Appellate lawyer John Reeves is cautiously optimistic:
1) I'm going to go out on a limb here and say that the DC Circuit's failure at this point to rule one way or another on Judge Sullivan's en banc petition means it will DENY the petition. Here's why:
2) When en banc rehearing is GRANTED, the order stating this does NOT declare which judges voted how. This makes sense, because the court does not want the parties to know ahead of time how each judge is thinking during briefing and oral argument on en banc rehearing.
3) By contrast, if en banc rehearing is DENIED, and a vote was called for, the denial order usually lists how each judge voted--it lets everyone know which judges voted for en banc rehearing, and which judges voted to deny en banc rehearing.
4) If en banc rehearing is denied on a contentious issue, it is not at all unusual for the judges who wanted en banc rehearing, but were outvoted, to write dissenting opinions stating why they believe en banc rehearing should have been granted. Writing legal opinions takes time.
5) In light of the above, I believe that at some point last week, the DC Circuit voted on the en banc petition, and a majority voted AGAINST granting rehearing en banc. But at least some of the judges wanted to write dissenting opinions on the matter.
6) Judge Wilkins, for example, would almost certainly write a dissenting opinion if en banc rehearing was denied. That is what I believe is going on right now--the court last week voted to deny rehearing en banc, and Judge Wilkins is writing a dissenting opinion on the matter.
7) Otherwise, had there been a majority of DC Circuit judges to vote to grant rehearing en banc, it would already have issued an order to that effect last week.
8) Thus, I am cautiously of the belief that the DC Circuit has already voted to DENY Judge Sullivan's petition for rehearing en banc, and it is just waiting for Judge Wilkins (and possibly others) to finish his (their) dissenting opinion(s) on the matter.
UPDATE: Shipwreckedcrew weighs in in support of John Reeves:
I think John is correct. The writing was on the wall when Judge Sullivan had to file his own petition for re-hearing. Prior to that Petition, any judge could have called for a vote on en banc review of the Panel decision, and Judge Sullivan's petition strongly hints none did.
My recollection is that the three judges on the panel cannot call for rehearing, so Judge Wilkins could not. But even when Judge Sullivan filed his petition, that doesn't automatically result in a vote being taken. A judge still needs to call for vote on Sullivan's petition.
If so, expect Sullivan to go to the Supremes, and hope that he gets a process similar to what happened at the Circus level.ReplyDelete
Can Sidney do anything to reduce the prospects of such a charade?
IMO, no more chance of that happening than of a snowball in hell.Delete
Do you mean that Sullivan won't dare, that Powell will be able to squash this, or that the Supremes won't stand for it?Delete
SCOTUS would never take this case. 3 judge panel and full circuit reject the petition based on cases that comport well with SCOTUS' own very recent opinion. They wouldn't take it.Delete
That's a real relief for me.Delete
Our legal system has already endured buckets of manure being drooled onto it.
It'd be brutal, to have to witness more dung being flung.
Any dissent from Wilkins will surely be ready no later than election day.ReplyDelete
While I'm sticking to my rule that I'll believe the courts are willing to set Flynn free once they actually do set him free, and not a minute before, I have to admit the argument laid out in the post, that this sort of delay doesn’t normally happen if the petition for en banc is granted, makes me hopeful the courts finally will do just that.ReplyDelete
Still, just for fun, I'll lay out a Devil's advocate/contrarian explanation: the delay is there because, while two or more Dem judges are against en banc, intense twisting of arms is going on behind the scenes so that these judges haven't been able to officially say 'no' yet. As for no judges asking for an en banc hearing, it was never necessary for any of them to do so, knowing that if their Democrat masters wanted the en banc, they'd just have Sullivan petition it himself, as did in fact happen. They could then easily reason along narrow procedural lines and keep the charade going another month or even more. Sullivan could then make some outlandish decision against Flynn, and it would be right back to more appeals and more tick-tock-Nov 3.
Of course that's all wild speculation & probably not at all right, but then again, since when in this entire sordid affair has what was probable or right been the thing that actually ended up happening?
A simpler explanation would be delay.Delete
They take all of the time available to them for the simple reason that time is the agenda.
Flynn represents a clear and present danger to Dem interests. They have no counter to him - not to the legal basis of his case, not to the role that he might play in the Administration, and not to the message he would carry during the campaign.
Delay reduces his potential impact, obviously. But it also keeps the window open for unanticipated outcomes that might benefit the Dems. I suppose it also increases their risk, but the benefits must outweigh the risks. They obviously think so.
Well, damn - here we go again...ReplyDelete
En Banc Granted
Shameful. Thanks. But then libs are without shame.ReplyDelete
Heading to your new post now...