and minorities. Read her speech.

At the end of a week that marked the 200th anniversary of the famous case regarded as the fountainhead of judicial review, John Harrison of the University of Virginia School of Law thinks so. Read his column in Friday's Legal Times.

The Oneida Indian nation's recent $3 million gift to establish a Professorship in Indian Law at Harvard Law School is causing dissension among tribe members who say they weren't consulted. Friday's Harvard Crimson has more.

It's old news to many "law blawgers", but also at HLS: Dave Winer of Scripting News fame has taken up a new fellowship at the Berkman Center for Internet and Society. His mission: to harness the power of weblogs to enhance communication and education at Harvard and beyond. Check out Weblogs at Harvard and see for yourself. Again, the Crimson has more.

Speaking at Catholic University School of Law on February 26, SEC Commissioner Roel Compos said that in the wake of the Enron, MCI and WorldCom scandals, the time has come for the Securities and Exchange Commission to rewrite the rules of the corporate boardroom. CUA School of Law has this report on his speech.

On February 26 Catholic Law also hosted a panel discussion of racial profiling led by Montgomery County Police Chief Charles Moose who spearheaded the investigation of the DC sniper shootings last fall. “When we look at racial profiling traffic data and search data, the one consistent thing is that the police don’t have high rates of success when making search decisions based upon the race of the driver,” Moose said. Read more.

Florida State University College of Law is celebrating the American Bar Association's approval of it's first graduate-level law program - an LL.M. for foreign lawyers. Read the FSU press release.

New and interesting papers on SSRN Friday include:

The Rule of Law for Everyone?
by Brian Tamantha of St. John's University School of Law
From the Abstract: "The rule of law is the most prominent legitimating slogan of government in the world today, espoused my many leaders (and dissidents) in countries around the world, Western and Non-Western. However, there is no agreement on what it means, and there has been little success in establishing it where it does not already exist. This article considers these issues from a historical perspective, by distinguishing a pre-liberal version of the rule of law from a liberal version of the rule of law. This distinction is then applied to clarify some of the basic issues surrounding the application and implementation of the rule of law."

Legal Ethics from the Lawyer's Point of View
by Daniel Markovits of Yale Law School
From the Abstract: "This article develops a philosophical distinction between third- and first-personal ethical ideals and applies this distinction to some of the central ethical problems facing lawyers. The article contends that the dominant argument in legal ethics, the adversary system defense, considers legal ethics exclusively from the third-personal point of view of the lawyer's duties to others and consequently neglects important first-personal ethical questions that arise from the point of view of the lawyer herself. The article concludes that even a successful development of the adversary system defense therefore leaves essential features of the ethical experience of lawyers unaddressed, and it presents an unconventional interpretation of ideas involving the ethics of role that recasts these ideas as filling in the ethical gaps that the adversary system defense leaves open."

On February 28, 1877, the US Congress ratified the Manypenny Agreement with the Lakota Sioux, under which the United States took control of 900,000 acres of the Black Hills. Read the ratification act, which includes the terms of the Agreement. The Lakota argue to this day that the Agreement is illegal, was obtained by coercion associated with starvation, and that the Black Hills should be returned to them.