Month: July 2024

Newsweek’s Supreme Court Coverage Still Wanting

Last year in a post entitled “Mixed Bag in Media Review,” I criticized a Newsweek article about a case before the U.S. Supreme Court as factually accurate but misleading because it lacked crucial context and because the headline’s choice of wording implied that there was some chance that the Court would take the case. I said, “[P]rofessional journalists should have a bit more working knowledge of how our court system works.”

Two recent Newsweek articles, by two different writers, continue to reflect a disappointing lack of familiarity and imply a lot more significance to routine actions.

In “Donald Trump Lawyer Botches Court Filing in Mar-a-Lago Case,” the author recounts an error that was made when the notice of appearance for Emil Bove, one of the attorneys representing former President Donald Trump in the Government’s appeal of Judge Aileen Cannon’s dismissal of the charges against him in the classified document case. Back in olden times when I became a lawyer filing with a court consisted of the physical delivery of a “wet-ink” signed document to the court clerk. Now most filing is accomplished electronically.1 Document filers, mostly attorneys, have their own individual accounts with login ID, password, and potentially other security. In the context of this article, the court’s procedure required that the notice of appearance be filed using the account of the specific attorney, but Mr. Bove’s notice was filed using someone else’s account. Mr. Bove promptly corrected the deficiency upon notice from the court.

So, there was a minor procedural misstep unrelated to the merits of the case which was quickly corrected. I would not describe it as “botching” a court filing and am left with the impression that the author of the headline (who may not be the author of the article) did so in order to embarrass the attorney, presumably because of the author’s disdain for his client.

The other recent article, “Supreme Court Justices Refuse to Reconsider Their Decisions,” accurately reports that a recent list of Supreme Court orders disposed of many cases in which the disappointed party asked the Court to reconsider its denial of his/her/its petition for certiorari and that the grant of a petition for rehearing is extremely rare. While a request for reconsideration may be understandable (few litigants are willing to admit that their case is finally, irretrievably lost), in most cases the arguments for reconsideration either were, or could have been, asserted in the petition in the first place. They are seeking the proverbial “second bite at the apple.”

Ultimately, I believe that the facts that these articles report are simply not newsworthy, and the articles would never merit space in a print publication. But the lower cost of on-line publication coupled with the constant need for new content arising from the twenty-four-hour news cycle (and the constant desire for clicks to generate ad revenue) incentivizes “click-bait” headlines.

Jay Bohn

July 25, 2024

  1. In federal courts the system is called “electronic court filing,” or “ECF.” ↩︎

Election Follies

As a resident of New Jersey, I have been treated to a good seat to view the run up to the upcoming election. I write not of the Presidential contest, which until yesterday looked like it was going to be a rematch of 2020 that few wanted but we didn’t seem able to avoid,1 but of the New Jersey Senate race.

Democratic incumbent Robert Menendez, our senior senator, has served since he was appointed by Governor Corzine to fill the vacancy created by Corzine’s election as governor. Menendez was the subject of a recall attempt2 and much later a corruption trial that resulted in a hung jury. Although he politically survived both events, his second indictment, last September, accompanied by tales of gold bars and jacket pockets stuffed with cash, led to his recent conviction (nobody survives gold bars) on all sixteen charges and intensified calls for his resignation or expulsion from the Senate.

Immediately following the indictment, Representative Andy Kim said that he would run for the seat in the Democratic primary. Kim’s most prominent announced opponent, N.J. First Lady Tammy Murphy, also sought the seat and had the advantage of her husband, the governor’s, party influence. This influence was potentially decisive as New Jersey primaries feature what is known as “the party line” which allows the county party to group favored candidates together, consigning others to “ballot Siberia.”3

Kim promptly filed a federal lawsuit challenging the county line (a similar lawsuit had been pending for a while) and sought a preliminary injunction to prohibit the use of the county line in the 2024 Democratic4 primary and replace it with the office block style ballot used everywhere else.

A number of legislative leaders promised to address the matter (eventually) in an effort to keep the judge from entering the injunction. County party leaders were apoplectic about the threat to their influence. Ultimately, after the damage was done, Tammy Murphy did not pursue the nomination.

Although Menendez did not file a petition to run in the Democratic primary, he did qualify to run as an independent, and his presence on the ballot just might siphon enough votes away from Kim to allow the Republican5 candidate a chance to be the first Republican elected to the Senate from New Jersey since 1972.

While Menedez’s conviction does not disqualify him from the Senate, it promptly led to many Democrats calling for him to resign or be expelled. If either event happens, Governor Murphy would have the power to appoint a replacement who would serve for the balance of the term (unless Murphy also calls a special election). Kim would seem to be the logical choice for the Democratic governor, but remaining sour grapes might lead Murphy to appoint someone else, even his wife, as a caretaker.

Jay Bohn

July 22, 2024

  1. Actually, as I was writing this post. the growing chorus of Democratic elites are desperately trying to dump the candidate who won their primaries, incumbent Joseph Biden, succeeded and replace him with . . . (well, that’s not the important bit). ↩︎
  2. Then lieutenant governor/secretary of state Kim Guadagno correctly determined that Ney Jersey’s state laws on the procedure could not authorize the recall of a federal officeholder. ↩︎