Beldar as Polonius: Roe redux in the Fifth Circuit

I did a frenzy of blogging over the weekend, most of it in comments elsewhere rather than on my own blog. What can I say? I like to argue, especially (but not always only) when the topic's something I think I know something about. Hence, when I saw a post over at Burnt Orange Report entitled "This is why the Circuit Courts Matter," it was like someone waving a stalk of corn under Bevo's nose. I like that blog and I like its bloggers, even though we're on opposite sides of the political spectrum. This particular post mentioned the Bill Pryor recess appointment to the Eleventh Circuit, which I'd just been blogging about myself, but its main focus was on the very curious story of how the then-pregnant and pseudonymous "Jane Roe" of Roe v. Wade fame is now trying to reopen her original case. The specific news item prompting the post was a report that the Fifth Circuit had agreed to hear oral argument on her appeal from the decision of the district judge who'd thrown her case out of court.

So I mustered up a small head of steam, adopted my most reasonable, mildly humorous tones, and waded into the comments on the post to explain that the Fifth Circuit's decision to hear oral argument really isn't as big a deal as the mainstream media has made it out to be. Unlike the Supremes, the Courts of Appeals don't get to pick and choose what cases they must resolve; they can't duck a ruling altogether. And while they can and do resolve a large percentage of their appeals without oral argument, there are all sorts of reasons why a case might get put on the oral argument calendar that have nothing to do with the likelihood that the Fifth Circuit is ultimately going to reverse the district court's decision.

And as comments, especially on political blogs, tend to do, things began to roll. I got into a bit of a debate. My one comment became three, then five, then — I dunno, I've lost count. My arguing partner in the comments is convinced that the oral argument calendaring of the case isn't as meaningless as I'm insisting; he smells the proverbial Vast Right-Wing Conspiracy, perhaps as implemented by the Fifth Circuit's reputedly most conservative active-status judge, the Hon. Edith Jones. But by the end of the weekend, I felt like the commenting fever, at least on my part, had about run its course. By that point I was feeling a bit of a blogging hangover, so to speak, but not a bad one. I was thinking myself to have been a bit like Polonius in Hamlet (Act 2, Scene 1) when he's been dispensing all that good advice — maybe a bit stuffy and pompous, but hey, I've got gray hair and I earned it, and Fifth Circuit procedures really are a subject I know something about from my clerkship days and as a practicing lawyer.

So I'm about to leave the office today and, as is not unusual on a weekday when 5:00pm has come and gone and the phones have quieted down, I flip through my Favorites to skim a few of the blogs I regularly read.

Suddenly, I'm not Polonius calmly dispensing sound advice! Instead, I'm — what? — what's that coming through the curtain?!? A blade? Or is it ... OMG, it's the amazing and seemingly omniscient Howard Bashman of How Appealing, who reports that the oral argument for the Roe redux appeal was calendared to be heard by a panel that included not only Judge Jones, but also controversial recess appointee Judge Charles Pickering, about whom I've also recently blogged!

As I drop to my metaphorical knees and clutch my chest, my eyes track down to Bashman's update. No, Judge Pickering now mysteriously appears to be off the panel, and ... and ...

What's this? Another update?!? Arrgh, the blade twists in my chest! According to the update, the Roe redux appeal has been de-calendared! And by order of the Hon. Edith Jones to boot, it seems! (Judge Jones' blade has even stricken the motions by "Concerned Law Professors" to file an amicus brief and participate in the argument, so I may not be the only wounded Polonius staggering around today.)

I thought my lengthy comments on Burnt Orange Report had covered, one way or another, just about every procedural possibility that could have occurred with the handling of this appeal. But no — the one possibility that I hadn't discussed, or foreseen, was de-calendaring from the oral argument calendar. I confess that I'm entirely unfamiliar with this unusual process. I'm guessing that the amicus motions went to Judge Jones as the senior active-status judge on the panel that had been set to hear the oral argument, and I'm likewise guessing that in that capacity — perhaps sua sponte? — she had the ability to unilaterally de-calendar the case.

With considerable understatement — perhaps he doesn't realize that I'm bleeding all over the floor here, me and the Concerned Law Professors! — Bashman writes that "the plot thickens." Actually, perhaps it's not understatement, but altogether too much melodrama for those who're all too ready to believe that the VRWC has already largely succeeded in its plot to take over the courts, the government, the world!

Gasping, Beldar-Polonius crawls from behind the curtain as Bashman further solemnly intones, "Presumably the court will issue a ruling in the not too distant future on the merits of the appeal."

"Yes," I sputter, "presumably so!"

But Polonius, after all, was not the intended target of Hamlet's blade (Act 3, Scene 4), nor really even a rat, but just a bit player, a poor fool behind the curtain. And Hamlet ended in tragedy, its eponymous hero slain along with the wicked King. How shall this drama end? In tragedy or triumph, and for whom?

As Beldar-Polonius drags his stricken shape along the floors of Elsinore Castle — or are these the marbled floors at 600 Camp Street in New Orleans? my eyes grow so dim, my metaphors so mixed! — he mumbles to himself: "Wouldn't it be a cosmic hoot if (as seems likely) the removal of Roe redux from the oral argument calendar merely presaged the summary affirmance of the district court's opinion, without oral argument, rather than a vast right-wing conspiracy to overturn Roe? And if so, wouldn't it be ironic if that sword is in fact wielded by Judge Jones?"

Someone get me a few flights of angels to sing me to my rest. This is making my head hurt.