It Seems One Or Two DC Court Of Appeals Judges… Want To Ask About “Bias”… Y A W N.

At lunchtime (which seems days ago now!), we saw an order out of DC — on the Flynn rehearing argument schedule, allocating 20 minutes each, to all three parties, for August 11.

What is more intriguing — in today’s order (given that we already know the hint was at least some of the full Circuit’s judges were wondering aloud how mandamus from Flynn’s camp was appropriate, without any order to appeal from, at least not a dispositive one, signed by USDC Judge Emmet Sullivan) — is that at least some others are wondering if Judge Sullivan should have recused himself for “the appearance of bias” [that’s what 28 U.S.C. §§ 455 refers to]. Here’s the text, in full, then:

. . . .PER CURIAM ORDER, En Banc, [1855133] ORDERED that the following times are allotted for the en banc oral argument of this case scheduled for August 11, 2020, at 9:30 A.M. via teleconference: Petitioner, Michael T. Flynn – 20 Minutes, U.S. Department of Justice – 20 Minutes, and Hon. Emmet G. Sullivan – 20 Minutes.

It is FURTHER ORDERED that, in addition to the issue set forth in the court’s order filed July 30, 2020, the parties be prepared to address at oral argument the effect, if any, of 28 U.S.C. §§ 455(a) and 455(b)(5)(i) on the District Court judge’s Fed. R. App. P. 35(b) petition for en banc review.

Directing parties to file Form 72 notice of arguing attorney by 08/07/2020.

Before Judges: Srinivasan, Henderson, Rogers, Tatel, Garland, Griffith, Millett, Pillard, Wilkins, and Rao. . . .

It is entirely unclear to me that the mere asking of questions, by a judge amounts to “the appearance of bias.”

And. . . I think I’ll stop there, since I’m aware of all the frothy right’s decidedly manufactured consternation about Jim Comey’s speaking engagements, via a claimed introduction, from Sullivan (but conveniently the same hard right bloggers had zero problems with the speaking engagements of Scalia, himself — and those of others who appear at The Federalist’s confabs). No, this outrage is highly selective — aimed solely at Judge Sullivan’s having had a social acquaintance named. . . Jim Comey.

In sum, it is — to me — all rather. . . yawn-inducing. Not even an appearance of bias, at all, that is. Grin.


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