NOTE ON APPELLATE DEVELOPMENTS
(Posted May 11, 2018) Let’s take a quick scan of the countryside and identify some matters of interest in the appellate world.
New Fourth Circuit Nominees
The president has nominated one judge and one lawyer to fill seats on the Fourth Circuit. US District Judge Marvin Quattlebaum and AUSA Jay Richardson were tapped to replace Judges Dennis Shedd, who took senior status recently, and William Traxler, who will do so this summer. Both nominees are on the young side; Quattlebaum is in his early 50s and Richardson is in his early 40s.
Given Republican control of the Senate and the elimination of the filibuster rule, I expect both nominations to receive the Senate’s consent before the midterm elections six months hence.
Lawyers Hall of Fame
Virginia Lawyers Weekly has created a hall of fame for Virginia judges and lawyers. The publication recently announced its inaugural class of 33 members.
I will confess that upon reading the list of honorees, I was struck by what I perceived as a geographic bias in favor of lawyers and judges from Richmond and the State of Northern Virginia. Fully 75% of the names on the list were from those regions; Tidewater, by contrast, got only three (attorneys Anita Poston, Conrad Shumadine, and Hunter Sims, each of whom richly deserves the honor). Summoning all the righteous indignation I could muster, I fired off a complaint e-mail to my pal Paul Fletcher, the publisher of VLW, citing the obvious bias.
Of course, Paul set me straight: He pointed out that roughly ¾ of Virginia’s lawyers work in those two regions. Tidewater’s paltry delegation actually approximates our percentage of members of the state’s bar. And while I had listed examples of several fully qualified Tidewater lawyers, VLW didn’t receive nominations for them, so that explains their omission from the list.
Thus chastened, I wrote back to Paul and admitted defeat. But just you wait: Next year, the nominations will be awash with folks from the correct side of the Hampton Roads Bridge-Tunnel.
Two last points: None of the lawyers on the list hail from Virginia’s most populous city, a surprising development in my view. And it’s conspicuous for its absence of appellate practitioners. There are no appellate lawyers and only one appellate jurist (Senior Justice Liz Lacy, also a well-qualified honoree). We’ll have to do something next year about that, too.
A new stats feature
Unless you’re very new around here, you know that I’m not afraid of numbers. I devour statistics and am only too happy to dive into the appellate courts’ annual statistical reports, to see what insight I can divine from them.
Over the past few years, I’ve sensed a jurisprudential shift in the Supreme Court of Virginia. A far as I know, no one else posts statistical analysis of the court’s holdings. (It’s different for the Big Supremes in Washington; for them, there’s a wonderful site known as Empirical SCOTUS, which I recommend highly. Virginia posts a few stats in its annual State of the Judiciary report, but that’s focused on workload, not outcomes.) So it’s probably up to me to report on what I see.
I have written here recently, though irregularly, about the Supreme Court’s rightward shift in its published opinions over the past several years. Not all rulings have a right-left axis, of course; there’s no “liberal” side to a boundary line dispute, an equitable-distribution ruling, or a collection on a commercial surety bond. But many of the SCV’s decisions come in cases that have a reasonably definable big-guy-vs.-little-guy dynamic. We can analyze those over time to see how the court’s rulings have changed. And I have.
First, a word about what comprises each camp. The one for the big guys includes most circumstances where the government is one of the litigants – criminal appeals, tax challenges, tort-claims-act litigation, and so forth. It also includes insurance companies and manufacturers in tort cases, employers in wrongful-termination suits and Workers’ Comp claims, and so forth. You get the idea. I have taken to referring to these two camps in my own mind as David and Goliath – just to indicate their relative size, without any moral judgments.
You don’t have to go back very far to find a time when the two were fighting on even terms. From 2005 through 2009, Goliath won 51% of the time, about as close to a dead heat as you can get. In theory, trial judges who err should do so in favor of David or Goliath in roughly equal numbers, so that 51/49 split seems normal.
That began to change as the decade turned. From 2010 to 2015, Goliath won about 65% of the time. The number of cases is statistically significant, in my view; this shift isn’t an aberration. It probably represents a rightward vector in the court’s composition, with correspondingly more rulings favoring Goliath.
But Goliath was only building up momentum. In 2016, he forced David to accept the appellate silver medal in 82% of published opinions. In 2017, we got the same result, 82% in Goliath’s favor. Where David was once able to hold his own, these days he’s losing nine out of every eleven appeals.
This trend is proving durable enough that I’ve decided to make it a continuing feature here. Every three months, I’ll post what I call the David-Goliath Index, a sort of scoreboard of the quarter’s appellate outcomes – at least, those that are published – with the percentage of appellate victories by David and Goliath, respectively. For the first quarter of this year, the Index is 30/70. So far in 2018, David is putting up a good fight.
Controversy in an unusual locale
The national appellate guild has been abuzz about the recent SCOTUS argument in Trump v. Hawaii, involving the president’s travel ban. Solicitor General Noel Francisco concluded his argument by insisting that the president “made crystal-clear on September 25 that he had no intention of imposing the Muslim ban.”
What’s wrong with that? Well, let’s start with the fact that, as a few reporters showed, the president made no such statement on September 25. He did give a speech that day – in Saudi Arabia – but never mentioned the travel ban. That very public disclosure prompted the SG to deliver a letter to the SCOTUS Clerk, stating that he had misspoken; he meant to say January 25. On that day, the president spoke with David Muir of ABC News:
“You’re about to sign a sweeping executive action to suspend immigration to this country,” Muir said.
“Right,” Trump answered.
“Who are we talking about? Is this the Muslim ban?” Muir asked.
“We’re talking about — no it’s not the Muslim ban,” Trump answered. “But it’s countries that have tremendous terror. It’s countries that we’re going to be spelling out in a little while in the same speech. And it’s countries that people are going to come in and cause us tremendous problems.”
This letter shifted the discussion topic to whether these words were a “crystal clear” repudiation of a Muslim ban, especially when compared with the president’s many statements to the contrary, both before and after the interview.
It is not my purpose – nor is it within my power – to sort out the underlying dispute. For you, my dear readers, it is only to mention that this short statement has focused attention, probably unwanted, on the Office of the Solicitor General. As I’ve mentioned here before, the SG is the highest-ranking person in the government who actually practices law, as we conceive it. His two bosses, the Attorney General and the Chief Deputy AG, are administrators who don’t write and sign pleadings or argue cases. The Solicitor is, from a law-practice standpoint, It.
I’m here to assure you that the Office of the SG does not admit schnooks into its employ. These are some of the highest-quality lawyers in government anywhere. The Solicitor himself is often referred to as “the tenth Justice,” reflecting the respect the Court has for the Solicitor’s views. The problem with the SG’s misstatement is that, if the Robes perceive it is truly inaccurate, it will impair the credibility of the office and the official. This is unfamiliar territory for these folks, and they probably figure that the sooner they get back out of the public eye, the better.
By the way, I can’t let this go without a practice tip for you. If you do “misspeak” in one of your oral arguments, it is entirely appropriate to write a prompt letter pointing that out, and correcting the error. But if you do so, be sure to keep it as short as humanly possible, and do not use the letter as an excuse to expand upon your argument. Here, in full, are the “guts” of the Solicitor’s letter to the Clerk, as an illustration of how simple to keep it:
Dear Mr. Harris:
At oral argument in this matter last week, I referred during my rebuttal to a statement by the President “on September 25.” Transcript 81:17-19. I intended to refer to the President’s statement on January 25, 2017, that is cited in the government’s reply brief at page 28, note 8.
I would appreciate if you could distribute this letter to the Members of the Court.