February 21, 2004
This is why the Circuit Courts Matter
By Byron LaMasters
Because when enough of Bush's right-wing appointees get themselves in the judiciary, we start to see right-wing judicial activism (not to mention that this happened on the same day the Bush appointed anti-choice activist Bill Pryor to the 11th Circuit) like we saw in the 5th Circuit yesterday, when they agreed to hear arguments to reconsider Roe V. Wade. The Houston Chronicle reports:
The 5th U.S. Circuit Court of Appeals has agreed to hear arguments on a motion to reconsider the U.S. Supreme Court decision that legalized abortion 31 years ago.
Norma McCorvey, the former plaintiff known as "Jane Roe" who now actively opposes abortion, filed the motion in June seeking to have Roe v. Wade overturned. She said her request is based on evidence of the negative effects of abortion that didn't exist in 1973.
Negative effects of abortion that didn't exist in 1973?!??!?!?! Excuse me? Is she suggesting that the negative effects of abortion today are greater than that of a back alley (coathanger, etc.) abortion in 1973? This woman must be mad. It's one thing to argue that abortion is wrong, immoral, takes a life, etc., but to claim that the there are negative effects to legalized abortion that didn't exist in 1973 when abortion was illegal is outrageous. Anyway, on with the article:
A federal district court threw our her request in June, saying it wasn't made within a "reasonable time." But the New Orleans-based appeals court has agreed to hear McCorvey's arguments March 2.
McCorvey said from her Dallas home today that she is heartened by the decision.
"It's something that I've wanted ever since day one and it's happening," McCorvey, 56, said of overturning Roe v. Wade. "This will be a lifetime dream come true for me that children will no longer be slaughtered from out of their mothers' wombs."
[Law School Professor] Schenck said he was surprised the court agreed to hear McCorvey's arguments in a case that he believes is closed.
"At this point, the case is moot and she's presenting at best a political question," Schenck said.
Exactly. This case is closed, and the 5th Circuit, as right-wing as they may be, has no authority to overturn Roe. V. Wade. Thank God that Bush hasn't had the opportunity to appoint a Supreme Court Justice, because if he had, this case could go right back to the Supreme Court, and Roe could be overturned. So join with me now, and pray for the health of John Paul Stevens.
Posted by Byron LaMasters at February 21, 2004 11:53 AM | TrackBack
Byron, all the Fifth Circuit has done so far on this case has been to set it for the oral argument calendar. Unlike the Supreme Court, the Courts of Appeals don't have discretion which appeals they want to hear. If you pays yer fees and files yer papers on time, they gots to make a ruling on yer case affirm, reverse, or some mixed result in between even for the silliest cases. The Fifth Circuit's setting a case for oral argument implies exactly nothing about how it's likely to be decided. The alternative was to decide the case just on the briefs and the record from the district court, in which event neither we nor the parties would have a clue what was going on until the Fifth Circuit produced a written opinion (which may or may not be marked "for publication" in the casebooks, but that's a whole nuther story).
The mainstream media, of course, is unaware of and uninterested in such details. Dampens the feeding frenzy, doncha know?
For a variety of reasons, I'm extremely skeptical that they'll reverse the dismissal of "Ms. Roe's" case in the district court; rather, I'd offer at least 20 to 1 odds that they affirm it. The only way I can imagine them reversing even in part would be if there were some defect in the record or some terrible procedural error committed by the district court, in which event the trip back to the district court would be no more than a temporary detour to the case's eventual oblivion.
But due to the potential publicity about the case purely as a historical curiousity they agreed to set aside forty minutes to hear the lawyers from both sides make oral presentations. Any former clerk or judge will tell you that oral arguments almost never have much substantive impact on how cases get decided. But they are good occasions for judges to elicit concessions from the side that's about to lose; they do let the three judges on the panel make their tentative ruling face to face rather than via fax or email communications; and they do demonstrate that the courts have given "due consideration" before deciding (which is a legitimate and important factor in cases involving controversial and newsworthy public policy issues).
So fret not. If Roe v. Wade is in jeopardy, it's almost certainly not from this case. The media has its knickers in a twist about nothing.
She said her request is based on evidence of the negative effects of abortion that didn't exist in 1973.
Negative effects of abortion that didn't exist in 1973?!??!?!?! Excuse me? Is she suggesting that the negative effects of abortion today are greater than that of a back alley (coathanger, etc.) abortion in 1973? This women must be mad. It's one thing to argue that abortion is wrong, immoral, takes a life, etc., but to claim that the there are negative effects to legalized abortion that didn't exist in 1973 when abortion was illegal is outrageous.
Chill, Byron. She's not saying the negative effects of abortion didn't exist, but that the evidence regarding them was not available back then. Which is a simple fact.
Oh and by the way, if you'll forgive me for being (as always) longwinded:
I definitely agree with your headline that appointments to the US Courts of Appeals for the various circuits do indeed matter, even if this particular case isn't likely to be an example for why that's true.
And I won't quibble with your description of Bill Pryor as an "anti-choice activist." In his testimony in the Senate and elsewhere, Judge Pryor has been extremely candid indeed, refreshing blunt and nonevasive about his personal views on the abortion controversy and on Roe v. Wade.
In fairness, however, one ought to also note that his record as Alabama's attorney general displays a consistent pattern of him following his oath to uphold the rule of law, including precedents from the US Supreme Court with which he does not personally agree. I've just blogged about "two dramatic incidents of [Pryor as] a principled, devout public official taking political risks to enforce the rule of law — following his duty even when it required him to defy the heads of his state's executive and judicial branches," at a risk not only to his political career but even to his and his family's personal safety. (Supporters of former Alabama Supreme Court Justice Roy Moore, for example, join you in your outrage at yesterday's recess appointment, since Bill Pryor's vigorous personal enforcement of the rule of law was the direct instrument of Moore's removal from the bench.)
Another similar example that I didn't mention in my post, however, specifically related to abortion rights. Early in his career, Pryor took a politically unpopular initiative one contrary to his personal beliefs, and that he could have easily ducked to instruct district attorneys in Alabama to give the most restrictive possible (i.e., pro-abortion rights) interpretation to a new Alabama statute prohibiting partial birth abortions.
Thus, if you look at his actual record instead of performing speculative mind-reading, which is all his foes have ever been able to cite you'll find that when his duty called, he put aside his personal beliefs to enforce the Supreme Court's precedents in Roe and its many progeny.
I agree with the observation that the 5th Circuit had not discretion to refuse to hear the case. However, I share Byron's concern that the case was set for Oral Argument, which the Court does not have to do.
This is a no-brainer - it is a frivilous case; you cannot open up a case after so long. File a new one perhaps, but not open the old one. There is absolutely NO basis whatsoever for this suit.
The Fifth Circuit should have affirmed this case simply on the arguments presented in the written briefs. The 5th Circuit only grants requests for Oral Arguments in about 10% of the cases they hear. Oral argument is only granted when there are some questions at stake that require further inquiry. This case should be an open-and-shut affirmance, period. By taking any action other than summarily affirming the trial court's dismissal of this frivilous lawsuit, the 5th Circuit seems to be on the verge of some activism - or at least giving the appearance of it.
So, YES we do should have concerns about the 5th. Circuit's decision to set the case for oral argument, and ABSOLUTELY the composition of the judiciary matters. In fact, for me it is one of the most important considerations in electing a president, and in the long term, is the most influential thing a President can do.
Say NO to Bush and NO to IDEOLOGUES on the bench.
Evidence regading them was not available in 1973?
Well maybe liberals can finally get a chance to be outraged by some crazy activist judge. Bush would definitly not want women flocking to the polls over this.
Sigh. Chapter and verse it must be, then.
Federal Rule of Appellate Procedure 34(a)(2), binding on all of the Circuits, provides:
Standards. Oral argument must be allowed in every case unless a panel of three judges who have examined the briefs and record unanimously agrees that oral argument is unnecessary for any of the following reasons:
(A) the appeal is frivolous;
(B) the dispositive issue or issues have been authoritatively decided; or
(C) the facts and legal arguments are adequately presented in the briefs and record, and the decisional process would not be significantly aided by oral argument.
"Frivolous" and "authoritatively decided" are terms of art whose application is highly fact-specific to individual cases. To meet either of these standards, almost by definition, an appeal's merits have to be so weak that the appellant's lawyers are going to be sanctioned fined for their bad faith in bringing it, and that happens in a vanishingly small percentage of cases. (Example: appeals from IRS decisions based on the argument that the the federal income tax laws are unconstitutional because they tax income that's not paid in gold dollar coins.)
With respect to both of these first two standards in Rule 34(a)(2)(A) & (B), even a lawyer's good-faith statement that he's entitled to go up the appellate chain to attempt to have decisive precedent overruled by the en banc Court of Appeals or the Supreme Court will probably suffice to avoid sanctions. Making a bad prediction about whether existing law will be overturned, or even just being stupid, is generally not sanctionable.
Instead, when at least one party has requested oral argument, it's vastly more common for the "significantly aided" standard of Rule 34(a)(2)(C) to be determinative. I will tell you based on first-hand experience as a former law clerk for the current Chief Judge of the Fifth Circuit that those terms are used very flexibly. Judges commonly enlist the assistance of their law clerks and the court's pool of staff attorneys in making recommendations on oral argument, but they don't delegate the process entirely.
Note as well the Fifth Circuit's local rules and internal operating procedures that implement the Fifth Circuit's "summary calendar" system in compliance with Rule 34(a): "If any party requests oral argument, all panel judges must concur that the case does not warrant oral argument, and also in the panel opinion as a proper disposition without any special concurrence or dissent." In other words, a notion or even a whim from any one of three judges who've screened a case in which oral argument is requested is enough to put the case on the oral argument calendar; no explanation or justification is required.
The considerations I mentioned in my comment above including public notoriety of the case are definitely factors that influence the application of the "significantly aided" standard. Believe me or not, as you will, or ask someone else who's clerked or worked as a staff attorney for the Fifth Circuit.
This is also consistent with my personal observations and experience as a practicing trial lawyer on more than a dozen Fifth Circuit appeals over the last two decades. I've stood at the podium more than once personally arguing a case in which, by the conclusion of the argument, it was clear to everyone in the courtroom that oral argument had probably been too leniently granted.
I repeat, the granting of oral argument tells you absolutely nothing of any significance about the likely ultimate disposition of an appeal. My opinion as one who's seen the process work from the inside in this very court, and as a lawyer who practices within it, is that the likely explanation for the granting of oral argument has entirely to do with the nature of the case (abortion rights) and the consequent public interest in it. If anyone has contrary law or facts to cite, I'd be interested in hearing it but I ain't heard it yet.
WhoMe?, since you seem to still fear that the sky is about to fall, would you like to place a friendly side wager on the outcome? I'll give you very good odds that after oral argument, the district court's judgment will be affirmed, and gladly let Byron hold the stakes. Say, my $100 against your $5, 20 to 1 in your favor?
Quoting the FRAP (Federal Rules of Appellate procedure for you non-lawyers) is fine and dandy, but you know as well as I do that the 5th Circuit VERY RARELY grants oral argument. I do not have the stats handy but I recall it at being around 10%. To suggest that the 5th Circuit is either required to schedule oral argument or is severely restricted by FRAP not to grant oral argument is intellectually dishonest. Again, you know as well as I do that the 5th Circuit rarely grants oral argument (in fact, I believe it has one of the lowest "grant oral argument" rates of any federal appellate court in the country).
As far as my thoughts on the outcome, I never characterize the result as the sky falling, as you stated - another bit of intecllectual dishonesty on your part. (I merely stated that I thought it was an instance of activism). I agree with you that the result is likely to be an affirmance.
Nonetheless, I am very troubled that this was not an open and shut affirmance. I suspect that the Court may try to use the case to be activist by "send a message," without actually ruling in the Appellant's favor, In fact, by even granting oral argument, the Court grants a "bully pulpit" to the appellnt by presenting a forum to argue a case that, while of great interest to the anti-choice crowd, has 0% merit in the law. There are many ways a court can make "political" decisions without affecting the ultimate outcome.
By the way, I too have personal experience in the operations of appellate courts (having clerked for an appellate justice many moons ago), and the granting of oral argument in this case is BIZARRE.
Who is on the panel, Edith Jones? That would say a lot.
By the way, if I'm reading it right, this chart (at page 4 of the .pdf pagination) suggests that for 2003, 78.9 percent of Fifth Circuit cases were set on the either on the "conference or summary calendar" (1652 + 1084), while 21.1 percent were set on the oral argument calendar (733). The term "conference calendar" as used in this chart is slightly different from what I recall from my clerkship days, however, so I'm curious as to the source of your 10 percent figure, WhoMe?
Ah. Our posts crossed.
I grant you that the Fifth Circuit is one of the busiest; its bench is understaffed; and there may well be other Circuits whose workloads permit a higher oral argument rate.
As far as I know, it's impossible for outsiders to tell, either now or later, which judge or judges have put a case on the oral argument calendar. There's no correlation between putting a case on the oral argument calendar and then actually being on the three-judge panel that hears the oral argument, however. Oral argument panels are randomly selected, and the cases assigned to them from the oral argument calendar are likewise chosen at random.
Your bully pulpit argument isn't entirely implausible, but it's equally plausible that a "moderate" or "liberal" judge who expects a summary affirmance after oral argument put the case on the oral argument calendar to deprive Ms. Roe's lawyers and their supporters of any claim that they got short shrift on a headline-generating case. Sometimes it's exactly the weak cases involving a controversial subject matter in which the court is careful not only that justice be done, but be seen to be done.
Point taken re my "sky is falling" characterization; I apologize. We still disagree, but hopefully do so without being disagreeable.
Damn, I'm a long-winded weenie! One last point, re statistics and how they may be misleading:
A huge percentage of the Fifth Circuit's total case volume comprises absolutely mundane, fact-specific appeals. These include, for example, individuals appealing from denials of Social Security claims; small-change criminal cases (often drug-related) only challenging the sufficiency of the evidence to support conviction; looney-tunes cases brought by pro se crackpots; prisoner cases challenging conditions of confinement ("The warden won't let me watch The Playboy Channel on cable!"); successive habeas corpus petitions (over which the federal courts' statutory jurisdiction has been limited); immigration/deportation rulings; and so on.
Full-time staff attorneys often screen each of these cases (reviewing the briefs, lower court ruling and record, and doing independent research as needed, which is rarely 'cause they've been there, done that, which in turn is the reason for using them rather than clerks whose terms expire after a year or two), and then the staff attorneys prepare a proposed unpublished per curiam opinion for circulation to three judges on a randomly chosen screening panel (the compositions of which are randomly juggled each year). An individual law clerk for each of three judges on a "screening panel" then reviews them; and three judges then review what the staff attorneys and clerks have done.
If even a whiff of controversy brews up from any of those multiple checks and balances, the typical response is to boot the case to the oral argument calendar so that it will get closer attention (usually from another set of three different judges and their clerks).
It's frankly amazing how much "due process" all these appeals get. Giving "Ms. Roe" a dollop of oral argument as part of her "due process," even if her claim sucks, just isn't that big a deal IMHO.
I see your information shows ca. 20% rate of granting oral argument - still very low and certainly not a rate suggested by your post of FRAP 34(a)(2). My 10% rate was what I have heard from other attorneys and at CLEs (I believe I read it somewhere too, but do not recall where).
As far as cases assisgned to oral argument and then to panels, I do not buy it. That's never been the case I have seen firsthand working at an apellate court, and what I have heard from several appellate justices, including three this past week at a lunch CLE. Even if it is, so then a single justice grants OA and then it gets assigned to a panel, and it is the single justice, not three, "making a statement."
Even with a 20% rate, it is bizarre that OA was granted to a case that has so little merit. (For those not in the know, to reopen any give, specific case, one must generally file a Motion within 30 days of the judgment, not 30 YEARS!!!!) In fact, the trial Judge, whom I believe was David Godbey, should have sanctioned the crap out of the Movant for such a frivilous case, but he is such a toadie to the Rep. establishment, he would not dare. (Curious, when people are maimned, burnt, etc., the Reps/ cry "frivilous lawsuits!" Where are such cries here?)
I took another look at the internal operating procedures the Fifth Circuit uses to implement FRAP 34(a) and then at the chart I linked last night and it refreshed my recollection on procedures.
The ~20 percent statistic for oral argument that I suggested last night is probably wrong, and almost certainly too low. I don't think the final percentage can be derived from that chart because it's a snapshot that includes three different categories.
Cases sent to summary calendar: At the moment when that snapshot was taken (year-end 2003), for appeals that had been initiated in 2003, the snapshot showed that 1652 appeals had been identified by the screening attorneys as good candidates to be decided without oral argument. A staff attorney would have written a proposed opinion and sent it along with the case to a randomly assigned screening panel. The year I clerked, for instance, my judge, Carolyn King, was on a screening panel with Tom Gee of Austin and the late Alvin Rubin of Baton Rouge; each of them got one-third of their panel's randomly assigned "screeners" (or "pinkies," as we also called them, for the color on which the draft proposed opinions from the staff attorneys were printed on), and there were (IIRC) three or four other screening panels besides ours at the time. We had a shelf in the office for "screeners," and the next-available clerk took the oldest in the stack. Sometimes we'd trade off, based on expertise and preferences; one clerk, for example, might have already learned the law for appeals of denials of Social Security benefits, in which event it'd be more efficient for him/her to handle most of those.
(Senior status judges, by the way, don't have to participate in screening panels, although the more vigorous of them sometimes volunteer to do so; thus one perceived perk of clerking for a senior status judge is that unless your judge has volunteered, you avoid a lot of scutwork and only work on cases from the oral argument panel.)
Occasionally, the clerk will differ with the staff attorney and recommend to his judge that a screener be immediately booted to the oral argument calendar. If the judge agrees, then the case is placed on the oral argument calendar, and none of the judges on the screening panel never see it (unless one or more of them happen to be randomly assigned to the oral argument panel that hears it).
If, however, as was usually the case, the clerk agreed with the staff attorney, he/she'd make any appropriate revisions to the draft opinion (e.g., to conform to stylistic ideosyncracies of his/her judge), then pass it up to his/her judge for review, revision, and approval. Once that was done, the draft opinion then went to the other two members of the screening panel. Each could, and usually did, concur, and the final opinion would then be released usually (but not always) marked "not for publication," usually (but not always) issued "per curiam" rather than as a signed opinion.
It was considered very embarrassing for one judge and his/her staff to invested the resources to write up a proposed final-form opinion for a screener that ended up receiving anything but a straight, unqualified concurrence by the other two judges on the screening panel. Occasionally, though, that happened usually because a staff attorney or a law clerk had bitten off more than he/she could chew. When that happened, there almost never were dissents, and if the screening panel judges couldn't quickly agree on a compromise that would draw unqualified concurrences from the two judges besides the writing judge, the disagreeing judge(s) would simply boot the case to the oral argument calendar meaning random reassignment to a different panel that probably wouldn't (but sometimes might) include any of the three judges who'd been on the screening panel. Thus, some small portion of the 1652 appeals shown as being sent by staff attorneys to the "summary calendar" in 2003 probably ended up being bumped to oral argument.
But it's a small portion. Even judges on opposite extremes of the political spectrum cooperate remarkably well on these matters, and take pride in doing so. The year I clerked, for instance, we were part of an incredibly efficient and effective screening panel, almost never bumping a screener to argument, and not infrequently calling up New Orleans to volunteer for more than our share of screeners. And that was true even though Judge Rubin and Judge Gee were at opposite political poles from each other.
Cases sent to conference calendar: The term that had me stumped last night was the listing for cases sent to the "conference calendar," 1084 of them for 2003. The reason I didn't remember that term is because, at least the way Judge King worked, her clerks rarely saw those. Those are cases where the staff attorneys had immediately determined that the case probably did merit oral argument. (In those cases the staff attorneys wouldn't have bothered to draft a proposed opinion; doing so would be wasteful overkill, because to help them prepare for oral argument, most (but not all) judges have a law clerk write a "bench memo" after reading the district court's opinion (if any), all the briefs, the cases cited in them, and the entire record thus triply duplicating the work done by the staff attorneys for the "screeners.") The judges do only a quick skim of these cases as they come in on random assignments, and in the vast majority of them, they'll quickly conclude on their own that, yes, the staff attorney was right, this case "merits" oral argument.
Fairly rarely, however, a judge will take one of these cases to one of his/her clerks and say, "We need to trim the oral argument backlog, and I think this one can be handled as a screener." The clerk and judge would produce a proposed opinion and it'd then be circulated through that judge's screening panel. So some number of the 1084 cases in this category probably ended up being decided without oral argument, notwithstanding the staff attorneys' additional recommendation. But it's fair to assume that the huge majority of those 1084 would end up being moved from the "conference calendar" line to the "oral argument calendar" line 1084 is just how many were "in the pipeline," sitting on judges' desks waiting for them to concur or (rarely) disagree with the staff attorney recommendations that they be orally argued.
Cases sent to oral argument calendar: These 733 appeals, as of the moment the snapshot was taken, had already gotten to the oral argument calendar, either by being bounced from a screening panel, or (more often) by a single judge's concurrence with the staff attorney's recommendation that "conference calendar" cases be set for oral argument.
Clear as mud?
Note that there's another 965 appeals as to which neither side requested oral argument; those never get screened, and it would be exceedingly rare (but not unheard of) for a judge to set one for oral argument sua sponte. So one side or the other requested argument in the other 3469 appeals.
So a rough approximation for the number that got (or will eventually get) onto the oral argument out of the 4434 pending appeals for 2003 is actually (1084 + 733 = 1817) suggesting that about 40 percent of the total appeals get argued, and about 52 percent of the cases in which one side or the other requested argument get argued. The actual percentage argued will be slightly higher I think more "summary calendar" screeners get bumped to oral argument than "conference calendar" cases get "demoted" to screeners.
Finally, re the randomness of assignments: The assignments are all done out of the circuit headquarters in New Orleans, and the staff there is very jealous of that perogative. The only way for a particular judge to "horn in" on a case is at the en banc reconsideration stage after an initial decision has already been agreed to and issued by a panel. So the notion that Edith Jones, for instance, could have plucked the Doe case out of the heap and set it for oral argument is just ... wrong. Sorry. The judge for whom I clerked, Judge King, is now the Chief Judge and has overall responsibility for that; but even she couldn't divert a case out of the normal random assignment routine, and she'd certainly never tolerate any kind of monkey-business with this. (She's a Carter appointee if that makes you feel any better, although I think it's absolutely irrelevant to that kind of core issue of systemic integrity.)
For all the lengthy exogesis on the Court's opeating procedure, it overlooks the fact that this case is such a NO-BRAINER summary affirmance. (The Court has lost jurisdiction over the case 30 YEARS AGO!!!)
It is truly BIZARRE that this case would get oral argument. The suit deserves to be affirmed pronto and returned to the obscurity from which it came.
I do not suspect that it will be reversed, but I do suspect that someone wanted to make it "high profile." There really can be no other explanation.
In the back of my mind, I am still worried. We have seen two cases that completely ignored all precedent, showed complete lawlessness and were merely a power grab - the hijacking of the Presidency and the recent affirmance of the Re-Redistricting. Not that I expect a reversal, but it does scare you.
I began writing this series of posts about how the Fifth Circuit puts cases on its oral argument calendar because I was concerned that Byron, and perhaps some of Burnt Orange Report's readers, were under a misapprehension about whether the Roe case being set for oral argument was significant.
I've explained the facts. I've quoted the rules; I've quoted the statistics; and I've given you a first-hand perspective as a former court insider, as well as a lawyer who's actively practiced before the Fifth Circuit. As best as I can tell, WhoMe?, we no longer have any disagreement about any of those facts.
However, you or anyone else who's still reading (doubtful by now) can form whatever opinions from these facts that you choose, of course. Folks are entitled to hold opinions that aren't supported by any facts at all, and even opinions that are counterfactual.
I simply hate for people to form misguided opinions based on a misunderstanding of the facts, and I've done all I can to prevent that from happening here.
However, you — or anyone else who's still reading (doubtful by now) — can form whatever opinions from these facts that you choose, of course. Folks are entitled to hold opinions that aren't supported by any facts at all, and even opinions that are counterfactual.
I'm still reading. Beldar, I read and enjoy your blog because of efforts like this. Now, I think you have a good "appreciation" (if that's indeed the right word) for the essence of the Burnt Orange Report and most of its inhabitants....
I agree that the facts are more or less not in dispute (except for perhaps some details on who decides how case is set for OA).
I still think it BIZARRE that such a no-brain affirmance gets set for OA. It really makes no sense to me, and hence my apprehension given the Supreme Court's and 5th Circuit's prior lawlessness of which I mentioned earlier. I do not expect a reversal, but is just plain WEIRD.
News flash! The case has been removed from the oral argument calendar by ... wait for it ... the Hon. Edith Jones!
Details, links, and a surreal fantasy are on my own bandwidth, where I can edit my typos to my heart's content.
Bah, botched the link. It's here.
I saw the retraction of OA by Edith Jones in the paper this morning. (She is a rabid right wing kook judge who makes Pricilla Owens look like a liberal).
If she had the power to take it off OA, this confirms my suspicion that she was the one that put it on OA in the first instance.
My take on it is that she must have gotten a lot of flak for scheduling it for OA and decided the heat was too much, and is probably "protecting" conservative interests (i.e. Buish) by not making such a stink. In sum, it back fired on her.
Edith Jones has a reputation for "gunning" for the Supreme Court by writing way right wing opinions to try to curry favor with the right wing. (She is a Scalia wannabe clone). Based on these facts, and her history, I am convinced that she was using OA to make a hullabaloo for the right wing and give them their "dog & pony" show. I am glad it blew up in her face.
Byron was right to be concerned about why Circuit Courts Matter. In fact, ALL federal courts matter, just as much as the S. Ct. because most cases are heard in lower courts and never get to the S. Ct. (Since the conservative takeover of the S. Ct., they hear such fewer cases - basicaly they are lazy - and so the Circuit Courts more and more become the final say.)
Do we want Bush to name possibly 4 Supreme Court Justice and hundreds of other federal judges next term, who will be there FOR LIFE!!!
All you Nadirites, this reason ALONE is reason to endorse the Demoractic candidate. Four more years of Bush, Inc. and Roe v. Wade, among other things, is GONE!
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