Bench Memos

More on Cornyn’s Questioning

Senator Cornyn asks about her panel’s attempt to bury the Ricci case. She says, in effect, that whatever her panel did, the firefighters could always file a request for rehearing en banc that would be circulated to all the judges (I suppose that’s true, but it certainly makes it more difficult and less likely to the case would get the attention it obviously deserved and finally got, despite her efforts). She says that a summary order was appropriate because summary orders are what are used in 75 percent of appellate cases (a complete non sequitur, given the fact that the legal issues in Ricci were obviously not as routine and unimportant as 75 percent of the cases in her circuit). Finally, as she has repeatedly during these hearings, she implies that the Supreme Court changed the law in its opinion, which is not true: The Supreme Court’s opinion is no departure at all from its past precedent or with what the statute requires.

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