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Third Circuit by clerk's order granted motion for expedited review. Trump's brief due today at 4, opposing briefs due tomorrow at 4, OA tbd.
(sorry, granted *amended motion)
Order says, "The Court will advise if oral argument desired."
I put the odds of oral argument being granted at close to zero.
I put the odds of oral argument being granted at close to zero.
The order is entered "at the direction of the Court" and signed by the clerk of court. The judges who will decide the appeal have not been identified yet.
Why I think CA3 is very unlikely to grant oral argument?
1. they didn't in Bognet due to limited time and that's even more true now
2. they'll have low confidence that OA would assist them in deciding the appeal
3. they have the MDPA OA
and
1. they didn't in Bognet due to limited time and that's even more true now
2. they'll have low confidence that OA would assist them in deciding the appeal
3. they have the MDPA OA
and
4. they will be ABSOLUTELY determined that this proceeding demonstrate, to Scotus but more importantly to the nation, that the courts are still functioning as they always have. There will be no circus.
So let's update where we stand.
Third Circuit today ordered Trump to file his brief today and the other side to file theirs tomorrow afternoon. What exactly Trump will argue is still unclear but it appears their strategy is to get back to district court and get discovery.
Third Circuit today ordered Trump to file his brief today and the other side to file theirs tomorrow afternoon. What exactly Trump will argue is still unclear but it appears their strategy is to get back to district court and get discovery.
While we wait for their brief (due 4 eastern), we don't know yet which CA3 judges will decide the appeal, nor do we know yet if the court will hold oral argument before ruling.
Helpful to recognize how exceptional the time urgency of this case is. Federal appeals, even minor ones, normally take a year or more to decide. Lawyers spend weeks writing briefs; judges spend months writing opinions. Here, days.
Federal appeals are a wonderful, elaborate machine for correctly deciding disputes. The whole design assumes the luxury of time. It's not designed to spit out correct answers this fast. Doing so requires gigantic lifts from everyone involved.
(Including the judges' law clerks, who will remember this week vividly the rest of their lives I bet.)
To an outsider the recent Bognet opinion looks pretty much like any other opinion, no biggie. But I promise you that producing an opinion that good, that fast required exceptionally talented people to make superhuman efforts.
This is what real appellate representation looks like. Ilana Eisenstein, counsel for the county boards here, did not come to play. https://twitter.com/marceelias/status/1330955278108532742
Trump just filed a motion that says they're about to file a TRO motion and they want permission to exceed the word limit. h/t @j_remy_green
@RMFifthCircuit, unflappable and measured by nature, is shall we say unimpressed. https://twitter.com/RMFifthCircuit/status/1330966183449931783
@RMFifthCircuit, unflappable and measured by nature, is shall we say unimpressed. https://twitter.com/RMFifthCircuit/status/1330966183449931783
@howappealing is correct (of course) https://twitter.com/howappealing/status/1330969154300600323
It's half an hour til Trump's brief is due, and I'm having flashbacks to last week listening by phone to Rudy's district court OA trainwreck with 8,000 of my closest friends.
THEY BLEW THE DEADLINE. AGAIN.
Okay, they just filed it late.
Rudy is not listed as not counsel on the brief, only Scarinigi's firm.
I suspect it's about to get bounced for non-compliance with the rules but we'll see.
@rickhasen reads a lot faster than I do (thread). https://twitter.com/rickhasen/status/1330989164544757760
My first-read view: the fatal problem with Trump's brief is its utter failure to confront alternative grounds for denial of its motion for leave, including futility. I doubt that was a solvable problem for them, but they didn't even try. Just incredible.
That, together with the points explained in the Allegheny Co motion earlier today, puts this appeal in a tough, tough position. https://twitter.com/MatthewStiegler/status/1330959406297714693
Last thought before I go cook spaghetti dinner. I now suspect that, since the panel wasn't disclosed prior to filing this brief, we won't find out the panel until at least after the other side's briefs are filed tomorrow.
A couple docket entries this evening, nothing big. The court granted Trump's motion to expand the word limit on their TRO motion, with responses due tomorrow at 6. And denied Allegheny's motion noting that waiver and estoppel issues can be addressed later.
@5DollarFeminist has a lively update on the case in @Wonkette. https://www.wonkette.com/bunch-of-goddamn-lunatics-walking-around-saying-theyre-the-presidents-lawyers
