Beard v. Kindler
The Court today heard arguments in Beard v. Kindler. With Justice Alito apparently recusing himself the Government needed to pick up both Justice Kennedy and one other Justice in addition to every Justice in its usual block of justices (the Chief, Scalia, J., and Thomas, J.). The oral argument transcripts suggest they didn’t get it, with Justice Kennedy wondering aloud, p. 5-6, on whether the Court was hoodwinked in to taking a case it shouldn’t have taken.
If the oral argument in anyway foretells the ultimate decision in Kindler, it will not be the sort of repudiation of precedent some have forecasted & may well result in a DIG or summary affirmance. From this vantage point, Ronald Eisenberg, arguably one of the fiercest appellate advocates for team law enforcement, simply didn’t have a good day before the Court.
November 3rd, 2009 at 2:55 pm
Not sure that the murderer’s lawyer had such a great oral argument either. I’d say DIG’s a pretty remote possibility, and affirmance appears out of the question. I think, at the end of the day, there is very little likelihood that SCOTUS is going to let a fugitive profit from his escape.
November 3rd, 2009 at 11:50 pm
Sean I don’t see 5 votes here for the petitioner or respondent after reading the transcripts, although I get to five more easily for the condemned. I do see some sort of mangled attempt at pleasing nobody. DIG or 4-4 affirmance seems the most likely outcome.
November 4th, 2009 at 5:58 pm
It seems you’re right regarding Ronald Eisenberg:
http://www.scotusblog.com/wp/a-question-of-federalism-fades/
Joachim
November 4th, 2009 at 11:33 pm
Ron is a good advocate, I just think he blew it.
November 5th, 2009 at 2:39 pm
We shall see. I cannot imagine that the 3d Circuit’s judgment will remain intact. I’d bet on a narrow opinion that either holds that the bar should have been respected or sets a standard in a fugitive case that’s impossible to meet.