The federal appeals court system is the left’s not-so-secret weapon
The left’s Gramscian march has allowed it to conquer several institutions in recent decades: education, media, religion, and entertainment. But at the same time, it has become more clear lately that (except for the charismatic Obama) the left has been losing at the ballot box, both on the national and state level.
At the moment, the majority of state legislatures and governors are in GOP hands. Both houses of Congress are as well, and of course the presidency. The Supreme Court is more or less equally split, and it will probably continue to be so once Gorsuch is seated (which I’m assuming will happen). But depending on the ability of the rest of the judges to hang in there, Trump may get a chance to tip SCOTUS into the camp of the right.
And then there’s the federal appeals court system, which is quite a different story:
When Obama entered the Oval Office, liberal judges controlled just one of the 13 circuits of the U.S. Court of Appeals. Fifty-five successful presidential nominations later, liberal majorities now control nine of those appeals benches, or 70 percent.
Outside of legal circles the transformation of the influential federal appeals courts has gone largely unnoticed, though.
That was written last September. We’re certainly noticing now, aren’t we? The decision of the 9th Circuit (which is a federal appeals court) is very high profile. The 9th has long been liberal, however; it’s not just Obama’s appointments that have tipped the 9th into that “liberal” category. But it used to be in the minority in that respect, and now liberal federal appeals courts are very much the majority.
It’s not just the appeals courts, either; the district courts were affected as well:
“The Supreme Court grabs the spotlight, but it hears fewer than 100 cases a year,” Texas Supreme Court Justice Don Willett said, “while the 13 federal courts of appeals handle about 35,000.”
More than one-third of the 179 judges on federal appeals courts owe their seat to Obama, Willett told The Daily Signal. “That’s a legacy with a capital L.”
Obama also has left his mark on the U.S. District Courts, which are the lower federal courts, successfully appointing 268 judges””seven more than President George W. Bush.
The article goes on to add:
While Republican opposition to Obama’s Supreme Court nominee, Merrick Garland, has remained consistent in the Senate, the strategy for appeals court nominees has fluctuated. Liberals describe it as aggressive, but conservatives belittle it as reserved.
There’s a decent case to be made for both interpretations.
It’s worth reading the entire thing.
The federal court system is the left’s insurance policy. If it does not control the other branches of government—and it does not at the moment—it does control the remaining branch that can (and will, as we have seen) overrule the others. And the left is very aggressive at using that potent tool. I can easily envision a situation in which lawsuits are brought in many states on a matter such as the recent challenge to the Trump EO. As you have seen, if you get the right (that is, left) court, it is possible to stop a nationwide policy of the type that courts traditionally have not gone near.
At some later point such rulings can be appealed to SCOTUS, of course. But what if one more liberal justice had been on SCOTUS? That almost happened, when Justice Scalia died during the waning days of the Obama administration. SCOTUS would then have become predominantly liberal, as well. The fear of that prospect—a liberal SCOTUS—was one of the motives that propelled a great many voters on the right who detested Trump to vote for him anyway.
This why I say it wouldn’t matter if it was President Cruz or Rubio instead of Trump or if that EO was written and executed perfectly they still would have found some reason to block and we would be in the same position.
Thanks for the insightful article.
Trump and the Republican-controlled Senate should fill all judicial vacancies with deliberate haste.
And politics can reach down into an issue which should not be political: patents. I kid you not.
Is a patent a public right or private property?
Can a patent be invalidated by an administrative agency or only in federal court as stated in the constitution?
A judge’s politics can determine the answer to these questions. And the unsurprising thing here is that the Left Coast tech companies take very liberal views on these issues which benefits them enormously due to efficient infringement. Apple is the number one culprit. Liberal from top to bottom.
Oil Services may solve the above if SCOTUS accepts the case.
Cornhead:
These high tech-company patent practices and the courts. Not quite crony-capitalism, what would you call it?
Seriously, regulatory capture? Certainly judicial overreach.
Good old fashion influence buying in the Obama years. Google and Apple lead the way. Bi-partisan influence buying. When the former NE AG cams out against “patent trolls” I knew we had a serious purchase here. Nebraska!
Don’t get me started on the PTAB.
Using information adapted from
http:www.uscourts.govjudges-judgeshipsjudicial-vacancies
Between U.S. Courts of Appeals and U.S. District Courts, there are currently 856 authorized judgships, with 109 (or a whopping 13%) of them vacant.
So, Trump and the Republican-controlled Senate can relatively quickly have a substantial effect on the American judiciary.
I’m an intellectual property lawyer. (Or as we used to say in engineering school, “I ARE one.”)
1.
I think SCOTUS went off the rails once again when it ruled in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388 (2006) that an injunction should not be automatically issued based on a finding of patent infringement. After all, Article 1, Section 8, paragraph numbered 8 states (emphasis added by me):
2.
Dave, where in the Constitution is it stated that only a federal court can invalidate a patent? (Note, as things stand now, the US PTO’s invalidation of a patent can be appealed to a U.S. Article III court.)
What I meant to write in the last sentence of my 6:10 p.m. comment above is this:
So, Trump and the Republican-controlled Senate can relatively quickly have a
substantialHYUUUUUGE effect on the American judiciary.Ira:
Oh noes!!!! That would be sweet. Unintended consequences for the 9th Circus.
The problem is not political, i.e., liberal or conservative judges. The problem is Originalists vs. Living Constitutionalists, the latter constantly morphing and presenting moving targets, finding new penumbras. The latter are amenable, even happy to being used by the Progs to further their constantly morphing, ever-advancing agendas. Give them an inch and they’ll take….many miles over time in pursuit of the perfectablity of humankind. Killing the defenseless on that march.
Ira
Read the brief for cert filed in Oil States. It is excellent. I think my statement above is supported by the cases cited in that brief.
I think the whole PTAB and IPR process is unconstitutional. When a hedge fund run by Bass (or is it Richard Rainwater?) can file an IPR on drugs hoping to drive down a biotech’s stock price, we have something seriously wrong.
I got into this via VHC.
Ira
Here it is:
http://patentlyo.com/media/2017/01/OilStatesPetition.pdf
Ira
And from I understand CAFC rarely overturns the PTAB and has been on a tear with Rule 36 orders (no written decisions). A complete mess.
Thanks, Dave.
Ira
I would like to see executive and congressional nullification come back into play. It seems clear that the judiciary has delegitimized itself. It no longer feels constraIned by the plain language of a statute nor the clearly enumerated powers in the constitution. What the ninth circuit attempted is a blatant power grab, but it only works if the other branches of government go along with it. The federal judiciary has so discredited itself that all it requires is a single statement by the president that he considers their actions null and void. The voters will go along with it. It is premature right now perhaps, but the time is approaching. The federal judges are just too myopic to see it coming.
” This why I say it wouldn’t matter if it was President Cruz or Rubio instead of Trump or if that EO was written and executed perfectly they still would have found some reason to block and we would be in the same position. ”
No, a better written EO would not have stepped on legally enforceable privileges, for example of green card holders.
Also, GWB appointed many liberal judges owing to the fact that he was, at best, a “moderate” republican and also out of some notion (now clearly foolhardy) of “cooperation” with Left/democrats.
Also, GWB appointed many liberal judges owing to the fact that he was, at best, a “moderate” republican and also out of some notion (now clearly foolhardy) of “cooperation” with the Left/democrats.
For all of you decrying the PTAB, Big Pharma has had capture of the Federal Circuit for years (see, e.g., any opinion written by Judge Newman, who gets on pharma panels with alarming regularity). Finally you are getting some people with a modicum of science background looking at these patents and invalidating them in a way district courts (overly swayed by secondary considerations evidence) never do. Big pharma gets all kinds of b.s. patents to evergreen their product long past the genuine innovation point. As for the exclusive rights — you can have the exclusive right, but that doesn’t mean you are entitled to a remedy of complete exclusion. Just like any property interest, if I trespass, and you aren’t harmed, you don’t have much standing to sue. The Fed. Cir. caselaw is a mess, particularly when the harm of lost sales gets extremely attenuated to components, processes or method claims.
From all I have read it appears Congress will break up the 9th Circuit into at least two more circuits.
I think Congress should add a number of new judges to all circuits for President Trump to appoint to insure more people have access to speedy justice (wink wink)
Re: Astrodog and nullification.
Check out Stephen Miller’s comments to George Stephanopoulos on ABC’s “This Week” program:
http://tinyurl.com/Miller-Not-Supreme
Preparing the battlespace?
I wonder just how hard it will be to find judges who are not indoctrinated by the leftists who predominate in our law universities?
The ABA itself is a leftist stronghold. Ponder how many conservative judges might be able to pass their high hurdle and receive their stamp of approval.