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October 15, 2008

Some Sixth Circuit Catfighting For Our Court-watching Readers

These rush decisions on emotionally charged topics are often a goldmine of snark and spite from judges directed against parties and other judges. Ohio Republican Party v. Brunner (PDF) does not disappoint, and while I try to steer clear of highlighting things which cast doubt on our system of justice, I figure that if it's in a judicial decision, it's fair game. Apologies to those readers who are just here waiting for accidental links to porn; this post is about a more subtle kind of stimulation.


The snark starts on page 11 when the majority notes that though Secretary Brunner claims all kinds of harm to the election should she be required to provide registration mismatch data to county boards, the record is "ear-splittingly silent" and "conspicuously so" on the question. This is the majority's way of politely calling bullshit and it is really just warming up.

The snark continues on the next page, where the majority targets Judge Moore, the panel judge who, along with a visiting judge from the Eighth Circuit, rushed to vacate the district court's order before the full court had a chance to decide on the petition for hearing en banc and who joined the dissent today:

At the panel stage, in deciding to vacate the district court's TRO, this court did not rely on the Secretary's position [that plaintiffs have no right to bring a federal cause of action under HAVA]...At the en banc stage, however, the dissent has now embraced the Secretary's position as a ground for decision...There is nothing wrong with this change of heart, particularly given how little time the panel had to address the issue, but it should prompt similar empathy for a district court judge forced to do the same thing: make a quick likelihood-of-success decision about what can only be described as a deeply intricate issue.

Okay, it rates a 6 on the snark-o-meter. Still, the panel judge is probably super-pissed at her colleagues right now. All the more so given what comes in the concurring opinion on page 22:

Involving the en banc court in the stay of a temporary restraining order is rarely a good use of our resources and rarely presents an issue exceptional importance, given the procedural posture. This is one of the rare situations, however, where, given the panel's opinion, our en banc intervention is required to protect important statutory and public values.

Translation: You fucked up so bad that we had to bestir the full court on a holiday weekend to clean up the mess. You might want to eat lunch in your office for a little while.

Judge Moore shoots back in the dissent: "the majority's action is judicial activism in the extreme" which "will throw the election process in Ohio into total chaos." The other dissenting opinion echoes the objection: "In a case full of irony, we have a majority of this court inferring a private right of action -- on the basis of, well, nothing -- to create utter bedlam in a state's election."

This second dissenting opinion then crosses over into outright spite and he names names. He is "troubled" by the fact that one of the judges in the majority is married to a Republican running for reelection this year. This is where the veil drops. To that point all the judges had been pretending that this dispute is about protecting voters. Over and over the judges had emphasized that the key to the HAVA provisions involved in this case is that a fraudulent vote cancels out a legitimate one.

This second dissenter makes clear that the real issue, as far as he is concerned, is determining the outcome of the election.

It blinks reality to say that the outcome of this case will not have a "substantial" effect on Ohio's elections and thus on [the judge's husband's] re-election prospects.

He then lashes out at another judge:

But I find this all particularly ironic because Judge Griffin [the lone panel dissenter] has said nothing about this, while he decided to publicly "object" to the panel majority's procedures in his panel dissent. Specifically, he object to the fact that Judge Moore and Judge Bright, a distinguished member of the Eighth Circuit, "decided to ignore the en banc petition and issue their order" in "violation of the practices of our court." Indeed. ...

And if we are going to talk about what violates the practices of our court, then I can think of no better example than Judge Griffin's decision to impugn a colleague -- along with a visiting Judge! -- on essentially no basis whatsoever. That said, this is not the first time this sort of thing has happened, so maybe he is right, and that kind of behavior can be considered one of the "practices of our court." I dissent.

That emphasis is in the original, by the way. This dissenter is really, deliciously angry. I think quite a few people are going to be eating lunch in their offices in the next few weeks.

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posted by Gabriel Malor at 12:05 AM

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