Not Quite #WhatTheyVotedFor

#Justice | #WhatTheyVotedFor

Let us start with Maura Dolan of the Los Angeles Times:

A three-judge panel of the U.S. 9th Circuit Court of Appeals declined early Sunday to immediately block an order from a federal judge in Washington that halted the travel ban.

Instead, the panel established a rapid schedule for written arguments.

A brief from the two states that challenged the ban was filed early Monday. The administration’s response was due at 3 p.m. Pacific time. A panel ruling could come anytime after that―most likely within a week, experts said.

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The three judges who happen to be sitting on the 9th Circuit’s motions panel this month and who will rule on the case are William Canby Jr., a President Carter appointee; Richard Clifton, appointed by President George W. Bush; and Michelle T. Friedland, appointed by President Obama.

Clifton is considered moderately conservative and the two Democrats are viewed as moderately liberal. The 9th Circuit is broadly viewed as the most liberal federal appeals court.

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If Trump loses, he could immediately go to the U.S. Supreme Court. Justice Anthony M. Kennedy, who handles matters from the 9th Circuit, would probably ask the other justices to weigh in.

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Erwin Chemerinsky, dean of the UC Irvine School of Law, suggested Sunday that the 9th Circuit was likely to rule against the Trump administration.

“Virtually every judge to consider the executive order has said that there is a substantial likelihood that it is unconstitutional,” Chemerinsky said in an email. “Both Republican and Democratic appointees have come to this conclusion. Having read some of the briefs in these cases, I think any court is likely to come to this conclusion.”

Republican Justice (Maybe Mix)

Steve Benen, after reviewing the appalling stupidity of the Republican pitch against confirming a Supreme Court nominee, including their reaction to the nomination of Judge Merrick Garland, found himself adding a postscript:

Sen. Orrin Hatch (R-Utah), who just last week explicitly urged Obama to nominate Garland, said in a statement this morning that Garland’s nomination “doesn’t in any way change current circumstances” – which is to say, Hatch still supports his party’s blockade.

However, Hatch also added this morning, “I’d probably be open to resolving this in the lame duck.” Keep a very close eye on this, because it may prove to be incredibly important. As things stand, Senate Republicans don’t intend to reject Garland, so much as they plan to ignore him. His nomination won’t be defeated; it’ll simply wither on the vine.

But if Republicans fare poorly in November’s elections, don’t be too surprised if GOP senators declare, “Well, now that voters have had their say, we’re prepared to confirm Garland after all.”

The msnbc producer and blogger advises readers to, “File this away for future reference”, and it behooves us to do so. One of the blessings facing pretty much any president seeking a new Supreme Court justice, and especially Democrats as such these days, is that there is a plethora of qualified candidates. In the end, given all else, one wonders if perhaps the “moderate, inoffensive, broadly respected, 63-year-old white guy” is actually the sacrificial lamb.

Every Little Thing the Reflex Does (Clarence Mark Remix)

This seems significant:

Justice Clarence Thomas has not asked a question from the Supreme Court bench since 2006. His majority opinions tend to be brisk, efficient and dutiful.

Now, studies using linguistic software have discovered another Thomas trait: Those opinions contain language from briefs submitted to the court at unusually high rates.

The findings that the taciturn justice’s opinions appear to rely heavily on the words of others do not suggest misconduct — legal writing often tracks source materials — but they do illuminate his distinctive role on the court.

Since his views on major legal questions can be idiosyncratic and unlikely to command a majority, he is particularly apt to be assigned the inconsequential and technical majority opinions that the justices call dogs. They often involve routine cases involving taxes, bankruptcy, pensions and patents, in which shared wording is particularly common.

Justice Thomas’s seven majority opinions in the last term were on average just 12 pages long and contained little but a summary of the facts and quotations from or characterizations of the relevant statutes and precedents. Since opinions are signed by justices but often drafted by law clerks, it may be that any borrowed language was the work of Justice Thomas’s clerks.

(Liptak)

It is true that such notions and the details from which they arise seem to many people obscure, or even petty. But to even casual observers of the Supreme Court, Justice Thomas is something of an enigma. And every time we get a glimpse into how he undertakes his role and duties as a Supreme Court Justice, we only end up with more questions, each stranger than the last.

But that’s the thing; compared to other aspects of his tenure, this isn’t exactly scandalous. In questions of scandal, it is just another piece of data that could be construed as relevant. Without worrying about such questions of scandal, this really is fascinating.

No, really:

In June, he slipped in a playful aside. What he had just read, a description of synthetic drugs, he said to laughter, was “a sentence which I completely do not understand.”

Still, there is actually a lot more to Adam Liptak’s report for the New York Times; and, yes, it really is fascinating.

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Image note: Supreme Court Justice Clarence Thomas laughs while talking with other guests at The Federalist Society’s 2011 Annual Dinner. (Cliff Owen/Associated Press)

Liptak, Adam. “A Supreme Court Justice of Few Words, Many of Them Other People’s”. The New York Times. 27 August 2015.