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.
As Finley Peter Dunne’s character Mr. Dooley famously observed, circa 1901, “No matther whether th’ constitution follows h’ flag or not, th’ Supreme Coort follows th’ election returns.”
Actually, bob, that hasn’t been true since the Conservative Legal Movement gained a stranglehold on Court appointments by Republican presidents, beginning with Nixon and excepting Ford. The people appointed the Supreme Court and to the lower federal appeals courts are serious Movement Conservatives who have a precise agenda–literally, a specific list–of things they want to accomplish.
The Fab Five made dramatic changes to the law during the Obama administration, checking off several items on their list, such as decimation of campaign-finance-regulation laws and the Voting Rights Act, all-but-killing affirmative action, a variety of states’-rights-to-violate-individuals’-constitutional-rights-that-don’t-involve-gun-ownership, religion, or real estate rights. And effectively rewriting a key Federal Rule of Civil Procedure (a statute) and the Federal Arbitration Act to preclude access to federal court in order to sue corporations.
They had teed up to kill public labor unions (read: teachers’ unions, and other public unions whose members mostly vote Democratic) this past term. But after the oral argument in the case last winter, Scalia committed an act of treason to the cause by dying before the opinion was released.
Beverly, You seem to be overstating your case. Souter was appointed by Daddy Bush and was certainly not a Movement Conservative. O’Connor, appointed by Reagan, (very) occasionally strayed from the Movement fold, e.g. on McCain-Feingold.
bob:
That is impossible, Bev never, never overstates her case . . .
Yup, you’re right about Souter, although that occurred during firm Dem control of the Senate and when Bork was still a fresh memory. But I did forget about him.
As for O’Connor, who for the first her first 20 years of her 23 (or whatever it was) years on the Court was almost completely awful, she was nominated, pre-Federalist-Society-control era. Federalist Society control began en force shortly after O’Connor’s appointment, when Edwin Meese began selecting Reagan’s judicial nominees at all three levels.