Patterico's Pontifications


When the Supreme Court Lacks a Quorom

Filed under: Judiciary — DRJ @ 11:11 pm

[Guest post by DRJ]

A litigant from California won’t have his case heard by the Supreme Court according to this Jonathan H. Adler post at the Volokh Conspiracy:

“Today’s order list had this interesting item:


Because the Court lacks a quorum, 28 U. S. C. §1, and since the only qualified Justice is of the opinion that the case cannot be heard and determined at the next Term of Court, the judgment is affirmed under 28 U. S. C. §2109, which provides that under these circumstances “the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.” The Chief Justice, Justice Stevens, Justice Scalia, Justice Kennedy, Justice Thomas, Justice Ginsburg, Justice Breyer, and Justice Alito took no part in the consideration or decision of this petition.”

Apparently Plaintiff Henderson had previously sued 8 of the 9 Supreme Court Justices — all but the newest, Justice Sonia Sotomayor — and those 8 essentially recused themselves from the case. Thus, from the comments:

“Jim M. says:

28 USC 2109 provides:

“If a case brought to the Supreme Court by direct appeal from a district court cannot be heard and determined because of the absence of a quorum of [six] qualified justices, the Chief Justice of the United States may order it remitted to the court of appeals for the circuit including the district in which the case arose, to be heard and determined by that court either sitting in banc or specially constituted and composed of the three circuit judges senior in commission who are able to sit, as such order may direct. The decision of such court shall be final and conclusive. In the event of the disqualification or disability of one or more of such circuit judges, such court shall be filled as provided in chapter 15 of this title.

“In any other case brought to the Supreme Court for review, which cannot be heard and determined because of the absence of a quorum of qualified justices, if a majority of the qualified justices shall be of opinion that the case cannot be heard and determined at the next ensuing term, the court shall enter its order affirming the judgment of the court from which the case was brought for review with the same effect as upon affirmance by an equally divided court.”

The latter provides the means by which Justice Sotomayor, acting solo as the only qualified justice (not having been sued by the party), was able to dispose of the case.

How many times has that happened? “Henderson v. SONY Pictures” may well be the only instance.

And … Will Mr. Henderson sue Justice Sotomayor next?



Stonewalling the Kagan Hearings

Filed under: Judiciary — DRJ @ 9:38 pm

[Guest post by DRJ]

The hearing on Elena Kagan’s nomination to the Supreme Court started today so it’s too early to talk about ending it, although if you watched any I’m sure you feel it can’t end too soon. Nevertheless, Doug Ross provides a reason to hope the hearing never ends:

“An Open Letter to Republican Members of the Senate Judiciary Committee:

Pursuant to the Elena Kagan confirmation process, I would like to call your attention to a little-known fact related to the role of the minority party on the committee. That is, Rule IV of the Judiciary Committee states that “at least one member of the minority party must vote to end debate in committee.”

For Elena Kagan to move to a vote in the Senate, at least one Republican on your committee must accede to end debate. I suggest you hold firm and refuse to end debate.”

I don’t know the Senate rules but assuming this is correct, Ross provides several cogent reasons in support of this tactic. It also gives Democrats another example of GOP stonewalling, although at this point stonewalling Obama, Pelosi and Reid may be a feature instead of a bug.

But here’s the reason I support stonewalling — Kagan’s statement regarding Judge Bork’s confirmation hearing:

“From speech at Case Western Reserve, 1997: “I loved what happened in the Bork hearings. I wrote a review of Stephen Carter’s book recently where I said, ‘no, he has it all wrong. The Bork hearings were great, the Bork hearings were educational. The Bork hearings were the best thing that ever happened to Constitutional Democracy.'”

I’m sure Ms. Kagan would not appreciate a similar lesson directed at her nomination, but wouldn’t it be Karma?


UPDATE: Senator Coburn mentioned Kagan’s Bork comment in his opening statement on Day 1.

Weigel Joins MSNBC

Filed under: Media Bias — DRJ @ 7:35 pm

[Guest post by DRJ]

Dave Weigel has landed at MSNBC and his first gig was with Keith Olbermann:

“Olbermann teased an announcement regarding Weigel throughout the program, and when he finally introduced his guest around 8:55pmET, he said, “We are very proud to announce is, as of like, I don’t know, 20 minutes ago, an MSNBC contributor. Welcome Dave…and you thought last week was fun, wait until you see what this week holds for you.”

Weigel’s segment was about an interview he did with Rick Barber (the guy behind this ad). Olbermann closed the interview by reiterating, “MSNBC contributor Dave Weigel, great thanks, as always, and good luck with this.”

Clearly he is there to be the conservative conscience of the network.

H/T Hot Air and JD.


The Hibernating Russian Bear

Filed under: International — DRJ @ 7:09 pm

[Guest post by DRJ]

America’s Presidents are bipartisan in their quest for peace with Russia. That’s why Bush looked into Putin’s eyes and Obama proclaimed his trust for Medvedev. But did Bush and Obama know what Putin and Medvedev knew — that Russia may well have sent spies to live among us?

Experts and laymen are astounded, and a little clueless:

“Jessie Gugig, 15, said she could not believe the charges, especially against Mrs. Murphy, who was an accomplished gardener.

“They couldn’t have been spies,” Ms. Gugig said. “Look what she did with the hydrangeas.”

I grew up during the Cold War so this doesn’t surprise me.


Replacing Senator Byrd

Filed under: 2012 Election — DRJ @ 4:03 pm

[Guest post by DRJ]

Allahpundit on the West Virginia vacancy law to replace Senator Robert Byrd:

“The West Virginia primary was May 11, and evidently they don’t usually hold any odd-year elections there. So the effect of this very stupid law is that had Byrd died in another week or two, past the midway point of the term, the governor could have appointed a successor to finish his term; as it is, thanks to the caveats about special-election candidates having to qualify for primaries under the normal election timetable, he gets to appoint someone for the remainder of Byrd’s term anyway. Not dumb enough for you? Try this on for size: According to the SoS [Secretary of State], they’ll actually have to hold two elections in 2012, one the special election mandated by Byrd’s death and the other the normal general election. The winner of the special election will be seated immediately and will serve two months from November 2012 to January 2013, when the winner of the general election is seated as part of the new Congress. Not a huge deal since the winner is bound to be the same in both elections, but stupid nonetheless.”

As noted yesterday, Governor Joe Manchin is the leading candidate to serve out the remainder of Byrd’s term. Why, you wonder? One reason is because Manchin is hugely popular and, as Governor, he gets to appoint Byrd’s successor.


A Setback

Filed under: General — DRJ @ 3:42 pm

[Guest post by DRJ]

The New Orleans Times-Picayune posted this video of a truck hauling a girder to be used in widening the Huey P. Long bridge:

Girder falling from truck in Elmwood

The post describes it as a setback in the project. Don’t miss the narration, and what happened to that SUV to the right of the truck?


McChrystal Will Retire

Filed under: General — DRJ @ 3:27 pm

[Guest post by DRJ]

General Stanley McChrystal has told the Army he will retire.

It’s tempting to feel sad for McChrystal since his fall from grace was so spectacular, but he’s luckier than most people who lost jobs during Obama’s term. At least he will get a pension and health benefits.


The Swastika Quilt

Filed under: General — DRJ @ 3:22 pm

[Guest post by DRJ]

A Greeley, Colorado, museum has accepted the donation of a 1900-era quilt decorated with 27 swastikas. The museum plans to exhibit the quilt at some point, although with “plenty of context.” This would be educational. Is it worth it?


Court: School can Refuse to Fund Christian Group

Filed under: Education,Judiciary,Religion — DRJ @ 3:16 pm

[Guest post by DRJ]

In a case involving San Francisco’s Hastings College of Law, the Supreme Court ruled today that the school could refuse to fund a Christian group that violates the school’s nondiscrimination policy by excluding gays. Writing for the majority (the liberals and Justice Kennedy), Justice Ginsburg said the Christian group effectively sought preferential rather than equal treatment by seeking an exemption from the nondiscrimination policy.

Justice Samuel Alito’s dissent described it as “a serious setback for freedom of expression in this country.”


Supreme Court Extends Gun Rights to States

Filed under: Judiciary,Second Amendment — DRJ @ 2:59 pm

[Guest post by DRJ]

In McDonald vs City of Chicago (opinion here; oral argument transcript here), the U.S. Supreme Court today extended the Heller 2nd Amendment protections to states but allowed some restrictions on gun ownership. Chicago’s Mayor Daley plans to find the limit of those restrictions.

After Heller, will this 5-4 decision end the 2nd Amendment debate or is it just beginning? It’s clearly just beginning at the state and local levels, where governments will be asked to craft standards that satisfy the courts and citizens.


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