Wrenn PI Granted (DC Shall Issue)

[dblas]

Doesn't matter. The vote for en banc itself is still 6:5 in favor of the opposition even if Millett sides with us and Henderson votes against en banc.



Sent from my iPhone using Tapatalk

Your "game theory" fails to take into account that the DC Circuit very rarely goes En Banc, even for the last two 2A issues in front of them that the District lost and asked for En Banc, the DCC denied them.

 

[esqappellate]

All you'd wind up with is a circuit split at best. Supreme Court would still deny cert with its current composition. What, then, would you achieve?

It's a reasonable play once we have a Supreme Court that actually cares, but that's not this one. Best to hold that case in reserve for the point in time where it really can go all the way to the top. Sadly, that isn't now.

Got to play to win. An explicit circuit split makes it harder to deny cert., especially on a constitutional issue.

 

[esqappellate]

Actually 7-4 if everyone votes party lines (apart from Henderson/Millett). 6 needed total for a grant.

Another interesting tidbit from the DC Circuit rules is how they are somewhat contradictory.
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are
in regular active service and who are not disqualified may order that an appeal or other proceeding be
heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and
ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.

So, by that section it means the CA2-4 (and somewhat Peruta) shouldn't necessarily factor in to an en banc grant.

Yet, the next section says: (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en
banc.
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court
to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the
full court is therefore necessary to secure and maintain uniformity of the court's decisions; or
(B) the proceeding involves one or more questions of exceptional importance, each of which must
be concisely stated; for example, a petition may assert that a proceeding presents a question of
exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative
decisions of other United States Courts of Appeals that have addressed the issue.

So I guess the "exceptional importance" automatically qualifies in the case of a circuit split?

Correct. See Rule 35, FRAP:

(b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en banc.

(1) The petition must begin with a statement that either:

(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the full court is therefore necessary to secure and maintain uniformity of the court's decisions; or

(B) the proceeding involves one or more questions of exceptional importance, each of which must be concisely stated; for example, a petition may assert that a proceeding presents a question of exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative decisions of other United States Courts of Appeals that have addressed the issue.

 

[kcbrown]

What you'd achieve is a split that could get deeper just as a wobbler or anti justice is replaced with a pro 2A justice; IOW the issue is extremely ripe and they jump on it immediately.
What you may not be factoring in is that some justice (or justices) may want more courts to weigh in on the issue before they do, not necessarily that they agree with the previous bad opinions or flat out don't care.

The "more courts to weigh in" hypothesis doesn't fly in the face of the plethora of cases the Supreme Court takes where there hadn't been opinions from the equivalent number of courts on the issue. At this point, that's just another fantasy. On the question of carry, we've had at least six lower courts weigh in on the issue (10th Circuit, 9th Circuit, 4th Circuit, 3rd Circuit, 2nd Circuit, and the MD Supreme Court). I'm sorry, but no other fundamental right has been treated with such disinterest by the Supeme Court, especially immediately after its initial recognition.

 

[GlocksAndPatriots]

The "more courts to weigh in" hypothesis doesn't fly in the face of the plethora of cases the Supreme Court takes where there hadn't been opinions from the equivalent number of courts on the issue. At this point, that's just another fantasy. On the question of carry, we've had at least six lower courts weigh in on the issue (10th Circuit, 9th Circuit, 4th Circuit, 3rd Circuit, 2nd Circuit, and the MD Supreme Court). I'm sorry, but no other fundamental right has been treated with such disinterest by the Supeme Court, especially immediately after its initial recognition.

I agree. Basically, the core issue is that conservatives, being decent people, don't want to admit that liberalism is not merely a set of beliefs with which they disagree, but an evil political ideology that seeks to suppress all individual liberty and those who believe in it. To believe that is to believe that we no longer have a nation. So to keep believing that we are one united nation, they delude themselves into thinking that liberalism isn't what it so obviously is.

 

[kcbrown]

Actually 7-4 if everyone votes party lines (apart from Henderson/Millett). 6 needed total for a grant.

There are 7 Democrat nominees who are active judges in the DC circuit. Millett is one of them, If Millett sides with us against en banc, then that makes 6 Democrat nominees who would side in favor of en banc, with the rest of the judges (including Henderson -- that was explicitly posited here) siding against it. Hence, 6:5.

6:5 is, I expect, the minimum that will vote in favor of en banc rehearing. If the actual vote differs from that, it is much more likely to be even more in favor of en banc than it is to be against en banc.

Another interesting tidbit from the DC Circuit rules is how they are somewhat contradictory.
(a) When Hearing or Rehearing En Banc May Be Ordered. A majority of the circuit judges who are
in regular active service and who are not disqualified may order that an appeal or other proceeding be
heard or reheard by the court of appeals en banc. An en banc hearing or rehearing is not favored and
ordinarily will not be ordered unless:
(1) en banc consideration is necessary to secure or maintain uniformity of the court's decisions; or
(2) the proceeding involves a question of exceptional importance.

So, by that section it means the CA2-4 (and somewhat Peruta) shouldn't necessarily factor in to an en banc grant.

True, but the court can simply justify it on the basis of the 2nd condition ("question of exceptional importance").

Yet, the next section says: (b) Petition for Hearing or Rehearing En Banc. A party may petition for a hearing or rehearing en
banc.
(1) The petition must begin with a statement that either:
(A) the panel decision conflicts with a decision of the United States Supreme Court or of the court
to which the petition is addressed (with citation to the conflicting case or cases) and consideration by the
full court is therefore necessary to secure and maintain uniformity of the court's decisions; or
(B) the proceeding involves one or more questions of exceptional importance, each of which must
be concisely stated; for example, a petition may assert that a proceeding presents a question of
exceptional importance if it involves an issue on which the panel decision conflicts with the authoritative
decisions of other United States Courts of Appeals that have addressed the issue.

So I guess the "exceptional importance" automatically qualifies in the case of a circuit split?

Looks that way. Regardless, the case also automatically qualifies when what's in question is the fundamental underpinnings of a major aspect of a Constitutional Amendment. So there are multiple ways this case meets that particular criteria.

 

[kcbrown]

Your "game theory" fails to take into account that the DC Circuit very rarely goes En Banc, even for the last two 2A issues in front of them that the District lost and asked for En Banc, the DCC denied them.

Yes, well, the 9th Circuit also "rarely" (though not as rarely as the DC Circuit) takes cases en banc, and yet they have taken en banc every 2A case (one of them was taken en banc twice!) which was decided in our favor by the 3 judge panel.

The opposition has shown itself to be more than willing to throw out the implicit rules when dealing with us in order to get their way. Why in the world should we expect anything different here??


As for the DC Circuit's prior en banc history as regards 2A cases, one of them was refused en banc at a point in time when the conservatives dominated the circuit, and the other (Heller v. District of Columbia, 670 F. 3d 1244 - Court of Appeals, Dist. of Columbia Circuit 2011) was a mixed decision in which what we "won" (not having to bring the gun to DC, not having to periodically renew a license) was minor in comparison with what we lost (the ban on "assault weapons" and "large capacity magazines").

 

[kcbrown]

Got to play to win. An explicit circuit split makes it harder to deny cert., especially on a constitutional issue.

"Harder"? Harder how, exactly? What pressure is exerted on the Supreme Court that would compel it to address a circuit split on an issue that it otherwise prefers not to touch? I submit there is nothing that compels the Supreme Court to do anything at all with respect to the cases we speak of. It can do whatever it wishes with them, including ignore them.

 

[esqappellate]

"Harder"? Harder how, exactly? What pressure is exerted on the Supreme Court that would compel it to address a circuit split on an issue that it otherwise prefers not to touch? I submit there is nothing that compels the Supreme Court to do anything at all with respect to the cases we speak of. It can do whatever it wishes with them, including ignore them.

Of course, there is nothing that compels the SCT to take the case. I willing to presume an iota of good faith that the Court will be more likely to take a case where there is a square circuit conflict on a constitutional issue and the gov. entity has had a statute struck down on constitutional grounds. My 42 years of federal court and SCT experience tells me that's nearly the epitome of a cert worthy case (the only thing more cert worthy is where there is a circuit split and a federal statute has been struck down and the SG is seeking cert). Unlike others, I have not yet reached the point of total cynicism with respect to the SCT. Maybe that's because I have spent my entire professional career in the federal courts, including the SCT, and cannot bear the thought that total cynicism is appropriate. Some, for sure, just not total.

AS to the likelihood of en banc, I quite agree that this case is of "exceptional importance" under Rule 35, just on grounds of the acknowledged circuit split.

 

[GlocksAndPatriots]

Of course, there is nothing that compels the SCT to take the case. I willing to presume an iota of good faith that the Court will be more likely to take a case where there is a square circuit conflict on a constitutional issue and the gov. entity has had a statute struck down on constitutional grounds. My 42 years of federal court and SCT experience tells me that's nearly the epitome of a cert worthy case (the only thing more cert worthy is where there is a circuit split and a federal statute has been struck down and the SG is seeking cert). Unlike others, I have not yet reached the point of total cynicism with respect to the SCT. Maybe that's because I have spent my entire professional career in the federal courts, including the SCT, and cannot bear the thought that total cynicism is appropriate. Some, for sure, just not total.

AS to the likelihood of en banc, I quite agree that this case is of "exceptional importance" under Rule 35, just on grounds of the acknowledged circuit split.

Maybe I have an easier time assuming bad faith on the part of the judiciary because I've only been practicing for 11 years. I don't have 42 years to unlearn

 

[kcbrown]

Of course, there is nothing that compels the SCT to take the case. I willing to presume an iota of good faith that the Court will be more likely to take a case where there is a square circuit conflict on a constitutional issue and the gov. entity has had a statute struck down on constitutional grounds. My 42 years of federal court and SCT experience tells me that's nearly the epitome of a cert worthy case (the only thing more cert worthy is where there is a circuit split and a federal statute has been struck down and the SG is seeking cert). Unlike others, I have not yet reached the point of total cynicism with respect to the SCT. Maybe that's because I have spent my entire professional career in the federal courts, including the SCT, and cannot bear the thought that total cynicism is appropriate. Some, for sure, just not total.

I agree that under normal circumstances (most especially, if the issue under consideration isn't a politically contentious one), a case that qualifies in the respect you speak of is more likely to be granted cert than some other case that lacks one or more of the qualifiers. But a higher probability is not the same as a guarantee.

If you wish to know whether or not the Supreme Court "plays favorites", you need only look to see whether the Court has treated all identically-situated cases the same, i.e. if it has granted cert (or denied cert) to all identically-situated cases, or if it has granted cert to only some. If the latter, then the Court "plays favorites". If the former, then it does not.

My bet is very strongly on the latter.

In any case, it should be abundantly clear by now that 2A firearms cases are so highly contentious that the Supreme Court is much more reluctant to take them than it is identically-situated cases involving other Constitutional rights. To my knowledge, no other right has been acknowledged by the Court, only to be utterly ignored by it thereafter. But that is exactly the case here.

 

[esqappellate]

Maybe I have an easier time assuming bad faith on the part of the judiciary because I've only been practicing for 11 years. I don't have 42 years to unlearn

Exactly!

 

[esqappellate]

I agree that under normal circumstances (most especially, if the issue under consideration isn't a politically contentious one), a case that qualifies in the respect you speak of is more likely to be granted cert than some other case that lacks one or more of the qualifiers. But a higher probability is not the same as a guarantee.

If you wish to know whether or not the Supreme Court "plays favorites", you need only look to see whether the Court has treated all identically-situated cases the same, i.e. if it has granted cert (or denied cert) to all identically-situated cases, or if it has granted cert to only some. If the latter, then the Court "plays favorites". If the former, then it does not.

My bet is very strongly on the latter.

In any case, it should be abundantly clear by now that 2A firearms cases are so highly contentious that the Supreme Court is much more reluctant to take them than it is identically-situated cases involving other Constitutional rights. To my knowledge, no other right has been acknowledged by the Court, only to be utterly ignored by it thereafter. But that is exactly the case here.

You know, after a lot of years, I got pretty good at predicting outcomes, especially after oral argument, in the federal courts of appeals. Not perfect, of course, but pretty good. But, I have found that predicting the Supreme Court is much harder. So I am quite humble on that. You may go boldly there. I will wait and see.

 

[wolfwood]

I agree that under normal circumstances (most especially, if the issue under consideration isn't a politically contentious one), a case that qualifies in the respect you speak of is more likely to be granted cert than some other case that lacks one or more of the qualifiers. But a higher probability is not the same as a guarantee.

If you wish to know whether or not the Supreme Court "plays favorites", you need only look to see whether the Court has treated all identically-situated cases the same, i.e. if it has granted cert (or denied cert) to all identically-situated cases, or if it has granted cert to only some. If the latter, then the Court "plays favorites". If the former, then it does not.

My bet is very strongly on the latter.

In any case, it should be abundantly clear by now that 2A firearms cases are so highly contentious that the Supreme Court is much more reluctant to take them than it is identically-situated cases involving other Constitutional rights. To my knowledge, no other right has been acknowledged by the Court, only to be utterly ignored by it thereafter. But that is exactly the case here.

If they really hated the Second they would grant and rule against Grace.
This is a lot more complicated than that for one reason or another.
It is to our benefit if they wait with President Trump in office and several justices in their 80s.

 

[kcbrown]

If they really hated the Second they would grant and rule against Grace.
This is a lot more complicated than that for one reason or another.
It is to our benefit if they wait with President Trump in office and several justices in their 80s.

They don't hate the 2nd Amendment. Yes, I agree, if they did, they would have ruled against it long ago.

They fear the 2nd Amendment. That is a very different thing.

In reality, I believe what's going on here is that the 2nd Amendment is a highly political issue for the Court, much more so than any other it has dealt with (yes, even more so than minority rights or even abortion), that strikes at the very heart of the core ideologies that the justices adhere to. More than any other in recent memory, it involves the most fundamental methods of Constitutional interpretation, and differences there yield fundamentally different beliefs. The nature of the issue is such that nobody dares to compromise on it.

The end result is that the Court is paralyzed. It wasn't at the point in time it took McDonald, but then Sandy Hook happened. I believe that to be the point at which at least one justice got cold feet, and rather than compromise their beliefs about Constitutional interpretation in order to vote against the 2nd Amendment where they previously had supported it, they simply backed away.

This is consistent with Caetano. That case was "safe" for the justices to take because it involved a nonlethal weapon and a highly sympathetic plaintiff, and the nature of the decision was very narrow, involving little more than reiterating what had already been said.


The plain fact is that at least with respect to the right to arms, the Court is political and starkly divided, and that's that. There is no other reasonable explanation for its behavior.

 

[Master_P]

One variable everyone is omitting is the high selection rate of DC CoA judges for SCOTUS vacancies. This goes back over 30 years:

• Antonin Scalia - confirmed
• Robert Bork - rejected
• Douglas Ginsburg - withrdawn
• Clarence Thomas - confirmed
• Ruth B Ginsburg - confirmed
• John Roberts - confirmed
• Merrick Garland - no vote

Recall that Harry Reid rammed four O-hole nominees through the Senate in 2013-2014 (see Reid's nuclear option) to the DC CoA. Those four judges are aged 50-56 today. In 2021, they will be 54-61 years old. That's still young enough for a SCOTUS nomination should Trump lose in 2020.

If you're one of those four O-hole appointees, then voting for en banc compels you to take a position on public carry. That will be used against you if you are picked for a SCOTUS vacancy (see Merrick Garland dissenting for en banc in Parker). Indeed, Sri Srinivasan was on the short list for Scalia's vacancy.

If you have a coveted seat on the DC CoA and are young enough to be a viable SCOTUS nominee in 2021, then why would you cast a vote to put yourself in the public-cross hairs on public carry? It makes more sense to avoid salient cases like the plague. There's no way you go on record dissenting to en banc.

 

[kcbrown]

If you're one of those four O-hole appointees, then voting for en banc compels you to take a position on public carry. That will be used against you if you are picked for a SCOTUS vacancy (see Merrick Garland dissenting for en banc in Parker). Indeed, Sri Srinivasan was on the short list for Scalia's vacancy.

If you have a coveted seat on the DC CoA and are young enough to be a viable SCOTUS nominee in 2021, then why would you cast a vote to put yourself in the public-cross hairs on public carry? It makes more sense to avoid salient cases like the plague. There's no way you go on record dissenting to en banc.

That ignores the politics of court (and, especially, Supreme Court) nominations.

Nomination to the Supreme Court is a political decision. The people doing the nomination are the ones who decide the politics. They will select judges who side with their own beliefs, because that maximizes the chance that the laws they pass will be upheld by those same judges. Only an idiot would nominate a judge whose politics disagreed with his own.

That means that the more well known a judge's politics are, the greater his likelihood of selection by people who share his political beliefs. That means, of course, that he's likely to not be selected if the people in power do not share his beliefs.

The only time there is any compromise whatsoever on that is when the political preferences of the President differ from those in the majority of the senate. In that case, a more "moderate" candidate may be selected, but that candidate will still be selected on the basis of what is known about his political preferences.

In no case is there an advantage to the nominee not having his position known. Nominators will avoid nominees whose positions are unclear precisely because they cannot be relied upon to support the legislation of the nominators.

This dynamic automatically means that it is advantageous to do things like grant en banc to a case like this (if one's politics align in that fashion) because it makes it more likely that one will be nominated by politicians who have a progressive bent. Someone with a conservative bent will never be nominated by someone with progressive tendencies except under some sort of duress.

 

[Master_P]

That ignores the politics of court (and, especially, Supreme Court) nominations.

Wrong. My remarks point directly to the politics of SCOTUS nominations.

Nomination to the Supreme Court is a political decision. The people doing the nomination are the ones who decide the politics. They will select judges who side with their own beliefs, because that maximizes the chance that the laws they pass will be upheld by those same judges. Only an idiot would nominate a judge whose politics disagreed with his own.

GHWB nominated Clarence Thomas and David Souter. Is he "an idiot"?

That means that the more well known a judge's politics are, the greater his likelihood of selection by people who share his political beliefs. That means, of course, that he's likely to not be selected if the people in power do not share his beliefs.

Explain why Trump did not nominate William Pryor - given Pryor's public statements on abortion and gay marriage. Gorsuch has not made similar public remarks.

In no case is there an advantage to the nominee not having his position known. Nominators will avoid nominees whose positions are unclear precisely because they cannot be relied upon to support the legislation of the nominators.

That all nominees since Ruth Ginsburg have declined to make public positions known on controversial matters during confirmation says otherwise. Offering the veil of neutrality works to their favor publicly.

This dynamic automatically means that it is advantageous to do things like grant en banc to a case like this (if one's politics align in that fashion) because it makes it more likely that one will be nominated by politicians who have a progressive bent. Someone with a conservative bent will never be nominated by someone with progressive tendencies except under some sort of duress.

That is an extremely myopic view for jurists who see themselves as candidates for a promotion. Someone who is 70+ years old in a lifetime job DGAF and therefore could proceed as you suggest (i.e. Judge Thomas of 9CA). But jurists who are not similarly situated have cause to think differently.

 

[kcbrown]

Wrong. My remarks point directly to the politics of SCOTUS nominations.

Fair enough. Disagreement with respect to politics isn't exactly unheard of.

GHWB nominated Clarence Thomas and David Souter. Is he "an idiot"?

If his intent was to get support for legislation he proposed and/or backed, then yes, he was.

In any case, if political persuasion of the nominee wasn't a major consideration, then why do we claim that elections have consequences as regards Supreme Court nominees?

You can't have it both ways. Either the political preferences of the nominator matter, in which case the political preferences of the nominee matter (if the latter were not true, then the former couldn't be true), or they don't. Which is it?

Explain why Trump did not nominate William Pryor - given Pryor's public statements on abortion and gay marriage. Gorsuch has not made similar public remarks.

I have no idea. It may be the Trump doesn't actually agree with those sentiments. Has that ever occurred to you?

That all nominees since Ruth Ginsburg have declined to make public positions known on controversial matters during confirmation says otherwise. Offering the veil of neutrality works to their favor publicly.

But it's not the veil of neutrality during confirmation that we're talking about. It's the actions of the judge while on the bench that we're speaking of here.

That is an extremely myopic view for jurists who see themselves as candidates for a promotion. Someone who is 70+ years old in a lifetime job DGAF and therefore could proceed as you suggest (i.e. Judge Thomas of 9CA). But jurists who are not similarly situated have cause to think differently.

What cause? If they hide their preferences through their actions on the bench, then why in the world do you think politicians would select them? What's the advantage to those politicians to do so? What in the world do the politicians have to gain by nominating someone whose preferences while acting on the bench give them no clear indication as to how that person will decide issues regarding legislation they favor? And more to the point, if they do nominate such people, then upon what basis is there any claim at all that "elections have consequences" as regards court nominations?


Your stance here is flatly contradicted by the evidence. There are piles of it that have been provided to us by the judges who have been selected by Obama. Gee, I wonder why that is ...

 

[GlocksAndPatriots]

One variable everyone is omitting is the high selection rate of DC CoA judges for SCOTUS vacancies. This goes back over 30 years:

• Antonin Scalia - confirmed
• Robert Bork - rejected
• Douglas Ginsburg - withrdawn
• Clarence Thomas - confirmed
• Ruth B Ginsburg - confirmed
• John Roberts - confirmed
• Merrick Garland - no vote

Recall that Harry Reid rammed four O-hole nominees through the Senate in 2013-2014 (see Reid's nuclear option) to the DC CoA. Those four judges are aged 50-56 today. In 2021, they will be 54-61 years old. That's still young enough for a SCOTUS nomination should Trump lose in 2020.

If you're one of those four O-hole appointees, then voting for en banc compels you to take a position on public carry. That will be used against you if you are picked for a SCOTUS vacancy (see Merrick Garland dissenting for en banc in Parker). Indeed, Sri Srinivasan was on the short list for Scalia's vacancy.

If you have a coveted seat on the DC CoA and are young enough to be a viable SCOTUS nominee in 2021, then why would you cast a vote to put yourself in the public-cross hairs on public carry? It makes more sense to avoid salient cases like the plague. There's no way you go on record dissenting to en banc.

Ten-fifteen years ago, I would have agreed with this analysis. But now, opposing the "ridiculous interpretation of the 2nd Amendment that led the NRA to flood our streets with killing machines" is a prerequisite for liberal judges. I don't think voting to hear this case en banc would hurt the chances of anyone appointed by a Democrat President if the Democrats also have 51 seats in the Senate.