Patterico's Pontifications

5/10/2011

Two Obama Appointees, and One Clinton Appointee, Hear Obamacare Appeals in the Fourth Circuit

Filed under: General — Aaron Worthing @ 7:47 am



[Guest post by Aaron Worthing; if you have tips, please send them here.  Or by Twitter @AaronWorthing.]

Oral argument in the Virgnia Obamacare cases is coming this morning and they drew the judges by random chance and announced who would be hearing the case, today.

A three-judge federal appeals panel comprised of two Obama nominees and a Clinton nominee will hear arguments later this morning in two lawsuits challenging the constitutionality of the national health care law.

The makeup of the U.S. Fourth Circuit of Appeals panel is crucial, because in lower court rulings so far, Democratic judges have upheld the law while Republican judges have declared it unconstitutional.

The judges on the panel will be Obama nominees James A. Wynn, Jr and Andre M. Davis, who will sit on the panel along with Clinton nominee Diana Gribbon Motz.

According to the Fourth Circuit, the panel is chosen by “a computer program designed to achieve total random selection.”

In certain cases, the entire court will rehear a case, what’s referred to as en banc, but only if a majority of all active judges in the circuit agree to it. While once seen as a very conservative court, the Fourth Circuit has become more liberal over time, especially in the past few years, because Obama has been able to name four judges to the court.

Oy, I do not envy Cuccinelli this morning.  I suspect the best we can hope for is a loss with an embarrassingly badly written opinion.

[Posted and authored by Aaron Worthing.]

26 Responses to “Two Obama Appointees, and One Clinton Appointee, Hear Obamacare Appeals in the Fourth Circuit”

  1. Evil bastages they probably supports the death penalty for child killers!!Eleventy!!

    /Big Median

    DohBiden (15aa57)

  2. Oh yes, I’m completely satisfied with the integrity of that process of judge selection and all the details about this ‘computer program’ that they’ve released to the public. Business as usual.

    quiznilo (6151d2)

  3. I wonder if any of these are billets that the Senate refused to consider nominees for confirmation in the late stages of the Bush Presidency.

    All that aside, can this be appealed up the line to SCOTUS, in the event of a slanted ruling?

    Bob Reed (5f2db5)

  4. wonder what the left would say?

    DohBiden (15aa57)

  5. Bob, all rulings can be appealed to the S.C. for any reason they see fit, as long as you lose in the lower court.

    and btw, the S.C. is 5 republican nominees, 4 dem. fwiw…

    Aaron Worthing (e7d72e)

  6. Thanks Aaron. I’m sure that the opinion will be interesting to all; especially the attorneys here.

    Me? I’m just a layperson in that respect, but I still like to read them; if they keep it short and sweet. Too many citations and I’m through.

    Bob Reed (5f2db5)

  7. Bob Reed – I read supreme court decisions, at the very least, for years before I went to law school. :)

    One thing that’s changed is my attitude towards citations. In part that’s because in some areas of the law I now recognize most of the cases and remember them; in part it’s because I know that opinions often subtly mischaracterize the cases they’re citing and that such mischaracterization is often a key point of argument for the next round of the fight.

    I do think, however, that the authors of court opinions could do a much better job, even with citations, of writing them in such a way that they were easy for laypeople to follow. To be honest, it pisses me off that they do as bad a job of it as they do.

    aphrael (9802d6)

  8. it’s simply amazing how these panels miraculously wind up with the members they do, kinda like how certain clowns in the 9th circus always randomly wind up with cetain kinds of cases…

    all these miracles and yet so many people say there is no G*d.

    redc1c4 (fb8750)

  9. The opinion will be poorly written and poorly thought out, as it has no “true facts” (in honor of National Lampoon) on its side. I wouldn’t doubt they will allow one justice to vote against Obamacare, just to make it look fair. Anthony Kennedy will have to take his 18 hours, eventually, to figure this one out. (Or stick his finger into the wind.)

    dfbaskwill (ca54bb)

  10. What difference does the appeals court panel decision make? The losing side will first appeal to the entire circuit and whichever side loses there will then appeal to the Supreme Court… where the justices are going to vote based on how they’ve already decided to vote.

    It would make things so much simpler if Kennedy would just announce now how he is going to vote.

    steve (369bc6)

  11. Obamacare does not violate the constitution…..you typical white wingnut male pigs.

    /Crr6

    DohBiden (15aa57)

  12. What a revoltin’ development! This stinks to high heaven. In the court of public opinion the decision is set aside before the arguments are even heard.

    Justice isn’t blind, she’s a whore!

    ropelight (ca916f)

  13. And THIS is why liberals can NEVER be allowed to nominate Judges, EVER. Filibuster if you must, but NEVER allow them to be confirmed.

    Rorschach (c5574d)

  14. Bob

    lawyers learn to literally read past the citations. at least on the first pass. then, if we need to challenge what was said, we start digging into them. or if in the first pass they say something really weird, you go, “where are they getting that…?”

    Aaron Worthing (e7d72e)

  15. Aaron: my favorite response to a citation is “I don’t remember that opinion saying that.” Either I’m misremembering, in which case it’s good to know that, or the court is misconstruing, in which case it’s good to know that. :)

    Rorschach: wow. No opinion has issued and we’re just speculating about the outcome, and based on that you’ll make a broad generalization about an entire class of people of whom the people who haven’t written the decision yet are merely a subset?

    That seems a bit … prejudicial. Not to mention reactionary.

    aphrael (e0cdc9)

  16. No judge nominated by Obama should be allowed to rule on ObamaCare. On its face it’s a disqualifying conflict of interest of the first order. A child could see it.

    ropelight (ca916f)

  17. rope

    no, that’s not true. judges rule on the constitutionality of legislation their appointing presidents sought to pass all the time.

    but… the situation with kagan specifically is murkier. at bench memos ed whelan and others have been looking into that.

    Aaron Worthing (e7d72e)

  18. Aaron, that may be so, but in this case it’s the wrong thing to do, and it shouldn’t be allowed.

    ObamaCare is the “appointing president’s” signature legislation. It was passed in the dark of night without an opportunity for Congress to even read the bill, much less debate it.

    The process was corrupt, it was surrounded by bribes and pay-offs. Nancy Pelosi rammed it through on a party line vote and notoriously claimed “We have to pass it before we can find out what’s in it.”

    I could go on, but you know facts. This isn’t an ordinary or usual case, and it can’t be treated like one. It’s been tainted by scandal and corruption from the minute it was unveiled, and no judge appointed by Barack Obama should have anything at all to do with deciding its constitutionality.

    If Obama nominated judges hear this case, the US court system stands accused.

    ropelight (ca916f)

  19. Lefty corruption needs to be dealt with severely.

    DohBiden (15aa57)

  20. Ropelight – Warren Burger participated in the Nixon tapes case, as did Lewis Powell and Harry Blackmun.

    If they could participate in that case, then certainly your run of the mill Obama appointee can participate in the health care cases.

    I would note that William Rehnquist didn’t participate in the Nixon tapes case, and his situation is more or less analagaous to Elena Kagan’s.

    aphrael (e0cdc9)

  21. We had some very specific discussions of disqualification with respect to a district court judge, Walker, and the Prop 8 case. Let’s not abandon the reasoned approach. None of these circuit judges are or should be disqualified from hearing this case based solely on what President appointed them.

    With respect to Supreme Court judges, a narrower set of standards with respect to disqualification has to apply since a S.Ct justice cannot be replaced as easily as a district court judge or an appellate circuit judge.

    If someone was manipulating assignments as an official in the DOJ or Solicitor-General’s office to specifically avoid being disqualified in case of being appointed in the future to the S.Ct., (Kagan?) I would consider that alone evidence of bias.

    SPQR (26be8b)

  22. It might actually be to our advantage to lose this round. If the Obama administration loses, their plan is to “slow track” it to the SC, then argue that too much money has been spent to turn back.

    Vatar (34a40e)

  23. We had some very specific discussions of disqualification with respect to a district court judge, Walker, and the Prop 8 case. Let’s not abandon the reasoned approach. None of these circuit judges are or should be disqualified from hearing this case based solely on what President appointed them.

    Unless these judges, or members of their immediate families, own shares in health insurance corporations subject to ObamaCare, they are almost certainly qualified.

    Michael Ejercito (64388b)

  24. ropelight, that’s ridiculous. A judge is not beholden to the president who appointed him, and certainly has no vested interest in that president’s legislation. Once the appointment’s been made and confirmed it can’t be withdrawn, so the president has no more influence on the judge than anyone else.

    Aaron’s concern is not that these three judges will have some personal bias towards this legislation, but that they are likely to have the sort of judicial philosophy that would tend to uphold legislation of this sort, and that is why Clinton and Obama appointed them in the first place. There’s nothing improper in any of that, but it is a legitimate concern.

    Kagan’s case is different, because it appears likely that she has a personal interest in this particular legislation, through having had a hand in its formation.

    Milhouse (ea66e3)

  25. I hope, that when the case gets to the supremes, the court asks for briefs to include debate on whether Wickard was wrongly decided. Not holding my breath, but it would be nice….

    Kevin M (298030)

  26. Milhouse, it would be a exceptionally ungrateful nominee who wasn’t somewhat beholden to the person who elevated him to the federal appellate bench. You correctly point out that such a relationship can not guarantee compelling influence, however at a minimum it will usually ensure a card at Christmas time and that phone calls are returned promptly.

    I’d sure be appreciative and I suspect Obama’s nominees are as well. Again, I’m not suggesting there’s a contractual quid pro quo signed in blood or any specific sub rosa agreement (although such practices aren’t unknown, hard evidence is notoriously difficult to obtain). Still, a judge is required to avoid impropriety or even the appearance of impropriety.

    As apharel mentioned, then recently elevated Associate Justice Rehnquist recused himself from hearing the Nixon case, not because of who appointed him, but because his previous position in the Justice Department and consequent familiarity with aspects of Watergate could be construed as improper or of having the appearance of impropriety.

    And, as you point out Elana Kagen finds herself in remarkably similar circumstances, but since rules for Supreme Court Justices are less stringent than for members of lower federal courts Kagan’s recusal is far from certain.

    Although federal law does require a federal judge to “disqualify himself in any proceeding in which his impartiality, or the appearance of it, might reasonably be questioned,” this law has been interpreted in dramatically divergent ways by various justices.

    Supreme Court justices are not subject to the Code of Conduct for U.S. Judges, although some, like Rehnquist, have agreed to voluntarily abide by the code. It’s up to the individual Supreme Court justice to decide if he or she should recuse himself from a case, and there is no mechanism for challenging that decision.

    ropelight (584fcf)


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