Relevant and even prescient commentary on news, politics and the economy.

At least as of yesterday morning, the Democratic establishment still didn’t get it. Then again, as of late yesterday, neither did the Republican establishment. And neither did Donald Trump. [UPDATED]

CHUCK SCHUMER’S TOUGH BALANCING ACT: CNN reports on an interesting dynamic to keep an eye on:

“For Schumer, the challenges will be formidable. He’ll have to listen to the vocal and outspoken progressive wing of his caucus, led by Massachusetts Sen. Elizabeth Warren and Vermont Sen. Bernie Sanders, who have legions of supporters. But he also has five red-state Democrats in states Trump won convincingly — Indiana, Missouri, Montana, North Dakota and West Virginia — up for re-election in 2018. And if Schumer takes his caucus too far to the left, he’s bound to could put his moderates in a difficult political spot.”

Worth watching: Whether those red state Democrats claim the party has moved too far to “the left” when it resists Trump’s agenda.

The first big political war of Trump’s presidency will be explosive, Greg Sargent, Washington Post, yesterday at 9:55 a.m.

Late yesterday I received a listserve email from Bernie Sanders’ new organization, Our Revolution, asking what we most wanted the organization to do immediately.  I haven’t responded yet, but my message will be a plea that it begin an intensive effort to inform the public in the Rust Belt states, and the Midwest generally, of what exactly the Conservative Legal Movement was, and is, up to regarding handing control of the federal courts, and federal law, to billionaires and mega-corporate interests.

That’s what Citizens United was really about.  But it’s also what a slew of other 5-4 Supreme Court rulings have been about since the Conservative Legal Movement gained that majority on the Court.  And during the three decades when it thoroughly controlled the federal appellate and trial-level courts.

The Supreme Court effectively rewrote the Federal Arbitration Act to forced-arbitration clauses in almost every aspect of employment, consumer (including banking and credit card law), and securities law.  It also rewrote that Act so that it uses those forced arbitration clauses to effectively eliminate class actions.

It literally rewrote the Federal Rule of Civil Procedure, Rule 8(a), that sets the parameters for what lawsuit complaints, the legal pleading must state

It has been extremely hostile to labor unions; Samuel Alito openly invites the filing of litigation whose very goal is to undermine or outright eliminate them.

Every single one of these attacks, and many others, were born and grew up through a precision pipeline system of think tanks and so-called legal foundations, small, non-profit (thus “Foundation” as part of their title) law firms, all funded by extreme economic self-styled libertarian (the Madison Avenue-inspired ideological label they use) billionaires, including the Kochs, financial-industry billionaire families that include the Mercers and the Ricketts and who were top funders of Trump’s general-election campaign, and oil-and-gas billionaires, including top funders of Trump’s general-election and primary campaigns.

And that includes, extremely significantly, the Federalist Society, cofounded in about 1980 by Antonin Scalia, and whose most aggressive and unabashed members include Alito, Clarence Thomas and a slew of high-profile members of the federal appellate bench.  John Roberts also apparently was a member, although very quietly, throughout his career as a lawyer.

What I want most, and most immediately, for Our Revolution to do is to begin a major public-awareness push to tell all those Midwesterners and other Rust Belters—including those in rural areas and small towns—what exactly Trump was saying when he promised during the campaign to appoint justices in the mold of Antonin Scalia.  And who, exactly—who, exactly—is feeding him the names on list of possible Supreme Court nominees.  And who exactly will be feeding him recommendations for lower federal court appointments.

Suffice it to say, it ain’t the Rust Belters and Midwesterners who brung him, late in the game, to this dance because they support the Paul Ryan fiscal plan whose goal is to all-but-eliminate both taxes on the wealthy and the social safety net programs, such as food stamps and Medicaid, that many of them rely upon for, literally, survival.

Nor was it because they salivate at the thought of industry lobbyists writing legislation to be fed quickly through Congress and onto President Trump’s desk for him to sign.

Nor, I’ll venture, was it because they want the Supreme Court and the lower federal courts to be proxy arms of economic-winger billionaires and industries ranging from Wall Street to Walmart to communications to chemical and pharmaceutical, to Big Ag, to fossil fuel and lumber industries.   As they were for roughly three decades.

Mitt Romney received the votes of the deplorables, without whose support Trump would not have won.  But Romney isn’t president.  Barack Obama is.  Trump’s bizarre efforts beginning in 2011 to change that fact, notwithstanding.

Yet throughout the day yesterday, the news was filled with Ryan’s and McConnell’s exaltation at their expectation that President Trump will effectively be President Ryan.  Puppet Trump, in other words.  They’ll serve him avalanches of legislation to sign.  And they will control the key appointments to every single federal agency and commission that they want to control.  Which is almost all of them.

Including the SEC and the NLRB, the FDA, the FTC and the FCC.  As well as the Interior Dept., which they presume now will simply hand over to the lumber and fossil fuel industries massive amounts of federal lands.

Which brings me to this: Every bit as important as informing the public of this, for Our Revolution, for the Progressive Change Campaign Committee, for Democracy for America, and the reconstructed, soon-to-be-Sanders-supported DNC—and for Bernie Sanders and Elizabeth Warren themselves—to do, right now, is to begin a massive public information campaign about this that targets House members and Senate Republicans up for reelection in 2018.  In their states.  In their districts.  Including seemingly safe ones in the Rust Belt and the entire Midwest.

We have their number.  As we do Donald Trump’s.  And we have the grass-roots movement and the social-media networks to determine their latitude for installing these virulently anti-working class, pro-billionaire, pro-mega-corporate, pro-mega-powerful-industry cooptation of each of the three branches of the federal government.  Including that professed savior of the working class, Donald Trump.

I still remember looking that the map of Michigan’s counties the day after the primary last March, showing how each county voted in each of the two primaries—and being utterly stunned looking at the one for the Democratic primary.  If I recall correctly, every single county except Wayne (home to Detroit) and Genesee (Flint and surrounding area)—both counties largely African-American—voted for Sanders.  The Republican stronghold counties in the western part of the state all the way along or near Lake Michigan, went heavily for Bernie.  And, had African-Americans in Wayne and Genesee voted for Clinton roughly 3-1, as projected, instead of roughly 2-1, as they did, Bernie still would not have beaten her.

Apparently Chuck Schumer is unaware of this.  Bernie should tell him.  The old sheriff is gone, run out of town, or more accurately, the country, on Tuesday.  There’s a new sheriff in the country.  Named economic populism.

It could have been our sheriff; thanks to folks like you, it wasn’t.  But we can make due with the one who is not ours.

One side of this divide—the wealthy Republican and corporate elite, proxied by Ryan, McConnell, and the Federalist Society, or the folks responsible in such large part for bringing Trump to the dance—will control the federal government.  Puppet Trump. Puppeteers Ryan, McConnell, Wall Street and other industry lobbyists, and the Federalist Society.  On the other side, Rust Belt and Midwestern blue-collar voters.  Including labor union members.

And if it’s the former, it will last only until January 2019.  Believe me.

Better yet, believe Bernie Sanders.

 

____

UPDATE:  Holyyyy macaroni.  Chuck Schumer’s gotten the message now.  It took two and a half days.  But he’s gotten it now.

See “Schumer throws his support behind Keith Ellison for DNC chairman,” posted about an hour ago on the Washington Post’s website.

Wow.

So the first big political war turned out to be a two-and-a-half-day-long skirmish.  And this is why.  The times, they are a-changin’.  Really, really quickly.  In the Democratic Party.

Updated added 11/11 at 11:19 a.m.  Just past the eleventh hour of the eleventh day of the eleventh month.  It’s Veterans’ Day, folks.  Not to equate the two events, of course.  Just to acknowledge the meaning of Veterans’ Day, which originally was called Armistice Day.

Tags: , , , , , , , , , , , , , , , , , Comments (5) | |

The Mad Hatter Columbia U. Law Prof. Who Advised Comey That He Needed to Destroy the Village In Order to Save It* – UPDATED (His name is Daniel C. Richman.)

Daniel C. Richman, an adviser to Mr. Comey and a Columbia University law professor, argued that despite the backlash, Mr. Comey’s decision to inform Congress preserved the F.B.I.’s independence, which will ultimately benefit the next president. “Those arguing that the director should have remained silent until the new emails could be reviewed — even if that process lasted, or was delayed, until after the election — give too little thought to the governing that needs to happen after November,” Mr. Richman said. “If the F.B.I. director doesn’t have the credibility to keep Congress from interfering in the bureau’s work and to assure Congress that a matter has been or is being looked into, the new administration will pay a high price.”

Former senior law enforcement officials in both parties, though, say Mr. Comey’s decision to break with Justice Department guidelines caused these problems. Had he handled the case the way the F.B.I. handled its investigations into the Clinton Foundation and Mr. Manafort over the summer, the argument goes, he would have endured criticism from Republicans in the future but would have preserved a larger principle that has guided cases involving both parties. …

F.B.I.’s Email Disclosure Broke a Pattern Followed Even This Summer, Matt Apuzzo, Michael S. Schmidt, Adam Goldman and William K. Rashbaum, New York Times, today

Gotta say, Comey comes off in this Washington Post article today as dumber than a rock.

— Me, here, yesterday

The particular part of that Washington Post article yesterday, by Ellen Nakashima, that I had most in mind was this:

Tags: , , , , , , , , , Comments (12) | |

Donald Trump, A Man After My Own Heart

I don’t think we should have justices appointed that decide what they want to hear.

— Donald Trump, last night

Wow.  Out of the mouths of babes.   Or something.  I don’t think we should have justices appointed that decide what they want to hear, either.

OMG.  I’ve been supporting the wrong candidate!

Repeal the Supreme Court Case Selections Act of 1988!  Repeal the Supreme Court Case Selections Act of 1988!

Tags: , , Comments (1) | |

Anthropomorphic Mexico

WASHINGTON — In June of 2010, four boys were playing in the dry bed of the Rio Grande that separates El Paso from Juárez, Mexico. The international borderline, unmarked, runs through the middle of the culvert.

The boys dared one another to run up a concrete incline and touch the barbed wire of the American border fence. An American border guard, Jesus Mesa Jr., grabbed one of them.

Another boy, Sergio Hernández Guereca, fled, and he made it back to Mexico before Mr. Mesa shot him in the head from about 60 feet away, killing him. Sergio was 15.

Last week, the Supreme Court agreed to decide whether Sergio’s parents may sue Mr. Mesa for violating the Constitution by using excessive force. If not, lawyers for the parents argue, then Sergio died in “a unique no­-man’s land — a law­-free zone in which U.S. agents can kill innocent civilians with impunity.”

Had Sergio been killed in the United States, he would have been protected by the Constitution. Had he been an American citizen, he would have been protected whether he was killed in the United States or in Mexico.

An Agent Shot a Boy Across the U.S. Border. Can His Parents Sue?, Adam Liptak, New York Times, yesterday

Dan emailed me the link to the article yesterday, with a subject line, “This might be of interest.  To which I responded:

This is very much of interest, Dan.  It’s not simply the narrow legal question about whether the family of this teen can sue for a violation of a U.S. constitutional right.  It’s also what I consider an absolutely critical issue: the Conservative Legal Movement’s aggressive privileging of the rights of “sovereigns” over the rights of individuals–usually they mean U.S. states–as though the “sovereign” is a person.  They call it the “dignity” of the states, and I guess in this case they’re calling it the “dignity” of Mexico.

Of course, the difference here is that, unlike in the states’-rights-to-violate-individuals’-rights–which almost always means state-courts‘-rights-to-violate-individuals’-rights (this dignity concern does not extent to the other two branches of state government)–the government whose dignity the Conservative Legal Movement judges are so concerned with is–what?–waiving its right to have the Conservative Legal Movement protect it from this affront to its dignity.

And, btw, the Fifth Circuit is the only circuit among the 12 federal appellate circuits that remains so thoroughly within the chokehold of the Conservative Legal Movement.  But if Trump wins, they’ll all quickly begin reverting back to it.

I’ll write something on this, but it’s a complex subject and I might not be able to finish it today.  But if not, then tomorrow.  I want it posted before Wednesday night’s debate.

What I was referring to when I said it is very much of interest (to the general public) is not fully apparent in the above excerpt; after all, most Americans will never be in a situation in which they are physically in a legal no-man’s-land.  But the operative word there is “physically,” by which I mean, in a physical rather than a metaphorical place whose very legal status, its reach by this country’s basic precepts of law, are deemed by this country’s federal courts to be nonexistent.

In legal jargon, what I’m talking about is the issue of “subject-matter jurisdiction”—the threshold authority—of federal courts to hear, to address, to consider, to not dismiss for lack of threshold legal authority to hear it, the lawsuit (whether civil in nature or quasi-criminal in nature, which is what most habeas corpus cases really are) whose purpose is to make a claim of one sort or another under the laws of this country.

But due entirely to a set of Supreme Court-concocted legal “doctrines” in civil cases and the lower federal courts’ all-encompassing interpretations of it, and a rewriting by the Supreme Court’s Conservative Legal Movement crowd of an already-awful 1996 jurisdictional statute to effectively repeal the Constitution’s habeas corpus provision’s applicability (via the Fourteenth Amendment) to state-court criminal convictions and sentences, anything that occurred in state court or is related in some way to what occurred in state court that arguably or inarguably violates a constitutional right of the individual who challenges it federal court is ruled beyond the jurisdictional reach of the federal courts.

And while the habeas corpus jurisdictional statutory interpretation at least purports to be, well, statutory interpretation, no such claim was ever made about one of the two doctrines barring access to federal court in non-habeas cases concerning something that occurred in or relating to state court.  It was always unabashedly simply a policy preference by the Court.  And as such, it violates the Constitution’s Article III, which accords Congress the sole authority to determine federal-court jurisdiction (subject to the Supreme Court’s determination that jurisdictional statute, or the absence of one, itself violates the Constitution).

The other of the two Court-fabricated jurisdictional doctrines is unique in its weirdness and, for the last 28 years, in its audacity.  The 5-4 opinion that created it in 1983 was a standard statutory-interpretation opinion, but the statute it interpreted was repealed five years later at the behest of William Rehnquist, then newly elevated as chief justice.  But instead of just dying with the repeal of the statute, it remained, but, like the other one, just a Court-created “doctrine”.

This itself has operated to permit the lower federal courts to treat the continued viability of the doctrine, post-1988-statutory-repeal, as it treats the other doctrine: as unchallengeable via litigation, by dint of its provenance as a Court-created jurisdictional pseudo-statute.  Or something.  And therefore beyond the reach of a court challenge to its continued viability, and its very constitutionality.  It’s not a statute, see.  And it’s not an Executive Branch regulation or policy, see.  It, like the state-court events that these doctrines, together, serve to bar from constitutional challenge in federal court, exist in a legal no-man’s land.  The actions, the operations, the consequences—they sure may be unconstitutional, but they’re also un-remedial.

Like the Mexican teen’s family’s case, according to the Fifth Circuit Court of Appeals.  And according to the Obama administration.  Liptak explains:

The Obama administration, in a brief urging the justices to deny review, said allowing civil suits in American courts was not the right way to address cross-­border shootings by American agents. The Mexican courts have jurisdiction over events that happen in Mexico, the brief said.

True enough, and the Mexican authorities did charge Mr. Mesa with murder. But the United States has refused to extradite him.

The government of Mexico filed a brief asking the Supreme Court to hear the parents’ case. “Applying U.S. constitutional law in such a case does not disrespect Mexico’s sovereignty,” the brief said. “Any invasion of Mexico’s sovereignty occurred when Agent Mesa shot his gun across the border at Sergio Hernández — not when the boy’s parents sought to hold Agent Mesa responsible for his actions.”

A trial judge dismissed the case, but a three-­judge panel of the United States Court of Appeals for the Fifth Circuit, in New Orleans, let part of it move forward.

“If ever a case could be said to present an official abuse of power so arbitrary as to shock the conscience,” Judge Edward C. Prado wrote, what Sergio’s parents described was that case.

The full Fifth Circuit reheard the case. While it agreed that “the death of a teenaged Mexican national from a gunshot fired by a Border Patrol agent standing on U.S. soil” was a “tragic incident,” it said Sergio’s parents could not pursue a claim under the Constitution.

A 1990 Supreme Court decision, United States v. Verdugo­-Urquidez, supports that view. It said some constitutional rights applied only within the nation’s borders unless the plaintiff had a “significant voluntary connection” to the United States.

But a more recent decision, Boumediene v. Bush in 2008, concerning people detained at Guantánamo Bay, Cuba, took a more flexible approach. It allowed detainees there to invoke the Constitution. The Fifth Circuit relied on the narrower view. By contrast, the Ninth Circuit, with jurisdiction over the border states of Arizona and California, has said that “the border of the United States is not a clear line that separates aliens who may bring constitutional challenges from those who may not.”

Under that broader standard, a trial judge in Arizona last year refused to dismiss a civil case against Lonnie Swartz, a Border Patrol agent who is accused of killing José Antonio Elena Rodríguez, 16, in another cross­-border shooting. Federal prosecutors have charged Mr. Swartz with murder, and he has pleaded not guilty.

Mexico’s Supreme Court brief described several other cross­-border shootings. More generally, it said, “shootings at the border — whether or not justified in any particular case — are, unfortunately, far from a rare occurrence.”

A 2013 report commissioned by United States Customs and Border Protection studied 67 shootings from 2010 to 2012. “Too many cases,” the report said, “do not appear to meet the test of objective reasonableness with regard to the use of deadly force.”

It’s all about preserving the dignity of the sovereign (or the “sovereign,” depending upon your viewpoint).  “Dignity”and “sovereign” being the Supreme Court’s terms, repeated time and again in cases justifying the incessant rulings by that court privileging the rights of state courts, but not the rights of state legislatures, and not the rights of state executive branches, at the cost of the constitutional rights of individuals that state courts, or someone or some entity related to something that happened in or in connection to one, has trampled.

At the Supreme Court in recent decades, states’ rights usually means state courts’ rights to violate individuals’ constitutional rights.  In the name of preserving the anthropomorphic right of the state to dignity.  Or, to be precise, their sovereign dignity.  Sovereign here apparently meaning the monarch, since monarchs, after all, are human.

But now the Mexican government, unlike the state governments whose dignity the Supreme Court’s Conservative Legal Movement knights in shining robes defend so gallantly, begs to differ on the meaning of sovereign dignity and on the underlying purpose of it.  That government, although it surely appreciates the thoughtfulness of the sentiment, apparently considers its citizens the ones entitled to dignity under civil rights and civil liberties and human rights law.  And in fact it may not even consider itself human.

How refreshing.

Tags: , , , Comments (4) | |

John McCain Says He’s Glad a 5-4 Supreme Court Majority Fabricated a Constitutional Ground to Strike Down Most of the McCain-Feingold Campaign Finance Law as Unconstitutional

Linda Greenhouse On the Intense Aggressiveness of Conservative Legal Movement Justices and Judges

Former longtime NYT Supreme Court correspond, current biweekly Times columnist, and habitual woman-after-my-own-heart Linda Greenhouse, has a column today titled “Let’s Legislate From the Supreme Court Bench” about how very fond movement conservatives became a while ago of legislation from the bench.

She makes the point that legislation from the bench is an absolutely essential component of the Conservative Movement.

I’ve made that point, or tried to, roughly 879 times at AB since I began posting here in 2010.  But she’s Linda Greenhouse, and I’m, well, nobody.  But at least I’m in good company in recognizing how ridiculously underappreciated—how thoroughly unknown, actually—this critical fact is.

Tags: , , , , , Comments (6) | |

The Fab Four (f.k.a. the Fab Five) Supreme Court Justices’ Last Grasp and Last Gasp

WASHINGTON (AP) — The Supreme Court agreed Tuesday to hear appeals from former Attorney General John Ashcroft, former FBI Director Robert Mueller and other former federal officials seeking to shut down lawsuits filed by Muslim and Arab men who were detained in the U.S. after the Sept. 11 attacks.

The justices said they will review an appeals court ruling that gave a green a light to the lawsuit claiming that Ashcroft, Mueller and the others should be held accountable for the harsh treatment the men suffered in the months after the worst attacks in U.S. history. The former officials argue they cannot be sued or held liable.

The court also said it will hear a separate appeal about access to the courts from the family of a Mexican teenager who was killed when a U.S. Border Patrol agent fired across the border from Texas into Mexico. The case involves the rights of people who are harmed by American authorities on foreign soil to have their day in U.S. courts. …

In the detainees case, the Obama administration is defending Ashcroft, Mueller, James Ziglar, the former commissioner of the U.S. Immigration and Naturalization Service, and the warden and associate warden of the Metropolitan Detention Center in Brooklyn where more than 80 men were held, many of them charged only with minor civil immigration violations.

A divided panel of the 2nd U.S. Circuit Court of Appeals in New York said the men were detained “as if they were terrorists, in the most restrictive conditions of confinement available, simply because these individuals were, or appeared to be, Arab or Muslim.”

The appeals court said that “the suffering endured by those who were imprisoned merely because they were caught up in the hysteria of the days immediately following 9/11 is not without a remedy.”

The new appeal, stemming from a class-action lawsuit that was originally filed in 2002, is the third time the court has intervened in lawsuits against Ashcroft and others from Muslims who were arrested in the U.S. following the 2001 attacks. The justices have twice sided with Ashcroft.

Only six justices will take part because Justice Sonia Sotomayor was a member of the New York-based federal appeals court that heard an earlier version of the case and Justice Elena Kagan worked on the issue when she served in the Justice Department. One seat on the nine-member court has been empty since Justice Antonin Scalia died in February.

Arguments probably will take place in January so it is possible that a new justice will by then be in place. President Barack Obama has nominated Judge Merrick Garland, but Senate Republicans have so far blocked action on the nomination.

Supreme Court will hear Ashcroft appeal to kill lawsuit, Associated Press, today

Well, we all can do the math and recognize that in light of Sotomayor’s and Kagan’s recusals, the outcome of this case doesn’t depend on whether the Scalia seat has been filled by the time the case is decided next spring.

We also know what the outcome will be.  Prescience, I guess.

Tags: , , Comments (0) | |

My Near-Out-of-Body Experience While Watching the Debate Last Night: Hearing Clinton’s Answer To the Supreme Court Nominees Question

OMG.

It came so late in the debate—the third-last question, the second-last on policy agenda, less than 10 minutes before the end.

Asked what she would be looking for in selecting her Supreme Court nominees, she began not with a culture-wars answer or by referencing the need for diversity among the justices as concerned with race and gender identity, but instead by saying she would look for diversity in professional background.

O. M. G.

Then she mentioned Court review of state and federal laws concerning voting rights and ease of access to exercise the right to vote.

She then pointed out the need for new justices who would be willing to reconsider Citizens United if there is to be actual chance to the stranglehold that billionaires and mega-corporations and specific industries—the financial services, fossil fuels, pharmaceuticals, healthcare insurance—have on government at every single level that matters to those industries, via their funding (so much of it secretly) of candidates and the political parties.

And then there was this: In a single, brief but eloquent, clause, she told the voters who were watching that the current Republican appointees to the Supreme Court, and most of those appointed by Republican presidents in the last three decades—and those who Donald Trump has made clear he would appoint—are, quite literally, simply proxies for Big Business.  Against individuals and against small businesses.

Only then did she note the obvious: that Roe v. Wade and LGBT-rights Supreme Court opinions that brand-new Justice Scalias would reverse.

In other words, her purpose was to educate the public about the whole panoply of things that Supreme Court appointments will do, rather than just reminding them of what they already knew.

It took my breath away.  She was channeling me.*  She really could appoint Jeffrey L Fisher* as her first or second Supreme Court nominee.

I also really loved her answer to the question after that one—the one about energy and environmental policy.  I loved the substance and I loved her soft-spoken and heartfelt manner as she answered it.

I was disappointed about a few things: One was that in her response on healthcare insurance she didn’t mention the Public Option—although maybe that was because she recognized, as I did, that Trump did her a yuge favor by saying that she wanted a single-payer (a.k.a, Medicare-for-All-type) insurance system, something she did not dispute.  And she wonderfully pointed out that Trump wanted to return the healthcare-insurance system to one in which the insurance companies have carte blanche control over it.

I also was disappointed that she didn’t point out that Trump’s campaign is funded very substantially by an oil magnate and two finance-industry billionaires—the Mercers and the Ricketts.

And I was surprised and disappointed that she didn’t make clear that Trump’s proposed fiscal policies would add—what?—$10 trillion to the national debt in the space of about 10 minutes, or something.

But as the debate ended I sat back and realized that I am now a genuinely enthusiastic Hillary Clinton supporter.  I will happily, not grudgingly, vote for her, in the actual belief that she will be what I’d been hoping for so fervently: a true progressive in the White House.

I don’t think she’s the candidate—or the person—she was throughout the campaign until late last month.  I really don’t.

____

*Links added, 10/10 at 2:02 p.m.

Tags: , , , , Comments (20) | |

My email to a reluctant-voter friend whose pending federal-court appeal may well be determined by the election outcome before any new judges are appointed to that court

A friend of mine who is the appellant in federal litigation whose outcome she cares dearly about lives in a large swing state in which the presidential race and the Senate race are very close.  She is not particularly political and does not follow political news, other than what’s on her Facebook feed, and has not planned to vote.

On Friday, I emailed her urging her to vote for Clinton, whom she does not like, and the Dem Senate candidate, whom she knows nothing about.  In a follow-up email a couple of hours later, I wrote:

I think I might have implied in that email this morning that I think your appeal could be decided by some Trump appointee(s) at the [appeals court].  That would be very unlikely, and I didn’t mean to imply that.  What I meant was that the instant that the election is declared for Trump or Clinton, everyone who follows the federal courts closely–and certainly federal judges themselves–will calculate instantly which path the current federal judges can feel free to take.

Right now, there’s a vacancy on the Supreme Court and the new appointee will be the fifth justice on one side or the other.  But also, psychologically it will have a huge impact on what the current federal appellate judges feel they can do–how daring they can be, in the direction they’d like to go, how much they can get away with in ignoring this or that Supreme Court opinion, etc.

Your appeal will be decided in the near aftermath of the election.  And the outcome of the election could very well matter in your appeal, in that respect.

Since almost no one has any clue that this is so, but since it is so, I thought I should use my access to this forum to make it clear at least to this blog’s readers.  Should anyone who reads this blog care.

Tags: , , , , , Comments (5) | |