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.

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