VICTORY IN PALMER!!!!

[esqappellate]

I hope that is the case with the new Obama appointees. Have you gotten a sense of that with them?

I haven't appeared before any of them yet. We shall see. I have read some of their opinions as they have emerged since joining the court and they are all well-crafted and well supported but none were in controversial cases. These are smart people. I think they all respect greatly the court as an institution and that mind set becomes stronger and stronger over time. The DC Circuit has a unique and powerful ethos to it. You will recall that the President lost Noel Channing in the Supremes last term 9/0 and that was a case that the President lost in the DC Circuit as well. He wanted to win that one very badly. Judicial integrity does exist and it does matter. Greatly. I count on it and, in the large majority of my cases, my faith has not been disappointed. win or lose. That is true in the 9th as well. Look, guys, the law is very often not clear cut, black and white, good vs evil. There is a tremendous amount of room for honest, intellectual disagreement where the result is not controlling. One of the worse things you can say about any jurist is that he or she is utterly result oriented. A few are, the large majority are not. Are they mindful of the result? Sure. They are human. But the cases are legion where judges do stuff they don't like because the law and logic command a different result than they would like.

 

[Brooklyn]

I don't get the motion for summary affirmance. VERY rarely granted under DC Circuit case law. See, e.g., Walker v. Washington, 627 F.2d 541, 545 (D.C. Cir.) (per curiam), cert. denied, 449 U.S. 994 (1980) (“a party who seeks summary disposition of an appeal must demonstrate that the merits of his claim are so clear as to justify expedited action.”); Cascade Broadcasting Group Ltd. v. FCC, 822 F.2d 1172, 1174 (D.C. Cir. 1987) (“motions for summary disposition will be granted where the merits of the appeal or petition for review are so clear that ‘plenary briefing, oral argument, and the traditional collegiality of the decisional process would not affect our decision.’”) (citation omitted) Even if granted, it would be a non-published per curiam, not exactly what you want there. This will be denied.

I think he knows that. And Dc will oppose it of course.. question is will they give away anything in doing so..perhaps he wants to force them to make a case ...

 

[Brooklyn]

As Peruta shows, the 9th is rather unique. Let's just say that, IMHO, there is something in the water in California.

...
So lawers do have a sense of humor,its just dry like California..

 

[Brooklyn]

Well, I'm going to go on record as saying that if we draw a Democrat-appointed majority panel in the DC circuit, then the case will not go our way. However, that's only because I do have an operative predictive hypothesis that needs testing, and this is a good way to go about it. It'll be especially interesting in light of Esqappellate's description of the DC circuit court.

Put another way, we have a couple of predictive hypotheses that are at odds with each other, and in the end, There Can Be Only One:

Just remember.. we only hear about the odd ball cases..the ones that are on the edge ..most case law is very boring and very predictable..

We as lay persons come to know the process by the very exceptional landmark cases...the Dread Scotts the Brown s etc...

That's why we have SCOTUS. what I call the THE court..the rest is noise. and even then plessy may become a Brown in time. Even if it takes a civil war...

 

[esqappellate]

I think he knows that. And Dc will oppose it of course.. question is will they give away anything in doing so..perhaps he wants to force them to make a case ...

Meh. The motion will simply delay things two or three months. Maybe that is the point, but, if so, I do not see how it helps plaintiffs much if at all. Everyone now understands DC's position and that is not going to change. Their response will parrot what they said in DCt. If the case is that clear to warrant a motion like this, then it would be a per curiam affirmance and NO ONE should want that here, least of all Gura.

 

[Brooklyn]

Meh. The motion will simply delay things two or three months. Maybe that is the point, but, if so, I do not see how it helps plaintiffs much if at all. Everyone now understands DC's position and that is not going to change. Their response will parrot what they said in DCt. If the case is that clear to warrant a motion like this, then it would be a per curiam affirmance and NO ONE should want that here, least of all Gura.

Could be he will withdraw it then.. but this guy thinks ahead .. must have had something in mind..

 

[kcbrown]

Look, guys, the law is very often not clear cut, black and white, good vs evil. There is a tremendous amount of room for honest, intellectual disagreement where the result is not controlling. One of the worse things you can say about any jurist is that he or she is utterly result oriented. A few are, the large majority are not. Are they mindful of the result? Sure. They are human. But the cases are legion where judges do stuff they don't like because the law and logic command a different result than they would like.

Right. But as you say, they're human. And the more important the issue is to them, the less they'll be able to resist the urge to decide the issue as they prefer and then go looking for supporting precedent/arguments/etc. to back the issue.

As you say, the law is very often not clear cut. Part of that is the result of the fact that jurisprudence is so plentiful for most things that one can find something supporting whatever outcome one desires. A natural outcome of that is that the resulting decisions almost have to reflect the biases of the judges making them, precisely because it is their bias that will determine which jurisprudence they find more convincing.

If logic and evidence were the sole basis of deciding a case, then there would not be such wildly divergent results in the law. Indeed, we have more than once seen an appellate court make basic logical errors. For instance, the very fact that the Supreme Court talks about "sensitive places" in Heller logically means that the right must be operative outside the home. It is not just some hypothetical question at that point -- the Supreme Court has already decided the issue. And yet, we've seen courts more than once decide that, for the purpose of their evaluation, the right either doesn't operate outside the home in the first place or, alternatively, that it only hypothetically does so.

Would we see these same shenanigans being foist upon us were these cases about gay marriage instead of the 2nd Amendment? I dare say not, because we haven't. In cases other than those involving the 2nd Amendment, the jurists are quick to interpret Supreme Court jurisprudence and other jurisprudence with approval, and are quick to apply the principles derived from other rights to the ones under consideration. In 2nd Amendment cases, they all but ignore Supreme Court jurisprudence, limiting it to what is held and not what is meant, and throw the entire right under the bus when deciding that for this right, but not the others (e.g., abortion), it's perfectly okay for government officials to decide on a case by case basis whether or not the person in front of them should be able to exercise the right in the first place.


With evidence like that at our fingertips, how are we to conclude anything other than that these jurists are biased in their approach to law, even if they would insist otherwise? The evidence speaks for itself, at least with respect to topics of great import such as 2nd Amendment questions. It speaks volumes that these very same people are more willing to give deference to an unenumerated right (gay marriage) that hasn't even yet been decided by the Supreme Court than an enumerated right that has.


And I am not the only person to have noticed this. Kozinski of the 9th Circuit talks about this very thing in his dissent in Silveira v Lockyer.

 

[danb]

Heck, he is predicting after oral argument on the basis of questions asked during argument. Anyone who knows the Court well can do that. I do it all the time in my cases. BTW, the Wash. Post is not a good source of enlightenment on things judicial and that is true uniformly across the MSM and the associated talking heads and bloviators. They don't think like judges (or like well-trained litigators). They think like partisans and are interested only in the result (law be damned) and they believe that judges do the same. Very tiresome.

Actually I was agreeing with you-

If you link to the underlying 538 article, Berlove is 80% accurate, the best forecasting model is 70% accurate.

Both may sound impressive, except that 66% or so of decisions are 9-0. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/SCOTUSblog_strength_OT13.pdf

In other words, neither the best model nor the best predictor 3 years running does much better than chance. And has nothing to do with who appointed the judge...

To be a good prediction (model?) one has to forecast which cases will be close (5-4), 14% of cases, and which way they will swing.

So I was throwing down the gauntlet there.

Not sure I agree with you though that a bunch of law professors (Volokh Conspiracy blog) blogging about the law is uninformative or particularly partisan, although there are definitely some axes they grind.

There is a tremendous amount of room for honest, intellectual disagreement where the result is not controlling.

this

 

[esqappellate]

Actually I was agreeing with you-

If you link to the underlying 538 article, Berlove is 80% accurate, the best forecasting model is 70% accurate.

Both may sound impressive, except that 66% or so of decisions are 9-0. http://sblog.s3.amazonaws.com/wp-content/uploads/2014/07/SCOTUSblog_strength_OT13.pdf

In other words, neither the best model nor the best predictor 3 years running does much better than chance. And has nothing to do with who appointed the judge...

To be a good prediction (model?) one has to forecast which cases will be close (5-4), 14% of cases, and which way they will swing.

So I was throwing down the gauntlet there.

Not sure I agree with you though that a bunch of law professors (Volokh Conspiracy blog) blogging about the law is uninformative or particularly partisan, although there are definitely some axes they grind.




this

law professors are the worse of all. Typically they have never been real litigators

 

[Blacksmith101]

i.e. SCCJ John Roberts re ACA

In light of the recent Gruber revelations about the ACA Roberts got it right about it being a tax. Which gives me hope for the current ACA case in light of what Gruber said about state vs federal exchange subsidies.

 

[press1280]

Well, I'm going to go on record as saying that if we draw a Democrat-appointed majority panel in the DC circuit, then the case will not go our way. However, that's only because I do have an operative predictive hypothesis that needs testing, and this is a good way to go about it. It'll be especially interesting in light of Esqappellate's description of the DC circuit court.

Put another way, we have a couple of predictive hypotheses that are at odds with each other, and in the end, There Can Be Only One:

This could be a blessing however. A rabid anti opinion, limiting the 2A to the home, would split with Moore and put SAF in the driver's seat to appeal to SCOTUS. If the court passes on that case, then I'd say they're done with public carry. There's really no clearer cut case out there to take.

 

[danb]

law professors are the worse of all. Typically they have never been real litigators

True. One can always start a blog to provide a counterpoint.

 

[Brooklyn]

This could be a blessing however. A rabid anti opinion, limiting the 2A to the home, would split with Moore and put SAF in the driver's seat to appeal to SCOTUS. If the court passes on that case, then I'd say they're done with public carry. There's really no clearer cut case out there to take.

Then we hit congress hard. The court may duck a political question ..congress can not.
Every state with a liberal containment area, including WV had better get on the stick.

The courts sometimes act only after the public speaks.. as in the original civil rights era.. hell the Jim crow south was ended by public outrage not so much the courts.

If the court does not act , my only choice to move to america and work to force the issue from there.

The amicus briefs suggest that the rest of America knows the stakes..thats an improvement .

 

[swinokur]

Originally Posted by esqappellate
law professors are the worse of all. Typically they have never been real litigators

Or run for POTUS

 

[danb]

Or run for POTUS

reminded me of this:

http://www.realclearpolitics.com/cartoons/cartoons_of_the_week/index.html

 

[swinokur]

QFT

 

[JoeRinMD]

Right. But as you say, they're human. And the more important the issue is to them, the less they'll be able to resist the urge to decide the issue as they prefer and then go looking for supporting precedent/arguments/etc. to back the issue.

...

With evidence like that at our fingertips, how are we to conclude anything other than that these jurists are biased in their approach to law, even if they would insist otherwise? The evidence speaks for itself, at least with respect to topics of great import such as 2nd Amendment questions. It speaks volumes that these very same people are more willing to give deference to an unenumerated right (gay marriage) that hasn't even yet been decided by the Supreme Court than an enumerated right that has.

kcbrown, I agree with your thoughts on the perception of bias in the judiciary, especially when a layperson reads something truly specious like Judge Blake's decision in Kolbe. In her order, she seems to have worked hard to ignore all facts and logic to come up with a basis for her pre-ordained decision. To me, the single most egregious point was when she used the total of all guns held in the country as the basis for calculating/deciding that AR-15s are "not in common use". What a statistical crock of sh1t!! She seems to have accepted and then used the stats fed to her by the gun-banners, and summarily dismissed everything which countered their preposterous conclusions.

I believe in the process and truly want to believe that ultimately good and truth will win out, but events like this cast doubt on my optimism.

JoeR

 

[swinokur]

She just wanted this out of her court. More judicial cowardice.

sad.

 

[JoeRinMD]

She just wanted this out of her court. More judicial cowardice.

sad.

That would be truly sad, and even more disheartening. I have more respect for the "true believers" who have a visceral, if wrong-headed, belief that disarming the citizenry will result in a greater good than a judge who would dispense with issue just to get it out of her court.

With all respect, what makes you think she decided it for that reason?

Joe

 

[swinokur]

It would help explain her total disregard for the facts as you pointed out.

is she really that obtuse? or does she have an alternate agenda?