Patterico's Pontifications

5/26/2011

Two Clinton Appointees, One Bush Sr.* Appointee, To Hear Florida Obamacare Appeal

Filed under: General — Aaron Worthing @ 9:30 am



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

Okay, this is starting to seem a little strange.  Last time in the Fourth Circuit (my home circuit) it was two Obama Appointees and one Clinton appointee hearing the case.  This time in the Eleventh Circuit, it is two Clinton appointees and one Bush Sr. appointee.  Certainly lady luck is not smiling on the anti-Obamacare forces.  I’m not prepared to call it a stacked deck (not even close), but it is raising my eyebrow…

David Freddoso speculates that it might be good for the anti-Obamacare forces as follows:

a quick loss may be the best thing that can happen to the Obamacare challenge, since it’s bound to end up before the Supreme Court anyway.

Well, either that or these Circuit Courts as a whole might consider those panels to be so far out of step with their thinking that they might choose to rehear it en banc (by the entire court and not just a three judge panel), which will slow things down.  Further, in seeking Supreme Court review it helps to have a conflict in the Circuit Courts.  The Supreme Court naturally doesn’t like the idea of some states having one set of federal rules and other states having different rules.  You can get review otherwise, but it’s a tougher route.  The Supreme Court always gets many more petitions than it accepts.

He also notes that “Marcus was appointed to the district court by President Reagan before being bumped up by Clinton.”  So he might be more of a centrist.

Hat Tip: Ian Cormac.

————————

* Yes, I know technically Bush 41 shoudl not be referred to as Bush Sr. Nor should “W” be called Bush Jr.  Because their names are not technically identical the tradition holds that you do not refer to them as Sr. or Jr.   But I do it anyway.

So there.

[Posted and authored by Aaron Worthing.]

21 Responses to “Two Clinton Appointees, One Bush Sr.* Appointee, To Hear Florida Obamacare Appeal”

  1. Fine. “Bush the Elder” and “Bush the Younger”, then, like the two Pitts.

    Milhouse (9ef3cc) — 5/26/2011 @ 9:36 am

  2. You’re welcome, Aaron, Marcus is a good judge, but it still seems a suspicious alignment.

    ian cormac (72470d) — 5/26/2011 @ 9:40 am

  3. I seriously doubt that the Supreme Court would not accept review of the law.

    I would prefer that the high court receive the cases as soon as possible. I’m concerned that the next vacancy for Obama to fill would come the conservative wing of the court.

    aunursa (a2a019) — 5/26/2011 @ 9:43 am

  4. The notion of which-president-appointed-whom is a fairly bad predictor of outcomes. For example, Souter was appointed by Reagan. And there are dozens of other examples. Sometimes a president appoints a judge in exchange for a “yea” vote from some Congressman. It doesn’t meant anything.

    Kman (5576bf) — 5/26/2011 @ 9:49 am

  5. the protein what is wise had this the other day which might could make for some tasty justice delayed with respect to the rape of our health cares

    But now, in order to remove any standing of people to challenge its legality, it looks like the three-judge panel for the Fourth Circuit — two Obama appointees and one Clinton appointee — are set to rule that ObamaCare is a tax, and as such changes the legal landscape for those filing suit against it:

    Under the Anti-Injunction Act, no one can sue to challenge the legality of a tax until after the tax has been paid. The statute specifies that no federal court has jurisdiction to hear a challenge until someone who has already paid the tax files suit, demanding a refund and the tax’s termination.

    The individual mandate doesn’t go into effect until 2014. Therefore, if it is ruled to be a tax, then no one will have standing to sue until 2014. The Fourth Circuit cases would be dismissed.

    If that gets to the Supreme Court first then all bets are off, no? I don’t really understand how this works.

    happyfeet (a55ba0) — 5/26/2011 @ 10:23 am

  6. Bush41 and Bush43 also work well.

    Tregonsee (9989ec) — 5/26/2011 @ 10:48 am

  7. The peculiar odor of impropriety hangs like a smelly shroud on everything that touches on ObamaCare. It’s unrelieved, unnatural, un- American and unforgivable.

    ropelight (eea158) — 5/26/2011 @ 10:58 am

  8. “I’m not prepared to call it a stacked deck (not even close), but it is raising my eyebrow”

    Per wikipedia, the 11th circuit has 16 judges, 9 gop appointed, 7 dem appointed. There are 560 possible 3 judge panels out of those 16 (16 choose 3). There are 35 possible all democrat panels (7 choose 3). There are 224 possible 2-1 dem-gop panels (7 choose 2, times 9 gop judges). By the possibilities, there’s a 46% chance that the panel will be 2-1 dem or more.

    Anyone find this suspicious?

    jvc (8c2482) — 5/26/2011 @ 11:39 am

  9. I did include the senior judges in my calculation. I see none of the ones picked are senior judges. I don’t know what exactly that designation means. Excluding the senior judges we have 10 judges, 5 dem and 5 gop. There the chances of a panel being 2-1 dem or better are 50%.

    jvc (88cacf) — 5/26/2011 @ 11:52 am

  10. By the possibilities, there’s a 46% chance that the panel will be 2-1 dem or more.

    And what are the odds of total dem? And what percentage did that occur?

    Seems that if you actually handled the math correctly to the facts, you would fail your own test.

    Dustin (c16eca) — 5/26/2011 @ 12:07 pm

  11. “And what are the odds of total dem? And what percentage did that occur?”

    From the numbers I gave you, for the 11th circuit, there are 35 possible all dem panels, out of 560 possible panels. So about a 6% chance that the 11th circuit would have an all dem panel on this case. That’s for including the senior judges. Counting just the active judges, it would be more like 8%.

    These are included in the number where I note the odds of it being 2-1 dem or more

    “Seems that if you actually handled the math correctly to the facts, you would fail your own test.”

    I don’t understand this.

    jvc (84ca1e) — 5/26/2011 @ 12:17 pm

  12. Anyone recognize this one?

    JD (29e1cd) — 5/26/2011 @ 12:25 pm

  13. Whichever side loses will ask for a reconsideration from the circuit court en banc and with the magnitude of what is at hand will get it in both circuits unless one of the circuits gets it so badly wrong that it may worth appealing to the supreme court without a reconsideration. The supreme court would much prefer that two separate circuits (or more) do the maximum heavy lifting before it comes to them.

    cubanbob (409ac2) — 5/26/2011 @ 10:42 pm

  14. Was the math that boring?

    jvc (84ca1e) — 5/27/2011 @ 7:04 am

  15. Nope, your sock puppetry is though.

    JD (318f81) — 5/27/2011 @ 7:18 am

  16. What do you know about math?

    DohBiden (15aa57) — 5/27/2011 @ 7:19 am

  17. For this, you just need to know about the binomial coefficient and how it applies to basic combinatorics.

    jvc (6fa251) — 5/27/2011 @ 7:27 am

  18. Jvc – would you kindly list all of the names you have commented under? Kthxby

    JD (85b089) — 5/27/2011 @ 7:56 am

  19. Well, I suppose that IS better than my habit of calling Bush The Elder as bush and Bush The Younger as “shrub”, a little bush.

    {^_-}

    JD (bcdcf2) — 5/27/2011 @ 9:09 am

  20. Not me

    JD (38b977) — 5/27/2011 @ 9:20 am

  21. Yes, I know technically Bush 41 should not be referred to as Bush Sr.

    You might consider the terminology Bush père and Bush fils.

    😉

    IgotBupkis, President, United Anarchist Society (c9dcd8) — 5/28/2011 @ 11:08 am


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