Hope never surrenders🇺🇸

Here is the rundown on what has happened with regard to the TRO entered by Judge Thompson in the Northern District of California, with no notice or opportunity to be heard given to DOJ, that prohibited DOJ from "intimidating" or "threatening" state election workers with regard to the list of 22,000 names of individuals believed to be ineligible voters. The Service Employees International Union (SEIU) and other labor organizations sought to TRO in response to DOJ sending letters to all 58 County Clerks in California with a copy of the list, and requesting each County to segregate ballots received from any person on that list. The earlier legal fight was primarily with LA County, and involved an effort by DOJ to obtain a court order mandating that the Calif. Sec. of State mandate all County Clerks to segregate the ballots. When the Ninth Circuit refused to issue such an order, DOJ sent out the letters. One aspect of the letter was a warning that election officials could possibly be prosecuted for aiding and abetting illegal voting if they did not consult the list in making their decision. At the Plaintiff's request, Judge Thompson issued the TRO without asking the Govt to respond to the motion or holding a hearing where she could hear arguments against the TRO from the Govt. She did this in the early evening on Friday. Part of her order included a requirement that DOJ "inform" her of any pending grand jury subpoenas or search warrants it was going to issue. Earlier on Friday the DOJ had begun to send out GJ subpoenas to various state officials seeking their communications. The DOJ filed an appeal with the Ninth Circuit, as well as a motion to stay the TRO while the appeal was pending. The TRO had the effect of telling DOJ what crimes it could and could not investigate, and who could or could not be subjects of such investigations. By a 2-1 vote on Monday a panel of the Ninth Circuit granted the Stay, rendering Judge Thompson's TRO a nullity in connection with the ongoing election. The Chief Judge of the Ninth Circuit, Judge Mary Murguia -- an immigrant rights advocate and litigator before being named to the 9th Circuit by Obama -- was on the panel and dissented from the decision. In her dissent she urged that there be a vote taken for the matter to be reheard en banc immediately -- she knew that under the rules if the full court voted to rehear the matter en banc, such a vote would immediately vacate the 2-1 Panel decision, and Judge Thompson's TRO would go back into effect until the matter was reheard and decided. Dutifully, an unidentified Judge -- it takes only 1 -- called for a vote to rehear the matter en banc. Within 3 hours of the 2-1 panel decision staying Judge Thompson's TRO, the Clerk of the Court announced that a vote had been taken and a majority of the full-time active judges had voted in favor of rehearing the case. And just like that the 2-1 panel decision staying Judge Thompson's TRO disappeared as if it had never happened. There are 29 full-time active Judges on the Ninth Circuit. It took the votes of 15 to rehear the case en banc. The current make-up of the Court is 16 Democrat appointees and 13 GOP appointees. So it is very likely that all the Dem appointees voted in favor of en banc review, knowing their vote would mean Judge Thompson's TRO would be restored for the weeks it would take to have the matter briefed and argued before the en banc court. But there was only one problem -- in the Ninth CIrcuit and en banc court only consists of 11 Judges. In the other Circuit Courts of Appeal, all of which are much smaller in terms of the number of judges, the en banc court is comprised of every active judge. By Rule, Presiding Judge Muguria is one of the 11 members of every en banc panel. The remaining 10 judges are picked at random by a computer program. Taking away Judge Murguia, that meant there were 15 Dem. appointees and 13 GOP appointees from which the remaining 10 judges for the en banc panel would be chosen. The result was as follows: Judge Murguia was joined by fellow Dem. appointees Gould (Clinton), Owens (Obama), Thomas (Biden), and Desai (Biden). Bucking the odds, the other six members of the en banc court were the following GOP appointees: Bennet (Trump), Miller (Trump), Van Dyke (Trump), Tung (Trump), Lee (Trump), and Bea (GW Bush). By a 6-5 vote earlier today, the En Banc panel reinstated the Stay granted by the 3 judge panel but vacated by the vote last night to rehear the case en banc, What the en banc vote giveth, the en banc vote can taketh away. I should mention that Judge Bea -- now Senior Status -- opted to be part of the pool of potential en banc participants. Generally, the only Judges who are eligible for the en banc panel are active full-time Judges of the Court -- not Senior Status judges. But Judge Bea had been part of the original 3 judge panel whose decision was being reviewed. When that happens, it is up to the Senior Judge to choose whether to be in the pool of potential en banc judges, or to not be further involved. Judge Bea had to inform the Clerk of his desire to be in the pool. By doing so he slightly changed the math, as it meant 14 GOP appointees and 15 Dem appointees -- after Judge Murguia -- were available for random selection to the remaining 10 spots. Judge Bea ended up getting one of them. Judges Bennet and Miller wrote a concurring opinion with regard to reinstating the 2-1 panel decision to stay the TRO pending appeal. They made the point that it was not the role of a district judge to issue decisions about the application of criminal law when no case was before her, and the Executive Branch was allowed to voice its interpretations regarding the applications of criminal statutes even if the district judge disagreed. That suggests they don't necessarily feel Judge Thompson was wrong in her views on the law, but that she was not entitled -- at this point in time -- to put her views into play by blocking DOJ from conduction investigations.

But we've seen over the past two years the damage that 650+ District Judges can do when an Administration takes big swings at changing the policy and structure of the Executive Branch. The consequences of losing the Senate today -- if that happens -- is that there will be no district judge's confirmed to openings over the next two years -- ZERO. The Dems in the Senate will "Bet the House" on 2028. If they win the WH and maintain control of the Senate -- which I doubt -- you will see 200+ Obama appointees take Senior Status and be replaced by newer and younger zealots similar to those Biden appointed and the Senate confirmed. In addition, there will be some GOP appointed judges who will not be able to hold on until 2032, and naming their replacements will further imbalance the district courts with even more liberal progressive district judges.