Home » The federal appeals court system is the left’s not-so-secret weapon

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The federal appeals court system is the left’s not-so-secret weapon — 22 Comments

  1. 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.

  2. Thanks for the insightful article.

    Trump and the Republican-controlled Senate should fill all judicial vacancies with deliberate haste.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. Cornhead Says:
    February 11th, 2017 at 3:32 pm
    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?

    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):

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.

    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.)

  8. 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 substantial HYUUUUUGE effect on the American judiciary.

  9. 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.

  10. 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.

  11. 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.

  12. 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.

  13. ” 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.

  14. 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.

  15. 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.

  16. 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.

  17. 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)

  18. 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.

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