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Tuesday, March 19, 2019

Trump's 7% Panel

Apparently the embargo on the identity of the 3 appellate judges in DC & MD v Trump (4th Circuit) has been lifted. The oral argument is today; it is going on right now as I write this post. See <https://twitter.com/kevspel/status/1107967856891883520>. The judges include: Niemeyer, Quattlebaum, and Shedd. For judges’ biographies, see <http://www.ca4.uscourts.gov/judges>. Two judges are from South Carolina, and the third judge is from Maryland. Only one is senior.

I have NO idea what the judges personal party affiliation is, or in what contested party primaries they registered to vote in, or if they ever ran for an office in a partisan election or primary. Chief Justice Roberts told us that there are no R and D judges. Let’s all keep to the agreed script.

‏There are 18 judges in the 4th Circuit, including 3 senior judges. Some judges were appointed by an R President; some by a D President. Some have more than one appointment (to the district court and also to 4th Circuit), and so they may have: 2 R appointments; 2 D appointments; or an R & a D appointment.

In the Fourth Circuit, 3 judges have D/R or R/D appointments (i.e., C.J. Gregory; Traxler & Floyd, JJ.). 8 of the 18 have R or R-only appointments. 7 of the 18 have D or D-only appointments. The chances of drawing a strictly R-only panel of judges are 8/18*7/17*6/16 = 7%.
Not that it matters.
Did I tell you?: only 7%. 

Now, let’s consider: in the Second Circuit proceedings, when Trump drew 2 D appointed judges (Leval & Droney, JJ), and 1 R appointed judge (Walker, CJ appointed by President George H.W. Bush), did the newspapers and mainstream media report it as: “Tough luck for the President—He drew a tough panel with a 2-to-1 majority of D-appointed judges”? No, of course not. That’s just life

Now, let’s consider: in the federal trial court proceedings below in DC, in Maryland, and also in NY, when Trump drew 3 D appointed judges,** did the newspapers and mainstream media report it as: “Tough luck for the President—He drew a tough group of three D-appointed judges”? No, of course not. That’s life—just as all mere plebians must take the judges that are selected for us randomly by the lottery of life. 

But literally moments after Trump draws 3 R appointed judges (including one Trump appointee) in the Fourth Circuit, what does our media say now: Josh Gerstein (@joshgerstein) on Twitter, <https://twitter.com/joshgerstein/status/1107989770750357504> (“Tough draw for Trump opponents as appeal draws a very conservative, all-GOP-appointee panel.”). Why is it a tough draw? Unless, just maybe, the Chief Justice was not quite right—unless, just maybe, Trump was (at least) partly correct. And what is more, we all believe (in fact, we all know) that Trump is (at least) partly correct. When our interests are at stake, we look to who appointed the judge(s) to the bench. 

“Tough”: Things are getting “tough” all around.


**Judge Emmet G. Sullivan is hearing one of the three Emoluments Clauses cases against President Trump. Judge Sullivan was a Clinton appointee to the District Court for the District of Columbia. To be sure, he was appointed to several positions in the DC courts (not the federal courts) by R presidents.

Seth Barrett Tillman, Trump’s 7% Panel, New Reform Club (Mar. 19, 2019, 10:05 AM), <https://reformclub.blogspot.com/2019/03/trumps-7-panel.html>. 

Welcome Instapundit Readers! 

Seth Barrett Tillman, Part V: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 12, 2019, 11:30 AM), <https://reformclub.blogspot.com/2019/03/part-v-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part IV: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 11, 2019, 2:04 AM), <https://reformclub.blogspot.com/2019/03/part-iv-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part III: The Mystery of DC & MD v TrumpNew Reform Club (Mar. 10, 2019, 7:13 AM), <https://reformclub.blogspot.com/2019/03/part-iii-mystery-of-dc-md-v-trump.html>.

Seth Barrett Tillman, Part II: The Mystery of Senator Richard Blumenthal v. President Donald J TrumpNew Reform Club (Mar. 8, 2019, 1:38 AM), <https://reformclub.blogspot.com/2019/03/part-ii-mystery-of-senator-richard.html>.

For Part I, see: Seth Barrett Tillman, The Mystery of Blumenthal v. TrumpNew Reform Club (Mar. 7, 2019, 2:16 AM), <https://reformclub.blogspot.com/2019/03/the-mystery-of-blumenthal-v-trump.html>.

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