Appellate Advocacy Blog Weekly Roundup
Here are a handful of tidbits on appellate practice from around the web this past week. As always, if you see something during the week that you think we should be sure to include, feel free to send Dan a quick email at DReal@Creighton.edu or a message on Twitter (@Daniel_L_Real).
Will the Supreme Court’s Vacancy Issues Ever Become an Election Issue?
Chris Geidner had an article on BuzzFeed News this week asking the question. The article recounted how, for a brief moment last weekend, it appeared as if the topic of the vacancy on the Supreme Court and Congress’s decision not to consider and vote on President Obama’s nominee to fill the vacancy would became a real issue in this year’s Presidential election. Hillary Clinton was asked a question about it; a member of Donald Trump’s campaign allegedly had been told that he would be a nominee in a Trump administration; Senator John Cornyn (chair of the Judiciary Committee’s subcommittee on the Constitution) spoke about hopes of confirmation for a set of lower court nominees back by Republican senators. But the focus quickly shifted away, again. Nonetheless, as the article notes, there are still some key dates coming up that might shift focus back to this topic as a key in the race for the White House, including the Court’s new term opening in October, as well as upcoming debates.
Related, Jason P. Steed (@5thCircAppeals) tweeted a link to his April blog post about “Duty” and the Constitution, discussing the debate over whether the Constitution imposes a “duty” on Congress to consider and vote on a nominee to fill a vacant seat on the Court. The post raises some great discussion points about the intersection between whether the Constitution specifically imposes such a duty and whether it’s acceptable to conclude that it does not if that conclusion arguably threatens the very function of the Constitution itself.
Blog Post: https://formalegalis.org/2016/04/18/duty-and-the-constitution/
Twitter Post: https://twitter.com/5thCircAppeals/status/778269922430365696
Finally, Cornell Law Professor Michael Dorf had a post on Justia.com titled, “The Future of the Supreme Court, Regardless of Who Wins the Election.” In the piece, he makes the case that although “it is tempting for those of us who follow the work of the high Court to play a waiting game” and acknowledges that “with respect to some important issues, uncertainty . . . warrants caution” he also argues that “Supreme Court watchers who are fearful about the outcome of the 2016 election can take comfort from the fact that it may not matter as much as we expect.” He argues that there are “vast swaths of our public life about which the Court has almost nothing to say” and that “[s]ome areas of Supreme Court jurisprudence will likely be unaffected by the next appointment(s) because they rest on broad cross-ideological consensus.” While acknowledging that “who appoints the next several justices to the Supreme Court is [not] an unimportant question” he argues that we should not think “that everything is up for grabs” because, at the end of the day, “the Court still decides many more cases unanimously than by a single vote” and also points out that history should tell us that “[e]ven when we know who will apoint justices . . . [and] even when we know who those justices are,” their ultimate voting habits with the Court are often unexpected.
Justia article: https://verdict.justia.com/2016/09/21/future-supreme-court-regardless-wins-election
Dorf on Twitter: https://twitter.com/dorfonlaw
Oral Argument Preparation Thoughts
Bryan Gividen (@BryanGivi) started a good twitter discussion about oral argument preparation process and tips. David Feder (@davidjfeder) had previously posted an image showing the Solicitor General’s process for oral argument prep in cases before SCOTUS. The comments and responses to both provide some great practical thoughts from folks who regularly engage in oral argument preparation.
Gividen Twitter Discussion Link: https://twitter.com/BryanGivi/status/777896705161170944
David Feder Twitter Post: https://twitter.com/davidjfeder/status/777650613114974208
How Many Issues to Raise on Appeal
Mike Skotnicki (@MSkotnicki) tweeted a link to a 2014 blog post he wrote about determining how many issues to raise on appeal. In the post, he discusses striking the balance between raising every issue that you can possibly find and only raising one or two really good arguments, arguing in favor of raising “every argument deemed to have real potential to be found meritorious” and capable of passing the “‘red face test’ (would you blush raising the argument during questioning at oral argument?)”
Blog Post: https://brieflywriting.com/2014/04/03/so-how-many-issues-do-you-raise-on-appeal/
Twitter: https://twitter.com/MSkotnicki/status/778284106920693760