Trump’s Good & Bad Luck

Blumenthal v. Trump started in the U.S. District Court for the District of Columbia (D.D.C.). It was heard by Judge Sullivan. Judge Sullivan has a good reputation as a straight shooter. He was appointed to the local or territorial courts of the District of Columbia by Republican (R) presidents (i.e., Reagan, and Bush I). Afterwards, he was appointed to the D.D.C. by a Democratic (D) president (i.e., Clinton). For the sake of argument, let’s simplify the situation and call him a D appointee. In Blumenthal v. Trump, at the motion to dismiss stage, Judge Sullivan ruled for the plaintiffs. But the Department of Justice (DOJ) sought an interlocutory appeal with the United States Court of Appeals for the D.C. Circuit.

The D.C. Circuit has 17 judges: 8 Ds and 9 Rs.* The panel that heard the DOJ’s motion for interlocutory review was composed of 3 Ds! What is the probability of that? 8/17 * 7/16 * 6/15 = 8%. That was, perhaps, Trump’s bad luck. But he prevailed anyway. And the case is now out of the hands of Judge Sullivan, and the D.C. Circuit will decide the case on the merits.

Here is what is interesting.

It appears that the original panel of 3 Ds, having determined that the court of appeals should hear the case as an interlocutory appeal, has also decided not to hear the appeal on the merits. So a new panel of 3 judges will be composed (at random) by the D.C. Circuit’s clerk’s office. I am not sure why the panel has decided not to retain the case on the merits going forward. But assuming a new panel will be composed: What is the probability that there will be either 2 Rs and 1 D, or 3 Rs on the panel? 54%. From Trump’s point of view, a majority of Rs on the panel is an improvement. And if the new panel were composed of D.C. Circuit judges exclusive of the members of the original panel, then the odds go up considerably above 54% for a panel composed either of 2 Rs and 1 D, or 3 Rs.**

What happens after the panel decides the merits? Then the non-prevailing party may apply for en banc review from the entire D.C. Circuit. Here the odds favor the plaintiffs. Why? The full court is composed of 9 Rs and 8 Ds, but that includes 6 judges with senior status. Senior judges do not participate in en banc review. The en banc court has 7 Ds and 4 Rs: a strong D majority. So anything Trump might gain from the next 3-judge panel, he might lose during en banc review … and then, perhaps, he might get it back again at the U.S. Supreme Court, which (as all know) is divided between 5 Rs and 4 Ds. But don’t tell Chief Justice Roberts—he won’t believe you!

Seth

* I am counting Judge Judith W. Rogers as a D appointee. She was appointed to the D.C. Circuit by President Clinton. That said, Judge Rogers was appointed to the local or territorial courts of the District of Columbia by President Reagan.

** The probability of a panel with 2 Ds and 1 R, or 3Ds is 45%. 

Seth Barrett Tillman, Trump’s Good & Bad Luck, New Reform Club (Sept. 5, 2019, 12:42 PM), <https://reformclub.blogspot.com/2019/09/trumps-good-bad-luck.html>.